658A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS

THE 2018 PHILIP C JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

THE CASE CONCERNING THE EGART AND THE IBRA

PEOPLE’S DEMOCRATIC REPUBLIC OF ANDUCHENCA

APPLICANT


v.


FEDERAL REPUBLIC OF RUKARUKU

RESPONDENT

MEMORIAL FOR THE APPLICANT

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………………... ii
INDEX OF AUTHORITIES………………………………………………………………… iv
STATEMENT OF JURISDICTION …………………………………………………..…..xiii
QUESTIONS PRESENTED ………………………………………………………………..xiv
STATEMENT OF FACTS …………………………………………………….……………xv
SUMMARY OF PLEADINGS ………………………………………………………...…xviii
WRITTEN PLEADINGS

I. The Arbitral Award of 2 March 2017 is not valid. ............................................................ 1

A. The Tribunal did not have jurisdiction when it rendered the Award. ............................. 1
1. The Tribunal acted without jurisdiction ratione personae. ..................................... 1
2. The Tribunal acted without jurisdiction rationemateriae........................................ 3
3. Rukaruku may not invoke the principle of compétence de la compétence. ............ 5
B. The irregularities committed during the proceedings render the Award invalid. ........... 7
1. The Award may be annulled based on irregularities committed during the
proceedings. ....................................................................................................................... 7
2. There is sufficient basis to annul the Award. .......................................................... 7
II. Rukaruku violated Article 6 of the FCN Treaty when the Egart operated in
Anduchenca’s territorial sea, but Anduchenca did not violate Article 7 of the FCN treaty
when it captured the Egart. ...................................................................................................... 10
A. Rukaruku violated Article 6 of the FCN Treaty when the Egart operated in
Anduchenca’s territorial sea ................................................................................................ 10
1. Rukaruku violated the territorial sovereignty of Anduchenca when the Egart
entered Anduchenca’s territorial sea. ............................................................................... 10
2. The act is attributable to Rukaruku........................................................................ 14
3. Rukaruku is not precluded from wrongfulness...................................................... 14
B. Anduchenca did not violate Article 7 of the FCN Treaty when it captured the Egart .. 15
1. Anduchenca did not violate Rukaruku’s freedom of navigation. .......................... 15
2. Anduchenca lawfully captured the Egart pursuant to its maritime security law. .. 16
3. The Egart may not invoke sovereign immunity. ................................................... 17
III. Anduchenca did not violate Article 16 of the FCN Treaty by commissioning and
operating the Ibra. .................................................................................................................... 17
A. Anduchenca did not import or export weapons and ammunition without the express
approval of appropriate government agencies. .................................................................... 17
1. Anduchenca did not import or export weapons and ammunition. ......................... 18
2. The approval of Rukaruku is not required. ............................................................ 18
B. Anduchenca did not violate any disarmament obligations under international law. .... 19

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1. Anduchenca did not violate customary law. .......................................................... 19

2. Anduchenca is justified in commissioning and operating the Ibra. ....................... 22
IV. Rukaruku violated Article 17 of the FCN Treaty when it attacked the Covfefe and when
it captured the Ibra. .................................................................................................................. 24
A. Rukaruku violated Article 17 when it attacked the Covfefe. ........................................ 24
1. The attack against the Covfefe was an unlawful use of force by Rukaruku. ........ 24
2. The attack was not justified. .................................................................................. 26
B. Rukaruku violated Article 17 when it captured the Ibra. .............................................. 29
1. The capture of the Ibra is an unlawful use of force against the territorial integrity
and political independence of Anduchenca. .................................................................... 29
2. The attack and captureof the Ibra is not justified by self-defense ......................... 31
PRAYER FOR RELIEF .......................................................................................................... 33

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INDEX OF AUTHORITIES
Page
TREATIES AND CONVENTIONS
1962 Amendments to the 1954 International Convention for Prevention of 11
Pollution of the Sea by Oil (adopted 11 April 1962, entered into force 18
May/28 June 1967)600 UNTS 332
1996 Protocol to Convention on the Prevention of Marine Pollution by 22
Dumping of Wastes and Other Matter 1972 (adopted 07 November 1996,
entered into force 24 March 2006) 36 ILM 1 (1997)
Arms Trade Treaty (adopted 2 April 2013, entered into 24 December 2014) 18
Convention on the International Regulations for Preventing Collisions at 11
Sea (adopted 20 October 1972, entered into force 15 July 1977) 1050
U.N.T.S. 16
Convention on the Prevention of Marine Pollution by Dumping of Wastes 10
and Other Matter (adopted 29 December 1972, entered into force 30
August 1975) 1046 UNTS 138
Convention on the Recognition and Enforcement of Foreign Arbitral 2
Awards (adopted 10 June 1958, entered into force 7 June 1959) 330
U.N.T.S. 38
Convention on the Settlement of Investment Disputes Between States and 1,2,4,8
Nationals of Other States (adopted 3 March 1965, entered into force 14
October 1966), 575 U.N.T.S. 159
International Convention for Prevention of Pollution from Ships of 1973, 11
as amended by the 1978 Protocol (adopted 02 November 1973, entered
into force 02 October 1983) 1340 UNTS 61, 184
International Convention for the Unification of Certain Rules relating to 17
the Immunity of State-Owned Vessels (adopted 10 April 1926, entered into
force 08 January 1927), 176 LNTS 199
Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968 20
entered into 5 March 1970) 729 U.N.T.S. 161
Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017) 3
United Nations Convention on the Law of the Sea (adopted 10 December 13,15,16,17,26,
1982, entered into force 1 November 1994) 1833 U.N.T.S. 397 30,31
Vienna Convention on the Law of Treaties (entered into force 23 March 4,7,18,19,20
1976), 999 U.N.T.S. 171
Responsibility of States for Internationally Wrongful Acts (2001) (ASR) 26
Annex GA Res 56/83
ILC, Responsibility of States for Internationally Wrongful Acts, GA Res 10, 26,14
56/83, UN Doc A/RES/56/83 (28 January 2002) annex, art 2

UN DOCUMENTS
Charter of the United Nations (entered into 24 October 1945) 1 U.N.T.S. 19,24,26,27
XVI
Convention on the Territorial Sea and Contiguous Zone (adopted 29 April 10
1958, entered into force 10 September 1964) 516 UNTS 205
Hudson, ‘Working Paper on Art. 24 of the Statute of the International Law 20, 22
Commission,’ [1950] U.N. Doc. ACN.4/16
SC Res 660 (2 August 1990), 45 UN SCOR Resolutions and Decisions of
the Security Council (1990) UN Doc S/INF/46 (1990).
Statute of the International Court of Justice, 59 Stat. 1055 (1945) art 36 6,7

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(‘ICJ Statute’).
Statute of the Permanent Court of International Justice (entered into force 6
20 August 1921) 6 L.N.T.S. 397, 390 

U.N. Conference on Trade and Development, ‘Dispute Settlement: 10
International Centre for the Settlement of Investment Disputes, Consent to
Arbitration’ (2003) UNCTAD/EDM/Misc.232/Add.2.
UNCITRAL, ‘Arbitration Rules as Revised in 2013’, (2013) art 12(1) 7,8
UNCITRAL, ‘Model Law on International Commercial Arbitration 1985 4,6
with Amendments as Adopted in 2006’, (7 July 2006) A/40/17
UNGA Res 3314 (1974) 24

OTHER INTERNATIONAL INSTRUMENTS

1977 Additional Protocol 1 (entered into 7 December 1978) 1125 U.N.T.S. 29
3

Documents of the Fifth Session Including the Report of the Commission to 7

the General Assembly’ (1953) II ILC Yearbook
International Council for Commercial Arbitration, ‘Young ICCA Guide for 9
the Appointment and Use of Arbitral Secretaries’ (2014)
International Law Commission, ‘Model Rules of Arbitral Procedure with a 10
General Commentary’ (1958) II ILC Yearbook

ICJ AND PCIJ CASES

Aerial Incident of 10 March 1953 (United States of America v 2
Czechoslovakia) (Order) [1956] ICJ Rep 6
Antarctica Cases (United Kingdom v Argentina) (United Kingdom v Chile) 2
[1956] ICJ Rep 12
Application of the International Convention on the Elimination of All 3
Forms of Racial Discrimination (Georgia v Russian Federation)
(Preliminary Objections Judgment) [2011] ICJ Rep 2011
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) 6
[1991] ICJ Rep 53
Armed Activities on the Territory of the Congo (Democratic Republic of 21
the Congo v. Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep
2006 [90]
Asylum Case (Colombia vs Peru) (Judgment) [1950] ICJ Rep1950 20
Case concerning Military and Paramilitary Activities in and against 4,6,10,19,24,27
Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ 29
Rep 1986
Case Concerning Oil Platforms (Iran v United States of America) 4,5
(Preliminary Objection Judgment) [1996] ICJ Rep 1996
Case Concerning Oil Platforms (Iran vs United States) (Merits) [2003] ICJ 29
Reports 2003
Case Concerning the Arbitral Award Made by the King of Spain on 23 6
December 1906 (Honduras v Nicaragua) (Merits) [1960] ICJ Rep 192
Case Concerning the Gabcikovo-Nagymaros project (Hungary v Slovakia) 2
(Judgment) [1997] ICJ Reports 1997
Corfu Channel Case (United Kingdom. v Albania) (Merits) [1949] ICJ Rep 1,2,15,
4.

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Corfu Channel Case (United Kingdom v Albania) (Preliminary Objections) 19

[1948] ICJ Rep 15
Corfu Channel Case (United Kingdom v Albania) (Merits) [1949] ICJ Rep 20
4, 28;
Federal Republic of Germany v Netherlands) (Judgment)[1969] ICJ Rep 22
1969[73];
Fisheries case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 3 12
[131];
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania 17
(Advisory Opinion) [1950] ICJ Rep 65
Interpretation of the Greco-Turkish Agreement (Advisory Opinion) PCIJ 10
Rep Series A No 16 (19) 20
Legal Consequences of the Construction of a Wall in the Occupied 11
Palestinian Territory (Advisory opinion) ICJ Rep 2004 136
Legality of the Threat or Use of Nuclear Weapons(Advisory Opinion) 27
[1996]ICJ Rep 2
Maritime Delimitation and Territorial Questions Between Qatar and 25
Bahrain (Qatar v Bahrain)(Judgment) [2001] ICJ Rep 91.
Mavrommatis Palestine Concessions (Greece v United Kingdom) (Merits) 22
PCIJ Rep Series A No 2
North Sea Continental Shelf Cases (Federal Republic of Germany v 12
Denmark;
Payment in Gold of the Brazilian Federal Loans Issued in France (France 15
v Brazil) (Merits)
South West Africa Cases (Ethiopia v South Africa) (Liberia v South Africa) 14
(Preliminary Objections Judgment) [1962] ICJ Rep 319
Territorial and Maritime Dispute (Nicaragua v Colombia) 3
(Judgment)[2012] ICJ Rep 666
The Case of S.S. Lotus (Judgment) [1927] PCIJ Rep Series A., No. 10; 5
The Payment of Various Serbian Loans Issued in France(France v 4
Brazil)(Merits) PCIJ Rep Series A No 20
Treatment in Hungary of Aircraft and Crew of the United States of 2
America (United States of America v Hungary) (United States of America v
USSR)(Order) [1954] ICJ Rep 103
United States Diplomatic and Consular Staff in Tehran (United States vs 5
Iran) (Judgment) ICJ 1 1980

OTHER INTERNATIONAL CASES

Abaclat and Others v Argentine Republic [2011] ICSID Case No. 8
ARB/07/5
Affaire relative à la concession des phares de l’Empire ottoman (Greece v 14
France) (1956) 12 RIAA 155
Austrian Airlines v Slovak Republic (Final Award) [2009] UNCITRAL 1
Award in the arbitration regarding the delimitation of the maritime 4
boundary between Guyana and Suriname (Award)[2007] ICGJ 370
Burlington Resources Inc. v Republic of Ecuador (Decision on the 8,9
Proposal for Disqualification of Professor Francisco Orrego Vicuna)
[2013] ICSID Case No. ARB/08/5
Case concerning the difference between New Zealand and France 14

vi
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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 (1990) 20 RIAA 215.
In the Matter of an Arbitration Under the Arbitration Agreement Between 7,8
the Government of the Republic of Croatia and the Government of the
Republic of Slovenia, Signed on 4 November 2009 (Croatia v Slovenia)
(Partial Award) [2016] PCA Case No 2012-04
Island of Las Palmas Case (United States v The Netherlands) [1928] PCA 17,25
Vol II 838-871
M.C.I Power Group L.C. v Ecuador (Award) [2009] ICSID Case No 4
ARB/03/6
M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v. Guinea) 6
(Judgment) ITLOS Reports 1999
National Gas S.A.E. v Arab Republic of Egypt (Award) [2014] ICSID Case 7
No ARB/11/7.
Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory 12
Appeal on Jurisdiction) [1995] ICTY-94-1
Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory 22
Appeal on Jurisdiction) ICTY-94-1 (2 October 1995)
Prosecutor v Tadic(Judgment) [2000] ICTY-94-1. 10
Prosecutor v Tadic(Jurisdiction) [2000] ICTY-94-1 [70] 10
Repsol S.A. and Repsol Butano S.A. v Argentine Republic (Decision on the 27
Proposal for Disqualification of Professor Francisco Orrego Vicuna and
Claus von Wobeser) [2013] ICSID Case No. ARB/12/38
Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) 25
(Provisional Measures, Order of 27 August 1999), ITLOS Rep 1999, Sep.
Op. Laing, [16] note 6 (precautionary principle not customary law);
Southern Pacific Properties (Middle East) v Arab Republic of Egypt 11
(Award) [1992] ICSID Case No ARB/84/3.
The ‘ARA Libertad’ Case(No 20) (Argentina v. Ghana) (Order of 15 22
December 2012) ITLOS Reports 21.

NATIONAL CASES
Base Metal Trading, Ltd. v OJSC (Base Metal Trading I), 283 F.3d 208 1
(4th Cir. 2002)
Compania Espanola v The Navemar(1938) 303 US 68 26
Cour d’appel de Paris, Pôle 1-Chambre 1, Judgment of 17 February 2015 13
(No. 77), RG No. 13/13278.

Glencore Grain Rotterdam B.V. v Shivnath Rai Harnarain Co. (Glencore 1
Grain), 284 F.3d 1114 (9th Cir. 2002)
HSN Capital LLC v. Productora y Comercializador de Television, S.A. de 11
C.V., 2006 WL 1876941 (M.D. Fla. 5 July 2006).
Republic of Mexico v Hoffman(1945) 324 US 30. 26
The Exchange v McFaddon11 US (7 Cranch) 116 (1812). 15
United States Ex Rel. Stapf vs Corsi, 287 US 129, 130 (1932); 23
US vs Flores 541 US 149 (2004). 25

NATIONAL LEGISLATION
Australian International Arbitration Act 1974 2

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German Arbitration Act 1998 2

Swedish Arbitration Act of 1999 ss 34(1), 36 6
Swiss Private International Law Statute 1990 2

BOOKS AND TREATISES

Anthony Clark Arend, International Law and the Preemptive Use of 22,23,24
Military Force (The Washington Quarterly, 2003)
Aron Broches, ‘Observations on the Finality of ICSID Awards,’ in 7
Selected Essays: World Bank, ICSID, and Other Subjects of Public and
Private International Law (Springer, 1995)
Ashley Deeks, ‘Part III The Prohibition of the Use of Force, Self-Defence, 27
and Other Concepts, Ch. 29 Taming the Doctrine of Pre-Emption’, Oxford
Handbook of the Use of Force in International Law (Oxford, 2012)
Bryan A. Garner, Black’s Law Dictionary (West, 1999) 1
Charles Ferguson, William Perry, and Brent Scowcroft, ‘U.S. Nuclear 23
Weapons Policy’ (Council on Foreign Relations, 2009)
Chester Brown, A Common Law of International Adjudication (Oxford 6
University Press, Oxford 2007)
Dapo Akande, ‘Nuclear weapons, unclear law? Deciphering the Nuclear 28
Weapons Advisory Opinion of the International Court’, British Yearbook
of International Law, (Vol. 68, 1997)
E.D. Brown, The International Law of the Sea, (Dartmouth Publishing, 24
1994)
F. Ngantcha, The Right of Innocent Passage and the Evolution of the 11
International Law of the Sea (Pinter Publishers, London 1990)
Gary Born, International Arbitration: Law and Practice, (Kluwer Law 25
International, Netherlands 2016)
Georg Nolte and Albrecht Randelzhofer, ‘Ch. VII Action with respect to 22
threats to the peace, breaches of the peace, and acts of aggression’, in The
Charter of the United Nations; A commentary 3rd ed(Oxford 2012)
Henry Campbell Black, Black’s Law Dictionary 6th ed (West Publishing 9
Co., 1990)
Shearer, ‘Navigation Issues in the Asian Pacific Region’, in J.Crawford 5
and D.Rothwell (eds), The Law of the Sea in the Asian Pacific Region,
(Dordrecht 1995).
James A. Green, The Persistent Objector Rule in International Law 3
(Oxford University Press, 2016).
James Green, TheInternational Court of Justice and Self-Defence in 7
International Law (Hart Publishing, 2009)

Jean Pictet (ed.), ‘Commentary on the Geneva Conventions of 12 August 6
1949’Vol. 1: Geneva Convention for the Amelioration of the Condition of
the Wounded and Sıck in Armed Forces in the Field (ICRC, Geneva 1952)
John Bassett Moore, A Digest of International LawII, 24-30, 409-14; VI, 10
261-62; VII, 919-20(Washington, 1906).
John Burke, Jowitt’s Dictionary of English Law, (Sweet & Maxwell, 3
1977), Vol. 1, 1034
Joseph H.H. Weiler, ‘The Autonomy of the Community Legal Order: 1
Through the Looking Glass’ in Joseph H.H. Weiler, The Constitution of
Europe ‘Do the New Clothes have an Emperor?’ and other Essays on
European Integration (OUP, Oxford 1999)

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Kathleen C. Bailey, Strengthening Nuclear Nonproliferation (Routledge, 12

1993)
L. Oppenheim, International Law, (Longmans, London 1951) 11
LFL Oppenheim, International Law, in: H. Lauterpacht (ed.), Disputes, 10
War and Neutrality, (7th ed. 1952)
Marco Sassòli, Antoine Bouvier and Anne Quintin, ‘How Does Law 5
Protect in War?’ (Vol.1, 3rd edition, ICRC, Geneva 2011)
Michael Doyle, Striking First (Princeton University Press, 2008) 14–15 4
(noting that extreme Caroline-type conditions are rarely found in reality)
Michael Waibel, Max Planck Encyclopedia of Public International Law, 2
(OUP, Oxford 2010) Vol. II, 792-797
Michael Walzer, Just and Unjust Wars (Basic Books, New York 1977), 22
76–9
Nadja Erk, Parallel Proceedings in International Arbitration: A 32
Comparative European Perspective (Kluwer Law International,
Netherlands 2014)
Onkar Marwah and Ann Schulz, Nuclear Proliferation And The Near- 30
Nuclear Countries (Harper Collins Distribution Services, 1975)
Prussian Decree Case, Entscheidungen des Presussischen 28
Oberverwaltungsgersichts, (vol 90, 1910)
R. Higgins, ‘The Attitude of Western States Towards Legal Aspects of the 25
Use of Force’ in Cassese, The Current Legal Regulation of the Use of
Force (Martinus Nijhoff Publishers, 1986)
SKN Blay, ‘Territorial Integrity and Political Independence,’ Max Planck 27
Encyclopedia of Public International Law (Oxford University Press,
Oxford 2010)
T. O. Elias, The Modern Law of Treaties (Oceana Publications, 1974) 23
Thamarappallil Kochu Thommen, Legal Status of Government Merchant 12
Ships in International Law, (India, 1962)
US vs William List et al. (Case no. 7)’,Trials of War Criminals Before the 16
Nuernnberg Military Tribunals, Vol XI, (1950)
Ximena Hinrichs Oyarce, ‘Pueblo Incident’ Max Planck Encyclopedia of 14
Public International Law (Oxford University Press, Oxford 2010)
Yoram Dinstein, War, Aggression, and Self-Defence (Cambridge
University Press, 2005)
Zachary Douglas, The International Law of Investment Claims (Cambridge 12
University Press, 2009)

ARTICLES
Andrew H. Henderson, ‘Murky Waters: The Legal Status of Unmanned 11
Undersea Vehicles’ [2006] 53 Naval L. Rev. 55
Christian Marxsen, ’Territorial Integrity in International Law- Its Concept 24
and Implications for Crimea’, ZaöRV 75 (2015)
Christoph Schreurer, ‘Consent to Arbitration’ (2007) 1
<http://www.univie.ac.at/intlaw/con_arbitr_89.pdf> accessed 29 December
2017.
Doug Jones, ‘Kompetenz-Kompetenz’ [2009] 75(1) Arbitration: The 6
Journal by the Chartered Institute of Arbitrator
J Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’ 14,16
(1981) 75 AJIL 820, 862

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James Crawford, ‘Continuity and Discontinuity in International Dispute 17

Settlement: An Inaugural Lecture’ [2010] 1 JIDS 3–24, 16 <
https://academic.oup.com/jids/article/1/1/3/879365> accessed 30
December 2017
James Crawford, The International Law Commission’s Articles on State 7
Responsibility (Cambridge University Press, Cambridge 2002)

James Green, ‘India's Status as a Nuclear Weapons Power under 8

Customary International Law’ [2012] 24 National Law School of India
Review 125.
Jasmine Moussa, ‘Can jus ad bellum override jus in bello? Reaffirming the 6
Separation of the two bodies of law’ (International Review of the Red
Cross, Vol. 90 2008)
Kraska, James, ‘Putting Your Head in the Tiger’s Mouth: Submarine 5
Espionage in Territorial Waters’ [2015] 54 CJTL 16
<http://jtl.columbia.edu/putting-your-head-in-the-tigers-mouth-submarine-
espionage-in-territorial-waters/> accessed 30 December 2018.
Lee Taube Gabardo, ‘Is the Competence-Competence Principle Threatened 3
in Brazil?’ (Kluwer Arbitration Blog) <
http://arbitrationblog.kluwerarbitration.com/2014/03/19/is-the-
competence-competence-principle-threatened-in-brazil/?print=print>
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Mingda Qiu, ‘China’s Science of Military Strategy: Cross domain concepts 2
in the 2013 edition’ [2015]
<http://deterrence.ucsd.edu/_files/Chinas%20Science%20of%20Military%
20Strategy%20Cross-
Domain%20Concepts%20in%20the%202013%20Edition%20Qiu2015.pdf
> accessed on 2 January 2018.
Miyoshi Masahiro, ‘The Submerged Passage Of A Submarine Through 1
The Territorial Sea —The Incident Of A Chinese Atomic-Powered
Submarine’, (2006) 10 SYBIL 243–250 247.
Nicholas Rostow, The World Health Organization, the International Court 25
of Justice, and Nuclear Weapons, (20 Yale J. Int'l L., 1995)
Peter Tzeng, ‘The Annulment of Interstate Arbitral Awards’ 24
<http://arbitrationblog.kluwerarbitration.com/2017/07/01/the-annulment-
of-interstate-arbitral-awards/> accessed 3 January 2018
Quoted in B Dorminey, ‘How Bad Would It Be if the Russians Started 15
Cutting Undersea Cables? Try Trillions in Damage’ Forbes (2 Nov 2015)
(as cited in Michael N. Schmitt, David S. Goddard, ‘International law and
the military use of unmanned maritime systems’ (2016) International
Review of the Red Cross page, 98 (2), 567, 570-571).

S Kaye, ‘Freedom of Navigation, Surveillance and Security: Legal Issues 20

Surrounding the Collection of Intelligence from Beyond the Littoral’
(1995) 24 Australian Ybk Intl L 93, 95
Sadie Blanchard, ‘State Consent, Temporal Jurisdiction, and the 16
Importation of Continuing Circumstances Analysis into International
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ext=law_globalstudies> accessed 2 January 2018.

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Thomas Ehrlich, ‘The Nonproliferation Treaty and Peaceful Uses of 19

Nuclear Explosives’
<http://www.repository.law.indiana.edu/facpub/1765> accessed 12
January 2018.
W. Michael Reisman, ‘The Breakdown of the Control Mechanism in 10
ICSID Arbitration’ [1989] Duke L.J. 739
<http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1864&co
ntext=fss_papers> accessed 2 January 2018.

MISCELLANEOUS
Arms control, Disarmament and Nonproliferation: French policy’ (Paris: 23
La Documentation Francais, 2000)
Louise Doswald-Beck (ed.), San Remo Manual on International Law 30
Applicable to Armed Conflicts at Sea (ICRC, 1995)

NATO, ‘The Alliance's Strategic Concept approved by the Heads of State 23

and Government participating in the Meeting of the North Atlantic
Council’, Press Release [1999]
[62]<https://www.nato.int/cps/en/natohq/official _texts_27433.htm>
accessed 6 January 2018
Oxford Public International Law, ‘Treaties of Friendship, Commerce and 4
Navigation’
<http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-
9780199231690-e1482> accessed 03 January 2018
Pass-through, n’ (Merriam Webster Online) <https://www.merriam- 12
webster.com/dictionary/pass-through> accessed 02 January 2018
The National Security Strategy of the United States (September 2002) 9
<www.whitehouse.gov/nsc/nss.html> accessed 10 January 2018
The National Security Strategy of the United States(2002) 5
<www.whitehouse.gov/nsc/nss.html> accessed 10 December 2017
The Regulation of the Innocent Passage of Ships in the Territorial Waters 17
Law 2011 (Cyprus)

Treaty of Friendship, Commerce and Navigation (People’s Democratic 16

Republic of Anduchenca – Federal Republic of Rukaruku) (12 March
1947), art 10(a) (‘FCN Treaty’).
U.S. Department of Navy, ‘The Commander's Handbook On The Law Of 12
Naval Operations--Annotated Supplement’ (1997)
<http://www.jag.navy.mil/documents/NWP_1-
14M_Commanders_Handbook.pdf> accessed 03 January 2018
United Kingdom Ministry of Defense, ‘UK nuclear deterrence: what you 26
need to know’ (2016) <https://www.gov.uk/government/publications/uk-
nuclear-deterrence-factsheet/uk-nuclear-deterrence-what-you-need-to-
know> accessed 1 December 2017.
US Navy, ‘The Commander's Handbook On The Law Of Naval 32

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Operations-Annotated Supplement’
<http://www.jag.navy.mil/distrib/instructions/AnnotatedHandbkLONO.pdf
> accessed 02 January 2018.

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STATEMENT OF JURISDICTION

The People’s Democratic Republic of Anduchenca (“Anduchenca”) and the Federal

Republic of Rukaruku (“Rukaruku”) respectfully submit the present dispute to the

International Court of Justice, pursuant to Article 48 of the Statute of the Court, and to

Articles 31, 44, 45(1), 48, 49, and 80 of the Rules of Court, and by virtue of the joint

Statement of Agreed Facts of 23 August 2017. The Parties agree to accept as final and

binding the Judgment of this Court and shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED

I. Whether the Arbitral Award of March 2, 2017 is valid

II. Whether Rukaruku violated Article 6 of the FCN Treaty when the Egart operated

in Anduchenca’s territorial sea, but Anduchenca did not violate Article 7 of the

FCN treaty when it captured the Egart

III. Whether Anduchenca violated Article 16 of the FCN treaty by commissioning and

operating the Ibra

IV. Whether Rukaruku violated Article 17 of the FCN Treaty when it attacked the

Covfefe and when it captured the Ibra

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STATEMENT OF FACTS

The People’s Democratic Republic of Anduchenca (“Anduchenca”) and the Republic

of Rukaruku (“Rukaruku”) are coastal states along the Kumatquesh coast of the Odasarra

Region. Anduchenca is a developing country of 20 million, while Rukaruku is a developed

country of 100 million. It has been the dominant military, economic, and diplomatic power in

the Odasarra Region.

On 12 March 1947, Anduchenca and Rukaruku signed their Treaty of Friendship,

Commerce, and Navigation (the “FCN Treaty”) which remains in force until this day. On 26

October 1967, Anduchenca’s military was able to successfully stage a coup d’etat, and

General RafiqTovarish was installed as the country’s Head of State and government, with the

title “Brotherly Leader of the Revolution.”

On 1 July 1968, all of the Odasarran States, except Anduchenca, signed and ratified

the Treaty of Non-Proliferation of Nuclear Weapons (the “NPT”). Anduchenca refused to

sign, ratify, or accede to the NPT because it perceives it as a means to establish or aggravate

the inherent inequality between nuclear-weapon States and non-nuclear–weapon States.

Similarly, all of the Odasarran States, again with the exception of Anduchenca, signed and

ratified the United Nations Convention on the Law of the Sea (“UNCLOS”) in December

1982. Anduchenca has explained its position because it deems the compulsory dispute

settlement mechanism therein as unnecessary.

The Egart

In August 2010, Anduchenca adopted a maritime security law requiring that any

foreign government vessel proposing to enter its territorial sea must first obtain prior

authorization. Anduchenca has, for decades, considered the breadth of its territorial sea to be

12 nautical miles from its coastal baseline.

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In August 2015, the Rukarukan Navy began employing autonomous underwater

vehicles (“AUVs”) in some of its naval operations in the Odasarra Region. These AUVs,

were programmed to remain at least 12 nautical miles from a State’s baseline, and have

sophisticated optical, acoustic, and sonar systems, as well as an advanced sense-and-avoid

system. They have the capability to detect, identify, and lift objects weighing less than 5

kilograms from the ocean floor.

In response, Anduchenca objected to Rukaruku’s use of these “spy drones” to conduct

surveillance of Anduchenca’s naval activities. General Tovarish addressed the United

Nations General Assembly, stating that this act espionage of Rukaruku is a hostile act

inconsistent with international law and threatening to international peace and security. He

further stated that if any of these spy drones find itself within Anduchenca’s territorial sea,

they will be captured and will not be returned.

On 29 October 2015, the Anduchencan Navy caught the Egart, a Rukarukan spy

drone, operating without permission less than 11 nautical miles from the coast of

Anduchenca, which was collecting and recording optical and acoustic data.

Rukaruku issued a formal demand for the Egart, stating that it was doing nothing

illegal, and was just to ensure the safe passage of ships. They further stated that its operations

are vital in ensuring the friendly trade and commerce in the Odasarra Region. Anduchenca

did not respond to the formal demand of Rukaruku.

The Arbitration Proceedings

Negotiations between Rukaruku and Anduchenca failed to result in a beneficial

resolution. Rukaruku therefore instituted Arbitration proceedings under Article 10(a) of the

FCN treaty, claiming that Anduchenca violated Article 7 of the FCN treaty when it captured

the Egart, and demanding its return. Anduchenca did not respond to the Request for

Arbitration.

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In the Request for Arbitration, Rukaruku named Judge Bhrasht Moyet as its party-

appointed arbitrator. Since Anduchenca failed to name its own arbitrator, the ICJ President

Judge Alice Bacal appointed the two other arbitrators in accordance with Article 10(a) of the

FCN Treaty. She appointed ITLOS Judge Mou Tong on behalf of Anduchenca, and herself as

the presiding arbitrator.

Two days later, Anduchenca sent a Note Verbale to the Arbitral tribunal, stating that

they will neither participate in the arbitration proceedings nor will they recognize the validity

of any award that might result therefrom, since the dispute does not fall within the scope of

Article 7 of the FCN treaty.

Despite these, the Arbitral tribunal nevertheless continued with the Arbitration

proceedings. On 2 March 2017, the tribunal rendered a 30-page award, stating that it did have

jurisdiction over the dispute, and that Anduchenca’s capture of the Egart was in violation of

Article 7 of the FCN treaty. It further ordered the return of the Egart to Rukaruku.

The “Ruka Ruse”

On 21 March 2017, the Institute for Legal Studies of Arbitration (“ILSA”) published

a report entitled “The Ruka Ruse,” stating that the arbitration was filled with procedural

infirmities. First, there was the issue of the private telephone conversations between Judge

Moyet and Rukaruku’s counsel for the arbitration, which puts to question the independence

of Judge Moyet throughout the arbitration. Second, the tribunal hired an “assistant” who

worked more hours on the case than the arbitrators, without the knowledge of the parties.

Finally, there was the issue of the published draft of the arbitral award, which was identical to

the final version.

The Ibra

In April 2017, news broke out that Anduchenca had commissioned a nuclear-armed

submarine, called the Ibra. This was confirmed by General Tovarish in a statement, saying

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that it is Anduchenca’s right to possess nuclear weapons, as a means of protecting themselves

against anyone that would infringe on their sovereignty. The UN Security Council issued

Resolution 3970, reaffirming its commitment to the NPT, and determining that the issue

within the Odasarra Region constitutes a threat to international peace and security.

The Covfefe

On 6 June 2017, two Rukarukan warships fired at and hit the Covfefe, a supply ship

located in the high seas, 250 nautical miles from the Anduchencan coast. The Covfefe was en

route to deliver provisions and personnel aboard the Ibra, which was also in the high seas.

The attack killed 10 Anduchencan sailors and 7 civilians employed by a private contractor

engaged by the Anduchencan Navy.

The Rukarukan Prime Minister confirmed that the attack came on his order, to

prevent any supplies from being delivered to the Ibra and therefore requiring it to surface. He

further confirmed that the goal was to eventually capture the Ibra, as he is empowered to do

so under the UN Security Council Resolution. General Tovarish on the other hand,

condemned the unprovoked attack on the Ibra, and prepared to respond in any way necessary

the prevent and stop attacks against Anduchenca.

On 14 June 2017, the tensions escalated between the two countries. The Rukarukan

Navy located the Ibra, and sent 6 warships to immediately enclose the submarine. They fired

a series of torpedoes to force the Ibra to surface, and then swept the deck with machine gun

fire when it surfaced. They subsequently boarded the submarine, took control, and brought it

to a naval base in Rukaruku. The crew were detained, questioned, and eventually repatriated

to Anduchenca.

The Ibra was subsequently dismantled, and all nuclear materials onboard had been

disposed of, under the supervision of Rukaruku, the two other NPT signatory states, and the

International Atomic Energy Agency (“IAEA”).

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Anduchenca later filed an Application instituting proceedings against Rukaruku for

the attack on the Covfefe and the capture of the Ibra.

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SUMMARY OF PLEADINGS

Pleading 1

Anduchenca objects to the validity of the Arbitral Award of 2 March 2017 because

the Tribunal did not have jurisdiction when it rendered the Award and because of the

irregularities that attended the Arbitral proceedings.

The Arbitral Tribunal did not have jurisdiction ratione personae because Anduchenca

did not give its consent to the arbitration proceedings, and continuously objected to the

tribunal’s exercise of jurisdiction over it.The Arbitral Tribunal also did not have jurisdiction

rationemateriae, because the present dispute is outside of the scope of the FCN Treaty. The

FCN Treaty only covers commercial activities, and the Egart was not engaged in a

commercial activity at the time of its capture. Rukaruku may not invoke the principle of

compétence de la competencebecause this doctrine may not be invoked to overcome State

consent and jurisdiction rationemateriae.

The irregularities that attended the arbitral proceedings also render the Award invalid.

The private telephone conversations between one of the Judges and Rukaruku’s counsel, the

non-disclosure of the arbitral secretary’s appointment, and the preparation of the draft by the

arbitral secretary constitute sufficient basis to annul the Award.

Pleading 2

Rukaruku violated Article 6 of the FCN Treaty because the Egart’s incursion into

Anduchenca’s territorial sea was a violation of its territorial sovereignty. The Egart cannot

enjoy the right of innocent passage because it is neither a ship nor a submarine and its

passage was not innocent at the time of capture.

The Egart’s operations was also attributable to Rukaruku because it was employed by

the Rukarukan Navy. It is not precluded from wrongfulness due to force majeure because the

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Egart was under the control of Rukaruku and its performance international law obligations is

still not materially impossible.

Corollarily, Anduchenca did not violate Article 7 of the FCN Treaty when it captured

the Egart. Anduchenca did not violate Rukaruku’s freedom of navigation because the Egart

was not engaged in innocent passage at the time of its capture. Furthermore, the capture was

pursuant to its own maritime security law, which was violated by Rukaruku. The Egart also

does not enjoy sovereign immunity since there is no customary norm granting sovereign

immunity to AUVs.

Pleading 3

Anduchenca did not violate Article 16 of the FCN Treaty because first, there was

neither importation nor exportation of weapons and ammunition in commissioning the Ibra.

Even if Anduchenca primarily exports uranium, there is nothing in the agreed facts that could

lead this Court to conclude that the Uranium was exported.

Second, the “appropriate government departments” in Article 16 of the FCN Treaty

should mean the local government department from whom an express approval is required.

Even if the Court was to find that there was importation or exportation, Anduchenca has

complied with the approval,through General Tovarish’s public statements.

Third, Anduchenca is not bound by any disarmament obligation because it is not a

signatory to the NPT, and because there is no customary international law prohibiting

Nuclear Weapons. Neither the threat, nor the mere possession of such, is a violation of

international law, because of the doctrine self-defense and deterrence provided by the UN

Charter.

Pleading 4

Rukarukuviolated Article 17 of the FCN Treaty when it attacked the Covfefe and

captured the Ibra. It violated the territorial integrity and political independence of

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Anduchencawhich is imbued inthe Covfefe and the Ibra under the UN Charter. Moreover,

there was a violation of IHL’s core principles of distinction and proportionality because it

fired a series of ballistic missiles to an unarmed vessel.

UNCLOS as customary international law bestowed rights to Anduchenca even if it is

not a signatory,thus, Anduchenca may invoke a claim against Rukaruku. The Covfefe and the

Ibra have the right of sovereign immunitywhich was violated by Rukaruku when it destroyed

and captured the former.

Furthermore, the UN Security Council exceeded its jurisdiction when it adopted

Resolution No. 3790, which was the basis of the seizure and attack. Thus, there was no legal

basis under international law for Rukaruku’s destruction of the Covfefe and capture of the

Ibra. These acts should be considered as an act of aggression, and a violation of

Anduchenca’s territorial integrity and political independence.

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WRITTEN PLEADINGS

I. The Arbitral Award of 2 March 2017 is not valid.

A. The Tribunal did not have jurisdiction when it rendered the Award.

Jurisdiction refers to the power of a court or tribunal to entertain an action, petition or

other proceeding.1 A tribunal must be clothed with jurisdiction in order to render a valid

arbitral award.2In arbitration cases, several arbitral tribunals have refused to render an award

due to its lack of jurisdiction ratione personae (personal jurisdiction) or jurisdiction

rationemateriae(subject matter jurisdiction)3 over one of the parties.4

The Arbitral Award of 2 March 2017 is not valid because the Tribunal rendered it

without jurisdiction.

1. The Tribunal acted without jurisdiction ratione personae.

a. Anduchenca’s consent is required for the Tribunal to

acquire jurisdiction ratione personae.

Under the principle of consent, a State cannot be compelled to participate in

arbitration proceedings against its will.5In Corfu Channel,6 the ICJ laid down the

fundamental rule that consent provides the cornerstone for the exercise of jurisdiction by any

1
John Burke, Jowitt’s Dictionary of English Law, (Sweet & Maxwell, 1977), Vol. 1, 1034;
Bryan A. Garner, Black’s Law Dictionary (West, 1999); Zachary Douglas, The International
Law of Investment Claims (Cambridge University Press, 2009) [293].
2
Convention on the Settlement of Investment Disputes Between States and Nationals of Other
States (adopted 3 March 1965, entered into force 14 October 1966), 575 U.N.T.S. 159 art 25
(‘ICSID’).
3
Austrian Airlines v Slovak Republic (Final Award) [2009] UNCITRAL
4
Glencore Grain Rotterdam B.V. v Shivnath Rai Harnarain Co. (Glencore Grain), 284 F.3d
1114 (9th Cir. 2002); Base Metal Trading, Ltd. v OJSC (Base Metal Trading I), 283 F.3d 208
(4th Cir. 2002)
5
Christoph Schreurer, ‘Consent to Arbitration’ (2007)
<http://www.univie.ac.at/intlaw/con_arbitr_89.pdf> accessed 29 December 2017.
6
Corfu Channel Case (U.K. v Albania) (Merits) [1949] ICJ Rep 4.

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international court or tribunal, including itself.7 An arbitration tribunal does not have personal

jurisdiction over a State when the latter has not expressed its consent to the arbitration.8The

ICJ has previously ruled in several cases9 that it cannot exercise jurisdiction over disputes

where one of the parties objects to the court’s jurisdiction. Thus, in order to obtain

jurisdiction ratione personae over Anduchenca, the Tribunal must first obtain the latter’s

consent.10

b. Anduchenca did not consent to the arbitration proceedings.

In international arbitration, consent is typically given by the State on the basis of

treaties,11 in national legislation,12 through negotiated arbitration clauses in international

contracts,13 and general norms of international law.14Corollarily, the refusal to consent to

arbitration may be given by non-response to an invitation by the tribunal,15 or by a statement

of non-acceptance of jurisdiction.16 In case of doubt, State consent to jurisdiction must be

7
Corfu Channel Case (U.K. v Albania) (Preliminary Objections) [1948] ICJ Rep 15; Michael
Waibel, Max Planck Encyclopedia of Public International Law, (OUP, Oxford 2010) Vol. II,
792-797.
8
National Gas S.A.E. v Arab Republic of Egypt (Award) [2014] ICSID Case No ARB/11/7.
9
Treatment in Hungary of Aircraft and Crew of the United States of America (United States
of America v Hungary) (United States of America v USSR)(Order) [1954] ICJ Rep 103;
Aerial Incident of 10 March 1953 (United States of America v Czechoslovakia) (Order)
[1956] ICJ Rep 6; Antarctica Cases (United Kingdom v Argentina) (United Kingdom v Chile)
[1956] ICJ Rep 12.
10
ICSID art 25(1).
11
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into
force 1 November 1994) 1833 U.N.T.S. 397 (‘UNCLOS’); ICSID; Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (adopted 10 June 1958, entered
into force 7 June 1959) 330 U.N.T.S. 38 (‘New York Convention’).
12
Swiss Private International Law Statute 1990; German Arbitration Act 1998; Australian
International Arbitration Act 1974.
13
Waibel (n 7); U.N. Conference on Trade and Development, ‘Dispute Settlement:
International Centre for the Settlement of Investment Disputes, Consent to Arbitration’
(2003) UNCTAD/EDM/Misc.232/Add.2.
14
M.C.I Power Group L.C. v Ecuador (Award) [2009] ICSID Case No ARB/03/6.
15
Treatment in Hungary of Aircraft and Crew of the United States of America (United States
of America v Hungary) (Order) [1954] ICJ Rep 103.
16
Aerial Incident of 10 March 1953 (United States of America v Czechoslovakia) (Order)
[1956] ICJ Rep 6.

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upheld if, and only if, there is preponderance of evidence in its favor.17

The principle of consent also requires the Tribunal to ascertain and apply the shared

intention of the contesting States as to what disputes are within its jurisdiction.18Arbiter nihil

extra compromissumfacerepotest.19 Actions by a tribunal in excess of the agreement between

the parties renders the putative award null and void.20

Anduchenca sent a Note Verbale to Rukaruku and the members of the Tribunal,

stating that it “will neither participate in the arbitration proceedings nor recognize the validity

of any award that might result from them.21 It stated that the dispute concerning the Egart is

not arbitrable as it does not fall within the scope of Article 7 of the FCN Treaty.22 Clearly,

Anduchenca has expressed its non-acceptance of the jurisdiction of the Tribunal. Hence, the

Tribunal acted without jurisdiction, and the Award is null and void.

2. The Tribunal acted without jurisdiction rationemateriae.

A dispute is “a disagreement on a point of law or fact, a conflict of legal views or

interests between parties.”23 It must be shown that the claim of one party is positively

17
Southern Pacific Properties (Middle East) v Arab Republic of Egypt (Award) [1992] ICSID
Case No ARB/84/3.
18
Sadie Blanchard, ‘State Consent, Temporal Jurisdiction, and the Importation of Continuing
Circumstances Analysis into International Investment Arbitration’ [2011] 10 WUGSLR 419
<https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1023&context=law_globalstu
dies> accessed 2 January 2018.
19
W. Michael Reisman, ‘The Breakdown of the Control Mechanism in ICSID Arbitration’
[1989] Duke L.J. 739
<http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1864&context=fss_papers>
accessed 2 January 2018.
20
Ibid.
21
Compromis, [23].
22
Ibid.
23
Mavrommatis Palestine Concessions (Greece v United Kingdom) (Merits) PCIJ Rep Series
A No 2; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory
Opinion) [1950] ICJ Rep 65; Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary
Objections Judgment) [2011] ICJ Rep 2011.

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opposed by the other.24 An arbitral award may be nullified if it “deals with a dispute not

contemplated by or not falling within the terms of the submission to arbitration, or contains

decisions on matters beyond the scope of the submission to arbitration.”25

Article 10(a) of the FCN Treaty provides that an arbitration may be conducted for

“any dispute concerning the interpretation or application of Articles 1 to 9” of the FCN

Treaty.26 The Tribunal acted without jurisdiction rationemateriae because there is no dispute

under Articles 1 to 9 of the FCN Treaty.

a. Article 7 of the FCN Treaty covers only commercial

activities.

The FCN treaty must be interpreted in accordance with the ordinary meaning given to

the terms of the treaty in their context and in the light of its object and purpose.27 It may also

be interpreted according to the relevant rules of international law.28

Friendship, Commerce, and Navigation (FCN) Treaties are generally bilateral treaties

that are concluded to facilitate commerce, navigation, and investment between State Parties,

with the goal of reciprocally protecting individuals and businesses.29 It is limited to the

development of commercial, financial, and consular relations between the State Parties.30

24
South West Africa Cases (Ethiopia v South Africa) (Liberia v South Africa) (Preliminary
Objections Judgment) [1962] ICJ Rep 319 (‘South West Africa Cases’).
25
UNCITRAL, ‘Model Law on International Commercial Arbitration 1985 with
Amendments as Adopted in 2006’, (7 July 2006) A/40/17, art 34(2)(a)(iii) (‘UNCITRAL
Model Law’).
26
Treaty of Friendship, Commerce and Navigation (People’s Democratic Republic of
Anduchenca – Federal Republic of Rukaruku) (12 March 1947), art 10(a) (‘FCN Treaty’).
27
Vienna Convention on the Law of Treaties (entered into force 23 March 1976), 999
U.N.T.S. 171 art 31(1) (‘VCLT’)
28
ICSID art 42(1).
29
Oxford Public International Law, ‘Treaties of Friendship, Commerce and Navigation’
<http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-
e1482> accessed 03 January 2018.
30
Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America)
(Preliminary Objection Judgment) [1996] ICJ Rep 1996 (‘Oil Platforms Case’); Case
concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) (Merits) [1986] ICJ Rep 14 (‘Nicaragua Case’).

4
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The present FCN treaty is no different. It has for its purpose the “strengthening of the

friendly relations”31 between Anduchenca and Rukaruku, with particular regard to

“encouraging mutually beneficial trade and investment, of strengthening of cultural relations

and understanding, and of regulating consular relations.”32 Hence, Article 7 of the FCN

Treaty, which provides that “between the territories of [Anduchenca and Rukaruku], there

shall be freedom of commerce and navigation” must be interpreted to cover only commercial

activities within the territories of the two States.

b. The Egart was not engaged in a commercial activity.

By freedom of commerce and navigation, it is understood to mean commercial

activities in general such as shipping of goods and the operations of businesses.33

The Egart is an autonomous underwater vehicle (AUV) of the Rukarukan Navy

employed in its naval operations.34 At the time of its capture, it was on a mission to collect

data to be utilized by the Rukarukan Navy.35 Clearly, the Egart was not engaged in a

commercial activity at the time of its capture. It was involved in a military operation when it

unlawfully entered the Anduchencan territorial sea. This is a violation of general international

law36 and not Article 7 of the FCN Treaty. Hence, the dispute is not arbitrable.

3. Rukaruku may not invoke the principle of compétence de la

compétence.

31
FCN Treaty, Preamble.
32
Ibid.
33
Oil Platforms Case, [49].
34
Compromis, [13].
35
Compromis, [17].
36
UNCLOS art 17; Kraska, James, ‘Putting Your Head in the Tiger’s Mouth: Submarine
Espionage in Territorial Waters’ [2015] 54 CJTL 16 <http://jtl.columbia.edu/putting-your-
head-in-the-tigers-mouth-submarine-espionage-in-territorial-waters/> accessed 30 December
2018.

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The doctrine of compétence de la compétenceprovides that the Tribunal has the power

to determine its own jurisdiction over a dispute.37 While it is admitted that the doctrine is an

accepted norm of general international law,38
such doctrine cannot be invoked by Rukaruku

to overcome the requirement of State consent and jurisdiction rationemateriae.

Tribunals may not exceed the powers granted by the arbitration clause of treaties.39

While the Tribunal may decide on its own jurisdiction, it may not be the sole or final arbiter

of the question of jurisdiction.40 The judgment of a tribunal on its own jurisdiction is not

necessarily binding as it may be challenged before national courts,41 or before the ICJ42 as a

question of international law.43 As stated above, an Award may be nullified on the grounds

that it contains a decision beyond the scope of arbitrable issues.44

37
Interpretation of the Greco-Turkish Agreement (Advisory Opinion) PCIJ Rep Series A No
16 (19) 20; Joseph H.H. Weiler, ‘The Autonomy of the Community Legal Order: Through
the Looking Glass’ in Joseph H.H. Weiler, The Constitution of Europe ‘Do the New Clothes
have an Emperor?’ and other Essays on European Integration (OUP, Oxford 1999); Chester
Brown, A Common Law of International Adjudication (Oxford University Press, Oxford
2007).
38
Waibel, (n 7), [21]-[22]; James Crawford, ‘Continuity and Discontinuity in International
Dispute Settlement: An Inaugural Lecture’ [2010] 1 JIDS 3–24, 16 <
https://academic.oup.com/jids/article/1/1/3/879365> accessed 30 December 2017; Statute of
the Permanent Court of International Justice (entered into force 20 August 1921) 6 L.N.T.S.
397, 390 art 36 (‘PCIJ Statute’).

39
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53
(‘Guinea-Bissau v Senegal’).
40
NadjaErk, Parallel Proceedings in International Arbitration: A Comparative European
Perspective (Kluwer Law International, Netherlands 2014); Doug Jones, ‘Kompetenz-
Kompetenz’ [2009] 75(1) Arbitration: The Journal by the Chartered Institute of Arbitrator
41
Swedish Arbitration Act of 1999 ss 34(1), 36; Lee Taube Gabardo, ‘Is the Competence-
Competence Principle Threatened in Brazil?’ (Kluwer Arbitration Blog) <
http://arbitrationblog.kluwerarbitration.com/2014/03/19/is-the-competence-competence-
principle-threatened-in-brazil/?print=print> accessed 02 January 2018.
42
Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v Nicaragua) (Merits) [1960] ICJ Rep 192 (‘Honduras v Nicaragua’); Guinea-
Bissau v Senegal.
43
Statute of the International Court of Justice, 59 Stat. 1055 (1945) art 36 (‘ICJ Statute’).
44
UNCITRAL Model Law (n 25).

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B. The irregularities committed during the proceedings render the Award

invalid.

1. The Award may be annulled based on irregularities committed

during the proceedings.

While Article 10 the FCN Treaty does not provide the grounds for the annulment of

an Award,45 the ICJ may adopt relevant rules of general international law.46 Based on

customary international law and general principles of law, the award may be annulled on

grounds such as corruption by a member of a tribunal,47 and lack of independence and

impartiality by the tribunal.48

The Croatia/Slovenia and South China Sea arbitrations both show that when concerns

over due process and fairness are not addressed, serious consequences may arise. Parties may

not recognize these awards, and the dispute may not actually be settled even after

arbitration.49

2. There is sufficient basis to annul the Award.

45
FCN Treaty art 10.
46
VCLT art 31(3)(c); ICJ Statute art 38.
47
International Law Commission, ‘Model Rules of Arbitral Procedure with a General
Commentary’ (1958) II ILC Yearbook, art 35(b); ‘Documents of the Fifth Session Including
the Report of the Commission to the General Assembly’ (1953) II ILC Yearbook; Aron
Broches, ‘Observations on the Finality of ICSID Awards,’ in Selected Essays: World Bank,
ICSID, and Other Subjects of Public and Private International Law (Springer, 1995)
48
In the Matter of an Arbitration Under the Arbitration Agreement Between the Government
of the Republic of Croatia and the Government of the Republic of Slovenia, Signed on 4
November 2009 (Croatia v Slovenia) (Partial Award) [2016] PCA Case No 2012-04
(‘Croatia v Slovenia’); UNCITRAL, ‘Arbitration Rules as Revised in 2013’, (2013) art 12(1)
(‘UNCITRAL Rules’); L. Oppenheim, International Law, (Longmans, London 1951).
49
Peter Tzeng, ‘The Annulment of Interstate Arbitral Awards’
<http://arbitrationblog.kluwerarbitration.com/2017/07/01/the-annulment-of-interstate-
arbitral-awards/> accessed 3 January 2018

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Proof of actual dependence or bias is not required to annul and Award.50 The mere

appearance of dependence or bias is sufficient.51 What is required is not certainty, but mere

“justifiable doubts” as to the the arbitrator’s impartiality or independence.52

The irregularities contained in the “The Ruka Ruse” report were all accepted as

accurate and authentic.53 The allegations therein provide sufficient basis to annul the Award.

a. The private telephone conversations.

Impartiality refers to the absence of bias or predisposition towards a

party.54Independence is characterized by the absence of external control.55 An award may be

annulled when the tribunal is influenced by another person, even a member himself, if the

Tribunal was made to consider factors other than the merits of the case.56 The same is

especially true when the counsel for a party secretly communicates with a member of the

tribunal.57 To uphold an award in spite of a breach of impartiality and independence is a

violation of due process and fairnesss.58

Judge Moyet, a member of the Tribunal, and Mr. Chivo, Rukaruku’s counsel, engaged

in at least three private telephone conversations. Mr. Chivo requested Judge Moyet to

emphasize to the other members of the Tribunal certain parts of Rukaruku’s arguments.

50
Abaclat and Others v Argentine Republic [2011] ICSID Case No. ARB/07/5 (‘Abaclat and
Others’).
51
ICSID art 14(1), 57.
52
UNCITRAL Rules art 12(1).
53
Compromis, [30].
54
Abaclat and Others, [75].
55
Burlington Resources Inc. v Republic of Ecuador (Decision on the Proposal for
Disqualification of Professor Francisco Orrego Vicuna) [2013] ICSID Case No. ARB/08/5
(‘Burlington’); Repsol S.A. and RepsolButano S.A. v Argentine Republic (Decision on the
Proposal for Disqualification of Professor Francisco Orrego Vicuna and Claus von Wobeser)
[2013] ICSID Case No. ARB/12/38 (‘Repsol’).
56
Courd’appel de Paris, Pôle 1-Chambre 1, Judgment of 17 February 2015 (No. 77), RG No.
13/13278.

57
Croatia v Slovenia.
58
Gary Born, International Arbitration: Law and Practice, (Kluwer Law International,
Netherlands 2016).

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 658A

Judge Moyet agreed to do so.59 These facts show that the independence of Judge Moyet has

beeseverly compromised. Consequently, the impartiality and independence of the Tribunal

that rendered the Award have been irreparably compromised as well. Anduchenca has been

severely deprived of due process and fairness in the proceedings. The Award should thus be

annulled on this basis.

b. The preparation of the draft by the arbitral secretary.

The mandate of the arbitrator is intuit personae (“according to the person”).60

Arbitrators are hired and given personal mandates to render an award based on their

appreciation of the merits.61 Though arbitrators are allowed to use arbitral secretaries, these

may not go beyond purely administrative tasks.62 Otherwise, the impartiality and

independence of the arbitrator will be highly compromised.63

Mr. Orvindari prepared a draft of the Award that is identical to the final version.64 He

logged in 522 hours on the case, contrary to the average 59.5 hours logged in by each

arbitrator.65He carried out most of the work of the Tribunal. Clearly, Mr. Orvindari exceeded

his mandate. The Tribunal derogated their personal mandate to render the Award, to the

prejudice of Anduchenca. Hence, the Award must be annulled.

59
Compromis, [31].
60
Young ICCA art 1(4)
61
Ibid.
62
Ibid.
63
Burlington; Repsol.
64
Compromis, [33].
65
Compromis, [32].

9
 658A

II. Rukaruku violated Article 6 of the FCN Treaty when the Egart operated in

Anduchenca’s territorial sea, but Anduchenca did not violate Article 7 of the

FCN treaty when it captured the Egart.

A. Rukaruku violated Article 6 of the FCN Treaty when the Egart operated

in Anduchenca’s territorial sea

There is an internationally wrongful act of a State when conduct is first, attributable to

the State; and second constitutes a breach of an international obligation.66

Article 6 of the FCN Treaty obligates Rukaruku to “respect the sovereign territory and

sovereign waters” of [Anduchenca ]as required under international law.”67Rukaruku violated

Article 6 when it operated the Egart in Anduchenca’s territorial sea.

1. Rukaruku violated the territorial sovereignty of Anduchenca when

the Egart entered Anduchenca’s territorial sea.

Anduchenca has territorial sovereignty on its territorial sea.68 This is not absolute as

ships have the right of innocent passage in the territorial sea under customary international

law.69 “Passage” generally refers to traversing the territorial sea without entering internal

waters.70

66
ILC, Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN Doc
A/RES/56/83 (28 January 2002) annex, art 2 (‘ASR’).
67
FCN Treaty art 6.
68
Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment)[2012] ICJ Rep 666
[177].
69
UNCLOS art 17; Convention on the Territorial Sea and Contiguous Zone (adopted 29 April
1958, entered into force 10 September 1964) 516 UNTS 205, art 14 (‘CTSCZ’); Nicaragua
Case, [190]-[191]; /M/V ‘Saiga’ (No 2)(Saint Vincent and the Grenadines v.
Guinea)(Judgment) ITLOS Reports 1999; Southern Bluefin Tuna Cases (New Zealand v
Japan; Australia v Japan)(Provisional Measures, Order of 27 August 1999), ITLOS Rep
1999, Sep. Op. Laing, [16] note 6 (precautionary principle not customary law);Maritime
Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.
Bahrain)(Judgment) [2001] ICJ Rep 91.
70
UNCLOS art 18(1)(a).

10
 658A

The Egart was found within the territorial sea of the State of Anduchenca.71 Its incursion

into Anduchencan territory is not justified under the right to innocent passage and hence is a

violation of Anduchenca’s territorial sovereignty.

a. The Egart does not have the right of innocent passage.

Under customary international law, the right of innocent passage is available only to

ships,72 and submarines and underwater vehicles.73A ship is defined in different instruments

with the following common elements: a) it floats or is waterborne;74 b) it may be used as a

means of transportation of people or goods.75Clearly, the Egart is not a ship since it travels

underwater and is not capable of transportation of people or goods.76

Neither is the Egart a submarine or an underwater vehicle contemplated under the the

right of innocent passage. The classification of these vessels must be read in light of the

requirement for these vehicles to “navigate on the surface and to show their flag.”77 This

contemplates manned vehicles78 that can operate as traditional vessels when navigating in the

territorial sea.79

AUVs like the Egart therefore do not fall within the purview of the right of innocent

passage under customary international law.

71
Compromis, [16].
72
UNCLOS art 17.
73
UNCLOSart 19.
74
1962 Amendments to the 1954 International Convention for Prevention of Pollution of the
Sea by Oil (adopted 11 April 1962, entered into force 18 May/28 June 1967)600 UNTS 332
(OILPOL, 1954) art 1(1);International Convention for Prevention of Pollution from Ships of
1973, as amended by the 1978 Protocol (adopted 02 November 1973, entered into force 02
October 1983) 1340 UNTS 61, 184 (MARPOL 73/78) art 2(4).
75
Convention on the International Regulations for Preventing Collisions at Sea (adopted 20
October 1972, entered into force 15 July 1977) 1050 U.N.T.S. 16 (‘COLREGS’)
76
Compromis, [13].
77
UNCLOS art 20.
78
Andrew H. Henderson, ‘Murky Waters: The Legal Status of Unmanned Undersea Vehicles’
[2006] 53 Naval L. Rev. 55, 64.
79
U.S. Department of Navy, ‘The Commander's Handbook On the Law Of Naval Operations-
-Annotated Supplement’ (1997) <http://www.jag.navy.mil/documents/NWP_1-
14M_Commanders_Handbook.pdf> accessed 03 January 2018.

11
 658A

b. Alternatively, the passage of the Egart was not innocent.

The passage of a vessel is innocent so long as it is “not prejudicial to the peace, good

order, or security of the coastal State.”80 Assuming arguendo that the Egart has the right of

innocent passage, its incursion into Anduchencan territory is not innocent.

i. The Egart was not merely traversing the sea.

Under the right of innocent passage, “passage” must be “continuous and

expeditious.”81 Further, the vessel must be “traversing the sea.”82 In its ordinary meaning, it

means that the vessel must be simply “passing through.”83

The Egart was not simply traversing the sea when it was captured. It was collecting

optical and acoustic data.84 There was also no need for the Egart to be in the territorial sea as

Rukaruku admits that it was programmed to remain at least 12nmn away at all times.85 In

fact, Anduchenca had to jam the communications system of the Egart just so it would

surface.86 Hence, the passage was not innocent.

ii. The collection of data is prejudicial to the peace of

Anduchenca.

Under the right of innocent passage, the passage is innocent “so long as it is not

prejudicial to the peace, good order or security of the coastal State.”87 The passage is not

innocent if the vessel engages in any of the following conduct: a) any act aimed at collecting

information to the prejudice of the defense or security of the coastal State;88b) the carrying

80
UNCLOSart 19(1); CTSCZart 14(4).
81
UNCLOS art 18(1)(2).
82
UNCLOS art 18(1)(a).
83
‘Pass-through, n’ (Merriam Webster Online) <https://www.merriam-
webster.com/dictionary/pass-through> accessed 02 January 2018.
84
Clarifications,[1].
85
Compromis,[17].
86
Compromis,[16].
87
UNCLOS art 19(1).
88
UNCLOS art 19(2)(c).

12
 658A

out of research or survey activities;89c) any other activity not having a direct bearing on

passage.90 AUVs have been known to be used by States acquire intelligence from other

States, or even to hamper or prevent the flow of information.91

The Egart was equipped with an integrated technology outfit, including sophisticated

optical, acoustic, and sonar systems, as well as advanced sense-and-avoid system. It also has

the capability to detect, identify, and lift objects weighing less than five kilograms from the

ocean floor.92 It is established that at the time of capture, it was collecting optical and

acoustic data.93 It is also established that Rukaruku employs its AUVs for its naval

operations. It is not clear what other activities the Egart was doing at the time, and for what

purpose the data was being used.

Clearly, the incursion of the Egart was not innocent because first, it was engaged in

collecting data from within the territory of Anduchenca, and hence to the prejudice of its

defense and security; second, it was carrying out research and survey activities; and third, its

data collection activities do not have a direct bearing on its passage.

iii. The Egart did not surface.

Assuming arguendo that the Egart is an underwater vehicle as contemplated under the

right of innocent passage, its passage was still not innocent. Underwater vehicles have the

obligation to navigate on the surface and to show its flag while traversing the territorial sea.94

In this case, the Egart was underwater when it was captured. Anduchenca had to jam its

89
UNCLOS art 19(2)(j).
90
UNCLOS art 19(2)(l).
91
Quoted in B Dorminey, ‘How Bad Would It Be if the Russians Started Cutting Undersea
Cables? Try Trillions in Damage’ Forbes (2 Nov 2015) (as cited in Michael N. Schmitt,
David S. Goddard, ‘International law and the military use of unmanned maritime systems’
(2016) International Review of the Red Cross page, 98 (2), 567, 570-571).
92
Compromis,[14].
93
Clarifications,[1].
94
UNCLOS, art 20.

13
 658A

communication links just so the Egart will surface and be identifiable.95

2. The act is attributable to Rukaruku.

The conduct of any State organ is attributable to the State regardless of the function it

serves.96 This is true even if the organ exceeds its authority or contravenes instructions.97 The

Egart was employed by the Rukarukan Navy.98 Thus, the activities of the Egart, including the

incursion into the Anduchencan territorial sea, is attributable to Rukaruku.

3. Rukaruku is not precluded from wrongfulness.

A State is precluded from wrongfulness if the act is due to force majeure.99 Force

majeure is the “occurrence of an irresistible force or of an unforeseen event, beyond the

control of the State, making it materially impossible in the circumstances to perform the

obligation.”100 However, this does not apply when the situation is due to the conduct of the

State invoking it.101

Rukaruku may not invoke this principle. First, the situation was within the control of

Rukaruku. It designed the program of the Egart. It had control to ensure that the program

worked properly. Second, it was not materially impossible to perform its obligations under

international law. At the very least, it had the obligation to ensure that the Egart surfaces

when it enters the territorial sea of another State. The Egart is capable of surfacing from time

95
Compromis,[16].
96
ASR, art 4(1).
97
ASR, art7.
98
Compromis,[13], [17].
99
ASR art 23; Affaire relative à la concession des phares de l’Empire ottoman (Greece v
France) (1956) 12 RIAA 155, [219]-[220]; The Payment of Various Serbian Loans Issued in
France(France v Brazil)(Merits) PCIJ Rep Series A No 20, [39]-[40];Payment in Gold of the
Brazilian Federal Loans Issued in France (France v Brazil)(Merits) ibid No 21, [120];Case
concerning the difference 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 (1990) 20 RIAA 215.
100
ASR art 23.
101
ASR art 23;James Crawford, The International Law Commission’s Articles on State
Responsibility (Cambridge University Press, Cambridge 2002), 77 [6].

14
 658A

to time to receive GPS signals.102 It was thus possible for it to be programmed to surface

when it enters the territorial sea of another State.

B. Anduchenca did not violate Article 7 of the FCN Treaty when it captured

the Egart

Article 7 of the FCN Treaty provides that “there shall be freedom of commerce and

navigation” between the territories of Anduchenca and Rukaruku.103Anduchenca did not

violate Article 7 when it captured the Egart.

1. Anduchenca did not violate Rukaruku’s freedom of navigation.

The freedom of navigation includes the right to innocent passage in the territorial

sea.104 However, there are instances when passage is not deemed innocent as they are

prejudicial to the peace, good order and security of the coastal State.105 As earlier established,

the Egart was engaged in an act aimed at collecting information to the prejudice of the

defense or security of Anduchenca,106 and research or survey activities.107 Its data collection

also did not have a direct bearing on passage.108 Hence, the Egart was not engaged in

innocent passage at the time of its capture and there was no violation of its freedom of

navigation.

102
Clarifications,[2].
103
FCN Treatyart 7.
104
UNCLOS art 17; CTSCZ art 14; Corfu Channel Case (United Kingdom v Albania) (Merits)
[1949] ICJ Rep 4, 28; S Kaye, ‘Freedom of Navigation, Surveillance and Security: Legal
Issues Surrounding the Collection of Intelligence from Beyond the Littoral’ (1995) 24
Australian Ybk Intl L 93, 95.
105
UNCLOS art 19(2).
106
UNCLOS art 19(2)(c).
107
UNCLOS art 19(2)(j).
108
UNCLOS art 19(2)(l).

15
 658A

2. Anduchenca lawfully captured the Egart pursuant to its maritime

security law.

In 2010, Anduchenca adopted a maritime security law requiring any foreign

government vessel proposing to enter its territorial sea to obtain prior authorization.109 This is

a valid law that serves as the basis of the capture of the Egart.

a. Anduchenca may require prior authorization before entry

into its territorial sea.

Coastal States have the right to regulate innocent passage through their waters.110

States such as Cyprus,111 have laws regulating the passage of foreign ships through their

territorial sea, and imposes criminal and civil sanctions on those that are found in violation

thereof.112

There is no customary norm granting foreign vessels the right of innocent passage

even without prior notice or authorization to the coastal State. In fact, the history of the

negotiations of the UNCLOS suggests that innocent passage could be subjected to the

requirement of prior notification or authorization.113

Hence, Anduchenca may adopt and implement its maritime security law.

b. The capture of the Egart was justified.

109
Compromis,[12].
110
UNCLOSart 21.
111
The Regulation of the Innocent Passage of Ships in the Territorial Waters Law 2011
(Cyprus)
112
Ibid.
113
E.D. Brown, The International Law of the Sea, (Dartmouth Publishing, 1994) 64; F.
Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the
Sea (Pinter Publishers, London 1990) 64; I. Shearer, ‘Navigation Issues in the Asian Pacific
Region’, in J.Crawford and D.Rothwell (eds), The Law of the Sea in the Asian Pacific
Region, (Dordrecht 1995).

16
 658A

The territorial sovereignty of a State in its territorial sea includes the “right to exercise

therein, to the exclusion of any other State, the functions of a State.”114 It has exclusive

competence in its own territory.115

The Egart violated Anduchenca’s maritime security law when it entered the territorial

sea without obtaining prior authorization. Pursuant to its territorial sovereignty, Anduchenca

had the power to capture the Egart for violating its domestic law.

3. The Egart may not invoke sovereign immunity.

Warships and government ships operated for non-commercial purposes enjoy the

same immunities.116 Both are immune from enforcement measures of other States.117

However, there is no customary norm granting the same immunities to AUVs. As established

above, the Egart is not a warship or a government ship. operated for non-commercial

purposes. Hence, it does not possess any sovereign immunity.

III. Anduchenca did not violate Article 16 of the FCN Treaty by commissioning and

operating the Ibra.

A. Anduchenca did not import or export weapons and ammunition without

the express approval of appropriate government agencies.

Article 16 of the FCN Treaty provides that Anduchenca and Rukaruku shall prohibit

the export and import of weapons and ammunition without the express approval of

appropriate government departments. Anduchenca did not violate this obligation.

114
Island of Las Palmas Case (United States v The Netherlands) [1928] PCA Vol II 838-871
(‘Las Palmas Case’).
115
Ibid.
116
UNCLOS art 32; The Exchange v McFaddon11 US (7 Cranch) 116 (1812).
117
J Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’ (1981) 75 AJIL
820, 862; International Convention for the Unification of Certain Rules relating to the
Immunity ofState-Owned Vessels (adopted 10 April 1926, entered into force 08 January
1927), 176 LNTS 199art 1, art 3.The ‘ARA Libertad’ Case(No 20) (Argentina v. Ghana)
(Order of 15 December 2012) ITLOS Reports 21.

17
 658A

1. Anduchenca did not import or export weapons and ammunition.

According to the rules of treaty interpretation, a treaty shall be interpreted in good

faith in accordance with the ordinary meaning to be given to the terms of the treaty in their

context and in light of its object and purpose.118 According to relevant treaties,119 “import”

and “export” are activities of the international arms trade.120 Applying their ordinary

meaning,121 and in the context of the Odasarra Region after WWII,122 Article 16 prohibits the

sale of weapons and ammunition across borders in the Odasarra region.

Anduchenca did not violate this obligation. The Director General of the IAEA herself

found that all the weapons in the Ibra, including its nuclear weapons, had been manufactured

in Anduchenca123. There was thus no import of weapons and ammunition. There is also no

proof that Anduchenca exported weapons and ammunition in the Odasarra region.

2. The approval of Rukaruku is not required.

The Preamble and the other provisions of the FCN Treaty did provide clarity on the

term “appropriate government departments.”124Article 31 of VCLT states the General

interpretation of treaties for the purpose of interpretation of treaties, includes the preamble

and annexes of the treaty to determine its context125 and in the light of its object and

purpose126. According to the Preamble of the FCN treaty, the treaty was envisaged for

perpetual peace, stability, trade, and cultural relations but not for the purpose of disarmament

of weapons.

118
VCLT art 31(1).
119
Arms Trade Treaty (adopted 2 April 2013, entered into 24 December 2014) arts 7, 8
(‘Arms Trade Treaty’).
120
Arms Trade Treaty art2(2).
121
Henry Campbell Black, Black’s Law Dictionary 6thed(West Publishing Co., 1990)
122
Compromis, [4].
123
Clarification,[10].
124
FCN Treaty art 16.
125
VCLT art 31(2).
126
VCLT art 31(1).

18
 658A

Moreover, the rules of treaty interpretation also provide that, together with the

context, any relevant rules of international law applicable in the relations between the parties

shall be taken into account.127

The UN Charter emphasizes the principle of sovereign equality128 and political

independence.129 The FCN Treaty must therefore not be construed strictly against the

abrogation of the sovereignty of Anduchenca. The term “appropriate government

departments” must thus be construed to mean Anduchencan government agencies, and not

the Rukaruku government.

B. Anduchenca did not violate any disarmament obligations under

international law.

1. Anduchenca did not violate customary law.

States are bound to comply with lexlata, i.e. a norm that satisfies the strict

requirements of customary international law.130 These requirements are first, widespread and

virtually uniform State practice and second, opinion jurissive necessitates.131 Otherwise, a

norm is only lexferenda that produces no binding effect.132

a. Anduchenca is not bound by any customary norm

obligation of disarmament and non-proliferation of nuclear

weapons.

127
VCLT art 31(3)(c).
128
Charter of the United Nations (entered into 24 October 1945) 1 U.N.T.S. XVI art 2(1)
(‘UN Charter’).
129
UN Charter art2(4); SKN Blay, ‘Territorial Integrity and Political Independence,’ Max
Planck Encyclopedia of Public International Law (Oxford University Press, Oxford 2010)
(‘SKN Blay’).
130
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark;
Federal Republic of Germany v Netherlands) (Judgment)[1969] ICJ Rep 1969[73];
Nicaragua Case,[73].
131
Ibid.
132
Legality of the Threat or Use of Nuclear Weapons(Advisory Opinion) [1996][73]
(‘Nuclear Weapons’).

19
 658A

Pactatertiisnecnocentnecprosunt. Treaties impose no legal obligations on non-

parties133. Anduchenca did not sign, ratify, nor accede to the NPT.134 As will be established

below, neither are the provisions of the NPT customary norms. Hence, Anduchenca is not

bound by any disarmament obligations under the NPT.

i. The provisions of the NPT are not customary norms.

The NPT does not satisfy the two elements of State practice and opiniojuris.135In the

Nuclear Weapons Advisory Opinion, the ICJ stated that “[t]he emergence, as lexlata, of a

customary rule specifically prohibiting the use of nuclear weapons as such is hampered by

the continuing tensions between the nascent opiniojuris on the one hand, and the still strong

adherence to the practice of deterrence on the other.”136In fact, almost all States East and

South Asia, such as the People's Republic of China, India, Pakistan, Bangladesh, and Burma

have rejected the NPT as discriminatory and ineffectual.137

ii. Anduchenca is a persistent objector against the

customary norm of disarmament and non-

proliferation of nuclear weapons.

A State is not bound by a customary norm if it is a persistent objector to the norm

even at the early stages of its development.138In the Asylum case,139 the ICJ stated any custom

concerning the qualification of the offence in diplomatic asylum cannot be invoked against

Peru because it has repudiated such custom by refraining from ratifying the Monevideo

133
VCLT art 34; T. O. Elias, The Modern Law of Treaties (Oceana Publications, 1974).
134
Compromis, [48].
135
Hudson, ‘Working Paper on Art. 24 of the Statute of the International Law Commission,’
[1950] U.N. Doc. ACN.4/16 (‘Working Paper’); Treaty on the Non-Proliferation of Nuclear
Weapons (adopted 1 July 1968 entered into 5 March 1970) 729 U.N.T.S. 161 art 10 (‘NPT’)
136
Nuclear Weapons, [66].
137
OnkarMarwah and Ann Schulz, Nuclear Proliferation And The Near-Nuclear Countries
(Harper Collins Distribution Services, 1975) 335-36.
138
Fisheries case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 3 [131]; James A.
Green, The Persistent Objector Rule in International Law (Oxford University Press, 2016).
139
Asylum Case (Colombia vs Peru) (Judgment) [1950] ICJ Rep1950 (‘Asylum Case’).

20
 658A

Convention.140 Even assuming that the NPT is customary international law, Anduchenca is

still not bound by its provisions as held in the case of the Fisheries case141 wherein the ICJ

supported the idea that an existing customary law rule would not apply to a State if (1) it

objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent

manner.

Moreover, the assertion of Rukaruku that Anduchenca’s commission and operation of

Ibra is a threat to peace as when a mere possession of Nuclear weapons is not sufficient to

prove the existence of a dispute. It must be shown that the claim of one party is positively

opposed by the other which would result to a violation of disarmament obligations142, if there

are any. Anduchenca has neither signed nor ratified the NPT treaty.

In 1968, all Odasarran States signed the NPT except for Anduchenca143 because it

found that the NPT “established and aggravates an inherent inequality between nuclear-

weapon States and non-nuclear weapon States.144 It also stopped attending the sessions of the

UN Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons and

stated that it would not sign any treaty that would emerge from those meetings. Clearly,

Anduchenca has been a persistent objector against any norm of disarmament and non-

proliferation of nuclear weapons. It thus is not bound by any customary norm on those

matters.

b. The manufacture and mere possession of nuclear weapons

by Anduchencais not prohibited.

140
Asylum Case,277–8.
141
Nuclear Weapons, [66].
142
South West Africa Cases, 328; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 2006 [90]
(‘Congo v Rwanda’).
143
Compromis, [9].
144
Ibid.

21
 658A

That which is not prohibited is permitted under international law.145There is no

customary norm against the manufacture and mere possession of nuclear

weapons.146Treaties147 aimed at banning nuclear weapons have not crystallized into

customary international law.148The ICJ in the Nuclear Weapons Advisory Opinion149 stated

that “treaties dealing exclusively with acquisition, manufacture, possession, deployment and

testing of nuclear weapons…could…be seen as foreshadowing a future general prohibition”

of the use of nuclear weapons, “but they do not constitute a prohibition by themselves.”150

Anduchenca manufactured its own nuclear weapons found on the Ibra.151 Further,

Anduchenca merely possesses nuclear weapons. It has never used such weapons, nor

deployed the Ibra to attack another State using its nuclear weapons. Anduchenca violated no

international obligations by the manufacture and mere possession of nuclear weapons in the

Ibra.

2. Anduchenca is justified in commissioning and operating the Ibra.

a. Anduchenca may possess nuclear weapons as deterrence.

Anduchenca commissioned and operated the Ibra to “serve as a firm deterrent”

against those who would infringe on their sovereignty.152The doctrine of deterrence provides

that a state under attack may retaliate with nuclear weapons if its attacker used

145
The Case of S.S. Lotus (Judgment) [1927] Series A., No. 10; Anthony Clark
Arend, International Law and the Preemptive Use of Military Force (The Washington
Quarterly, 2003) (‘Arend’).
146
Working Paper; Nicholas Rostow, The World Health Organization, the International
Court of Justice, and Nuclear Weapons, (20 Yale J. Int'l L., 1995) 165-166;NPT art 2; Treaty
on the Prohibition of Nuclear Weapons (adopted 7 July 2017) art 1(1)(a) (‘2017 Nuclear
Weapons Treaty’);Thomas Ehrlich, ‘The Nonproliferation Treaty and Peaceful Uses of
Nuclear Explosives’ <http://www.repository.law.indiana.edu/facpub/1765> accessed 12
January 2018.
147
NPT; 2017 Nuclear Weapons Treaty.
148
Working Paper.
149
Nuclear Weapons.
150
Nuclear Weapons,[62].
151
Clarifications,[10].
152
Compromis, [38].

22
 658A

nonconventional weapons, such as chemical, biological, or nuclear weapons, and the attack

threatened the victim state's vital interests.153The reasoning of this doctrine is that the threat

of nuclear retaliation will deter a potential aggressor.154Several States such China155and

India156 and members of the NATO157like the U.S.158, U.K.159, and France160have adopted

policies of deterrence with respect to nuclear weapons as early as the Cold War and continues

to do so.161

b. Anduchenca may possess nuclear weapons for self-defense.

In Nuclear Weapons, the ICJ stated that “it cannot reach a definitive conclusion as to

the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance

of self-defense, in which a survival would be at stake.”162 It noted the fundamental right of

every State to self-defense in accordance with Article 51 of the UN Charter.163 After the 9/11

attack, the US adopted a national strategy that “ the greater the threat, the greater is the risk of

153
Kathleen C. Bailey, Strengthening Nuclear Nonproliferation (Routledge, 1993); Arend;
The National Security Strategy of the United States (September 2002)
<www.whitehouse.gov/nsc/nss.html>accessed 12 January 2018.
154
Ibid.
155
MingdaQiu, ‘China’s Science of Military Strategy: Cross domain concepts in the 2013
edition’ [2015]
<http://deterrence.ucsd.edu/_files/Chinas%20Science%20of%20Military%20Strategy%20Cr
oss-Domain%20Concepts%20in%20the%202013%20Edition%20Qiu2015.pdf> accessed on
2 January 2018.
156
James Green, ‘India's Status as a Nuclear Weapons Power under Customary International
Law’ [2012] 24 National Law School of India Review 125.
157
NATO, ‘The Alliance's Strategic Concept approved by the Heads of State and Government
participating in the Meeting of the North Atlantic Council’, Press Release [1999]
[62]<https://www.nato.int/cps/en/natohq/official _texts_27433.htm> accessed 6 January
2018.
158
Charles Ferguson, William Perry, and Brent Scowcroft, ‘U.S. Nuclear Weapons Policy’
(Council on Foreign Relations, 2009).
159
United Kingdom Ministry of Defense, ‘UK nuclear deterrence: what you need to know’
(2016) <https://www.gov.uk/government/publications/uk-nuclear-deterrence-factsheet/uk-
nuclear-deterrence-what-you-need-to-know> accessed 1 December 2017.
160
‘Arms control, Disarmament and Nonproliferation: French policy’ (Paris: La
Documentation Francais, 2000) p 39
161
Nuclear Weapons, [67].
162
Nuclear Weapons, [97].
163
Nuclear Weapons, [96].

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inaction—and the more compelling the case for taking anticipatory action to defend

ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.”164

IV. Rukaruku violated Article 17 of the FCN Treaty when it attacked the Covfefe

and when it captured the Ibra.

A. Rukaruku violated Article 17 when it attacked the Covfefe.

Article 17 of the FCN Treaty provides that Anduchenca and Rukaruku shall refrain

from the threat or use of force against the territorial integrity or political independence of the

other State, except as permitted under international law.165 The same obligation is found in

customary international law166 and other treaties.167Rukaruku violated this obligation when it

attacked the Covfefe on 6 June 2017.168

1. The attack against the Covfefe was an unlawful use of force by

Rukaruku.

Aggression is the use of armed force by a State against the sovereignty, territorial

integrity or political independence of another State, or in any other manner inconsistent with

the UN Charter.169Territorial integrity is, “especially where coupled with ‘political

independence,’ […] synonymous with territorial inviolability”.170 Territorial integrity thus

requires more than protection against permanent changes to borders, but demands protection

against all sorts of interventions into a state’s territory or its internal affairs.171

164
‘The National Security Strategy of the United States(2002)’
<www.whitehouse.gov/nsc/nss.html> accessed 10 December 2017; Arend.
165
FCN Treaty, [17].
166
Nicaragua Case, [34].
167
UN Charterart 2(4).
168
Compromis, [43].
169
UNGA Res 3314 (1974), Definition of Aggression.
170
LFL Oppenheim, International Law, in: H. Lauterpacht (ed.), Disputes, War and
Neutrality, (7th ed. 1952) [154].
171
Christian Marxsen, ’Territorial Integrity in International Law- Its Concept and
Implications for Crimea’, ZaöRV 75 (2015), [7-26 at 8]

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The attack against the Covfefe was directed against the territorial inviolability of

Anduchenca because of the character of the Covfefe as a government ship used for non-

commercial purposes.

a. The attack against the Covfefeis directed against the

defense program of Anduchenca.

The political independence of a State is infringed in all cases in which foreign acts

tend to control the organs of a State and influence their capacity to decide through the threat

or use of force or through subversive measures or pressures exerted upon them.172Any

attempt to violate the exclusive right of a State to perform its sovereign functions is a

violation of its territorial integrity.173

The Ibra was developed to augment the defense and naval power of Anduchenca.174 It

was designed to be a deterrent against threats against Anduchenca’s sovereignty.175 Prime

Minister Dage of Rukaruku explicitly stated that the Covfefe was attacked because it was

about to deliver supplies to the Ibra.176 In fact, the ultimate target was the Ibra, and the attack

on the Covfefe was to force the Ibra to surface.177Rukaruku’s objective was to “abate” and

“neutralize” the Ibra.178 It is thus clear that the attack against the Covfefe was intended to

diminish the defensive and naval power of Anduchenca. The attack was carried out to force

Anduchenca to stop its program of augmenting its naval forces through the development of

weapons. This constitutes an attack against the territorial integrity and political indepence of

Anduchenca.

b. The attack violated the sovereign immunity of the Covfefe.

172
SKN Blay, [9]
173
Las Palmas Case.
174
Compromis, [38].
175
Ibid.
176
Compromis, [44].
177
Ibid.
178
Ibid.

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Ships in the high seas are under the exclusive jurisdiction of the flag State.179 Further,

Ships in the high seas Ships owned or operated by a State and used only on government non-

commercial service shall, on the high seas, have complete immunity from the jurisdiction of

any State other than the flag State.180 The defining element is the purpose and use of the

ship.181

The Covfefe is a private supply vessel that was commissioned by the Anduchencan Navy

to deliver supplies to the Ibra.182 At the time of the attack, it was engaged in the delivery of

provisions and personnel to the Ibra.183 It was carrying Anduchencan sailors, as well as

medical supplies, food and water.184 The Covfefe is a ship that was operated by Anduchenca

used on a government non-commercial service. It was thus entitled to sovereign immunity

that was violated by Rukaruku when it attacked the Covfefe.

2. The attack was not justified.

a. Rukaruku cannot invoke self-defense under jus ad bellum.

i. There was no armed attack by Anduchenca.

Under jus ad bellum(conditions under which States may resort to war or to use armed

force), the threat or use of force is prohibited except in instances of individual or collective

179
UNCLOSart 92.
180
UNCLOS art 96.
181
ThamarappallilKochu Thommen, Legal Status of Government Merchant Ships in
International Law, (India, 1962) 154; Compania Espanola v The Navemar(1938) 303 US 68
(‘Companiav Navemar’); Republic of Mexico v Hoffman(1945) 324 US 30 (‘Mexico v
Hoffman’).
182
Clarifications, [8].
183
Compromis, [43].
184
Clarifications, [8].

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self-defense.185 Rukaruku invoked Article 51 of the UN Charter to justify its actions against

the Covfefe.186 It is thus bound to comply with its provisions.

The right of self-defense necessitates an armed attack by another State.187In

Nicaragua,188 the ICJ stated that whether the response to the [armed] attack is lawful depends

on observance of the criteria of the necessity and the proportionality of the measures taken in

self-defense.”189

In this case, there was no prior armed attack by Anduchenca before Rukaruku

attacked the Covfefe. Hence, Rukaruku cannot invoke self-defense.

ii. There is no customary norm recognizing

anticipatory self-defense.

There is no customary norm justifying “anticipatory self-defense” as a justification for

an unlawful use of force.190 Even in the Caroline case,191 which is the most cited case by

advocates of anticipatory self-defense, the standard is that the “necessity of self-defense is

instant.”192 Such interpretation is violative of the object ad purpose of the UN Charter to

“maintain international peace and security” and to suppress acts of aggression.193

185
Jasmine Moussa, ‘Can jus ad bellum override jus in bello? Reaffirming the Separation of
the two bodies of law’ (International Review of the Red Cross, Vol. 90 2008) 965
(‘Moussa’); UN Charter art 51; Responsibility of States for Internationally Wrongful Acts
(2001) (ASR) Annex GA Res 56/83 Art 21.
186
Clarifications, [7].
187
UN Charter Art 51.
188
Nicaragua Case.
189
Nicaragua Case, [194].
190
Georg Nolte and Albrecht Randelzhofer, ‘Ch. VII Action with respect to threats to the
peace, breaches of the peace, and acts of aggression’, in The Charter of the United Nations; A
commentary 3rded(Oxford 2012) 49.
191
John Bassett Moore, A Digest of International LawII, 24-30, 409-14; VI, 261-62; VII,
919-20(Washington, 1906) (‘Moore’).
192
Ashley Deeks, ‘Part III The Prohibition of the Use of Force, Self-Defence, and Other
Concepts, Ch. 29 Taming the Doctrine of Pre-Emption’, Oxford Handbook of the Use of
Force in International Law (Oxford, 2012) 665 (‘Deeks’); Michael Doyle, Striking First
(Princeton University Press, 2008) 14–15 (noting that extreme Caroline-type conditions are
rarely found in reality) (‘Doyle’);
193
UN Charter art 1(1).

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This must be differentiated from Anduchenca’s valid claim of deterrence as reason for

commissioning and operating the Ibra. Anduchenca has not committed any unlawful threat or

use of force, nor violated any international law obligation, that necessitates a claim of self-

defense. Not even the basis of the attack which is the SC Resolution 3790 authorizes any

action on the Covfefe.

b. Alternatively, the attack was disproportionate under jus in

bello.

i. Jus in bello applies.

According to the “first-shot theory” of Pictet, any difference arising between two

States and leading to the intervention of armed forces is an armed conflict,194 and thus jus in

bello (the law of armed conflict/international humanitarian law) applies.195 There is an armed

conflict “whenever there is a resort to armed force between States.”196 In Nuclear

Weapons,197 the ICJ categorically stated that “the principles and rules of humanitarian law

apply to nuclear weapons.”198

ii. The attack was not proportionate.

Proportionality under jus in bello entails balancing the harm caused by an attack in

terms of suffering or collateral damage vis-a-vis the value of the anticipated military

advantage to be achieved by the belligerent.199 It includes both the ‘proportionality’ of

civilian collateral damage,as well as the ‘proportionality’ of the degree of injury or suffering

194
Jean Pictet (ed.), ‘Commentary on the Geneva Conventions of 12 August 1949’Vol. 1:
Geneva Convention for the Amelioration of the Condition of the Wounded and Sıck in Armed
Forces in the Field(ICRC, Geneva 1952) 32 (‘Pictet’).
195
Marco Sassòli, Antoine Bouvier and Anne Quintin, ‘How Does Law Protect in War?’
(Vol.1, 3rd edition, ICRC, Geneva 2011) 34 (‘Sassòli’).
196
Prosecutor v Tadic(Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) [1995] ICTY-94-1 [70].
197
Nuclear Weapons.
198
Nuclear Weapons [87].
199
DapoAkande, ‘Nuclear weapons, unclear law? Deciphering the Nuclear Weapons
Advisory Opinion of the International Court’, British Yearbook of International Law, (Vol.
68, 1997) 208 (‘Akande’).

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caused to combatantsin relation to the military ends pursued.200In Nuclear Weapons, the ICJ

noted the Martens Clause “whose continuing existence and applicability is not to be

doubted.”201 The Martens clause provides that, as a general rule,“the principles of humanity

and from the dictates of public conscience” must be considered.202

In this case, There was minimal military advantage achieved as the Covfefe is only a

private ship carrying goods that the Ibra can obtain elsewhere. On the other hand, only 10

Anduchencan sailors and seven civilians were killed.203 The comparison between the military

advantage achieved and the collateral damage shows that the attack was not proportionate

B. Rukaruku violated Article 17 when it captured the Ibra.

1. The capture of the Ibra is an unlawful use of force against the

territorial integrity and political independence of Anduchenca.

An armed attack against the territory of a State is the clearest example of an unlawful

use of force.204In this case, on 14 June 2017, six Rukarukan warships were sent to the

contiguous zone of Anduchenca.205They enclosed the Ibra and fored a series of torpedoes at

it. One of the ships swept the Ibra’s deck with machine-gun fire. All of these acts constitute a

use of force against the territorial integrity of Anduchenca.

a. The attack against, and the capture of, the Ibra is an attack

against the territory of Anduchenca.

200
Ibid.
201
‘Nuclear Weapons’, [87].
202
Additional Protocol I to the Geneva Convention (1977), Art 1(2).
203
Ibid.
204
Definition of Aggression; Nicaragua Case.
205
Compromis, [46].

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Naval submarines are warships.206 As such, they are considered as an extension of the

territory of the flag State.207 The Ibra is a submarine of the Anduchenca Navy. It is thus

considered an extension of the territory of Anduchenca, and attacks against it are attacks

against the territory of Anduchenca.

b. Rukaruku violated the sovereign immunity of the Ibra.

Warships are extensions of their respective states, enjoying “sovereign immunity from

interference by the authorities of nations other than the flag nation.”208 As such, warships

may not be seized, boarded, or searched without the permission of the commanding

officer.209 Under customary international law, boarding and arresting are permitted only on

merchant ships and government ships operated for commercial purposes,210 pirate ships,211

and private ships or government ships on commercial service in the high seas.212

Rukaruku violated the sovereign immunity of the Ibra when it attacked, boarded and

captured the Ibra.

c. Rukaruku did not comply with the rules of hot pursuit.

According to customary international law,213 a State may capture a foreign ship after a

valid hot pursuit.214 This rules is subject to several requirements such as, first, the State

exercising the right must have sufficient and valid reason to believe that the foreign ship has

violated its own laws; second, the pursuit must be commenced in maritime zones no further

206
Louise Doswald-Beck (ed.), San Remo Manual on International Law Applicable to Armed
Conflicts at Sea (ICRC, 1995) 90.
207
Prussian Decree Case, Entscheidungen des PresussischenOberverwaltungsgersichts, (vol
90, 1910) 47; United States Ex Rel. Stapf vs Corsi, 287 US 129, 130 (1932); US vs Flores
541 US 149 (2004).
208
US Navy, ‘The Commander's Handbook On The Law Of Naval Operations-Annotated
Supplement’ <http://www.jag.navy.mil/distrib/instructions/AnnotatedHandbkLONO.pdf>
accessed 02 January 2018.
209
Ibid.
210
UNCLOS, art 27.
211
UNCLOS, art 105.
212
UNCLOS, art 110.
213
UNCLOS, art 111.
214
Ibid.

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than the exclusive economic zone (EEZ) of the pursuing State. Further,warships have

complete immunity from the jurisdiction of any State other than the flag State in the high

seas.215

In this case, Prime Minister Dage stated that Rukaruku was in pursuit of the Ibra after

it attacked the Covfefe on the high seas.216 The pursuit is thus presumed to have originated in

the high seas. After eight days, the Ibra was captured in the contiguous zone of

Anduchenca.217Rukaruku violated the doctrine of hot pursuit as, first, it did not commence

the hot pursuit in the proper maritime zone; second, it violated the complete immunity of the

Ibra in the high seas; and third, Rukaruku has no reason to believe that the Ibra violated any

of its domestic laws. It thus has no basis to capture the Ibra.

2. The attack and captureof the Ibra is not justified by self-defense.

a. The attack was not justified by self-defense under jus ad

bellum.

i. Rukaruku cannot invoke anticipatory self-defense.

There is no customary norm recognizing the right of self-defense even without a prior

armed attack. (See Part IV.A.2.a.ii) Anduchenca did not commence any prior armed attack

against Rukaruku that would justify the application of its right of self-defense.

b. Alternatively, the attack and capture of the Ibra was not

not proportionate underjus in bello.

(See Part IV.2.b.i-ii) The attack and capture of the Ibra was not proportionate based

on the standards of jus in bello. The Martens clause also applies to the capture, arrest, and

destruction of property.218Rukaruku instead could have deterred or prevented the Ibra from

215
UNCLOS, art 95, 96.
216
Compromis 44.
217
Compromis 46.
218
Moussa, 983; ‘US vs William List et al. (Case no. 7)’,Trials of War Criminals Before
theNuernnberg Military Tribunals, Vol XI, (1950), 1247.

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entering into its maritime zones, instead of attacking,capturing,219 and ultimately dismantling

the Ibra.220

219
Compromis, [46].
220
Compromis, [47].

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PRAYER FOR RELIEF

The People’s Democratic Republic of Anduchenca respectfully requests the

Honourable Court to adjudge and declare that:

I. The arbitral award of 2 March 2017 is not valid

II. Rukaruku violated Article 6 of the FCN Treaty when the Egart operated in

Anduchenca’s territorial sea, but Anduchenca did not violate Article 7 of the

FCN Treaty when it captured the Egart

III. Anduchenca did not violate Article 16 of the FCN Treaty by commissioning

and operating the Ibra

IV. Rukaruku violated Article 17 of the FCN Treaty when it attacked the Covfefe

and when it captured the Ibra

Respectfully submitted,

Agents of Anduchenca

33