International Law Moot Court CompetitionAsia Cup 2015

Case concerning Resource Exploration in the Zeekant SeaAlbion v. Ricojan

Legend:Red – clarifications from supplemental materials

1. Both the State of Albion (hereinafter, Albion) and the Federal Republic of Ricojan (hereinafter, Ricojan) are States bordering the Zeekant Sea, and their coastlines face each other across the sea. The distance between the States’ coastlines is less than 400 nautical miles. Albion’s coastline on the Zeekant Sea is longer than that of Ricojan.

-In the Zeekant Sea, there is no island that belongs either to Albion or Ricojan.

-The ratio of Albion’s coastline length to that of Ricojan’s is 2:1.

-There is no other coastal state than Albion and Ricojan facing the Zeekant Sea.

2. With a paucity of natural resources, Albion is a developing country, and its main industry is agriculture. The state budget and military power of Albion are small.

3. Endowed with abundant natural resources, such as oil and natural gas, Ricojan is a resource-exporting country. The Government of Ricojan has a solid financial foundation due to the large income produced by government-run resource development companies. Ricojan is also a military power.

4. Albion ratified the United Nations Convention on the Law of the Sea (UNCLOS), but Ricojan only signed it. Both States are members of the United Nations.

-Both Albion and Ricojan are parties to the Vienna Convention on the Law of Treaties.

5. Maritime boundary delimitation in the Zeekant Sea has been a long-standing concern for Albion and Ricojan. Each State claims a 200-mile exclusive economic zone (EEZ) and the continental shelf from its own coastline, and no agreement on maritime boundary between the two States has been reached.

-No agreement on the median line between Albion and Ricojan has been reached.

6. In 2010, Ricojan Oil Corporation (hereinafter, ROC), a petroleum company run by the Government of Ricojan, launched oil drilling in several offshore oilfields in the Zeekant

Sea near Ricojan’s coastline, and these oilfields produced high-quality oil. These oilfields are all located in the area where only Ricojan has claimed an EEZ and the continental shelf.

7. In January 2013, a group of international researchers led by an internationally known geologist, Professor Ceres of the Menerva University, published an observation in an academic journal, which indicated the possible presence of additional petroleum resources in the Zeekant Sea aside from the subsea oilfields that Ricojan exploited. According to the observation, oil resources are highly probable to be found around the median line between the coasts of Albion and Ricojan. At the same time, the research group also published that methane hydrate resources had been exposed on the seabed on the Ricojan side of the median line.-The group of researchers led by Professor Ceres is a fully private entity, which is not

related to any state or government.

-Menerva University is located in a third country, neither Albion nor Ricojan.

8. On the basis of the geological assessment, the Government of Albion decided to start exploring oil resources in the Zeekant Sea, near the median line. Since the Government and its domestic companies have no ability to carry out the exploration, Albion contacted several oil companies based in developed countries, seeking the possibility of hiring them.

9. However, as none of the companies accepted the offers on the grounds of “security risks,” Albion failed to conduct any oil resource exploration in the Zeekant Sea.

10. On the other hand, the Government of Ricojan instructed ROC to carry out a seismic survey around the Zeekant Sea median line. ROC explored the Ricojan side in the vicinity of the median line using a seismic survey ship, as instructed. This exploration was conducted by making full use of the most advanced, high-precision three-dimensional-reflection seismic prospecting. Neither the Government of Ricojan nor ROC notified Albion of the seismic exploration prior to its implementation. Furthermore, the Government of Ricojan commissioned the Ricojan Maritime Research Institute (hereinafter, RMRI) to research the presence of methane hydrate on the Ricojan side of the median line.

-Ricojan Maritime Research Institute (RMRI) is a state-run research institute of Ricojan.

-Ricojan did not give prior notification of the research on methane hydrate to Albion.

-The seismic survey and collection of methane hydrate samples were carried out by a research vessel owned by Ricojan Oil Corporation (ROC) and another vessel that belongs to RMRI, without accompaniment of either warships or other government

vessels.

-Both ROC and RMRI were incorporated under the national law of Ricojan.

-The seismic survey has not affected the maritime environment of the Zeekant Sea.

11. In September 2014, the Elk-Oftend, an influential newspaper in Ricojan, reported that “following the research engaged by Professor Ceres of Menerva University and his international research team in 2013, ROC has conducted a seismic exploration on the Ricojan side of the Zeekant Sea median line and confirmed the presence and location of substantial petroleum resources. Moreover, the RMRI confirmed the exposure of methane hydrate in the area near the median line between Ricojan and Albion and succeeded in taking samples of the resource for their further research.”

12. Responding to the news article, President Calibur of Albion stated at a regular press conference, “If the newspaper report tells a truth, it is highly regrettable that Ricojan unilaterally carried out exploration near the median line of the disputed area without any prior notice to Albion. According to the relevant provisions of the UNCLOS, States are not allowed to unilaterally commence resource exploration in the disputed area, pending the delimitation decision on the merits. Ricojan is obliged to officially notify Albion of the oil resource exploration project and to ask for consultation thereon. Albion requests Ricojan to disclose immediately to Albion the result of the seismic survey pertaining to oil resources. Additionally, it is also highly regrettable that the RMRI collected samples of methane hydrate unilaterally. Albion requests that Ricojan share the collected samples.” Ricojan’s Press Secretary, Ms. Braggi, confirmed the news report and responded that “as jurisprudence of the international court and tribunals indicates, the seismic survey conducted by ROC was in accordance with international law, and there is no need for disclosure of the result to Albion. Furthermore, the act of the RMRI to collect samples of methane hydrate is in accordance with international law. Therefore, it is needless to share the collected samples.”

13. From October 2014 to December 2014, the Foreign Ministries of both countries met on four occasions to negotiate a settlement of the issue on resource exploration in the Zeekant Sea, but no solution was agreed upon by the two nations.

14. In January 2015, under Article 36, paragraph 2, of the Statute of the International Court of Justice (hereinafter, the Statute), Albion unilaterally filed an Application against Ricojan to the International Court of Justice regarding a dispute concerning both the resource exploration in the Zeekant Sea conducted by the Government of Ricojan and ROC and the research for methane hydrate carried out by RMRI, alleging that the exploration and the research activities are in violation of international law.

15. Albion has deposited a declaration, recognizing the compulsory jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute without any conditions and reservations.

16. Ricojan has deposited a declaration recognizing the jurisdiction of the International Court of Justice, under Article 36, paragraph 2, of the Statute, together with a reservation that states, “This declaration does not apply to any dispute concerning the delimitation of maritime boundaries.”

-The reservation on the declaration of Ricojan accepting the compulsory jurisdiction of

the International Court of Justice (ICJ) was deposited in 1964 when the maritime

delimitation in the Zeekant Sea became a serious concern between Albion and Ricojan.

At that time, the Foreign Ministry of Ricojan explained before its parliament that the

aim of this reservation was to prevent Albion from referring the dispute concerning the

maritime delimitation in the Zeekant Sea to the ICJ.

17.Albion requests that the International Court of Justice adjudge and declare:

(1)the Court has jurisdiction over the present dispute;(2)the resource exploration and research conducted by the Government of .Ricojan,

ROC and RMRI in the Zeekant Sea constitutes a violation of international law

18.Ricojan requests that the International Court of Justice adjudge and declare:

(1)the Court does not have jurisdiction over the present dispute;(2) even if the Court has jurisdiction over the dispute, the resource exploration and research in the Zeekant Sea conducted by the Government of Ricojan, ROC and RMRI do not constitute a violation of international law.

DEFINITIONS

Developing country vs. Developed country

Central Intelligence Agency 1

o Developed countries. Includes the market-oriented economies of the mainly democratic nations in the Organization for Economic Cooperation and Development (OECD), Bermuda, Israel, South Africa, and the European mini-states; also known as the First World, high-income countries, the North, industrial countries; generally have a per capita GDP in excess of $15,000 although four OECD countries and South Africa have figures well under $15,000 and eight of the excluded OPEC countries have figures of more than $20,000; note - similar to the IMF term “advanced economies.”

o Developing countries. A term used by IMF for the bottom group in its hierarchy of advanced economies, countries in transition, and developing countries; note - this category would presumably also cover other countries that are traditionally included in the more comprehensive group of "less developed countries."

International Monetary Fund 2

The main criteria used by WEO to classify the world into advanced economies and emerging market and developing economies are (1) per capita income level, (2) export diversification—so oil exporters that have high per capita GDP would not make the advanced classification because around 70% of its exports are oil, and (3) degree of integration into the global financial system. In the first criteria, we look at an average over a number of years given that volatility (due to say oil production) can have a marked year-to-year effect. For the first criterion, the data source is the WEO database; for the second criterion, it is the UN COMTRADE database; and for the last criterion, it is the IMF’s Balance of Payments Statistics Database. Note, however, that these are not the only factors considered in deciding the classification of countries. As it says in the WEO Statistical Appendix, "This classification is not based on strict criteria, economic or otherwise, and it has evolved over time. The objective is to facilitate analysis by providing a reasonably meaningful method of organizing data." Reclassification only happens when something marked changes or the case for change in terms of the three criteria above becomes overwhelming.

UN Statistics Division

There is no established convention for the designation of “developed” and “developing” countries in the UN system.3 The designations are intended for statistical

1 World Factbook https://www.cia.gov/library/publications/the-world-factbook/appendix/appendix-b.html2 https://www.imf.org/external/pubs/ft/weo/faq.htm3 http://unstats.un.org/unsd/methods/m49/m49regin.htm#ftnc (31 October 2013)

convenience and do not necessarily express a judgment about the stage reached by a particular country or area in the development process.4

World Trade Organization 5

There are no specific definitions of “developed” and “developing” countries. WTO members decide for themselves in which category they belong. However, other members can challenge such decision.

A developing country status in the WTO brings certain advantages such as longer transition periods in some WTO Agreements and technical assistance in some cases. When a member announces itself as a developing country, it does not automatically mean that it will benefit from the unilateral preference schemes of some of the develop country members such as the Generalized System of Preferences. In practice, it is the preference giving country which decides the list of developing countries that will benefit from the preferences.

Ratifying state vs. Non-ratifying state

Vienna Convention on the Law of Treaties

Ratifying State Non-Ratifying Statedefinition Ratification involves two acts:

an internal act of approval (e.g. by the parliament, or the Crown in the UK) and an international procedure which brings a treaty into force by a formal exchange or deposit of instruments of ratification. See VCLT Art. 14.

Where the signature is subject to ratification, acceptance or approval, signature does not establish consent to be bound nor does it create an obligation to ratify.

Where the treaty is not subject to ratification, acceptance or approval, signature establishes consent to be bound. Sometimes signature may be dispensed with: the text may be adopted or approved by resolution of the UN General Assembly and submitted to member states for accession.

obligations To refrain from acts which would defeat the object and purpose

4 http://unstats.un.org/unsd/methods/m49/m49.htm5 https://www.wto.org/english/tratop_e/devel_e/d1who_e.htm

of a treaty6

o “object and purpose” refers to the reasons for which States parties or signatories concluded a treaty, and the continuing functions and raison d’etre of the treaty7. In the absence of the Parties’ desire to preserve the object and purpose of a treaty, the treaty itself would be impaired both in its principle and in its application.

6 VCLT, Article 18.7 Advisory Opinion on Reservations to Genocide, ICJ Reports (1951), 27.

Territorial sea Contiguous zone Continental shelf EEZ

definition An adjacent belt of waters/sea of the coastal State.8

A belt of water adjacent or contiguous to the coastal State’s territorial sea.9

The submerged natural prolongation of the land territory of coastal State.10

An area beyond and adjacent to the territorial sea.11

breadth CANNOT extend beyond 12 nm from the low-water line along the coast

CANNOT extend beyond 24 nm from territorial sea baseline

Can extend beyond 200 nm but CANNOT extend beyond 350 nm from territorial sea baseline

CANNOT extend beyond 200 nm from territorial sea baseline

entitlement Coastal State has full sovereignty over the waters, airspace, seabed and subsoil (living and mineral resources), but foreign vessels are allowed the right of innocent passage

Coastal State may exercise necessary control to:(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;(b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

Inherently belongs to the coastal State

The coastal State may or may not have an EEZ (if no EEZ, the waters above the continental shelf falls under the high seas regime)

scope Comprises the seabed, its subsoil and resources

Extends to the water column and its resources

exploitation of resources

Coastal State has the right (1) to exploit the non-living resources of EEZ (oil, gas, sand and gravel); (2) to exploit living resources; (3) to exploit the EEZ for other economic purposes (such as production of energy from waves, winds or currents); (4) to authorize and regulate construction and operation of artificial islands, installations and structures; (5) to regulate scientific research; to control pollution in its EEZ.

Coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, living or not, of the water superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.

delimitation between

States with opposite or

adjacent coasts

Neither of the two States is entitled, failing agreement, to extend its territorial sea beyond the median line.

It shall be first be effected by agreement in order to achieve an equitable solution. If no agreement, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.

drilling The coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.12

8 UNCLOS Article 2.9 UNCLOS Article 33.10 UNCLOS Article 76.11 UNCLOS Article 55.12 UNCLOS Article 81; See Article 246(5)(b) re: coastal States withholding consent to the conduct of MSR project.

Oil drilling – Oil drilling is the process by which tubing is bored through the Earth's surface and a well is established. A pump is connected to the tube and the petroleum under the surface is forcibly removed from underground.

Median line – Divides the area into two equal parts. In geometry, a median of a triangle is the line segment joining a vertex to the midpoint of the opposing side. Every triangle has exactly three medians, one from each vertex, and they all intersect each other a the triangle’s centroid.

Equidistant – A line every point of which is equally distant from the nearest points on the baselines of two States.

Seabed – The ground under the sea; the ocean floor. The top of the surface layer of sand, rock, mud or other material lying at the bottom of the sea and immediately above the subsoil.

Subsoil – All naturally occurring matter lying beneath the seabed or deep ocean floor. The subsoil includes residual deposits and minerals as well.

Methane hydrate – A crystalline solid that consists of methane and water. It only occurs naturally in subsurface deposits where temperature and pressure conditions are favorable for its formation. If the ice is removed from this temperature/pressure environment, it becomes unstable.13

Natural gas – A fossil fuel that is nonrenewable source of energy because it cannot be replenished on a human time frame. It is an energy source and also used as fuel for vehicles and as a chemical feedstock in the manufacture of plastics and other commercially important organic chemicals. It is found in deep underground rock formations or associated with other hydrocarbon reservoirs in coal beds and as methane hydrates.

Seismic survey14 – A technique similar to an ultrasound that is used to develop images of the rock layers below ground. Sound waves are bounced off underground rock formations and the waves that reflect back to the surface are captured by recording sensors. In marine operations, a specialized vessel tows a “seismic streamer,” or a collection of cables with seismic sources and hydrophones attached. The seismic sources use compressed air to produce acoustic energy. The hydrophones capture the returning sound waves.

13 http://geology.com/articles/methane-hydrates/14 http://www.seismicsurvey.com.au

The sound from seismic surveying is comparable to many naturally occurring marine sounds, including those made by animals themselves. Once the survey does begin, the seismic sources are turned up slowly during a ‘ramp-up period of about 30 minutes, so that marine animals are not startled and can move away.

Three-dimensional-reflection seismic prospecting – A method of geophysical prospecting in which vibrations are set up by firing small explosive charges in the ground or by other artificial sources. It involves the measurement of the time taken for a seismic wave to travel from a source through the subsurface, where it is partially reflected back to the surface and then detected at a receiver.