TELDERS INTERNATIONAL LAW MOOT COURT COMPETITION 2010

WRITTEN MEMORIAL ON BEHALF OF ESTADOS FEDERALES DE MARGARIDA (RESPONDENT)

IN

THE CASE OF PIRATES IN THE TREASURED SEA KINGDOM OF WARANGIA V. ESTADOS FEDERALES DE MARGARIDA

Registration number 1 B

i (a) Table of Contents

(a) Table of Contents ......................................................................................................... i (b) List of Abbreviation .................................................................................................. ii (c) List of Sources ........................................................................................................... iv (d) Statement of Relevant Facts ................................................................................... xii (e) Issues ......................................................................................................................... xv (f) Summary of Arguments ......................................................................................... xvii (g) Jurisdiction of the Court ......................................................................................... xx (h) Arguments .................................................................................................................. 1 1. The attack was lawful ............................................................................... 1 2. The boarding and seizure of Argonaut was lawful ................................. 5 3. The sinking of Argonaut was lawful ....................................................... 11 4. The arrest and detention of Jason was lawful ...................................... 13 5. The denial of a consular meeting was lawful ........................................ 18 6. Margarida had a right to seize the cargo box ....................................... 21 7. Waraniga committed an internationally wrongful act ........................ 24 (i) Submissions ............................................................................................................... 25

ii (b) List of Abbreviations Apr. art. / arts. Aug. Banana Comm. Doc. ed. / eds. EEZ ECtHR e.g. et al. GA GDR HR ICJ ICL i.e. Jason ILC ILR IMO ITLOS Jan. Margarida April Article / Articles August Democratic Republic of Banana Communication Document Editor / editors Exclusive Economic Zone European Court of Human Rights exempli gratia et alii, et aliae General Assembly German Democratic Republic Human Rights International Court of Justice International Customary Law Id est Captain Jason International Law Commission International Law Reports International Maritime Organization International Tribunal on the Law of the Sea January Estados Federales de Margarida

iii n. n.m. no. Nov. Oct. p. / pp. para. / paras. PCIJ PSI Res. 2224 RIAA SC Sept. UK UN Embargo UN US v. vol. Warangia WMD YBILC Footnote Nautical miles Number November October page / pages Paragraph / paragraphs Permanent Court of International Justice Proliferation Security Initiative Resolution 2224 Reports of International Arbitral Awards Security Council September United Kingdom Resolution 2008 of 24 March 2007 United Nations United States versus volume Kingdom of Warangia Weapons of mass destruction Yearbook of the ILC

iv (c) List of Sources 1. Treaties Biological and Toxin Weapons Convention (1975); hereinafter cited as BTWC Charter of the United Nations (1945); hereinafter cited as UN Charter Convention for the Protection of Human Rights and Fundamental Freedoms (1950); hereinafter cited as ECHR Convention on the High Seas (1958); hereinafter cited as High Seas Convention (1958) International Convention for the Safety of Life at Sea (1974); hereinafter cited as SOLAS International Covenant on Civil and Political Rights (1966); hereinafter cited as ICCPR Prohibition of Chemical Weapons Convention (1997); hereinafter cited as CWC Regulation (EC) No 428/2009; hereinafter cited as EC (2009) United Nations Convention on the Law of the Sea (1982); hereinafter cited as UNCLOS Vienna Convention on Consular Relations (1963); hereinafter cited as VCCR Vienna Convention on Diplomatic Protection (1961); hereinafter cited as VCDR Vienna Convention on the Law of Treaties (1969); hereinafter cited as VCLT 2. Jurisprudence 2.1 International Court of Justice (cases and advisory opinions) Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ Reports 2004, p. 12; hereinafter cited as Avena Breard (Paraguay v. US), ICJ Reports 266, 1998; hereinafter cited as Breard Case of the monetary gold removed from Rome in 1943(Italy v. France, UK of Great Britain and Northern Ireland and US), (Preliminary Question), Judgment of June 15th, 1954: ICJ Reports 1954, p. 19; hereinafter cited as Monetary gold Conditions of admission of a state to membership in the UN (Art. 4 of the Charter), Advisory Opinion, ICJ Reports 1948; hereinafter cited as Admissions Competence of the GA for the admission of a state to the UN, Advisory Opinion, ICJ Reports 1950, p. 4; hereinafter cited as Competence

v Corfu Channel case, (UK of Great Britain and Northern Ireland v. Albania) Judgment of April 9th, 1949: ICJ Reports 1949, p. 4; hereinafter cited as Corfu Channel East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 90; hereinafter cited as East Timor Gabkovo-Nagymaros Project case (Hungary v. Slovakia), ICJ Reports (1997) p.7; hereinafter cited as Gabkovo-Nagymaros LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466; hereinafter cited as LaGrand Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, ICJ Reports 1998, p. 275; hereinafter cited as Land and Maritime Boundary Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136; hereinafter cited as Construction of a wall Militarv and Puramilitary Activities in und aguinst Nicaragua (Nicaragua v. United States of America). Merits, Judgment. ICJ Reports 1986, p. 14; hereinafter cited as Nicaragua North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969; hereinafter cited as North Sea Continental Shelf Territorial Dispute (Libyun Aruh Jamuhiriyu/Chad), Judgment, ICJ Reports 1994, p. 6; hereinafter cited as Libya/ Chad United States Diplomatic and Consular Staff in Tehran (US v. Iran), Judgment, ICJ Reports 1980, p. 3; hereinafter cited as Hostages 2.2 Permanent Court of International Justice Interpretation of the 1919 Convention Concerning Employment of Women During the Night, Advisory Opinion, 1932, PCIJ, Series, A/B, No. 50; hereinafter cited as Women During the Night 2.3 International Tribunal for the law of the Sea M/V Saiga (No. 2) case, (Saint Vincent and the Grenadines v. Guinea), Judgment of 1 July (1999); hereinafter cited as Saiga 2.4 European Court of Human Rights Case of Brannigan and McBride v. UK, Application no. 14553/89;14554/89, Judgment 25 May 1993; hereinafter cited as Brannigan Case of Lawless v. Ireland, no. 3, Application no. 332/57, Judgment 1 July 1961; hereinafter cited as Lawless

vi 2.5 Other International Courts/Tribunals Claim of the British Ship Im Alone v. United States, Arbitral Award of 30 June 1933, 3 RIAA; hereinafter cited as Im Alone Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, Case No. IT94-2-PT, T.Ch.II, 9 Oct. 2002; hereinafter cited as Prosecutor v. Dragan Nikoli Deon McTaggart v. Jamaica, Comm. No. 749/1997, CCPR/C/62/D/749/1997; hereinafter cited as McTaggart v. Jamaica UN-Doc. No.

Estate of Jean-Baptiste Caire (France v. United Mexican States), Arbitral Award of 7 June 1929, 5 RIAA; hereinafter cited as Caire Forests of Central Rhodope case, RIAA, 29 mars 1933,vol. III pp. 1405-1436; hereinafter cited as Forests of Central Rhodope Giles v. Tumminello case, ILR 38, 120; hereinafter cited as Giles v. Tumminello Guyana v. Surinam (2008) 47 ILM 166; hereinafter cited as Guyana v. Suriname Herman van der Houwen v. The Netherlands, Comm. No. 583/1994, UN-Doc. No. CCPR/C/ 54/D/583/1994; hereinafter cited as Van der Houwen v. The Netherlands Michael and Brian Hill v. Spain, Comm. No. 526/1993, UN-Doc. No. CCPR /C/59 /D/526/ 1993; hereinafter cited as Hill and Hill v. Spain Ramon B. Martinez Portorreal v. Dominican Republic, Comm. No. 188/1984, UN-Doc. No. 40 (A/43/40); hereinafter cited as Portorreal v. Dominican Republic Red Crusader case; 35 ILR 483 (1962); hereinafter cited as Red Crusader Santa Maria case, Whiteman Digest of International Law, vol. 4, p. 665; hereinafter cited as Santa Maria 2.6 Municipal Courts Attorney-General of the Government of Israel v. Eichmann (1961) 36 ILR 5. District Court of Jerusalem; hereinafter cited as Eichmann Appuhamy v. Gregory, Ceylon Supreme Court, October 8 (1953), in (1988) ILR 379; hereinafter cited as Appuhamy v. Gregory Frisbie v. Collins, 342 US 519 (1952); hereinafter cited as Frisbie v. Collins. Naim Molvan v. A.G. for Palestine (1948) AC 531; hereinafter cited as Naim Molvan US v. Alvarez-Machain, 504 US 655 (1992); hereinafter cited as United States v AlvarezMachain.

vii 3. Doctrine 3.1 Books Beckman, R. C., Grundy-Warr, C., Forbes, V. L., Maritime Briefing, Acts of piracy in the Malacca and Singapore Straits, International Boundaries Research Unit (1994); hereinafter cited as Beckman et al. (1994) Brownlie, I, Principles of Public International Law, 7th edition, Oxford University Press (2008); hereinafter cited as Brownlie (2008) Cameron I., The Protective Principle of International Criminal Jurisdiction, Darthmouth Publishing Company Limited (1994); hereinafter cited as Cameron (1994) Churchill, R. R.; Lowe, V. A. (eds.), The Law of the Sea, 3rd edition, Manchester University Press (1999); hereinafter cited as Churchill/Lowe (1999) Crawford J., The International Law Commission's Articles on State Responsibility, Introduction, Text and Commentaries, Cambridge University Press (2002); hereinafter cited as Crawford (2002) Denza E., Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations, 2nd edition, Oxford University Press (1998); hereinafter cited as Denza (1998) Friedman, N., The Naval Institute Guide to World Naval Weapon Systems, Naval Institute Press (2006); hereinafter cited as Friedman (2006) Fry M. G., Goldstein E., Langhorne R., (eds.), Guide to International Relations and Diplomacy, London, Book-craft Ltd (2002); hereinafter cited as Fry (2002) Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law. United Nations Action in the Question of Southern Rhodesia, Martinus Nijhoff Publishers (1990); hereinafter cited as Gowlland-Debbas (1990) Harris D. J., Cases and materials on International Law, Sweet and Maxwell (2004); hereinafter cited as Harris (2004) Higgins, R., Problems and Process, International Law and How to Use It, Oxford, Clarendon Press (1994); hereinafter cited as Higgins (1994) Jennings R., Watts A., Oppenheims International Law, vol. 1, parts 2-4, 9th edition, Addison Wesley Longman Limited (1992); hereinafter cited as Oppenheims (1996) Joseph S., Schultz J., Castan M., The International Covenant on Civil and Political Rights, cases, materials and commentary, 2nd edition, Oxford University Press (2004); hereinafter cited as Joseph et al. (2004) Lee T. L., Consular Law and Practice, 2nd edition, Oxford University Press (1991); hereinafter cited as Lee (1991) Nordquist H. M., United Nations Convention on the law of the Sea 1982, a Commentary,

viii vol. III, Martinus Nijhoff Publishers (1994); hereinafter cited as UNCLOS Commentary vol. III Roberts I., Satows Diplomatic Practice, 6th edition, Oxford University Press (2009); hereinafter cited as Satows (2009) Shaw M. N., International law, 6th edition, Cambridge University Press (2008); hereinafter cited as Shaw (2008) Simma, B., Mosler, H., Randelzhofer, A., Tomuschat, C., Wolfrum, R., (eds.) The Charter of the United Nations: A Commentary, 2nd edition, Oxford University Press (2002); hereinafter cited as Simma (2002) Simbeye Y., Immunity and International Criminal Law, Ashgate Publishing Limited (2004); hereinafter cited as Simbeye (2004) Steiner, H. J., Alston, P., Goodman, R., International human rights in context, 3rd edition, Oxford University Press (2008); hereinafter cited as Steiner et al. (2008) Van Alebeek, R., The Immunity of States and Their Officials in International Criminal Law and International Human Rights Law, Oxford University Press (2008); hereinafter cited as Van Alebeek (2008) Wetter A., Enforcing European Union Law on Exports of Dual-use goods, Oxford University Press (2009); hereinafter cited as Wetter (2009) 3.2 Articles in Books Green, L.C., The law of Piracy, in Dinstein, Y., (ed.), International Law at a Time of Perplexity: essays in honour of Rubin A. P., Irvington-Hudson, Transnational Publishers (1998); hereinafter cited as Green/Dinstein (1998) Murphy, M., Piracy and UNCLOS in Lehr, P., (ed.), Violence at Sea, Piracy in the Age of Global Terrorism, Taylor and Francis Group (2007); hereinafter cited as Murphy (2007) Soons, A. H. A., Enforcing the Economic Embargo at Sea, in Gowlland-Debbas V. (ed.), United Nations Sanctions and International Law, Kluwer Law International (2001); hereinafter cited as Soons (2001) Wolfrum, R., Fighting Terrorism at Sea: Options and Limitations under International Law, in Nordquist, H. M., Wolfrum, R, Moore, J. N., Long, R. (eds.), Legal Challenges in Maritime Security, Martinus Nijhoff Publishers (2008); hereinafter cited as Wolfrum (2008) 3.3 Articles in Periodicals Becker A. M., The Shifting Public Order of the Oceans: Freedom of Navigation and the Interdiction of Ships at Sea, 46 Harvard International Law Journal (2005), p. 131; hereinafter cited as Becker (2005)

ix Fawcett, J.E.S., Security Council Resolutions in Rhodesia, 41 British Yearbook of International Law, p. 103 (1965-1966); hereinafter cited as Fawcett (1965) Fink, M. D., Galvin R. J., Combating pirates off the coast of Somalia: current legal challenges, 56 Netherlands International Law Review (2009), p. 367; hereinafter cited as Fink/Galvin (2009) Green L. C., Derogation of Human Rights in Emergency Situations, 16 Canadian Journal of International Law (1978), p. 92; hereinafter cited as Green (1978) Guilfoyle D., The Proliferation Security Initiative: Interdicting vessels in international waters to prevent the spread of weapons of mass destruction? 29 Melbourne University Law Review (2005), p. 733; hereinafter cited as Guilfoyle (2005) Halberstam M., Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety 82 American Journal of International Law (1988), p. 269; hereinafter cited as Halberstam (1988) Humphrey D. R., Belligerent Interdiction of Neutral Shipping in International Armed Conflict, 2 Journal of Armed Conflict Law (1997), p. 23; hereinafter cited as Humphrey (1997) Hyde C. C., The adjustment of the Im Alone Case, 29 American Journal of International Law (1935), p. 296; hereinafter cited as Hyde (1935) Jose Luis J., Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects, 18 International Journal of Marine and Coastal Law (2003), p. 363; hereinafter cited as Jose Luis (2003) Kwast, P. J.: Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award, 13 Journal of Conflict & Security Law (2008), 49; hereinafter cited as Kwast (2008) Legault L. H., Canadian Practice in International Law during 1982/La pratique canadienne en matire de droit international public en 1982, 21 Canadian Yearbook of International Law (1983), p. 302; hereinafter cited as Legault (1983) Sharp Paul, Mullah Zaeef and Taliban diplomacy: an English School approach, 29 Review of International Studies (2003), p. 481; hereinafter cited as Sharp (2003) Talmon, S., The Security Council as World Legislature, 99 American Journal of International law (2005), p. 175; hereinafter cited as Talmon (2005) Treves T., Piracy, Law of the Sea, and Use of Force: Developments of the Coast of Somalia, 20 European Journal of International Law (2009), p. 399; hereinafter cited as Treves (2009) Ussher, B., The So San Incident, 3 Occasional Papers of the Royal Australian Naval Reserve Professional Studies Program (2007), p. 1; hereinafter cited as Ussher (2007)

x Yong-Jong Lee E., Legal Analysis of the 2006 U.N. Security Council Resolutions Against North Koreas WMD Development, 31 Fordham International Law Journal (2007); hereinafter cited as Yong-Jong (2007) 4. UN Documents ILC, Draft Articles on Consular Relations with Commentaries, Report of the 13th session (1961), YBILC, Vol. II; hereinafter cited as ILC Draft Articles on Consular Relations ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the 53rd session (2001), UN-Doc. No. A/56/10; hereinafter cited as ASR ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Report of the 53rd session (2001), YBILC, Vol. II; hereinafter cited as ASR with commentaries Note by the President of the SC on the occasion of a meeting held at the level of Heads of State and Government, January 31 1992, UN-Doc. S/23500; hereinafter cited as UN Doc. S/23500 Note from American Secretary of State D. Webster to H. Fox, British Minister to Washington, 24 April 1841, reiterated in ILC Rep. (1980); hereinafter cited as Note from American Secretary of State D. Webster UN SC Res. 1540, adopted by the SC at its 4956th meeting, 28 Apr. 2004; hereinafter cited as Res. 1540 UN SC Res. 1816, adopted by the SC at its 5902nd meeting, 2 June 2008; hereinafter cited as Res. 1816 UN SC Res. 1838, adopted by the SC at its 5987th meeting, 7 Oct. 2008; hereinafter cited as Res. 1838 UN SC Res. 1844, adopted by the SC at its 6019th meeting, 20 Nov. 2008; hereinafter cited as Res. 1844 UN SC Res. 1846, adopted by the SC at its 6026th meeting, 2 Dec. 2008; hereinafter cited as Res. 1846 UN SC Res. 1851, adopted by the SC at its 6046th meeting, 16 Dec. 2008; hereinafter cited as Res. 1851 UN SC Res. 1897, adopted by the SC at its 6226th meeting, 30 Nov. 2009; hereinafter cited as Res. 1897 YBILC, Vol. II, Documents of the second part of the seventeenth session and of the eighteenth session including the reports of the Commission to the General Assembly (1966); hereinafter cited as YBILC (1966)

xi YBILC, Vol. I, Summary records of the tenth session, (28 April-4 July, 1958); hereinafter cited as YBILC (1958) 5. Other documents IMO Monthly Reports on Acts of Piracy and Armed Robbery Against Ships, MSC.4/Circ.141, 3 August 2009; hereinafter cited as IMO Report Aug. 2009 IMO Monthly Reports on Acts of Piracy and Armed Robbery Against Ships, MSC.4/Circ.142, 2 Sept. 2009 and MSC.4/Circ.141; hereinafter cited as IMO Report Sept. 2009 IMO Res. of 29 Nov. 2001, adopting the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against ships; hereinafter cited as IMO Res. A 922 (22) IMO-sponsored Code of Conduct concerning the Repression of Piracy and Armed Robbery Against Ships in the Western Indian Ocean and the Gulf of Aden, adopted in Djibouti on 29 January 2009; hereinafter cited as IMO Code of Conduct (2009) Regional Cooperation Agreement on combating piracy and armed robbery against ships in Asia of 28 April 2005, 44 ILM (2005) 829; hereinafter cited as Regional Cooperation Agreement (2005) The Third US Restatement of Foreign Relations Law, vol. 1, American Law Institute, 1987; hereinafter cited as Third Restatement (1987) 6. Online sources (Last visited Jan. 19, 2010) Bolton R. J., Legitimacy in International Affairs: The American Perspective in Theory and Operation, Remarks to the Federalist Society (Nov. 13, 2003), available at: http://www.state.gov/t/us/rm/26143pf.htm; hereinafter cited as Bolton 2003

xii (d) Statement of Relevant Facts The shores of Banana and Margarida face the Treasured Sea, an ocean infested by pirates, who operate from an island known as the State of Tortuga. As a result of years of internal strives and hardships, the Government of Tortuga has no more than notional power over the island which is de facto ruled by pirate leaders. In order to deal with the problematic situation, the SC has, upon the request of the Government of Tortuga, adopted Res. 2224 under Chapter VII of the UN Charter. Margarida is the dominating regional power in the area and its relations to Banana are problematic since the latter in Aug. 2009 successfully tested a missile capable to reach Caramba and other major cities of Margarida. The president of Banana, Colonel Tapioca, held a public speech where he implied a threat towards the nation of Margarida. Furthermore, Banana is suspected of carrying a clandestine nuclear program. These suspicions has led the SC to adopt the UN Embargo, under art. 41 of the UN Charter. In early Sept. 2009, a month after missiles were tested by Banana the Argonaut, a vessel under Warangian flag, sails into the Treasured Sea. It is reported in media that the vessel cargo comprises inertial navigation systems and electronics that may be used to equip long-range missiles. On the 3rd of Sept. 2009, pirates board Argonaut and take the crew as hostages and at 11.55 the day after they attack another vessels only 32 n.m. from the position of Argonaut. At 14.20 the same day, the Margaridan vessel EFS Trinidad spots Argonaut and reports that it hoists two speedboats and their crew on board. At this point, the Margaridan Navy Command gives order to the EFS Trinidad to set course towards the Argonaut. Hunted by EFS Trinidad, the Argonaut sails towards Banana. At 17.20, the Margaridan Navy Command relates an executive order to EFS Trinidad. It is commanded to take all appropriate action to prevent the Argonaut from entering the territorial waters of Banana

xiii and to rescue all hostages. At 20.22, the Argonaut is positioned n.m. from the territorial waters of Banana and it does not fly a flag. EFS Trinidad, unable to establish radio contact with the vessel, sends light signals to stop the Argonaut, which are however ignored. Two minutes later EFS Trinidad fires a gunshot across the bow of Argonaut. Since the vessel continues towards Bananan territorial waters, EFS Trinidad fires a second shot that hits Argonaut which starts to burn. At this point, the position of Argonaut is still outside the territorial waters of Banana. Nevertheless, while still on fire, the vessel floats into Bananan waters. No communication is sent by Argonaut during or after these events. One mile within the territorial waters of Banana, a team of Marines from the EFS Trinidad board the Argonaut and rescue the crew. Jason was found together with three armed pirates and in total seven pirates was captured. After rescuing everyone onboard the Argonaut, the Marines set time charges which detonate at 21.00 whereby the vessel sinks. The following items were secured by the Marines: (i) Copies of the bills of lading, describing the cargo as pharmaceutical products and medical apparatus, destined for Banana; (ii) A patent letter identifying Jason as Lieutenant Commander of the Warangian naval reserve; (iii) A copy of a accreditation introducing Jason as assistant to the naval attach of the Warangian Embassy in Banana (vi) A box taken from the cargo of the vessel On 5th Sept. 2009, EFS Trinidad reaches Limbo Harbour, a naval reserve operated by Margarida under a 99-years-lease granted by Banana. The lease excludes the exercise of any jurisdictional rights by Banana whose sovereignty however is confirmed by the lease. The pirates captured by Margarida are detained at Limbo Harbour as unlawful

xiv enemy combatants. While the rescued crew is taken to Margarida, Jason is detained at Limbo Harbour in order to investigate whether he is an unlawful enemy combatant or if should be tried in Margarida for violations of the Nachos/Frijoles Act and the UN Embargo. Three days later, the consul of Warangia in Caramba requests a meeting with Jason, which is denied since Jason is not present on Margaridan territory. The request by Golden Fleece Co. that the cargo box should be delivered to them is also denied, since it is needed for the criminal investigation in Margarida. On the 11th of Sept. 2009, Warangia files an application to the ICJ. All states in the present case are members of the UN. Both Warangia and Margarida are parties to UNCLOS (1982), VCDR (1961), VCCR (1963), VCLT (1969) and to all four Geneva Conventions.

xv (e) Issues In The Case of Pirates in the Treasured Sea, Margarida requests this honorable Court whether: A. The attack of Argonaut was lawful 1. Did arts. 100 and 105 of UNCLOS, read together with Res. 2224, constitute a duty to seize and arrest pirates on the Treasured Sea? 2. Was the Argonaut a pirate ship? 3. To what extent is the use of force legal against pirate vessels on the high seas? B. The boarding and seizure of Argonaut was legal under international law 1. Does the Court have jurisdiction to determine the legal rights of Banana, a third state, without it being party to the case? 2. Did Margarida have a duty to render assistance to the persons onboard the burning Argonaut? 3. Has new custom emerged granting Margarida a right to board the Argonaut because of piracy/ armed robbery within the territorial waters of Banana? 4. Does the concept of reverse hot pursuit give Margarida a right to complete the chase of the Argonaut from the high seas into the territorial waters of Banana? 5. Can Margaridas interception, without the consent on Warangia, be considered as a lawful countermeasure because Warangia did not comply with the UN Embargo? 6. Is necessity applicable as a circumstance precluding the potential wrongfulness of any act, committed by Margarida, pertaining to the situation? C. The sinking of Argonaut was lawful 1. Can the sinking be regarded as a security measure within the scope of international law? 2. Does necessity preclude the potential wrongfulness of the sinking of Argonaut?

xvi D. The arrest and detention of Jason was lawful 1. Does the potential diplomatic protection of Jason apply in Margarida? 2. Did Margarida have a legal ground for arresting Jason for piracy? 3. Did Margarida have a legal ground for the detention of Jason? 4. Did Margarida have prescriptive jurisdiction over Jason since he was suspected to have committed acts of piracy? 5. Did the protective principle give Margarida a right to exercise prescriptive jurisdiction over Jason? 6. Can Margarida exercise jurisdiction over Jason because of the principle of male detentus bene captivus? E. The denial of a consular meeting was lawful 1. Was Limbo Harbour a part of the consular district of the Warangian Consul in Caramba? 2. Did Margarida violate art. 36 of the VCCR? 3. Did Jason loose his national character and therefore also his consular protection because of piracy? F. Margarida had a right to seize the cargo box 1. Did Margarida have a right to seize the cargo box because of the suspicions that it contained dangerous products prohibited by the UN Embargo? G. Warangia has committed an internationally wrongful act 1. Did Warangia breach international law by failing to comply with the UN Embargo? 2. Are the allegedly illegal acts committed by Jason attributable to Warangia?

xvii (f) Summary of arguments (1) Arts. 100 and 105 of UNCLOS and Res. 2224 constitutes a duty to seize and arrest pirates on the high seas. (2) The Argonaut is a pirate ship since the acts of piracy took place on the high seas, the pirates had private motives and two ships were involved in the pirate attack. (3) Art. 105 of UNCLOS, Res. 2224 and the right to visit stated in art. 110 of UNCLOS imply the possibility of the use of force against pirates on the high seas. (4) The use of force against pirates on the high seas shall be regarded as police-force rather than military force. (5) The use of force was reasonable and necessary and thus it constituted reasonable and proportionate law enforcement measures. (6) The Argonaut has lost its nationality and therefore Margarida did not violate the principle of non-intervention. (7) The question whether Bananan sovereignty has been violated is a matter between Margarida and Banana, the Court does not have jurisdiction to determine the legal rights of Banana, a third state, without it being party to the case. (8) The duty to render assistance stated in art. 98 of UNCLOS applies anywhere in the oceans, consequently Margarida had a duty to save the lives of the persons onboard the burning Argonaut. (9) The entrance into the territorial waters of Banana was only a technical breach of its territory and should therefore be regarded as legal because of art. 98 of UNCLOS. (10) Margarida submits that the law of the sea is changing and evolving in response to the need of securing and maintaining an orderly use of the oceans. The fact that the SC now, with Res. 2224, has opened for a right to seize pirate ships within the territorial waters of states indicate that custom has developed in this area. (11) Art. 111 of UNCLOS show that there is an acceptance in the convention for the idea that a right violated in one zone should not be left with impunity just because the ship flees into another zone. (12) Based on preparatory work by the ILC the concept of reverse hot pursuit allowing states to complete a chase started in the high seas into territorial waters seems to be a well-founded exception from the phrase outside the jurisdiction of any state in art. 101 of UNCLOS. (13) Since Warangia did not comply with the UN Embargo, Margaridas interception without the consent on Warangia may be regarded as a lawful countermeasure. (14) Margarida had jurisdiction over the Argonaut based on the protective principle

xviii seen together with the UN Embargo. (15) Since the Margaridan decision to seize the Argonaut was aimed at preventing the vessel from reaching Banana with illegal materials capable of causing great harm to Margarida, necessity is applicable as a circumstance precluding the potential wrongfulness of any act pertaining to the situation. (16) The attack of the pirate vessel took place on the high seas i.e. within the definition of art 105 of UNCLOS. Thus taking the cargo box was legal also after entering the territorial waters of Banana. (17) Margarida suspected that the cargo box contained pharmaceutical products of a dual-use character. (18) There are important differences between the case at present and the So San incident. In the latter, the vessel was heading to Yemen, which constituted a smaller threat towards the US than the threat from Banana towards Margarida. (19) Margarida had reasonable suspicion that the Argonaut was carrying contraband goods. The reported facts on the content of the cargo together with the UN embargo must be considered to be a well-founded legal basis for confiscating the cargo box for further investigation. (20) The present scenario is different from that in the Corfu Channel case where the UK acted intentionally within the territorial waters of Albania. (21) The passage of Res. 1540 provides an ex post legal basis for the PSI. The question on the lawfulness of seizures of cargoes can only be determined on a case-by-case basis where all relevant factors must be considered. (22) Margarida exercised necessary and reasonable force in the sinking of the Argonaut. In the Im Alone case, it was stated that a sinking might be entirely blameless in such situations. (23) To leave a burning vessel floating around at sea, would be highly irresponsible and a great risk of collisions. (24) If the Court finds the sinking to be unlawful, Margarida submits that a situation of necessity was at hand. The interest to prevent the vessel from reaching Banana must be regarded as stronger than the interest of keeping the vessel intact. (25) The sinking was in accordance with the Caroline principles.

(26) Banana has not been recognized by Margarida as a legitimate state, thus, Jason does not have any form of diplomatic protection. (27) The fact that a person is holding a diplomatic passport does not necessarily mean that he is a diplomatic agent for the purposes of art. 40 of VCDR, since there must also be evidence that he have been accredited to a specific state.

xix (28) Forcible actions against diplomats, including detention, can be accepted in order to prevent them from committing offences. (29) The rule of diplomatic immunity entails rights and obligations mainly for the sending and receiving state i.e. it does not apply erga omnes. (30) There is no obligation under art. 40.2 of the VCDR to admit the persons concerned transit, and probably there is no obligation to grant them inviolability or other immunities from jurisdiction either. (31) Jason did not end up at Limbo Harbour as a result of an unforeseeable accident. Instead he was detained there because of the suspicions against him. (32) The fact that the Margaridan team of marines found Jason on the vessels bridge together with three pirates, instead of together with the hostages, gave the indication that he was allied with the pirates. (33) The Nachos/Frijoles Act is applicable as a legal ground for the arrest of Jason, at least to the extent it corresponds with the UN Embargo. (34) Jason was arrested after his arrival at Limbo Harbour, being brought there in a rescue mission together with the other hostages. It was only when Jason was refused to follow the crew of the Argonaut in the aircraft to Margarida, that he shall be regarded as being detained. (35) Jason has only been denied a trial for 7 days and he is under a criminal investigation during this period. The ECtHR has stated that detention without a trial can be necessary to investigate terrorist crimes. Correspondingly, Margarida holds the present detention to be necessary for the criminal investigation on Jason. (36) The right to fair trial, as stated in art. 9 of ICCPR have not been breached since Art. 4 of the same convention allow derogations. (37) Jason is within Margarida's jurisdiction because of the protective principle.

(38) The Nacho/Frijoles Act has support in the UN embargo, at least in certain parts, and also in the general universal malignity towards terrorism. (39) Prescriptive jurisdiction may be asserted over the crimes committed by Jason since piracy is a crime with universal jurisdiction. (40) Even if the Court would regard Jason as having been arrested in connection with the seizure of the Argonaut, the principle of male detentus bene captivus is applicable. (41) Jason was not present on the territory of Margarida at the time of the meeting request of the consul of Warangia. Thus, art. 36 of VCDR is inapplicable since it presumes that the national is physically present within the consular district. There are no facts indicating that the consular district of the Warangian consul would include Limbo Harbor.

xx

(42) According to art. 4.1 of VCCR, a consular post may be established in the territory of a receiving state only with that states consent, so does also any changes in the consular district. In the light of the present situation, it is highly unlikely that the Government of Margarida would give its consent to such an extension of the consular district. (43) A consul shall refrain from taking any action on behalf of a national if the latter expressly opposes such action and there are no indications that Jason has requested this. (44) A textual interpretation of art. 36 of VCCR place the right of a consul to visit its national in a secondary position; this provision becomes relevant after a notification has been given in accordance with art. 36.1 (b) of VCCR. (45) The expression in art. 36.1 (b) allows for cases where it is necessary to hold a person incomunicado for a certain period for the purposes of the criminal investigation. (46) The act of piracy leads to the loss of protection of the pirates home state and thereby Jason might also loose his national character. If this is the case, the question of his consular assistance falls together with his previous nationality. (47) Since Warangia has failed to comply with the UN Embargo by allowing the Argonaut to leave its territory with the alleged illegal materials onboard it has committed an internationally wrongful act. (48) The alleged illegal acts committed by Jason are attributable to Warangia since he is a Lieutenant Commander of the Warangian naval reserve. (g) Juridiction of the Court The Estados Federales de Margarida and the Kingdom of Warangia are parties to the Statute of the International Court of Justice and have accepted the compulsory jurisdiction of the Court under art. 36 (2) of the Statute, without any relevant reservations.

1 (h) Argument 1. THE ATTACK WAS LAWFUL 1.1. There is a duty to repress piracy under international law Arts. 100 and 105 of UNCLOS, read together, constitutes a duty to seize and arrest pirates on the Treasured Sea, at least when there is no compelling reason to refrain from doing so. 1 The duty to suppress piracy is strengthened by Res. 2224, which calls upon all states to actively take part in the fight against piracy and armed robbery at sea. Art. 25 and 48 (1) of the UN Charter recognize that the SC can adopt decisions that are binding under Chapter VII to all UN members. 2 Margarida therefore regards itself as obliged to fight the crime of piracy. 1.2. The Argonaut is a pirate ship The definition of piracy in art. 101 of UNCLOS is limited to acts committed for private ends, as opposed to political or public acts 3 , on the high seas or outside any states jurisdiction and between two ships. Art. 103 of UNCLOS states that a ship is a pirate ship if the persons in dominant control of it intend to use it to commit acts referred to in art. 101. The pirate-attack on the Argonaut took place on the high seas. Additionally, another vessel was attacked only 32 n.m. from the Argonaut one day after it was seized by pirates. Since a normal speedboat can travel 32 n.m. in less than an hour 4 it is likely that the two vessels were attacked by the same pirates. If their motives were other than of a private nature, e.g. to get a hold of the alleged military products, there would be no reason for them to attack the second vessel. These circumstances support that Margarida had a reasonable ground 5 for suspecting piracy.
1 2 3 4 5

Wolfrum (2008), p. 8; Treves (2009), p. 402. Soons (2001), p. 308; Yong-Jong (2007), p. 1. UNCLOS Commentary vol. III, p. 200, para. 101.8 (a). Friedman (2006), p. 194. UNCLOS, art. 110; Res. 2224.

2 A textual interpretation of the definition of piracy leads to the understanding that such acts have to be undertaken by one ship against another, i.e. acts including speedboats may not be included. 6 Nevertheless, the requirement of two ships seems more likely to function as a differentiator between piracy and hijacking. 7 The Achille Lauro 8 and the Santa Maria 9 incidents are examples of the latter. 10 Modern time pirates, on the other hand, habitually operate from mother-ships, using speedboats to reach their targets. 11 Thereby, the two ship requirement shall be regarded as fulfilled indirectly, no matter what kind of vessels are used. At the time of the formation of UNCLOS, piracy was regarded an old problem that could easily be dealt with by the large fleets still patrolling the seas. 12 Since this has changed drastically in recent years, 13 the SC has endeavoured to remedy the limitations of the piracy definition in international law through measures taken under chapter VII of the UN Charter. 14 In Res. 1816 and several resolutions following it 15 , the SC used the term armed robbery together with piracy, a term not defined in the resolutions, but frequently used by

6 7 8 9

UNCLOS, art. 101; Treves (2009), p. 402. Fink & Galvin (2009), p. 374; Murphy (2007), p. 164; Jose Luis (2003), p. 386. Halberstam (1988), pp. 269-270. Harris (2004), p. 459.

Harris (2004), p. 459; Fink & Galvin (2009), p. 374; Murphy (2007), p. 164; Jose Luis (2003), p. 386, the ships were internally seized by persons that were on the vessels, as opposed to piracy where the vessels are attacked from persons off the vessel.
11 12 13

10

Treves (2009), p. 402. Jose Luis (2003), p. 382; Murphy (2007), p 158.

Wolfrum (2008), p. 6; Murphy (2007), p. 157; IMO Report Sept. 2009; IMO Report Aug. 2009.
14 15

Treves (2009), p. 403; Soons (2001), p. 316; Talmon (2005), p. 175. Res. 1897; 1838; 1844; 1846 and 1851.

3 the IMO. 16 The phrase is given a broader definition and shall be understood as including all acts of violence in waters within the jurisdiction of a state, committed with purposes resembling those of piracy, which can be perpetrated without the use of a ship. 17 In the Somali cases of piracy, two or more ships are usually involved. 18 Thus, the fact that the SC use the term armed robbery does not seem strictly dedicated by the needs of existing practice, but rather constituting an aim to include all piracy-acts such as those involving only one ship. 19 1.3. The use of force against pirate vessels on the high seas The power granted to all states in art. 105 of UNCLOS to seize pirate ships on the high seas, Res. 2224 and the right to visit stated in art. 110 of UNCLOS imply the possibility of the use of force to reach these objectives. 20 Furthermore it is submitted that state practice reflects the permissibility of resorting to forcible measures in law enforcement at sea. 21 In Res. 221 art. 5 the UK was called upon to prevent, by use of force if necessary, vessels carrying oil to Southern Rhodesia. The legal basis of the resolution seems to have been some implied power

16 17

Res. 1816 and those following it, especially Res. 1846.

IMO Res. A 922(22), art 2.2; Regional Cooperation Agreement (2005), art. 1.2; IMO Code of Conduct (2009), art. 1.2.
18 19 20 21

Treves (2009), p. 403. Ibid. Treves (2009), p. 412; Kwast (2008), p. 55.

Francioni (1986), p. 372, n. 56, referring to the Artic Maid, 27 March 1955 which resulted in seizure of the vessel and wounding of crew-membes, the Normandie, 13 December 1957 which was shot by a Chilean aircraft about 25 miles of the Chilean coast, the Jolinda, 23 February 1962 was shot at by the coastal state about 25 miles from the coast, the Lou Jean, 28 April 1962 was shot at and seized about 15 miles from the coast; see also Treves (2009), p. 412-413, concerning the Indian navy vessel Tabar which requested a pirate mother ship to stop. The pirate vessel then fired at the navy vessel and threatened to blow her up, whereas the Tabar responded by sinking the pirate vessel.

4 of the SC under all of Chapter VII. 22 First, Margarida submits that Res. 2224 shall be regarded as an authorization for all states with the capacity to do so to exercise police force towards pirate vessels based upon all of Chapter VII of the UN Charter, thus implying an acceptance of a rather high level of force to reach this objective. 23 Secondly, even if the Court would not agree with Margarida on this point, action against pirates may, according to Treves, be assimilated with a legal power to engage in police action. 24 In the Guyana v. Surinam case the Arbitral Award referred to a statement in the Nicaragua case distinguishing the gravest forms of use of force (constituting an armed attack) from other less grave forms consequently confirming that force may be used in certain law-enforcement activities at sea. 25 This right to use force is, however, subject to some limitations. In the Saiga case the Tribunal stated that the use of force shall be avoided as far as possible and if force is inevitable, it cannot go beyond what is reasonable and necessary in the circumstances, a view reflecting CIL. 26 Another requirement concerning the use of force is that considerations of humanity shall apply to the law of the sea as it does in other areas of international law. 27 The normal practice concerning stopping vessels at sea is to give light signals. When this does not succeed, a variety of actions may be taken such as

Soons (2001), pp. 311-312; Fawcett (1965), pp. 120-121; Gowlland-Debbas (1990), pp. 416-419. Simma (2002), p. 705, para. 11, stating that the SC can take non-military or military enforcement measures according to the exigencies of the particular situation.
24 25 26 23

22

Treves (2009), p. 413. Guyana v. Surinam case, para. 440 referring to para. 191 of the Nicaragua case.

UNCLOS art. 293; Saiga case, para. 155; Guyana v. Surinam case, para. 445; the requirements were confirmed and similar points were made in the Im Alone and the Red Crusader cases; see also Treves (2009), p. 413-414; Soons (2001), p. 320.
27

Saiga case, para. 155.

5 the firing of shots across the bow of the ship. Only after such appropriate actions the pursuer may turn to the use of force. 28 Margarida followed the normal practice by taking all the above-mentioned measures prior to the use of force. Furthermore nobody was physically hurt and the result of the minimal use of force was that the pirate vessel was seized, the pirates were captured and the hostages were saved. In sum, the measures taken were reasonable and proportionate law enforcement measures. The acts undertaken by Margarida resemble what happened in the So San incident. 29 The Spanish frigate patrolling the seas first fired a shot across the bow of the So San, and then sent a team to board the vessel by helicopter. 30 In that case the stopping and boarding was legal since the ship was not flying a flag 31 , which the Argonaut was not either. Consequently Warangia did not enjoy the exclusive flag-state jurisdiction over the vessel and Margarida has not violated the principle of non-intervention through the attack of the Argonaut. 32

2. THE BOARDING AND SEIZURE OF ARGONAUT WAS LAWFUL 2.1. Third state involvement The question whether Bananan sovereignty has been violated is a matter between Margarida and Banana. Banana might very well acquiesce in the legality, or waive its claims concerning the alleged illegality of Margarida's acts like Argentina did in the Eichmann case. 33 In the

28 29 30 31 32

Saiga case, para. 156. Becker (2005), p. 152-153, p. 674; Guilfoyle (2007), p. 11. Ussher (2007), p. 1. UNCLOS, Art. 110; Becker (2005), p. 154.

The principle can be inferred from the UN Charter Arts. 2.1, 2.4, and 2.7 and was applied in for instance the Nicaragua and the Corfu Channel cases.
33

Eichmann case, para. 50.

6 Land and Maritime Boundary case, ICJ found that it had jurisdiction to rule between the two parties as long as it did not have to decide upon the legal rights of third states not parties to the proceedings. 34 Thus, Margarida submits that the Court does not have jurisdiction to determine the legal rights of Banana, a third state, without it being party to the case. 2.2. Margarida had a duty to render assistance Margarida had the duty under international law to save the lives of the persons onboard the Argonaut after it caught fire. According to art. 98.1 (a) of UNCLOS, all states have a general obligation of rendering assistance to persons in distress at sea. Whether the duty applies to territorial waters is not as clear in UNCLOS as in e.g. SOLAS, 35 but the commentary to art. 98 states that the duty applies anywhere in the oceans. 36 This view can be supported by three points; first, the use of general terms like the seas or at sea instead of the high seas appears to be used to refer to more general obligations. 37 Margarida submits that a textual analysis 38 suggests that by not using the term high seas, states have clarified a broader obligation. Secondly, rights and obligations regarding safety at sea would not be fully effective if they were to cease as soon as a vessel crossed the territorial boundary of another

Land and Maritime Boundary case, para. 238; Additionally, in the East Timor case, para. 34, the court found that it did not have jurisdiction on the ground that it had to determine the rights and duties of Indonesia, a third state who did not wish to become a party to the case, without its consent; in the Forests of Central Rhodope case, p. 1432, restitution was found not to be a suitable form of reparation since it would affect the rights of others; see also the Monetary Gold case.
35

34

SOLAS, Chapter V, Regulation 33 (1), states that the duty to rescue is applicable without geographical limitations, i.e. it applies within the territory of other states. UNCLOS Commentary vol. III, para. 98.11 (g).

36 37

In the High Seas Convention (1958), the term high seas is used in arts. 1, 2, 4, 6, 8, 9 11, 14, 19, 22, 23, 26, 27, 28, the term the seas is used in art. 3. Libya/ Chad case, para. 41, the ICJ stated that an interpretation shall be based above all on the text of the treaty; a textual interpretation was further used by the ICJ in for instance the Admissions and the Competence cases.

38

7 state. Thus, an interpretation according to appropriate affects 39 speaks its own clear language. Thirdly, changing the regime concerning saving lives at sea does not appear to have been the objective 40 of UNCLOS. 41 Additionally, it is unlikely that states wanted to alter their newly negotiated obligation to render assistance everywhere in the ocean just one year after the SOLAS Convention was completed, when the UNCLOS-negotiations began. 42 Margarida thereby submits that the duty to render assistance applies within territorial waters of Banana. The fact that the Argonaut was burning was part of a causal chain that started because of the above-mentioned obligation to seize pirate vessels. The entrance into Bananan territorial waters was merely a technical 43 breach and shall consequently be regarded as legal. 2.3. Margarida had a right to board the Argonaut because of piracy/armed robbery Many of the coastal states affected by piracy lack a navy or coastguard strong enough, and sometimes even the interest, to deal with this problem. 44 For any system of law to be able to respond to the needs of society, it has to be able to change and adapt to new circumstances affecting the reality it purports to regulate. The law of the sea is no exception and like any other branch of law it is not static. The ITLOS Judge Jose Luis has stated that the piracy rules

39 40 41 42

YBILC vol. II, 1966, at p. 219. VCLT, art. 31. Harris (2004), p. 383 (concerning the main changes and additions in UNCLOS).

Harris (2004), p. 382, n. 15, referring to the 3rd UN Conference on the Law of the Sea: Official Records, Volumes I-XVII, 1975-84.
43

Rainbow Warrior, p. 201, it was stated that certain violations were neither accidental nor technical. International law and New Zealand's sovereignty were violated deliberately and contemptuously.
44

Jose Luis (2003), p. 383.

8 reflect the old world but need to keep pace with todays needs. 45 In the ILC commentary to the 1956 draft articles, upon which UNCLOS is based, the ILC stated concerning the requisite "outside any states jurisdiction" that "the commission considers, despite certain dissenting opinions, that where the pirate attack takes place within the territory of a state, including its territorial sea, the general rule should be applied that it is a matter for the State affected to take necessary measures for the repression of the acts committed within the territory". 46 The fact that the rule is intended to be a general rule (meaning that there can be exceptions from it) and that the ILC was not unanimous, indicate a room for Margarida to exercise jurisdiction within the territorial waters of Banana in the present case. As early as 1926, the Committee of Experts for the Progressive Codification of International Law of the League of Nations produced a proposal as a first attempt to codify the rules on piracy. 47 Art. 5 held that a pursuit commenced on the high sea may be continued even within the territorial waters unless the territorial state is in a position to continue the pursuit itself. 48 The ILC later reached the conclusion that the acts of piracy were few and therefore decided not to let this view prevail.49 Today, this has changed and the law of the sea is changing and evolving in response to the need of securing and maintaining an orderly use of the oceans. Examples of these changes can be found in the abovementioned Somalia Resolutions. 50 They made the international law on piracy applicable

45 46 47 48

Jose Luis (2003), p. 382. UNCLOS Commentary vol. III. p. 201, para. 101.8 (d). Jose Luis (2003), pp. 385-386.

Green/Dinstein (1998), p. 333 citing the League of Nations Pub.C.196.M.70.1927.V., p. 119.

49 50

Jose Luis (2003), p. 386. Supra, p. 2, n. 15.

9 within territorial waters of Somalia, permitted pursuit from the high seas into Somali waters 51 and were like Res. 2224 made upon request of the effected government. The SC stated that the resolutions did not establish new CIL. 52 However, it is doubtful whether such a statement can have legal effect since it is practice (rather than statements) that forms the basis for custom. 53 In a case where there is an overwhelming necessity to preserve a sense of regulation in the international community custom may develop extra fast. 54 The fact that the SC now, with Res. 2224, has opened for a right to seize pirate ships within the territorial waters of states speaks its own clear language that new custom has developed in this area. If the court does not agree with Margarida on this point, reference is made to a concept that has become known as reverse hot pursuit, 55 which very much resembles hot pursuit in art. 111 of UNCLOS. Hot pursuit may be used to justify the chase of a ship, which has violated the law in territorial, archipelagic or internal waters, and flees into international waters. The chase has to stop when the ship reaches the territorial waters of another state. 56 Yet, the rule does indicate an acceptance in the convention for the idea that a right violated in one zone should not be left with impunity merely because the ship flees into another zone. In the light of the ILC's preparatory works mentioned above, allowing states to complete a chase started in the high seas into territorial waters seems to be a well-founded exception from the phrase outside the jurisdiction of any state in art. 101 of UNCLOS.

51 52 53 54 55 56

See e.g. Res. 1816, para. 7 See for instance Res.1897, para 8; Res.1838, para. 8 and Res.1816, para. 9. Shaw (2008), p. 82; Steiner et al. (2008), p. 162-163. North Sea Continental Shelf case, para. 74; Shaw (2008), p. 79. Fink & Galvin (2009), p. 371; Murphy (2007), p. 163. UNCLOS, art. 111 (4).

10 2.4. Margarida had a right to seize Argonaut because it breached the UN Embargo When the SC decides on mandatory sanctions under art. 41 of the UN Charter, like in the UN Embargo, all states concerned must comply with this. 57 Since Warangia did not comply with the UN Embargo, by not preventing the Argonaut to leave for Banana with the alleged prohibited materials onboard, Margaridas interception, without the consent of Warangia, (the flag state) may be regarded as a lawful countermeasure. 58 If the Court reaches the conclusion that Margarida does not have enforcement jurisdiction as argued above, Margarida submits that necessity is applicable as a circumstance precluding the potential wrongfulness of any act pertaining to this situation. 59 In the GabkovoNagymaros Project case, the ICJ held that the defence of necessity was recognized by CIL. 60 This statement, combined with the subsequent approval of the ASR by the GA and the reference to the same in the Construction of a wall case 61 , indicate that the defence necessity is a valid and accepted plea. Margarida was facing an irreconcilable conflict between the interest of safeguarding an essential interest such as saving the nation against the grave and imminent peril, 62 i.e. the Bananan accumulation of arms on one hand, and the obligation not to violate Bananan territorial sovereignty on the other. 63 The Margaridan decision to seize

57 58

Soons (2001), p. 308; Simma (2002), p. 713, para. 34.

Soons (2001), p. 317, n. 33; ASR, art. 22; in the Gabkovo-Nagymaros Project case, para. 83, the ICJ accepted that countermeasures might justify otherwise unlawful conduct taken in response to a previous international wrongful act of another State and directed against that State.
59 60 61 62 63

ASR, art. 25. Gabkovo-Nagymaros Project case, para. 51. Construction of a Wall case, p. 12. ASR, art. 25.1 (a). ILC Commentary to ASR, art. 25, para. 2.

11 Argonaut was aimed to prevent it from reaching Banana with materials capable of causing great harm to Margarida. This must be regarded as a supreme interest in relation to the minor incursion of the Bananan territorial sovereignty.

3. THE SINKING OF ARGONAUT WAS LAWFUL 3.1 The sinking was a security measure within the scope of international law The claim that the sinking of Argonaut was lawful will only concern the fact that Warangia lost its vessel, the fact that the sinking occurred on the Bananan territory is without legal significance. 64 Under certain circumstances sinking of vessels is regarded as a breach of international law 65 this is however not always the case. In the Im Alone case, it was stated that a sinking might be entirely blameless if it occurred as a result of the exercise of necessary and reasonable force. 66 Margarida wishes to stress the differences from the earlier cases with the present scenario. The people onboard the Argonaut were rescued before the vessel was sunk. This fact shall be compared to the Rainbow warrior and Im Alone cases where actions were taken without regard to the safety of innocent civilians. Additionally, the Argonaut was burning without anyone in control of it, thereby causing danger to other shipping. Consequently it was both necessary and reasonable to sink the Argonaut to avoid any unwanted effects. The alternative, to leave a burning vessel floating around at sea, would be highly irresponsible and cause a great risk of collisions. The fact that the vessel was within the territorial waters of a state constituted an even greater risk of collisions than what would have been the case if the vessel was on the high seas.
64 65 66

Supra, pp. 5-6, para. 2.1. See e.g. the Rainbow Warrior I case, p. 1614.

Im Alone case, p. 1615, these requirements were however not met and the Commission outlawed the US sinking of the vessel. In fact the master and crew was plunged into the sea and the boatswain died from drowning; see also Hyde (1935), p. 296.

12 Accordingly, Margarida did not violate international law by sinking the burning Argonaut. 3.2 Margarida was in a situation of necessity If the Court nonetheless finds the sinking to be unlawful, Margarida submits that a situation of necessity was at hand. In the Torrey Canyon incident the British Government decided to bomb a ship in order to burn the remaining oil in a collapsed and leaking oil tanker, which caused a situation of danger. This action did not invoke international protests. 67 Bearing in mind that the burning Argonaut was carrying technical products to an unreliable state, the sinking was conducted in order to safeguard an essential interest i.e. the safety of its nation against a grave and imminent peril, as required in art. 25.1 (a) of the ASR. The interest to prevent the vessel from reaching Banana must be regarded as stronger than the interest of keeping the vessel intact. Because of these safety measures taken by Margarida, the outcome resulted merely in damage to property. If Margarida would not have sunk the vessel, the consequences could have become very serous. Margarida further claims its action to be in accordance with the Caroline principles 68 i.e. it was caused by a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation 69 . In the present case, quick decisions had to be made. The vessel was heading closer and closer to the territory of Banana with products able to cause extreme danger. The actions cannot be clinically isolated from one another. Rather, they must be seen as a course of events from the start with the attack on the high seas that was warranted by threats posed towards Margarida. The sinking was a last resort to ensure safety and security of vessels at sea and to prevent further accidents. Regarded as such an interfaced chain of events, the detail that Margarida in the course of these pressing
67 68

Harris (2004), p. 529, referring to the Torrey Canyon incident; Crawford (2002), p. 181.

Harris (2004), p. 921, the principles derived from the Caroline case from 1837, which deals with the issue of necessity. Note from American Secretary of State D. Webster, p. 93, n. 129.

69

13 circumstances sunk the vessel cannot lead to a disqualification of its claim. 70 The situation of necessity cannot be said to have started at the time when Argonaut caught fire or when it was sunk, rather it began much earlier, as discussed above.

4. THE ARREST AND DETENTION OF JASON WAS LAWFUL 4.1. The diplomatic immunity of Jason does not apply in Margarida Margarida submits that it is not bound by the duties in art. 40 of VCDR since both a sending and a receiving state must exist for this article to confer immunity to diplomats or their staff. 71 Since Margarida has not recognized Banana as a legitimate state, Jason does not have any form of diplomatic protection. If the Court, however, finds the non-recognition to be irrelevant, Margarida submits that it is highly dubious what level of immunity Jason has under the VCDR. Possession of a diplomatic passport does not necessarily mean that he is a diplomatic agent for the purposes of art. 40 of VCDR, since there must also be evidence that Jason has been accredited to a specific state. 72 Persons engaged in the diplomatic functions, i.e. members of the mission, include military attachs. 73 In the Appuhamy v. Gregory case from 1953 it was indicated that even assistants to naval attachs might be regarded as members of the diplomatic staff. It shall however be stressed that the assistant was given immunity since he was performing duties in ASR, art. 25.2 (b); Gabkovo-Nagymaros project case, para. 57 where the Court considered that since Hungary had helped, by act or omission to bring about the situation of alleged necessity, it could not rely on that situation as a circumstance precluding wrongfulness.
71 70

Denza (2008), p. 456; Satows (2009), p. 170; Sharp (2003), p. 497, referring to an incident when Pakistan broke off diplomatic relations with the Taliban Government of Afghanistan in 2002 and then handed its former Ambassador to pro-US Afghan forces. The US, which had never recognized the Taliban Government, arrested him.
72 73

Denza (2008), p. 456. Fry (2002), p. 543; Satows (2009), p. 159, n. 5.

14 the Embassy assisting the Ambassador. 74 This case from a national court does not bind the Court, additionally, it is older than the VCDR and the wording of the convention does not support such an interpretation. 75 No information is given concerning the types of duties that Jason has in his position as an assistant to the naval attach, nor is there any information whether Warangia has notified Banana in conformity with art. 5.1 of the VCDR. If Jason has any immunity at all, it is most likely that he is a member of the technical and administrative staff.
76

In that case he has nearly the same immunity as diplomatic agents have in art. 29-35

of VCDR. 77 Nevertheless, since Margarida is not the receiving, but a third state, the answer to the question of immunity from its criminal law must be sought in art. 40 of VCDR. Rules of diplomatic immunity entail rights and obligations mainly for the sending and receiving state i.e. it does not apply erga omnes. 78 Consequently, the immunity of a Syrian ambassador accredited to GDR, did not grant him in immunity in West Germany. 79 Third states merely have an obligation to accord inviolability or immunity to ensure the transit of diplomatic agents. 80 Art. 40.2 of VCDR, concerning administrative and technical or service staff of a diplomatic mission, states that if the person concerned wants to secure a right to transit through a third state it is possible to apply for a visa. When the ILC added art. 40.2 of the

74 75 76 77 78 79

Appuhamy v. Gregory, p. 379 VCDR, art. 37. VCDR, art. 1 (g); see also Satows (2009), pp. 159-161. VCDR, art. 37.2. Van Alebeek (2008), p. 164.

Simbeye (2004), pp. 122-123, referring to the S.v. Berlin Court of Appeal and District Court of Appeal of Berlin-Tiegarten 24 Europaishe Grunrechte-Zeitschrift 436.
80

VCDR, art. 40.1.

15 VCDR it chose to make it narrower than the immunity from arrest and detention stated in art. 40.1. 81 As a result, there is no obligation under art. 40.2 of the VCDR to admit the persons concerned transit, and probably there is no obligation to grant them inviolability or other immunities from jurisdiction either. 82 It should also be mentioned that in accordance with art. 40.4 of VCDR, the obligation to accord inviolability or immunity to diplomatic agents and their staff also apply when these persons are present in the territory of a third state due to force majeure. The fact that Jason did not intend to go to Limbo Harbour does not create a situation of force majeure since he did not end up at the Harbour as a result of an unforeseeable accident. 83 Instead he was detained there because of the suspicions against him. Finally, if the Court would regard Jason as having diplomatic immunity it is noted that forcible actions against diplomats, including detention, can be accepted in order to prevent them from committing offences. 84 4.2. Legal ground for the arrest The fact that Jason was found on the bridge of the vessel together with three pirates, instead of together with the hostages, gave Margarida a strong indication that he was allied with the pirates. According to art. 101(b) of UNCLOS any act of voluntary participation in the operation of a ship with knowledge of the facts making it a pirate ship is considered as acts of piracy.

81 82 83 84

YBILC (1958), pp. 172-174; Denza (2008), p. 455. Denza (2008), p. 455. Rainbow Warrior II case, provides a definition of force majeure, see e.g. para. 77.

Hostages case, para. 86; Legault (1983), pp. 309-310, (the Canadian statement); see also Simbeye (2004), p. 121, referring to the Swedish case where the police disarmed and confiscated a pistol from a Yugoslavian ambassador.

16 4.3. Legal ground for the detention Margarida submits that Jason was arrested after his arrival at Limbo Harbour. It was only when he was refused to follow the crew of the Argonaut in the aircraft to Margarida, that he shall be regarded as being detained. The detention was conducted in order to investigate if Jason is a pirate and thereby an unlawful enemy combatant and alternatively if he has breached the UN Embargo and the Nachos/Frijoles Act. The core issue in this matter is the possible violation of art 9.3 of ICCPR and the very meaning of the right to be brought promptly before a judge. The General Comment to the article is vague, specifying a period of a few days. 85 Bearing in mind the very short period of detention and the fact that Jason is under a criminal investigation by the authorities of Margarida, art. 9.3 of ICCPR can not be regarded as having been violated. 86 Art. 9.3 of ICCPR also provides for a right to trial within a reasonable time. As far as the requirement of reasonable time is considered, the short period of a few days in the present case cannot constitute a breach of this provision. 87 Nevertheless, if the Court finds that Margarida breached art. 9.3 of ICCPR, art. 4 of the same convention allows for derogations in situations of public emergency that threatens the life of the nation. Aware of the differences between the European HR rgime and the International HR rgime, the decisions of the ECtHR might still be of interest when interpreting art. 4 of ICCPR since art. 15 of ECHR is nearly identical to the first. 88 The ECtHR has stated that national authorities are in principle in a better position than the
85 86

Joseph et al. (2004), p. 324.

A variable of standard exists in the case law concerning prompt access to a judge, see e.g. Van Der Houwen v. The Netherlands case, para. 4.3 and Portorreal v. Dominican Republic case, para. 10.2. Compare e.g. with the period of 12 months in McTaggart v. Jamaica case, para. 8.2, and 16 months in Hill and Hill v. Spain case, para. 9.7. In both cases the detention was regarded as lawful.
88 87

Green (1978), p. 102.

17 international judge to decide both on the presence of such an emergency and on the nature and scope of derogation necessary to avert it and that a state in reaching its decision enjoys a wide measure of appreciation. 89 Aware of the relation between Banana and Margarida and the threat towards the latter, the present situation must be seen as a situation of public emergency. The threat has already been recognized by the SC in the UN Embargo, which Margarida claims to function as a communication in accordance with art 4.3 of ICCPR. The weeklong detention of Jason must be seen as proportional i.e. within the abovementioned margin of appreciation. In two cases the ECtHR has deferred to the assessment of the government that detention without a trial was necessary to investigate terrorist crimes. 90 Margarida also submits that prescriptive jurisdiction may be asserted over the crimes committed by Jason since it had reasonable ground to suspect him of piracy which is a crime with universal jurisdiction. 91 Additionally, a state has the jurisdiction to prescribe certain acts as crimes under its law if one of the traditional principles which criminal jurisdiction is built upon allows it. 92 The decisive factor is whether there exists a genuine or effective link between the crime and the forum state. 93 States may, according to the protective principle, exercise prescriptive jurisdiction over aliens who have committed crimes that threatens vital interests of the particular state concerned. 94 The UK and the US have allowed significant exceptions to the territoriality principle; their courts have for example punished aliens for

89 90 91

Green (1978), p. 100, referring to the Ireland v. UK case. The Lawless and the Brannigan cases.

UNCLOS, art. 105, (the courts of the State carrying out the seizure may decide upon the penalties to be imposed). Beckman (1994), p. 6. Brownlie (2008), p. 308. Higgins (1994), p. 74; Cameron (1994), pp. 2-3.

92 93 94

18 abetment by acts of illegal immigration on the high seas. 95 The crime which Jason is suspected of having committed threatens interests as vital to Margarida as its very survival. Acts similar to the Nacho/Frijoles Act, like the Cuban Democracy Act and the Helms-Burton Act have caused some controversy. 96 However, Margarida submits that the Nacho/Frijoles Act is different from these Acts since it has support in the UN Embargo, at least in certain parts, and also in the general universal malignity towards terrorism. Even if the Court would regard Jason as having been arrested in connection with the seizure of the Argonaut, Margarida refers to the principle of male detentus bene captivus stating that courts may exercise jurisdiction over an accused person regardless of how that person came into the jurisdiction of the court.97 At present time, Margarida submits that it is clear that neither CIL nor the general HR conventions forbid resorting to this principle.98 Consequently, Margarida had a right to try Jason under its law, regardless if the arrest was legal or not.

5. THE DENIAL OF A CONSULAR MEETING WAS LAWFUL 5.1 Limbo Harbour is not a part of the consular district of the Warangian Consul in Caramba Jason was not present on the Margaridan territory at the time of the requested meeting by the Warangian consul. Thus, art. 36 of VCDR is inapplicable since it presumes that the national

95 96 97

Giles v. Tumminello case; Naim Molvan case; see also Brownlie (2008), p. 305. Brownlie (2008), p. 304; Churchill/Lowe (1999), pp. 383-8; Shaw (2008), p. 693.

Prosecutor v. Dragan Nikoli case, para. 70, n. 6; Cameron (1994), p. 93; In the Eichmann case it was held that, despite Eichmanns arrest in contravention of Argentinean and international law, he could be legally tried. Cameron (1994), p. 93, n 214, referring to Bozano case, 18 December 1987, Ser. A No. 111 and commentary in van Wyngaert, 1990, pp. 773-5, Stock case, 19 March 1991. Ser. A No. 196; Third Restatement (1987), pp. 329-32; see also Eichmann case, pp. 70-78; Frisbie v. Collins case, pp. 522-3; United States v Alvarez-Machain, pp. 658-670.
98

19 is physically present within the consular district. 99 The consular district i.e. the area assigned to a consular post 100 is established by the sending state and approved by the receiving state. 101 There are no facts indicating that the consular district of the Warangian consul would include Limbo Harbor. The fact that the territory of a country is divided into several consular districts implies that the convention is mainly 102 applicable within the geographical borders. Limbo Harbor is under Margaridan jurisdiction, but still within the territory of Banana and consequently outside the consular district of any Warangian consul stationed in Margarida. Art. 4.1 of VCCR requires consent from the receiving state when establishing or changing a consular district.103 It is highly unlikely that Margarida would give its consent to an extension of the consular district that would include Limbo Harbour. It shall further be stressed that a consul shall refrain from taking any action on behalf of a national, if the latter expressly opposes such action. If it turns out that Jason is allied with pirates, this could be a plausible reason for him to refrain from a meeting with the consul in order to hide this from his nationals. 104 5.2. Margarida did not violate art. 36 of the VCCR In the Women During the Night case the wording of the relevant article, considered by itself, did not give rise to any difficulty. The PCIJ stated that if the article was to be interpreted

99

ILC Draft Articles on Consular Relations, p. 112, stating that the national has to be physically present within the consular district of the consul.
100 101 102

VCCR, art. 1.1 (b). VCCR, art. 4.2.

ILC Draft Articles on Consular Relations, p. 95, the definition of the receiving state in art. 4 of VCCR may be outside the territory, this shall however be agreed on. VCCR, art. 4.2; see also VCCR, art. 6, the consent by the receiving state is required if a consul, in special circumstances, wants to exercise his functions outside the consular district.
104 103

Lee (1991), p. 138; Satows (2009), p. 279-280.

20 differently than the meaning rising from the text itself, it was necessary to find some valid ground for interpreting the provision otherwise than in accordance with the natural sense of words 105 A textual interpretation 106 of art. 36 of VCCR gives that this provision is of relevance after a notification has been given in accordance with art. 36.1 (b) of the VCCR. The primary right, that of the arrested/detained to see a consul, is dependent on whether the same, after being informed of his rights, so requests. 107 In the present case three days have passed. The expression in art. 36.1 (b) allows for cases where it is necessary to hold a person incomunicado for a certain period for the purposes of the criminal investigation. 108 Accordingly, in the Avena Case, the ICJ stated that without delay did not necessarily mean immediately and before interrogation. 109 It shall be remembered that Jason has been in Margaridan custody for only seven days and for the purpose of a criminal investigation.110 State practice shows that the wording without undue delay has been interpreted differently in different jurisdictions. The US Department of State has the view that this means as quickly as possible and, in any event, no later than the passage of a few days. 111 In the present case, as soon as possible must be interpreted as soon as the criminal investigation so allows.

105 106 107 108 109 110

Women During the Night case, para. 373. In accordance with the VCCR, art. 31. VCCR, art. 36.1(b). ILC Draft Articles on Consular Relations, p. 113. Avena case, paras. 87-88.

This can be compared with the period of several years in the LaGrand case; For a similar case, see the Breard case.
111

Satows (2009), p. 281, referring to the 1984 Agreement between UK and China on the Establishment of a British Consulate-General at Shanghai and a Chinese Consulate-General at Manchester, Cmnd 9247; UKTS No 14 (1985), n. 10.

21 Since Jason is suspected of providing Banana with products that may be used for the creation of long-range missiles, he constitutes a serious threat to Margarida. The denial of consular assistance to such a person is not a new phenomenon. 112 Margarida does not intend to permanently deny Jason his right to see a council, but rather wants to highlight the reasons for not providing him with this right immediately. 5.3. If Jason is a pirate he might loose his national character and also his consular protection Acts of piracy leads to the loss of protection of the pirates home state and thereby Jason might loose his national character. 113 If this is the case, the question of his consular assistance falls together with his previous nationality. Margarida submits that, since it is not altogether clear if Jason is regarded as a pirate or not, his nationality is uncertain. When such a case arises, state practice has shown that it is not cleared out if the authorities of the receiving state are required to inform a detainee of his consular rights. 114

6. MARGARIDA HAD A RIGHT TO SEIZE THE CARGO BOX 6.1 Margarida had legal grounds for seizing the cargo box Having established that the use of force against the Argonaut was not unlawful, Margarida will now turn to the exercise of jurisdiction over the cargo. Art. 105 of UNCLOS allows seizure of property on pirate ships. The fact that the cargo box was taken after entering the territorial waters of Banana does not change the situation towards Warangia. Further, the bill of lading attached to the box specifies the content as being pharmaceutical products and medical apparatus, destined for Banana. This together with the reported facts that the cargo

112

Lee (1991), pp. 151-153, persons accused of espionage were in the past frequently denied consular protection.
113 114

Oppenheims (1996), p. 746. Satows (2009), p. 281.

22 contained technical products useful for missile development raises a great concern that the pharmaceutical products are of dual-use character. The export of certain dual-use products is regulated 115 not because they are dangerous by definition, but because they can be used in the development of weapons, which in turn may cause international disasters. 116 The existing regulations in this area forbid the trade with these products in cases where there exists reasonable suspicion that they might be used for the wrong reasons. 117 The fact that several regulations emerged in this area indicates an increasing common view that dual use products may, when held in wrong hands and with the wrong intention, cause danger, and thereby needs to be controlled. Margarida wishes to stress the differences between the case at present and the So San incident 118 . In the latter, the vessel was heading to Yemen, which constituted a smaller threat towards the US than the threat posed by Banana. The Argonaut was heading to a state capable of using the cargo in a dangerous way i.e. the link between the threat of Banana and the cargo heading there is stronger than in the So San incident. If the So San was instead destined for groups such as the Talibans or even Al Qaeda, seizing the cargo would have been legally based on art. 51 of the UN Charter since a state of belligerency existed between the US and those groups. 119 Most authorities accept that an interdicting state must have some reasonable suspicion that the vessel is carrying contraband goods. 120 The reported facts on

115 116

See e.g. CWC (1997); BTWC (1975); EC (2009).

Wetter (2009), p. xv, dual-use products have both potential civil and potential military applications.
117 118 119 120

See e.g. art. 1 CWC. Guilfoyle (2005), pp. 734-135. Ussher (2007), p. 2; Guilfoyle (2005), p. 744. Humphrey (1997), p. 39.

23 the content of the cargo together with the UN Embargo demanding vigilance and restraint in the supply, sale or transfer of products able to cause a destabilising accumulation of arms must be considered as a well-grounded legal basis for confiscating the cargo box for further investigation. The present case must also be distinguished to the Corfu Channel case where the Court did not accept the defence-line of the UK 121 since it acted, intentionally, within the territorial waters of Albania. This shall be compared with the present case, where the actions on the high seas were legal. Consequently, the seizure of the cargo box was also legal, even if it took place after entering the territorial waters of Banana. Furthermore, the emphasis on suppression of piracy in UNCLOS reflects a long-shared view among states that the threat of piracy operates to the detriment of the community at large. 122 The ability to combat piracy by giving each state universal jurisdiction on the high seas has therefore been valued higher than the otherwise exclusive flag state jurisdiction 123 over vessels at the high seas. Whether there is a similar shared authority for the interdiction of ships transporting WMD may be debated. The PSI was introduced in 2004 in order to combat the threat of WMD 124 , which indicates an increasingly shared view concerning the threat that these weapons may cause. When reasonable grounds for threats are found, participants to the PSI will seek to board and search such vessels, with the possible result of seizing the vessel and its cargo. 125 Further, the passage of Res. 1540 can be said to provide

121 122 123 124 125

Corfu Channel case, p. 35. Becker (2005), p. 207. UNCLOS, art. 92 (1). Guilfoyle (2005), p. 737. Becker (2005), p. 134.

24 an ex post legal basis for the PSI. 126 The question on the lawfulness of seizures of cargoes can only be determined on a case-by-case basis 127 where all the above-mentioned relevant factors are taken under consideration.

7. WARANGIA COMMITTED AN INTERNATIONALLY WRONGFUL ACT 7.1. Warangia breached international law by failing to comply with the UN Embargo The supervision of implementation of shipment-embargoes concerning prohibited materials is usually carried out in ports and they place a responsibility upon states to prevent shipment of the prohibited materials by vessels flying their flag. 128 In the present case the UN Embargo explicitly calls upon states to prevent shipment of materials that can be used to create a destabilizing accumulation of arms to Banana, by vessels flying their flag. By allowing the Argonaut to leave its territory with the alleged illegal materials onboard, Warangia has indirectly provided Banana with technical assistance in military matters. Consequently it has failed to comply with the UN Embargo and an internationally wrongful omission is attributable to Warangia according to art. 4 of the ASR. 129 7.2. Any illegal acts committed by Jason are attributable to Warangia Since Jason is a Lieutenant Commander of the Warangian naval reserve he shall be considered a state official. Art. 7 of ASR deals with the important question of unauthorized or

126

UN Doc S/23500, (the President of the SC) for further support on the increasing common view on WMD and the threats of it. Bolton (2003), the American perspective of the question is that the lawfulness of seizing the cargo of a searched vessel is unclear. Bolton has indicated that the question only can be determined on a case-by-case basis. Soons (2001), p. 308.

127

128 129

ASR, art. 2, states that a breach of an international obligation which is attributable to the state constitutes an internationally wrongful omission.

25 ultra vires acts of State organs or entities. 130 The important question to elucidate in order to determine whether the acts of Jason are attributable to Warangia is the question if he was acting with apparent authority. 131 Margarida submits that the alleged illegal accumulation of arms to Banana, committed by Jason, is attributed to Warangia since he had a patent letter identifying him as a Lieutenant Commander. (h) Submissions For the forgoing reasons, the State of Margarida respectfully requests this Honourable Court to adjudge and declare as follows: 1. the Estados Federales de Margarida have not violated international law as alleged by

the Kingdom of Warangia; 2. 3. the Kingdom of Warangia's claim shall consequently be dismissed; the Kingdom of Warangia has committed an internationally wrongful act by

attempting to provide technical assistance in military matters to the Republic of Banana, in violation of the United Nations Security Council Resolution 2008 of 24 March 2007.

130 131

ASR with commentaries, p. 45, para. 1.

ASR with commentaries, p. 46, para. 8; additionally, in the Claire case, p. 517, the Commission stated that, even though the two accused officials had acted outside their competence, the acts were attributable to Mexico since the officers acted under cover of their status and used means placed at their disposal on account of that status.