TEAM CODE: 618R
THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT
COMPETITION
CASE CONCERNING “THE WINDSCALE ISLANDS”
IN THE INTERNATIONAL COURT OF JUSTICE
LA COUR INTERNATIONALE DE JUSTICE
THE PEACE PALACE, THE HAGUE
NETHERLANDS
THE REPUBLIC OF ASPATRIA
APPLICANT
v.
THE KINGDOM OF RYDAL
RESPONDENT
LA RÉPUBLIQUE D’ASPATRIA
DEMANDERESSE
v.
ET LE ROYAUME DE RYDAL
DÉFENDEUR
-MEMORIAL FOR THE RESPONDENT-
The 2010 Philip C. Jessup International Law Moot Court Competition
MEMORIAL FOR THE RESPONDENT
TEAM CODE: 618R
THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION
CASE CONCERNING “THE WINDSCALE ISLANDS”
IN THE INTERNATIONAL COURT OF JUSTICE
LA COUR INTERNATIONALE DE JUSTICE
THE PEACE PALACE, THE HAGUE
NETHERLANDS
THE REPUBLIC OF ASPATRIA
APPLICANT
v.
THE KINGDOM OF RYDAL
RESPONDENT
LA RÉPUBLIQUE D’ASPATRIA
DEMANDERESSE
v.
ET LE ROYAUME DE RYDAL
DÉFENDEUR
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The 2010 Philip C. Jessup International Law Moot Court Competition
TABLE OF CONTENTS
ABBREVIATIONS......................................................................................................I-III
INDEX OF AUTHORITIES........................................................................................IV-X
DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS
AND MUNICIPAL COURTS..........................................................................IV-VI
BOOKS CITED................................................................................................VI,VII
BOOKS REFERRED.......................................................................................VII-IX
JOURNALS,ARTICLES AND DIGESTS.............................................................IX
CONVENTIONS,TRESTIES,REPORTS AND U.N DOCUMENTS..............IX-X
WEB SOURCES.....................................................................................................X
STATEMENT OF JURISDICTION..................................................................................XI
QUESTIONS PRESENTED.............................................................................................XII
STATEMENT OF FACTS...................................................................................XIII-XVIII
SUMMARY OF PLEADINGS..............................................................................XIX-XXI
PLEADINGS AND AUTHORITIES..............................................................................1-30
PRAYER........................................................................................................................XXII
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LIST OF ABBREVIATIONS
1. &: And
2. ¶: Paragraph
3. ¶¶: Paragraphs
4. A.D.: Anno Domini
5. A.F.D.I: Annual Foreign Direct Investment
6. A.J.I.L.: American Journal of International Law
7. ALEC: A & L Exploration Corporation
8. Art.: Article
9. B.F.S.P.: British and Foreign State Papers
10. BIT: Bilateral Investment Treaty
11. B.Y.I.L.: British Yearbook of International Law
12. Co.: Company
13. co.: cooperation
14. C. W. R. J.I.L.: Case Western Reserve Journal of International Law
15. e.g.: example
16. GAOR: General Assembly Official Records
17. G.A. Res.: General Assembly resolution
18. H.L.: House of Lords
19. Hon’ble: Honourable
20. H.V.I.L.J: Harvard International Law Journal
21. I.C.S.I.D.: International Centre for Settlement of Investment Disputes
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22. ICESCR: International Covenant on Economic, Social and Cultural Rights
23. I.C.J.: International Court of Justice
24. I.C.J. Rep.: International Court of Justice Reports
25. I.L.R.: International Law reports
26. ILSA: Islanders Longing for Sovereignty and Autonomy
27. L.N.: League of Nations
28. L.N. Council Doc.: Council of the League of Nations Document
29. L.N.O.J.: League of Nations Official Journal
30. L.R. CP.: Court of Common Pleas Law Reporter
31. Ltd.: Limited
32. MDR Limited: Monte de Rosa Limited
33. MDR: Monte de Rosa Limited
34. mtg.: Meeting
35. No.: Number
36. Nos.: Numbers
37. NRA: Natural Resources Act
38. p.: page
39. pp.: pages
40. P.C.I.J.: Permanent Court of International Justice
41. Pvt.: Private
42. Rep.: Reports
43. Res.: Resolution
44. Rev. I.C.J.: Revision International Court of Justice
45. ROCO: Rydalian Oil Company
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46. Ser.: Serial
47. Sess.: Session
48. Supp.: Supplement
49. U.N.: United Nations
50. UNCERD - United Nations Center For Economic Reform and Development
51. U.N. Doc.: United Nations Document
52. v.: versus
53. Vol.: Volume
54. W.C.R.: World Court Reports
55. Y.B.I.L.C: Yearbook of the International Law Commission
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INDEX OF AUTHORITIES
[DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS
AND MUNICIPAL COURTS]
1. The Island of Palmas case (United States of America v. The Netherlands) , (1928)
22 A.J.I.L.875……………..............................................................................1,3,5,12
2. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No
53................................................................................................................................2
3. Western Sahara case, Advisory Opinion, 1975 I.C.J,
12…………………….............................................................................................2,1
5,18
4. Island of Pedra Branca case , (Singapore v. Malayasia) I.C.J. Rep. 2008 ,
228...........................................................................................................2,5,7,9,28,29
5. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No
53.............................................................................................................................2,4
6. Clipperton Island case (France v. Mexico), (1932) 26 A.J.I.L. 390……..............4,13
7. Frontier Lands Case ,(Belgium v The Netherlands), I.C.J. Rep.
1959 ,209......................................................................................................................
.......5
8. Temple of Preah Vihear case ,I.C.J. Rep. 1962 .6.................................................5,11
9. Sipadan Islands case(Indonesia v Malaysia), I.C.J. Rep. 2002,625...........................5
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10. British Guiana and Venezuela Boundary Arbitration, (1896) 89 B.F.S.P.
57…............................................................................................................................6
11. The case of the S. S. “Lotus”(France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10. .....8
12. Decision regarding Delimitation of the Border between the State of Eritrea and the
Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28,...............................7
13. Sipadan Islands case ( Indonesia v Malaysia), I.C.J. Rep. 2002, 625.....................5,8
14. Nottebohm case( Liechtenstein v. Guatemala), I.C.J. Rep. 1955 ,4.........................13
15. The Namibia Case, (1971) I.C.J. Rep, 16...............................................................14
16. Tata Celular v Union of India, (1994) 6 SCC 651..................................................22
17. Spencer v Hardinge (1870) 5 L.R. CP, 561..............................................................22
18. East Timor case I.C.J. Rep.1995,.90 at 102.............................................................23
19. Republic of Zaire v Democratic Republic of Congo I.C.J Rep. 2007,……...........23
20. Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, 77...........23
21. Pickersgill v Rodger,(1876) 5 Ch.D., 163................................................................25
22. Codrington v Codrington, (1875) 7 H.L. 854, 861..................................................25
23. Mihaly International Corporation v. Democratic Socialist Republic of Srilanka
I.C.S.I.D. case No- ARB/002/2 , 24.........................................................................26
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24. Elettronica sicula S.p.A. (ELSI) case, (United States of America v. Italy) I.C.J.
Rep.15……………………………………………..………………………27,28,30
25. Asylum Judgment (Colombia v. Peru), I.C.J. Rep. 1950, 284.................................28
26. Barcelona Traction case (Belgium v. Spain) I.C.J. Rep. 1970 .46…...................27,28
[BOOKS CITED]
1. 2 L. OPPENHEIM ,OPPENHEIM’S INTERNATIONAL LAW, ( SIR ROBERT
JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH
EDITION)-………………………………………………………………..….3,14,19
2. The Cyprus case quoted in D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS
TEXT AND MATERIALS , (SWEET & MAXWELL, LONDON, 2ND EDITION
2001).........................................................................................................................12
3. D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT AND MATERIALS
, (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).................................14
4. K. C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, ( EASTERN
BOOK COMPANY 2006 EDITION)………………………...…………………...15
5. MATTHEW C. R. CRAVEN, THE INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS- A PERSPECTIVE OF ITS
DEVELOPMENT, ( CLARENDON PRESS OXFORD 1995)……….…………17
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6. TRAYNER, TRAYNERS LATIN MAXIMS, 11 (UNIVERSAL PUBLICATIONS,
4TH EDITION, 2005)...........................................................................................20,24
7. ROGER LOUIS, ENDS OF BRITISH IMPERIALISM: SCRAMBLE FOR
AFRICA, SUEZ & DECOLONIZATION, (OXFORD PUBLICATIONS)..........21
8. RICHARD STONE, MODERN LAW OF CONTRACT, (ROTLEDGE &
CAVENDISH,7TH EDITION).................................................................................21
9. G. H. TRIETEL ,OUTLINE OF LAW OF CONTRACT , 9 (OXFORD
PUBLICATION).....................................................................................................22
[BOOKS REFERRED]
1. T HE FUTURE OF INTERNATIONAL ECONOMIC LAW ,(WILLIAM J DAVEY
AND JOHN JACKSON OXFORD UNIVERSITY PRESS 2008)
2. BASIC DOCUMENTS IN INTERNATIONAL LAW ,( IAN BROWNLIE
OXFORD UNIVERSITY PRESS, 6TH EDITION 2009,)
3. DR. H. O. AGARWAL, A CONCISE BOOK ON INTERNATIONAL ALW AND
HUMAN RIGHTS, (CENTRAL LAW PUBLICATIONS 1ST EDITION 2007)
4. J.L. BRIERLY, THE LAW OF NATIONS AN INTRODUCTION TO THE
INTERNATIONAL LAW OF PEACE, (SIR HUMPHREY WADLOCK,
OXFORD UNIVERSITY PRESS 2008 1ST EDITION)
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5. K.C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, (EASTERN
BOOK COMPANY 2006 EDITION)
6. GERNOT BIEHLER, PROCEDURES IN INTERNATIONAL LAW,
(SPRINGLER 2008 EDITION)
7. CARL SCHMITT, THE LEVIATHAN IN THE STATE THEORY OF THOMAS
HOBBES, (THE UNIVERSITY OF CHICAGO PRESS, 2008)
8. INTERNATIONAL LAW AND POLITICS , (SHERLEY V. SCOTT, VIVA
BOOKS, 1ST EDITION 2008)
9. MARK WESTON JANIS, INTERNATIONAL LAW, (ASPEN PUBLISHERS, 5TH
EDITION 2008)
10. DR. H. O. AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS, (15TH
EDITION, CENTRAL LAW PUBLICATIONS, ALLAHBAD)
11. P. K. DAS, INTERNATIONAL LAW DOCUMENTS, (UNIVERSAL LAW
PUBLISHING COMPANY PRIVATE LIMITED, 2003 EDITION)
12. ASHWINIE KUMAR BANSAL, ARBITRATION AGREEMENTS AND
AWARDS, (UNIVERSAL LAW PUBLISHING COMPANY 2ND EDITION)
13. RULE OF LAW IN A FREE SOCIETY , (N.R. MADHAVA MENON OXFORD
UNIVERSITY PRESS 2008)
14. A.R. BISWAS, INTERNATIONAL LAW, (KAMAL LAW HOUSE CALCUTTA
1ST EDITION 1999)
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15. WILFRED BOLEWSKI, DIPLOMACY AND INTERNATIONAL LAW IN
GLOBALIZED RELATIONS, (SPRINGLER)
16. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS ,
(1 BOOKWELL 2002)
17. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS ,
(2 BOOKWELL 2002)
[JOURNALS AND ARTICLES]
1. 1950 B.Y.B.I.L., Vol-XXII, p. 332............................................................................5
2. Report on the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26;
Franck (1983) 77 A.J.I.L. 109....................................................................................6
3. A.A. Idowu , Revisiting the Right to Self-Determination in Modern International
Law: Implications for African States , 6 European Journal of Social Sciences ,
Number 4 Rev. 43 (2008)....................................................................................16,18
4. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An
Evaluation of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J.
67 .............................................................................................................................27
5. Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II
Y.B.I.L.C.,Part Two.................................................................................................29
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[CONVENTIONS, TREATISIES, REPORTS AND U.N. DOCUMENTS]
1. Treaty of Washington, 1871; British Gyanna Arbitration, 1899...............................6
2. United Nations Charter..............................................................................12,14,18,26
3. United Nations World Conference on Human Rights, Part 1, ¶ 2 (Vienna
Declaration and Programme of Action) June 1993..................................................17
4. Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805.................................21
5. Vienna Convention on the Law of Treaties,Art. 2, 1969.........................................25
6. I.C.S.I.D. case No- ARB/002/2 ,¶ 24......................................................................26
7. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An
Evaluation of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J.
67 .............................................................................................................................27
8. UNITED NATION CENTRE FOR ECONOMIC DEVELOPMENT
DOCUMENT ...27
[WEB SOURCES]
http://www.pca-cpa.org/upload/files/EEBC-3.pdf...........................................7
http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands..................................10
STATEMENT OF JURISDICTION
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XI
THE REPUBLIC OF ASPATRIA AND THE KINGDOM OF RYDAL SUBMIT THE
PRESENT DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE BY SPECIAL
AGREEMENT, DATED SEPTEMBER 10, 2010, PURSUANT TO ARTICLE 40(1) OF
THE COURT’S STATUTE. THE PARTIES HAVE AGREED TO THE CONTENTS OF
THE COMPROMIS SUBMITTED AS A PART OF THE SPECIAL AGREEMENT. IN
ACCORDANCE WITH ARTICLE 36(1) OF THE STATUTE OF THE COURT, EACH
PARTY SHALL ACCEPT THE JUDGMENT OF THIS COURT AS FINAL AND
BINDING AND SHALL EXECUTE IT IN GOOD FAITH IN ITS ENTIRETY.
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QUESTIONS PRESENTED
1. WHETHER RYDAL MAY TAKE STEPS GIVING EFFECT TO THE
INDEPENDENCE OF THE WINDSCALE ISLANDS OR HAS TO CEDE
ADMINISTRATION OVER THE ISLANDS TO ASPATRIA.
2. WHETHER RYDAL’S REJECTION OF MDR’S BID CONSTITUTED A
VIOLATION OF THE ASPATRIA-RYDAL BIT.
3. WHETHER RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL
BIT TO PROTECT THE ASSETS OF ALEC.
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STATEMENT OF FACTS
[ENTITIES INVOLVED]
ASPATRIA - THE APPLICANT, FORMER COLONY OF PLUMBLAND
RYDAL - THE RESPONDENT
PLUMBLAND - THE FORMER COLONIAL PARENT STATE OF ASPATRIA
WINDSCALE ISLANDS - THE DISPUTED ARCHIPELAGIC TERRITORY
ROCO - MULTINATIONAL COMPANY INCORPORATED IN RYDAL
ALEC - A SUBSIDARY OF ROCO INCORPORATED IN ASPATRIA
MDR LTD. - ASPATRIAN INCORPORATION
[EVENTS LEADING TO THE DISPUTE]
FACTUAL HISTORY:
The present day developed coastal country Aspatria was a colony of the kingdom of
Plumbland from 1610 to 1820. Rydal, a constitutional monarchy has had established
several colonies throughout the world. Windscale Islands, the disputed territory, are an
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archipelago in the Southern Hemisphere in the Eden Ocean, closest to the Republic of
Aspatria. ¶¶ 1-4
On 6th of December 1777, one Captain Geoffrey Parrish under the commission of the
King of Rydal discovered the Islands, as recorded in his ship’s log. A flag of Rydal and a
stone carved with a declaration asserting the Rydalian King’s sovereignty was left behind
on the Islands. Early next year, the viceroyalty of Aspatria, under the authority of
Plumbland sent a naval ship commanded by Lieutenant Manuel Ricoy to settle and claim
the Islands. After 20 years of settlement and establishment of the fort, inhabitants were
called back to the mainland Aspatria. A flag of Plumbland and a notice declaring
Aspatria’s title to the Islands by first occupation was left. Historians believe of the islands
being used by seafarers, pirates, slave-ships etc. during this period. Later, nautical charts
depicting the islands as the territory of Plumbland were produced in Plumbland and
Aspatria as well, ascribing the name ‘Windscale Islands’. ¶¶ 5-9
On 6th September 1813, Rydalian HMS Applethwaite, commanded by Admiral George
Aikton was wrecked on one of the smaller Islands. The members established a
‘temporary’ settlement named St. Bees. Rydal assumed HMS Applethwaite to be lost.
In1815, a slave ship called Unthank landed on St. Bees who swore loyalty to the Rydalian
Queen and the members were offered a refuge by Admiral Aikton. ¶¶ 10-13
In June 1817, Grizdale commanded by Commander Javier Crook who was sent by the
Aspatrian Viceroyalty to establish a penal colony, was confronted by Aikton with his
armed sailors which Crook protested as he left .In the mid 1818, King Piero protested
through a diplomatic note containing its claim over the Islands by first occupation, sent to
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the Queen of Rydal. Rydal acknowledged of them being unaware of the survival of HMS
Applethwaite and rejected all Plumbland’s Claim. ¶¶ 14-16
Aspatria declared its independence on 2nd November 1820, and the constitution of the new
Republic of Aspatria provided that the Islands were a part of the same. Meanwhile,
Plumbland ceded the Islands to Rydal under the Treaty of Corby signed on 22nd
September 1821. ¶¶ 17-21
In 1826, President Diaz sent a force for seizure of the Islands. Next year, the Rydalian
Queen received the Aspatrian Ambassador formally and recognized the Aspatrian
Independence. In the subsequent meeting with Rydalian Foreign Minister Smith, Rydal
rejected the devolution of the Aspatrian viceroyalty by the principle of uti possidetis juris.
¶¶ 22-25
In 1841, Plumbland recognised Aspatria’s sovereignty and independence acknowledging
Aspatria’s continued claim to the Islands. In 1845, Aspatria established a permanent
diplomatic mission in Rydal. The Rydalian Foreign Ministry fervently dismissed all the
routinely reiterated Aspatrian claims to the Islands. ¶¶ 26, 27
The Islands though economically dependent on Rydal, remained poor by economic
standards. The Islanders were given the status ‘Rydalian Dependent Territory citizen’ and
not full Rydalian citizenship. Where as, since inception Aspatrian law has treated persons
born on the Islands as citizens of Aspatria. ¶¶ 31, 32
In 1947, the Islands were given constitution by Rydal confirming Rydalian sovereignty
over Islands and its resources. 1n 1949, Aspatrian Ambassador referred the dispute to the
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Secretary General of U.N. In 1962, before the Special Committee, the Rydalian Prime
Minister appeared and stated that Rydal respected the will of the Islanders. The delegation
routinely expressed its desire that the Islands remain a part of Rydal. Ten states located
near Aspatria and eight other states regularly supported Aspatria's claim to the Islands
before the U.N.S.C. and the General Assembly. ¶¶ 30-38
Owing to the increase of trade, the countries in 1985 entered in the Aspatria-Rydal BIT.
ROCO owns 80% shares of ALEC. NRA passed in Aspatria restricted Aspatrian
companies to act inconsistent with government license natural resources including
exploitation of energy resources making the same a criminal offence. In 1993, Aspatria
granted ALEC a license to exploit oil deposits in Aspatria.¶¶ 39-41
In 1997, oil was discovered within EEZ of the Islands. Rydal contracted with ROCO to
explore and map the oil reserves and as per the report submitted by ROCO the Islands
could become important oil producers. Owing to this discovery independence movement
in Islands was energised by ILSA. Aspatria too rejuvenated its claims over the Islands. ¶¶
42-44
MDR Limited owned by Monte de Rosa in 2003, gained an exclusive license to extract
the oil in the Windscale Islands from the Aspatrian government under NRA. The Prime
Minister of Rydal protested at the decision citing absence of Aspatrian sovereignty over
the islands. But subsequently he and MDR Ltd. took no steps to extract oil. ¶¶ 45-48
In December 2006, a scheme of Rydalian government to invite and evaluate bids for the
rights to exploit the oil reserves within the EEZ of the Islands by the Rydalian companies
was put forth, which was protested by Aspatrian authorities. Bids were only made by
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ROCO & MDR Limited. ROCO in its bid listed the assets of ALEC. MDR Limited’s bid
being more beneficial was endorsed by majority of 20 to 15 which ILSA suspected. On
consultation with Prime Minister Abbott, Governor withheld her signature. On a call of
re-consideration ROCO bid was approved & Governor promptly signed the
recommendation. The ILSA members accepted the bid but with a concern over the high-
handed manner in which Governor treated the issue defeating the cause of self-
determination and called for independence of Islanders. Monte de Rosa denounced the
decision as discriminatory and violative of the BIT. ¶¶ 49-55
On 16 November 2007, the Public Prosecutor of Aspatria filed criminal charges against
ALEC under the NRA for materially participating in ROCO bid circumventing the
Aspatrian license, along with an administrative petition, for seizing its assets within
Aspatria to maintain status quo as warranted under Aspatrian criminal code, which was
granted. ALEC’s petition for cancellation of the order was denied, with no further appeal
being possible. Counsel for ALEC complained of slow pace of justice alleging permanent
seizure. On a protest of Prime Minister Abbott Aspatria denied the protection of assets of
ALEC by the BIT. Meanwhile, Monte de Rosa’s challenge and appeals in Rydalian courts
failed, on which he invoked his rights under the BIT. ¶¶ 56-61
Controversy of rejection of MDR’s bid led to non-violent protests across the Islands
calling for a referendum on independence, leading to a plebiscite in December 2008,
wherein 76% of the Islanders voted for independence. President Lavin condemned the
plebiscite as illegal. ¶¶ 62-65
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Prime Minister Abott considering all issues, proposed for negotiation which President
Lavin accepted, and the two States concluded the present Special Agreement. ¶¶ 66-68
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SUMMARY OF PLEADINGS
1. RYDAL MAY TAKE STEPS GIVING EFFECT TO THE INDEPENDENCE OF
THE WINDSCALE ISLANDS.
A. SOVEREIGNTY OVER THE ISLANDS BELONGS TO RYDAL.
1.A.1 Rydal has an apparent title to territorial sovereignty of the Windscale
Islands by virtue of first discovery.
1.A.2 Aspatria had inherited the territory of the islands from Plumbland after its
independence. The territory was an inchoate title which was not qualified for
occupation.
1.A.3 Aspatria’s claim on the Islands on ground of uti possidetis juris principle is
not a valid claim.
1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the
Islands.
1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of
Aspatria.
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B. THE ISLANDERS ARE ENTITLED TO INDEPENDENCE AS AN EXERCISE
OF THEIR RIGHT TO SELF-DETERMINATION.
1.B.1 The Islanders have a legal right to self -determination .
1.B.2 The claim by Rydal for providing the right of self-determination to the
Islanders is maintainable.
1.B.3 The application of right to self-determination subdues the interest of
territorial and political unity of Aspatria.
2. RYDAL’S REJECTION OF MDR’S BID DOESNOT CONSTITUTE A
VIOLATION OF THE ASPATRIA-RYDAL BIT.
2.1 Rydal has the authority to reject the MDR bid
2.1.1 Monte de Rosa’s intentions are clear owing to Actus exteriora
indicant interiora secreta
2.1.2 Prospective Threat to Public and National Interest
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3. RYDAL HAS A STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO
PROTECT THE ASSETS OF ALEC AND THE SEIZURE OF SUCH ASSETS
WAS A VIOLATION OF THE ASPATRIA-RYDAL BIT.
3.1 Nemo plus juris ad alium transfere potest quam ipse habet
3.2 Seizure of ALEC’s assets violates the Aspatria-Rydal BIT.
3.2.1 The International Law gives a binding recognition to the BITs
3.3 The Right of Diplomatic Protection.
3.4 Local remedies need not be exhausted owing to exception to the rule
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PLEADINGS AND AUTHORITIES
1. RYDAL IS PERMITTED UNDER INTERNATIONAL LAW TO TAKE STEPS
GIVING EFFECT TO INDEPENDENCE FOR THE WINDSCALE ISLANDS.
1.A. Sovereignty over the Islands belongs to Rydal.
It is respectfully submitted that, the Kingdom of Rydal is having the sovereignty over
the Islands of Windscale archipelago.
Whether it be the question of Conduct, Title, Intention, Manifestation, Overt Act or
Sovereignty all the ingredients1 are fulfilled by the Respondent in order to establish
it’s valid claim over the Windscale archipalego.
Let’s understand it ex facie-:
1.A.1. Rydal has an apparent title to territorial sovereignty of the Windscale
Islands by virtue of first discovery.
When Captain Geoffrey Parrish, the commander of the “Wansfell”, set out on a
‘naturalist discovery’ under a commission of the King of Rydal, he recorded in his
ship’s log - “ we discovered ….. not appearing on our charts”. This means that the
Islands were a fresh discovery by the people of Kingdom of Rydal. The discovery was
not just that the Captain
1
? U.S.A v. Netherlands, (1928) 22 A.J.I.L 867-912. [ Hereinafter Island of Palmas case ]
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Geoffrey just sighted the Island and claimed it as part of Rydal but as from the facts
itself it is evident that he took a short leave on one of the larger Islands and left behind
the flag of Rydal and stone carved with a declaration asserting the sovereignty of King
Andrew of Rydal. Now this establishes an undisputed sovereignty of the Kingdom of
Rydal over the said archipelago because at the time when the discovery of the
Windscale Islands was made by Captain Geoffrey, the Islands were uninhabited and
terra nullius and therefore the sovereignty is established through the doctrine of
occupation2. Establishment of a flag on a part of land is also the symbol of
sovereignty over that land, of the country to whom such flag belongs.3 This also point
towards the element of ‘intention’. Hereby leaving behind the flag and the carved
stone the subjects of the Kingdom of Rydal want to make it crystal clear that the said
archipelago belonged to the Kingdom of Rydal. It is necessary for the occupation over
the territory that there should be intention to establish sovereignty over the territory
concerned.4
1. A.2 The territory was an inchoate title which was not qualified for occupation
Now by completing the above mentioned acts the Kingdom of Rydal successfully
established an ‘inchoate title’5. As the discovery was made in the 18th -19th century
then it must be governed by the law prevailing at that time. At that time it was settled
that “though discovery does not create a definitive title of sovereignty, but only an
2 Western Sahara Case, I.C.J. Rep. 1975,p.12
3 I.C.J. Rep. 2008 ¶ 228.[ Hereinafter Island of Pedra Branca case ]
4 Denmark v. Norway, 1933 P.C.I.J. A/B No.53(3 W.C.R. 151), [ Hereinafter Eastern
Greenland Case]
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‘inchoate title’ , such a title exists, without external manifestation, but such title of
discovery must be completed within a ‘reasonable period’ by the effective occupation
of the region claimed to be discovered”.6
Now here the words used are ‘without external manifestation’ and ‘reasonable period.’
The Respondents humbly submits that as mentioned above there was an external
manifestation of sovereignty i.e. the flag of Kingdom of Rydal, was left behind and
also a stone revealing the sovereignty of Rydal over the Islands. And as far as the
concept of ‘reasonable period’ is concerned then it will be clear from the further facts
that the Kingdom of Rydal had also committed such acts which completely entitles the
Kingdom of Rydal to assert the sovereignty over the Islands i.e. acts showing
manifestation of sovereignty.
Now in the year 1778 the Salkeld came across the Islands. And it is also averred that
Lieutanant Manual Ricoy established a Fort and settlement named Salkeld on one of
the Island. It is submitted that such settlement can not be said to be discovery of a
territory terra nullius. As mentioned before the Island was already discovered and was
under the
sovereignty of the Kingdom of Rydal. Though Commander Parrish landed on a bigger
Island and not on the Island on which the Salkeld landed but still the entire
5 2 L. OPPENHEIM ,O PPENHEIM’S I NTERNATIONAL L AW , 690 ( SIR ROBERT
JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )
6 Island of Palmas Case, supra note 1.
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Archipelago belonged to the Kingdom of Rydal. Because it is not necessary that
display of sovereignty must be present at all the points and parts of the land.7
Also in the Island of Palmas case8 it was held that :
“In the exercise of territorial sovereignty there are necessarily gaps,
intermittence in time and discontinuity in space….. the fact that a State
cannot prove it’s display of sovereignty as regards such portion of
territory cannot forth with be interpreted as showing that the sovereignty
is inexistent….”
Moreover it will be seen that within the period of ‘reasonable time’ the Kingdom of
Rydal had successfully established its apparent manifestation of sovereignty over the
entire archipelago. Thus the settlement of Salkeld was an illegal possession of a
territory belonging to Rydal by an alien nation.
Moreover as far as the establishment of the Fort is concerned then it can not be
considered as a sovereign act under the International Law. A mere administrative act
done by a State official in a particular area can not deprive the legal title of another
State. 9
7 Eastern Greenland case, supra note 4.
8 (1928) 22 A.J.I.L 867-912.
9 Belgium v The Netherlands, I.C.J. Rep. 1959 p.209 [ Hereinafter Frontier Lands Case ]
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In the case of Cambodia v Thailand10 the Hon’ble Court also held that mere
possession of an area by some other sovereign nation for discharging certain
administrative or other function can not disturb the title of the State concerned.
It may be averred by the Applicant that for 20 years the settlement was there on the
Salkeld and it existed undisturbed. For this, the Respondent will like to advance that
the Applicant can not take the advantage of the doctrine of acquisitive prescription.
Acquisitive Prescription is the means by which, under International Law legal
recognition is given to the right of a State to exercise sovereignty over land or sea
territory in cases where that State has, in fact, exercised it’s authority in a continuous
uninterrupted, and peaceful manner over the area concerned for a sufficient period of
time, provided that all other interested and affected States (in the case of land territory
the previous possessor) have acquiesced in this exercise of authority.11 Thus in order
to take advantage of this doctrine the other party must have the notice of the same
unless the contrary is proved.12 But here the Kingdom of Rydal was unaware of an
adverse possession of the Windscale
10
? I.C.J. Rep. 1962 p.6 [ Hereinafter Temple of Preah Vihear case ]
11 1950 B.Y.B.I.L., Vol-XXII, p. 332
12 See - Island of Pedra Branca case, supra note 3; Island of Palmas case, supra note 1;
Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case]; Report on
the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26; Franck (1983) 77
A.J.I.L. 109.
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Salkeld Island by the Petitioners and therefore no question of acquiescence can arise.
On the contra pacem the defense of the principle of acquisitive prescription is
available to the Respondent because between 1880 to 1890 lodged no complaints
concerning the Islands and made no complaints to assert the control over them. And
thus the Islands for all this continuous period of 30 years remained under the
sovereignty of Rydal undisturbed and unopposed by any nation. If for continuous 20
years a sovereign exercises control over a territory unopposed and no action is taken
by the other nation claiming that territory then the latter loses his claim over it.13
1.A.3 Aspatria’s claim on the Islands on ground of uti possidetis juris principle is
not a valid claim.
As far as the discovery is concerned then it is evident from the facts itself that the
historians say that Islands were used by pirates, slave-ships, and other seafarers during
the period Ricoy and his men were in Salkeld. This means that the said Islands were
not uninhabitated at that time and thus the doctrine of uti possidentis has no relevance
for the petitioners. And moreover the Respondents were unaware of any foreign
possession of the Islands at that time. The works of Historians are also significant in
the International law. In the case of Pedra Branca/Palau Buteh14 the Court took in to
consideration the works of Grotious in determining the extent of the Sultan of Johor’s
13
? See- Treaty of Washington, 1871; British Gyanna Arbitration, 1899, [ Hereinafter Venezuela
Boundary Dispute case ]
14 I.C.J. Rep. 2008 ¶ 228
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territories, while adjudicating the dispute pertaining to the island of Pedra Branca
between Singapore and Malaysia..
1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the
Islands.
On 9th September 1813, a naval ship of Rydal, HMS Applethwaite, under the
command of Admiral George Aikton, was wrecked on one of the smaller Islands in the
archipelago. Here as per the facts of the case the Admiral was made aware that the
said Islands belonged to Rydal as his nautical charts indicated the same. The Charts
and Maps occupy a significant place in International Law.15
The significant development took place when in may 1815 the Unthank, a slave ship
from the State of Sodor, drifted in to the harbour of St. Bees. Admiral Aikton rescued
all the 26 crew members and 150 slaves men, women and children to the shore. When
the crew of the Unthank were informed that they had landed on the Rydalian territory
then that crew swore loyalty to Queen Constance of Rydal. Moreover the Admiral also
declared the slaves as free. Now this whole incident involves two important acts.
Firstly act of Recognition and secondly act a titre de soverain. When the crew of the
vessel Sodor swore allegiance to Queen Constance then this means that the subjects of
a foreign nation recognized the existence of the sovereignty of Rydal over the
archipelago. A vessel of a foreign land is considered as part of that foreign land.16
15 See- Decision regarding Delimitation of the Border between the State of Eritrea and the
Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28 , ¶ 3.28. at http://www.pca-
cpa.org/upload/files/EEBC-3.pdf
16 France v. Turkey,1927 P.C.I.J. (Ser. A) No. 10. [ Hereinafter The case of the S. S. “Lotus”]
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Moreover the Admiral declared all the slaves as free, because slavery was abolished in
Rydal. Thus this declaration of the Admiral Aikton extended the law of Rydalian
Kingdom to the Islands also. Thus the Respondent exercised the act a titre de
sovereign on the archipelago. Governance through law is the apparent manifestation of
the sovereignty.17
The words uttered by Admiral Aikton are also important. While informing the crew of
the Unthank the Admiral uttered the words like ‘they had landed on Rydalian
territory.’ Here the Admiral did not used the words like ‘you have landed on the Island
belonging to Rydal’ but on the contra pacem he used the word ‘territory’. This very
well establishes that the sovereignty of Rydal was not only exercised to any particular
Island but the entire Archipelago. Subsequently by 1816, the Admiral Aikton and his
men explored many Islands in the archipelago. Now this act leaves no doubt that the
entire Island was under the control of Admiral Aikton, the subject of Rydal. He also
discovered the abandoned Fort of Salkeld. Though the Flag of Plumbland was there
but nobody found any notice left by Ricoy. This means that even though if we assume
that the island of Salkeld belonged to Plumbland but no notice was found and the fort
was empty. Thus in good faith the Admiral also exercised the sovereignty over the
Island of Salkeld.
The apparent manifestation of sovereignty over the archipelago took place when the
Admiral Aikton did not allow The Grizdale to anchor on the cost of the Island of
Salkeld. Admiral Aikton informed Commander Crook that ‘he and his men must leave
17 Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case ]
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at once or be subject to arrest’ and Commander Crook departed. This act of Admiral
Aikton is to be seen as conduct a titre de soverain. In the Island of Pedra Branca
case18, when the Singapore officials refused to allow the surveyors of a Malaysian ship
to land on the disputed Island of Palau Buteh, the Hon’ble Court held that “this
Singaporean conduct is to be seen as conduct a titre de soverain. The conduct of
Singapore in giving permissions for this visits does give significant support to
Singapore’s claim to sovereignty over Pedra Branca/Palau Buteh.”
1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of
Aspatria.
It is evident from the facts itself that the Windscale Islands i.e the Islanders never
intended to be a part of Aspatria because from the very inception they were treated to
be the Islands belonging to the Plumbland. Aspatria was a Viceroyalty of Plumbland
and as the Islands were nearer to Aspatria therefore they were just ‘administered’ by
the Viceroy appointed by Plumbland in Aspatria on behalf of Plumbland and not
‘governed’. The latter was performed by the Kingdom of Plumbland. It is analogous to
the situation when ‘aden protectorate’ was administered from the British colony of
India. In 1937 it was brought under the direct administration of the British Crown in
UK. The COCO Islands or Keeling Islands were the British Archipelagic colonial
Islands. Initially they were administered through Singapore. When the Japanese troops
conquered Singapore in 1942 during the Second World War the administration of the
said Islands was transferred to Ceylon, another British colony. And when in 1946
18
? Island of Pedra Branca case, supra note 3, ¶ ¶ 238, 239.
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when Singapore was liberated from Japanese occupancy the said Island was again
brought under the administration of Singapore.19 In 1955 when Singapore was
declared independent the said Islands were directly brought under the control of
United Kingdom. Now here it must be noted that neither Aden was claimed as India’s
inherent part when it was separated from the Indian administration and neither the
COCO Islands can be said to belong to Japan when it occupied Singapore in 1942 and
neither Singapore can claim the COCO Islands when it got independence in 1955
because such above mentioned Islands and protectorate were just administered from
the above mentioned respected colonies on behalf of their colonial master. And due to
the reason that such colonies were closer to the said Islands.
The test to find out whether a said territory belongs to a particular country or not then
it must be shown that by transferring the said territory to some other country the
transfer will amount to a ‘cession’. But here in the above mentioned case when the
administration of aden was transferred from India to UK or COCO Islands
administration was transferred from Singapore to UK, then such transfer was not
considered as a cession. Because such Islands were never an integral part of that
particular colony administering it. A mere exercise of administrative function on a
particular territory do not amount to establishment of sovereignty.20
Now as far as the competency of Plumbland to recognize the Islands of Windscale
belonging to Rydal is concerned then the Respondent would like to submit that as
19 http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands
20
? Temple of Preah Vihar case, supra note 10, p.146.
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argued before the Windscale Islands were never intended to be a part of Aspatria and
when the coup by General Diaz was brought, it is implied that the administration of
the said Islands would revert back to the Plumbland as the said Islands were always
administered on behalf of the Plumbland though it was just a claim. It is also evident
from the example of Singapore’s 1942 Japanese occupation. Therefore Plumbland is
competent enough to recognize the said Islands as belonging to Rydal through the
Treaty of Great Corby.
Moreover Aspatria has neither any de jure or de facto sovereignty over the Windscale
Islands. The only ground on which they are claiming the sovereignty over the said
Islands is that of the claim which has devolved upon them as a result of State
succession. But as mentioned above the said claim is also not devolved upon them and
it has very well remained with the Kingdom of Plumbland.
The other thing is that the only ground left with Aspatria is of contiguity. The said
Windscale Islands are only 600 miles from Aspatria and are much far away from
Rydal. Therefore the respondents would like to advance that even this defence is of no
avail to the petitioners as it is a well settled position of law that a nation can not claim
a portion of a territory on the ground of ‘Principle of Contiguity.’21
Moreover it is also humbly submitted that the country of Aspatria is not having any
right to claim the Islands of Windscale Archipelago. The Island’s population only
consists of the Rydalian immigrants and the offsprings produced by the marriages
taken place between the inhabitants of HMS Applethwaite, HMS Braithwaite and The
Unthank. There are no Aspatrian inhabitants who are permanently settled on the
21 Island of Palmas case, supra note 1.
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Islands. The Austria was claiming South Tryol from Italy because of the German-
Austrian people living in majority there. The Island of Cyprus is claimed by Greece
and Turkey because of the Greek and Turkish populations are living in majority on
that Islands.22 Thus as per this illustrations it is clear that Aspatria’s claim over the
Islands is totally unwarranted.
The succession of Rydalian Governors of the Islands exercised the control over the
entire archipelago. In 1903 the King of Rydal directed to establish a Consultative
Assembly, In 1945 Rydal joined the united nations as an original member and by
designating the Islands as non-self governing it fulfilled it’s obligations under Article
73 of the Charter23 by regularly transmitting reports on this Islands to the Secretary
General. This all things indicates that Rydal has fulfilled it’s all obligations under the
International law and has exercised all functions a titre de sovereign over the Islands
and even the United Nations has recognized the Rydalian sovereignty over the Islands.
Moreover the Islands population also accepted the Rydalian Sovereignty over them.
They have a right to accept the Rydalian sovereignty because they are the citizens who
have acquired the citizenship of the said Islands by way of birth as well as
naturalisation.24
22 The Cyprus case quoted in D. J. HARRIS ,I NTERNATIONAL H UMAN R IGHTS T EXT
AND M ATERIALS , 920 (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).
23 Article 73 of the United Nations Charter.
24 Liechtenstein v. Guatemala, I.C.J. Rep. 1955 p.4 [ Hereinafter Nottebohm case ]
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Moreover in the case of France v Mexico25 the Arbitrator awarded the Island of
Clipperton to the France on the basis of first discovery. Mexico claimed the Clipperton
Islands on the principle of uti possidetis as successor of Spain. Though Spain
exercised some control over the disputed Island for some time when France was not in
occupation of the island after the discovery but still the contention of France was
upheld because the France never had animus of abandoning the Islands.
1.B.The Islanders are entitled to independence as an exercise of their right to self-
determination.
1.B.1 The Islanders have a legal right to self -determination .
It is humbly submitted that the Islanders have a legal right to self-determination.
Rydal appraises the scope and the current status of the concept of self-determination to
which Aspatria is completely negligent.
The right to self-determination of peoples is a fundamental principle of International
Law26. The United Nations Charter27 also recognizes the principle of equal rights and
25 (1932) 26 A.J.I.L. 390 [ Hereinafter Clipperton Island case]
26D. J. HARRIS ,I NTERNATIONAL H UMAN R IGHTS T EXT AND M ATERIALS , 76
(SWEET & MAXWELL, LONDON, 2ND EDITION 2001) (Hereinafter Harris).
27 ? Article 1.
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self-determination but the subsequent development of International Law28 has been
such that self-determination is now recognized as a right under customary
International Law29.
Other subsequent developments in International Law in regard to non-self governing
territories as enshrined in the Charter of the United Nations, made the principle of self-
determination applicable to such territories30. A specific chapter has been included in
the Charter of the United Nations on non-self governing territories31.In the present
world order, the right of self-determination has assumed a subject of serious concern
to all freedom-loving societies. Conversely, Aspatria purports an indifferent attitude
towards this strategic human right that the Islanders are entitled to.
Article 1 of the U.N. Charter common to the two International Covenants on Human
Rights, adopted by the U.N. General Assembly and opened for signature, ratification
and accession on 16 December, 1966, which States as follows:
“All peoples have the right of self- determination. By virtue of that right,
they freely determine their political status and freely pursue their
28 2 L. OPPENHEIM ,O PPENHEIM’S I NTERNATIONAL L AW , 714 ( SIR ROBERT
JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )
29 See for example, the Namibia Case, (1971) I.C.J. Rep. 16.
30 ? Ibid. at p. 31. See also, the Western Sahara Case (1975) I.C.J. Rep. 12 at 16.
31 ? K. C. JOSHI, I NTERNATIONAL L AW AND H UMAN R IGHTS , 62 ( EASTERN
BOOK COMPANY 2006 EDITION)
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economic, social and cultural development.”32
1.B.2 The claim by Rydal for providing the right of self-determination to the
Islanders is maintainable.
The Respondent asserts the meaning and relevance of the concept of self-
determination in modern International Law, which Aspatria clearly fails to realise.
In accordance with the Declaration of the United Nations General Assembly33 on
Principles of International Law Concerning Friendly Relations and Co-operation
among States in line with the Charter of the United Nations, it is also the duty of States
to promote the right to self-determination of peoples. But the implementation of the
principle of self-determination requires every State to promote, through joint and
separate action, universal respect for, and observance of human rights and
fundamental freedoms in accordance with the Charter of the United Nations
Organisation34.
32 The International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights both ratified by Nigeria in July 1993
33G.A Res. 2625 (XXV), 25th Sess., (Oct. 24, 1970)
34 A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:
Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev.
43 (2008)
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In the East Timor case,35 the Hon’ble Court recognised its erga omnis character. In the
view of some writers, the principle of self-determination is also ius cogens36.
According to the tripartite typology, all human rights entail three forms of State
obligation, viz. The obligations to respect, protect, and fulfil37. Rydal has consistently
supported the process of fulfilment of its abovementioned obligations38, thereby
refuting a likely allegation that Rydal did not have bonafide intention to grant
independence to the Islanders.
1.B.3 The application of right to self-determination subdues the interest of
territorial and political unity of Aspatria.
The Respondent would like to draw the kind attention towards the unforeseen
consequences of the denial of the right to self-determination merely on the basis of
securing the territorial integrity.
Again, taking into account the particular situation of peoples under colonial or other
forms of alien domination or foreign occupation, the World Congress on Human 35 I.C.J. Rep. 1995, p.90 at 102
36 See Frank, (1976) 70 A.J.I.L 694 quoted in Harris, supra note 25,p.76
37Mr Eide, Right to Food at the Committee’s General Discussion , 3rd Sess. U.N Doc.
E/C.12/1989/SR.20.Cf also Eide A., Right to Adequate Food as a Human Right (1989)
quoted in MATTHEW C. R. CRAVEN, T HE I NTERNATIONAL C OVENANT ON
E CONOMIC, S OCIAL AND C ULTURAL R IGHTS- A P ERSPECTIVE OF ITS
D EVELOPMENT , 109 ( CLARENDON PRESS OXFORD 1995)
38 Compromis, ¶ 35.
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Rights recognised39 the right of people to take any legitimate action, in accordance
with the Charter of the United Nations, to realize their inalienable right of self-
determination. The Congress considered the denial of the right of self- determination
as a violation of human rights and underlines the importance of the effective
realization of this right.
Despite the above stated efforts of the United Nations Organisation, there are still
incidents of war, violence and civil disobedience in various parts of the world due to
different forms of struggles by peoples against activities of governments perceived to
undermine their right of self-determination. Such violent incidents have led to colossal
loss of lives and property almost in the nature of the disaster experienced during the
Second World War and which led to the establishment of the United Nations Organisation
whose fundamental objective is to “…. save the succeeding generation from the scorch of war
which twice in our life-time has brought untold sorrow to mankind …”40 In order to sustain
the efforts of the United Nations Organisation in pursuing this laudable objective, the right of
peoples in all countries to self-determination must not be toiled with. The issue of self
determination was prominent in the Western Sahara case41. All parties supported the right of
the people of Western Sahara to self to self-determination, but appeared to apply differing and
39 United Nations World Conference on Human Rights, Part 1, ¶ 2 (Vienna Declaration
and Programme of Action) June 1993.
40 See the Preamble to the United Nations Charter.
41 I.C.J Rep. (1975) Pleadings C R, 75/8.11 .
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self-serving contents to the concept42.
The General Assembly... declares that “Any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a country is incompatible
with the Purposes and Principles of the of the Charter of the United Nations...”
It is clear that the injection of a legal principle of self-determination into the law about
acquisition and loss of territorial sovereignty is both important and innovative. The
infusion of the concept of rights of a ‘people’ into this legal scheme is therefore a
change which is more fundamental than it first appears43.
Hence there is a strong reason to accept the Rydalian claim to grant self-determination
to the Islanders, against the evident Aspatrian objections.
42 A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:
Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev.
47 (2008).
43 ? Flory, (1957) 3 A.F.D.I., 73, 76 ; 2 L. OPPENHEIM ,OPPENHEIM’S
INTERNATIONAL LAW, 715 ( SIR ROBERT JENNINGS AND SIR ARTHUR
WATTS, PEARSON EDUCATION, 9TH EDITION )
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2. RYDAL’S REJECTION OF THE MDR BID DID NOT VIOLATE THE
ASPATRIA RYDAL BID.
It is respectfully submitted that the Rydal’s rejection of the MDR bid did not violate
the Aspatria-Rydal BID.
2.1 Rydal has the authority to reject the MDR bid
Not only this the Rydalian authority has a right to reject the bid on the following
grounds-
2.1.1 Monte de Rosa’s intentions are clear owing to Actus exteriora indicant
interiora secreta
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‘Actus exteriora indicant interiora secreta’ 44 external acts reveals the internal secret
purpose or acts indicate the intention. The main purpose of the Treaty between the
Rydal and Aspatria was as the respected Prime Minister said was to ‘ focus upon the
matters of more significant mutual benefit’, it is under good faith that Rydal has
entered in to Reciprocal Investment Treaty with Aspatria despite of Aspatria’s non-
sensical claims on Windscale Islands. Thus this particular contract was to strengthen
commercial relations between the two countries. But as it is evident from the facts
itself that the bidder Mont de Rosa in a press interview said that “Islands belong to
Aspatria…. It’s my patriotic
responsibility to … oil is extracted by Aspatrian people”45. Thus these words indicate
the secret animus of the Mont de Rosa that the purpose of his participating in the
bidding of Rydalian oil Programme is to assert and strengthen the Aspatrian claims on
the Windscale Islands instead of intending of behaving in the professional manner. In
the 1950s the persons affiliated with the Anglo-Iranian Oil Company conspired with
the local Iranian favourable business communities like the Rashidian family, to topple
down the Musaddiq Government.46 Another example is of Roger Casement.47 The
British Government failed to take concessions with respect to Congo in the Berlin
44TRAYNER, T RAYNERS L ATIN M AXIMS , 11 (UNIVERSAL PUBLICATIONS, 4TH
EDITION, 2005).
45 Compromis, ¶ 46.
46 Wm. ROGER LOUIS, E NDS OF B RITISH I MPERIALISM: S CRAMBLE FOR
A FRICA, S UEZ & D ECOLONIZATION , 737-9 (OXFORD PUBLICATIONS).
47 Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805.
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Conference of 1885. Hence the Roger Casement, an Irish Patriot was sent in Congo as
British Consul in the year 1903.He gathered evidences which alleged that there is mal-
administration in Congo as a result of which in the year 1909 the Belgian Parliament
took the control of Congo from King Leopold.
The Respondent will like to advance that, it is a general principle of commercial law
that the authority who is making invitation for bidding, is fully entitled to reject any of
the bids made , and will not be obliged to accept the proposal of the highest bidder.48
In the case of Spencer v Hardinge49 the Hon’ble Court held that “The person to whom
a tender is made is normally free to accept or reject it as he pleases”. Thus there is no
obligation in accepting the bids from the persons to whom the tenders are made,
because it is just an invitation to bid and not an offer.50 Thus on the basis of this
decisions it is respectfully submitted that the national namely Mont de Rosa can not
ask for the acceptance of his bid as a matter of right, even though he was the highest
bidder.
2.1.2 Prospective Threat to Public and National Interest
It is respectfully submitted that in the cases concerning the Government contracts the
respective State Government may reject or accept any proposal or bids if it is
48 RICHARD STONE, M ODERN L AW OF C ONTRACT , 50 (ROTLEDGE &
CAVENDISH,7TH EDITION).
49 (1870) 5 L.R. CP., 561.
50 See- G. H. TRIETEL ,O UTLINE OF L AW OF C ONTRACT , 9 (OXFORD
PUBLICATION).
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consistent with the public policies and national interest of the country. There is no
obligation on it to accept any of bids.51 Because the government is the sole guardian of
the territories and natural resources in the country and it is the best judge to decide as
to how this natural resources concentrated in the territory must be utilized for the
general benefit of the peoples.52 In the case of Republic of Zaire v Democratic
Republic of Congo53 also the principle of ‘public interest’ was recognized by the I.C.J.
Moreover it is a general principle of law that “if no rights of the national of a State are
violated, then the State can in no circumstances have a standing to exercise diplomatic
protection.”54
Thus in this way rejection of the MDR bid does not violate the Aspatrian-Rydal BIT.
And Aspatria has no standing to afford diplomatic protection to Mont De Rosa.
51 Tata Celular v Union of India, (1994) 6 SCC 651.
52 Reliance Industries Ltd v. Reliance Natural Resources Ltd.
53 I.C.J Rep. 2007.
54 Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, ¶ 77.
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3. RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO
PROTECT THE ASSETS OF A RYDALIAN ENTERPRISE IN ASPATRIA AND THE
SEIZURE OF SUCH ASSETS WAS A VIOLATION OF THE ASPATRIA-RYDAL
BIT.
3.1 Nemo plus juris ad alium transfere potest quam ipse habet
That the grant of license to Mont de Rosa by the Aspatrian Government55 was totally
non-sensical and a nullity. It is covered by the maxim of Nemo plus juris ad alium
transfere potest quam ipse habet56 which means that “no one can transfer to another a
greater right than he has himself”. Here in this case as per the before-mentioned
arguments it is clear that Kingdom of Rydal exercises all the de jure and de facto
sovereignty over the Islands of Windscale and therefore the license granted by the
Government of Rydal to Mont De Rosa relating to the extraction of oil in the
Windscale Islands is illegal and worthless. This is also evident from the fact that even
55 Compromis ¶ 47.
56 TRAYNER, T RAYNERS L ATIN M AXIMS , 379 (UNIVERSAL PUBLICATIONS, 4TH
EDITION, 2005).
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after the grant of the so called license the MDR took no steps to extract oil from the
Islands.57
On the one hand the President of Aspatria and its Ambassador publicly protested the
bidding process, but still do not stop the MDR to bid and on the other hand when the
bid gets rejected, the Aspatria claims that the Rydal’s rejection of MDR’s bid
constituted a
violation of the Aspatria- Rydal bid. Thus the Aspatria is blowing the hot and cold at
the same time. The Respondent will like to advance that the Aspatrian authorities by
claiming that ‘Rydal’s rejection of MDR’s bid constituted a violation of the Aspatrian-
Rydal BIT’ has accepted the sovereignty of Rydal over the Windscale Islands.
Because in the BIT itself it is stated that – ‘for investments by investors of one party in
the ‘territory of the other party’58. It had accepted the Rydalian authority competent
enough to accept bids and grant licenses in order to extract oil from the sea-bed of the
Windscale Islands. A person who want to take benefit of an instrument must also bear
the burden.59 He can not approbate and reprobate at the same time.60 Now the Aspatria
is ‘estopped’ from denying the sovereignty of Rydal over the Windscale Islands. The
claim of the Respondent further gets strengthens by the ‘conduct’ of the Aspatrian
National Mont De Rosa. When his bid gets rejected he filed the suits in the municipal
57 Compromis ¶ 48.
58
? See Vienna Convention on the Law of Treaties,Art. 2, 1969.
59 Pickersgill v Rodger,(1876) 5 Ch.D., 163.
60 Codrington v Codrington, (1875) 7 H.L. 854, 861.
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courts of the Rydal in the Islands. This indicates that he has also admitted the
sovereign jurisdiction of the Kingdom of Rydal over the Islands of Windscale..
Thus by this above mentioned points it is clear that the License to extract the oil from
the sea beds of the Windscale Islands can only be granted by the Kingdom of Rydal
and the granting of license by the Aspatria to Mont de Rosa was an act without
authority and title. Thus it is covered by the doctrine of Nemo det quo non habet which
means that one can not
transfer what he himself has not got. This was also recognized by the ICSID in the
case of Mihaly International Corporation v. Democratic Socialist Republic of
Srilanka.61 The tribunal in this case said that “no one can pass a better title than what
he really has.
3.2 Seizure of ALEC’s assets violates the Aspatria-Rydal BIT.
The basis upon which the assets of ALEC were seized by the Aspatria was, that it
participated in the ROCO bid and violated the NRA by circumventing the Aspatrian
license which was given to MDR. The respondents will like to submit that as per the
above mentioned arguments it is very well made cleared that the said license granted
by Aspatria to the MDR was void and worthless, thus the reason which Aspatria has
shown to cease the ALEC’s Assets becomes unwarranted. ROCO is holding 80% of
the shares in the ALEC62. Thus by seizing all the assets of ALEC including vessels,
drilling equipment, and cash, ALEC will not be able to do business which will affect
61 I.C.S.I.D. case No- ARB/002/2 ,¶ 24.
62 Compromis, ¶ 40.
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the shareholders’ right to receive proper profits and dividends. The BIT between
Rydal-Aspatria also contemplates the investment which includes “shares, stock and
other forms of equity participation in an enterprise.”63 Thus by ceasing the ALEC’s
assets Aspatria has violated Article IV of the BIT by non-observance of the concept of
isonomia (equality in treatment).
3.2.1 The International Law gives a binding recognition to the BITs
Eventhough if Aspatria contends that the act of ALEC in participating in the ROCO
bid was inconsistent with the NRA then the respondent will like to advance that
though the said act is void under municipal law of Aspatria but still ALEC is the
subsidiary of ROCO and thus it can participate in the bid by virtue of the BIT treaty
signed between Aspatria and Rydal, because what is unlawful in the municipal law
may be wholly innocent of violation of a treaty provision.64 The main purpose of the
BIT is that without a BIT, international investors are forced to rely on host country law
alone for protection, which entails a variety of risks to their investments.65 In ratifying
a BIT, a country makes the treaty a part of its legal system, thus it becomes its duty to
implement it. It is due to this reason that the BITs are given a binding recognition by
of the UN Charter of Economic Rights and Duties66.
63 Article 3.
64 United States of America v Italy ,I.C.J. Rep. 1989, p. 15,¶ 72. [ Hereinafter Elettronica
sicula S.p.A. (ELSI) case]
65 Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An Evaluation of
Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J. 67 .
66 Article 2, U.N.C.E.R.D.
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It can also be not said that the acquisition of the Assets of ALEC by the Aspatrian
authorities were reasonable. The said acquisition was not justifiable because there was
no emergency situation existing which could justify the said acquisition. In the case of
U.S.A v
Italy67 the Hon’ble I.C.J justified the ceasing of the Italian incorporated company
namely ELSI which was a subsidiary of the US companies, because the job of 800
workers was at stake. But here in this case no such situation is there. The said
acquisition of the ALEC’s assets by the Aspatrian authorities is arbitrary. It lacks due
process and rule of law.68 And thus violates Article V of the BIT.
3.3 The Right of Diplomatic Protection.
It is the fundamental principle of the International law that ‘whereby any violations of
the rights of a foreign national is also a violation of the rights of his State or
nationality.’69
Thus in this way the Rydal is having a right and standing to invoke the Aspatrian
Rydal BIT. Because in Belgium v. Spain 70 it was held that “to the extent that an
internationally wrongful act of a State causes direct injury to the rights of shareholders
as such , as distinct from those of the corporation itself, the State of nationality of any
67 Elettronica sicula S.p.A. (ELSI) case, supra note 64, ¶ 72.
68 Colombia v. Peru, I.C.J. Rep. 1950, p.284. [ Hereinafter Asylum Judgment ]
69 Temple of Preah Vihear case, supra note 10.
70 I.C.J. Rep. 1970, ¶ 46. [ Hereinafter Barcelona Traction case ]
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such shareholders is entitled to exercise diplomatic protection in respect of its
nationals.”71
3.4 Whether local remedies must be exhausted.
It is very well accepted principle of the Customary International Law that local
remedies must be exhausted before international proceedings may be instituted. The
rule has been generally observed in cases in which a State has adopted the cause of its
national whose rights are claimed to have been disregarded in another State in
violation of International Law. 72
It is respectfully submitted that the counsel for ALEC, promptly filed a petition with
the Supreme Court of Aspatria, consistent with the Aspatrian law, asking that the order
be cancelled. As it is evident from the facts of the case that the supreme court denied
the ALEC’s petition in ALEC v Langdale Administrative Court, no further appeal lies.
Moreover as far as the criminal case i.e. prosecutor v ALEC is concerned then though
it is pending but still it is very popular that the criminal cases in Aspatria takes years to
conclude, thus resulting in tremendous loss to the shareholders of the ALEC.73
The Article 15, Draft Articles on Diplomatic Protection74 provide for Exceptions to the
local remedies rule. It is provided that:
71 Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II
Y.B.I.L.C.,Part Two.
72 Temple of Preah Vihear case, supra note 10, ¶ 42.
73 Compromis, ¶ 59.
74 Article 15, supra note 71.
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Local remedies do not need to be exhausted where:
….
(b) There is undue delay in the remedial process which is attributable to the State
alleged to be responsible;…
In these circumstances also the State can go for International settlement on behalf of
its aggrieved nationals if the delay which will be caused in getting the relief by way of
local remedies will result in to the irreparable loss to its national.75
PRAYER AND CONCLUSION
75 Elettronica sicula S.p.A. (ELSI) case, supra note 64 ,¶ 110.
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Wherefore in the lights of the questions presented, arguments advanced, it is humbly prayed
that this Hon’ble Court be pleased to adjudge and declare that :
A) THAT SOVEREIGNTY OF THE ISLANDS BELONGS TO RYDAL.
B) THAT THE ISLANDERS ARE ENTITLED TO INDEPENDENCE BASED ON THE
PRINCIPLE OF SELF-DETERMINATION.
C) THAT RYDAL’S REJECTION OF MDR’S BID DID NOT CONSTITUTE A
VIOLATION OF THE ASPATRIA-RYDAL BIT.
D) THAT RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO
PROTECT THE ASSETS OF ALEC.
AND PASS ANY SUCH ORDER AS IT MAY DEEM FIT IN THE INTEREST OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.
And pass any such order as it may deem fit in the interest of justice, equity and good
conscience.
PLACE: THE HAGUE S/D------------------------
DATE: Respectfully Submitted
Agents for the Republic of Rydal
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