II.

MAIN PLEADING

I. THE ESTABLISHMENT OF THE DELFINO ARCHIPELAGO MARINE

PROTECTED AREA (MPA ACT) BY THE RATONAN GOVERNMENT
CONSTITUTES VIOLATION OF INTERNATIONAL LAW.

A. Asteria has traditional fishing right (TFR), as recognized under customary

international law, over the Delfino Archipelago.

Traditional fishing right (TFR) is recognized as customary international law 1

Once this right has been established, it can be a source of right by a claimant, thus cannot be
unilaterally removed by another State2.

Although the United Nations Convention on the Law of the Seas (UNCLOS), at
the dawn of its adoption, does not expressly provide for any exception where another state may
be granted the right to fish in the Exclusive Economic Zone (EEZ) of another state, traditional
fishing right claims may be considered as an exception to this case. In order to successfully
establish the State's TFR claims, two elements must be satisfied. First, a state needs to show that
it has conducted a specific activity in the subject area for a long period of time, and second, that
the other states affected by this activity have recognized the claimants right to do so3.

1
Continental Shelf (Tunisia/Libyan Arab Jamahiriya (1982) ICJ Reports, Judgment
(Tunisia/Libya) 74.

Clive R. Symmons, HistoricWaters in the Law of the Sea: A Modern Re-appraisal, (Martinus Nijhoff
2

Publishers, Leiden 2008) page 5), Anglo-Norwegian Fisheries Case, [1951] ICJ Rep 131.

3
The Journal of Political Risk, The Right to Fish and International Law in the South China Sea, Leonardo Bernard.
 1. Asterian fisherfolks have conducted traditional fishing activities in the
Delfino Archipelago since the 5th century.

The period over which the fishing activity is conducted should be at least for 100
years4. In this case, the Asterian fisherfolks perform the said fishing activity since the 5 th century
in the Delfino Archipelago5. Their cultural tradition is rooted in fishing and they have solely
depended on this fishing activity6. Thereby satisfying the first element.

2. Ratona has recognized, by acquiescense and consent, the right of

Asterian fisherfolks to fish in the Delfino Archipelago.

Ratona has recognized, by acquiesence, over a long period of time the fishing
activity of the Asterian fisherfolks. Acquiesence may be inferred by the absence of opposition
over the same long period of time7. In this case, since the beginning of its activity, it is clear that
Ratona did not oppose nor react at the very least to the fishing activities conducted by Asterian
fisherfolks in the Delfino Archipelago. Even after the delimitation of the EEZ, sans any concrete
agreement on the fishing rights of Asteria over the archipelago, Ratona had continuously granted
such right to Asteria8 which is tantamount to recognition of the existence of the foregoing right.
This crystallizes the fact that Ratona had consented, thereby recognizing, the right of Asteria to
fish in the Delfino archipelago. Hence, the second element was indeed satisfied.

4
Clive R Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal
(Leiden/Boston: Martinus Nijhoff Publishers, 2008 page 157.

5
2, facts

6
2, facts

7
(Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, British
Yearbook of International Law, Vol. 30 (1953)pp 27-31)

8
4, facts
 B. MPA Act constitutes violation of international law.

Article 2(3) in relation to Article 300 of the UNCLOS respectively demands, in

clear terms that (t)he sovereignty over the territorial sea is exercised subject to this Convention
and to other rules of international law and that States Parties shall fulfil in good faith the
obligations assumed
under this Convention (UNCLOS) and shall exercise the rights, jurisdiction and freedoms
recognized in this Convention (UNCLOS) in a manner which would not constitute an abuse of
right. Thusly, under international law, Ratonan government has the obligation to observe in
good faith its duty to consult the other state in matters concerning the latter's rights.

In this case, having thus established that Asteria has traditional fishing rights over
the Delfino Archipelago, the Ratonan Government cannot, by its unilateral act remove nor impair
such right. This right is being protected under the principles of general international law, as has
been, by analogy, applied in the Abyei Arbitration9.

In fine, the Ratonan Government cannot impose by way of MPA Act a regulation
which effectively defeats the vested right of another state or at the very least interferes with the
latter's interest without any consultations.

9
Government of Sudan v. Sudan People's Liberation Movement/Army (Abyei Arbitration), Final Award (22 June
2009), 753-754. Hearing on Merits, Annex LA-304.