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THE KINGDOM OF RAGLAN - 610A

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					                                           610R




            2005 PHILIP C. JESSUP
INTERNATIONAL LAW MOOT COURT COMPETITION




                 IN THE
     INTERNATIONAL COURT OF JUSTICE
          AT THE PEACE PALACE

        THE HAGUE, NETHERLANDS




  CONCERNING THE VESSEL THE MAIRI MARU




       THE REPUBLIC OF APPOLLONIA
               (APPLICANT)
                    V.

         THE KINGDOM OF RAGLAN
              (RESPONDENT)




        MEMORIAL FOR RESPONDENT
TABLE OF CONTENTS

TABLE OF CONTENTS                                                                                    i

INDEX OF AUTHORITIES                                                                             iv

STATEMENT OF JURISDICTION                                                                        xii

QUESTIONS PRESENTED                                                                             xiii

STATEMENT OF FACTS                                                                              xiv

SUMMARY OF PLEADINGS                                                                           xviii

PLEADINGS                                                                                         1
I. Raglan is not responsible for attack on The Mairi Maru and owes no compensation to for
any injury resulting therefrom.                                                        1

I-A. Raglan responded appropriately to maritime crime in its archipelagic waters and fulfill due
diligence obligations to control her territory.                                                1

I-B. The acts of Thomas Good are not imputable to Raglan.                                         5

I-B-1. Raglan private pilots aren‟t empowered by domestic law to exercise elements of
governmental authority.                                                            5

I-B-2. Even if empowerment by not domestic law were accepted, Mr. Good did not act in its
official capacity.                                                                     6

I-B-3.The acts of Mr. Good did not be commanded and ruled by Raglan.                             8

II. Raglan did not violate any obligation owed to Appollonia under international law in the
scuttling of The Mairi Maru.                                                              9

II-A. Raglan did not violate any international law on prohibiting from dumping radioactive wastes
to the sea.                                                                                    9

II-A-1. It does not exist any Customary International Law (hereinafter CIL) which is the same
with London Convention.                                                                     9

II-A-2.Even if the CIL existed, the dumping is not banned in emergency situation.               10

II-B. Under CIL, Raglan did not violate Appollonia‟s flag state jurisdiction, because coastal States
have the right to take measures to protect their rights from pollution in the high seas.         12

                                                 i
II-C. Even if the scuttling of the Mairi Maru was illegal, under CIL, it is justified as a
countermeasure.                                                                         15

II-D. Even if the scuttling of the Mairi Maru was illegal, under CIL, Raglan may rely on necessity
as a circumstances precluding wrongfulness.                                                   16

III. Appollonia violated international law by transporting MOX through Raglan's
archipelagic waters without prior notification to or the consent of that state. 17

III-A. Appollonia violated the obligation of prior notification to or the consent of Raglan.     17

III-B. Appollonia has an obligation to control the activities of private individuals, and the fact
constructs the violation of the obligation, that Appollonia transport MOX through Raglan‟s
archipelagic waters without prior notification to or the consent of that state.               18

III-B-1. The obligation to control the activities of private individuals is not limited in the own
territory but applied over the territory.                                                       19

III-B-2. When states deal with ultrahazardous activities against environment such as sea shipment
of radioactive materials, they have to accept the precautionary principle.                    20

III-B-3. The fact constructs the violation of the obligation, that, though Appollonia was able to do
prior notification to and get the consent of Raglan in conformity with the precautionary principle,
it did not do so.                                                                                23

III-C. Such the obligation mentioned at III-A and III-B is not denied by the right of archipelagic
sea lanes passage.                                                                             24

III-C-1. Vessels carrying radioactive material don‟t have the right of archipelagic sea lanes passage
and such the obligation mentioned at III-A and III-B is not denied by the right.                   24

III-C-2. The obligation of prior notification and the right of archipelagic sea lanes passage are
compatible, therefore the obligation is not denied by the right.                              27

IV. Appollonia is responsible for the damage to the sandbar and the surrounding waters as a
result of its unlawful shipment of MOX, and must compensate Raglan for both the resulting
injury to its fishing and tourist industries and the cost of decontaminating the area.  28

IV-A. Because Appollonia violated sovereignty of Raglan, it has standing to seek compensation
for economic losses.                                                                       28

IV-B. Because Appollonia violated obligation erga omnes, Raglan has standing to seek
compensation for economic losses.                                                29


                                                  ii
IV-B-1. The obligation stated at III is obligation erga omnes.                                   31

IV-B-2. The breach of the obligation specially affects Raglan and it has standing to seek
compensation for economic losses.                                                     31

IV-B-2-i. The draft articles on responsibility of states for internationally wrongful acts article 42
(b)(i) is accepted as customary international law.                                                32

IV-B-2-ii. The breach of the obligation specially affects Raglan.                                33


PRAYER FOR RELIEF                                                                                 35




                                                 iii
INDEX OF AUTHORITIES




[Treaties and other International Instruments]

United Nations Convention on the Law of the Sea. <1><2><3><7><20><24>

IMO A.922 (22). <1>

Dato‟Noor Azuman Othman, “Maraysia‟s Perspective” the 4th Meeting ICC IMB Meeting on

Piracy and Phantom Ships (June 2001), p. 7. <2>

MSC/Circ.622/Rev.1. <2>

Model Action Plan, Regional Conference on Combating Piracy and Armed Robbery against Ships,

April 2000. <2>

ASIAN-AFRICAN LEGAL CONSULTATIVE ORGANIZATION AALCO/43/BALI/2004/SD/S

2. <2>

Piracy and Armed Robbery at Sea, Focus on IMO, Jan. 2000. <3>

L. Sohn and R. Boxter, Convention on the International Responsibility of States for Injuries to

Aliens 136-7 (Draft No.12 with Explanatory Notes 1961). <3>

The Draft Articles on Responsibility of States for internationally wrongful acts (2001)

Art.5.7.<6><8><15><31>

London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other

Matter (1972) art.4.5. <10>

Vienna Convention on the Law of Treaties (1969). <10><31>

LDC.2/Circ.109. <11>

Office of Response and Restoration, National Ocean Service, National Oceanic and Atmospheric



                                              iv
Administration, Wreck Removal and Scuttling: Unified Command Decision Memo (Apr. 20,

1999). <13>

Report of the Stockholm Conference, UN, Doc, A/CONF. 48/14, p.7. <20>

Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/CONF.

151/5/Rev.1, 1992, 31 International Legal Material (1992), p.874. <20><21>

Protocol on the Prevention of the Mediterranean Sea by Transboundary Movements of Hazardous

Wasters and Their Disposal, done at Izmir, Turkey, Oct.1, 1996 (visited Nov. 28, 2004)

<http://www.unep.ch/seas/main/med/medhaz.html>. <26>




[Cases, Advisory Opinions and Arbitral Rulings(International Courts)]

Affaire du dtroit de Corfou (Eng. v. Alv.) I.C.J. Reports 1949 p.22. <1>

E.Almaguer (U.S.A.) v. United Mexican States, (1929), 4 R.I.A.A. <1>

Case Concerning United States Diplomatic and Consular Staff in Teheran, I.C.J Reports 1980, p. 3.

<2><4><9>

Short v. Isramic Republic of Iran - U.S. Claims Tribunal (1987). <3>

Velasquez Rodrigues case. Inter-American Yearbook on Human Rights, 1988. p.984. para.172.

<3>

Zafiro Case (1925) 6 R.I.A.A. 161-164. <3>

17 Iran-U.S.C.T.R., at 92. <6>

21 Iran-U.S.C.T.R., at 123, para. 465. <6>

The “Caire case”, R.I.A.A., vol. V, at p.531. <7>

Petrolane. Inc. v. Islamic Republic of Iran(1991) 27 Iran-U.S. C.T.R. 64 at p.92. <7>



                                                    v
I.C.J. Reports 1986, at 62-63,paras.109-110. <9>

North Sea Continental Shelf (F.R.G. v. Den.; Neth.), I.C.J. Reports 1969 3, 41-44 (Feb. 20). <9>

Fisheries Jurisdiction (U.K. v. Ice.), I.C.J. Reports 1974 3, 47-48 (July 25). <9>

Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.) I.C.J. Reports. 1997,

p.47<15><16><30><32><34>

Trail Smelter Arbitration, 3 UN R. Int‟l Arb. Awards 1941,p.1964. <19>

Lac Lanoux Arbitration,24 I.L.R.101 (1957), p.128. <19>

I.C.J. Reports (1971), p.54, para, 118.

Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain)(Second Phase)I.C.J. Reports, 1970,

p.32. <29>

Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 104, pp.348-350 (July 8)(dissenting

opinion of Judge Weeramantry). <30>

The arbitral ruling of 6 Jult 1986 by the Secretary-General of the United Nations, in: UNRIAA

XIX, 199 et seq. <32>

The arbitral decision of 30 April 1990, in: UNRIAA XX, 217 et seq; I.C.J. Reports (1997) 7 et seq.

<32>




[United Nations Documents]

4 Acts of the Conference for the Codification of International Law 143 (Minutes of the Third

Committee, League of Nations) U.N.Doc.C/351(c) M/145(c) (V.1930). <1>

UN Doc.A/AC.138/S.C.III/S.R.32-34, 63. <13>

Third United Nations Conference on the Law of the Sea, Official Records Vol. II, 314, para. 23.



                                                 vi
<13>

Report of the International Law Commission on the work its 53rd Session, General Assembly

Records, 56th Session, Supplement No.10, U. N. Doc. A/56/10, p.194<16>

yearbook of the international law commission ILC, Summary records of the thirty-second session

5 may-25 july1980.<16>

UN Doc A/45/721, 19 November 1990, p20, para.60. <21>

U.N. Conference on the Law of the Sea, Official Records, Vol. I, 82. <27>

Report of the International Law Commission on the Work of its Fifty-third Session(2001),

G.A.O.R., Fifty-sixth Session, Supplement No. 10 (A/56/10), p.299, para.11. <30>

Riphagen, Fourth report, Yearbook of ILC, 1983, II-1, p.22., para. 120. <30>

Report of the International Law Commission on the Work of its Fifty-third Session (2001),

G.A.O.R., Fifty-third Session, (A/CN.4/515), p.62, para.4. <32>




[Treatises and Articles]

1992 Mission to Combat Piracy, 28 Marine Pollution Bull.273 (1994). <2>

Recueil des Décisions de la Commission de Conciliation Franco-Italienne, Fasc. 6. 1959. p.210.

<3>

I.L.M, vol. 37 (1998), p. 484. <6>

Wasserman, Disposal of-Radioactive Waste, 19 J. WORLD TRADE L. at 427. <10>

International Convention Relating to Intervention on the High Sea in Cases Oil Pollution

Casualties (1969) 9 I.L.M. 25-44. <12><13>

Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of



                                               vii
States, 35 GYIL 9(1992), pp.36-41. <18><20>

Yoshitaka Saito, Ryoikigai no shizinkatudou to kokkasekinin, 20 Meizi Daigaku Daigakuin Kiyou

91 (1983) pp.94-95. <19><20>

Jon M. Van Dyke, The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive

Materials, 33 Ocean Development & International Law 77(2002) p.78. <23><26>

Norio tanaka, „Kakuheiki·Kiken Yugai Busshitsu‟ Tousaisenpaku no Ryokaitsuko to

Mugaiseikizyun, 2 Kaiyohozyouyakutaisei no Hatten to Kokunaisoti 1 (1998), p.16. <27>

Revue Général de Droit International Public, Tome.82, 1979, 744-746.<27>

Atsuko Kanehara, Kokkasekininho ni okeru „Ippanrieki‟ Gainen no Tekiyo no Genkai, 94-4

Kokusaiho Gaikouzasshi 1(1995), 9. <29>




[Digests and Books]

British Practice in International Law 120 (E. Lauterpact ed. 1965).

Takane Sugihara, Gendai Kokusaihou Kougi, pp.317-319 (3rd ed. 2003). <17>

R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability (1996), pp.

65-66. <20>

Y.van der Mensbrugghe, “Legal Status of International North Sea Conference Declarations” In

Freestone and Ijilstra(eds), The North Sea: Perspectives on Regional Environmental

Co-operation,(1990) p.21. <21>

David Freestone, Precautionary Principle, in International Law and Global Climate Change (1991),

pp.21-40. <22>

Chiyuki Mizukami, Kokusai Kankyo-hou (2001) 214-230. <22>



                                                viii
Press Release issued by the Ministry of Foreign Affairs, Government of Antigua and Barbuda

(Dec.22, 1994). <25>

Irawan Abidan of the Indonesian Foreign Ministry informed the press on February 28, 1995. <26>

Masako Sawai, Transoirt Ships on Their Way to Japan, Nuke Info Tokyo, July/Aug.1994, p. 4.

<26>

U.S. State Department PM Press Guidance, Jan. 14, 1998, at 4. <27>

Donald R. Rothwell, Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia

Pacific State Practice, in Navigational Rights and Freedoms and the New Law of the Sea 74(2000)

p.88. <28>

G.J. Perrin, Droit international public: Sources, sujets, caracteristiques(1999)752. <30>

Jonathan I. Charney, Third State Remedies for Environmental Damage to the World‟s Common

Spaces, International Responsibility for Environmental Harm 149(1991) pp. 159-160. <30>

M. Spinedi, Les conséquences juridiques d‟un fait internationalment illicite causant un dommage

à l‟environnment, in International Responsibility for Environmental Harm (1991), pp.87-93. <30>

Maurizio Ragazzi, The concept of International Obligation Erga Omnes 154-163(1997). <30>

International Court of Justice. Nuclear Tests Case New Zealand vs. France, a publication of the

New Zealand Ministry of Foreign Affairs (1973) Vol. II, p. 73.




[Domestic Legislation]

Britain, Prevention of Oil Pollution Act 1971. <12><13>

U.S.A., Intervention on the High Seas Act 1974. <12><13>

Bangladesh, Territorial Waters and Maritime Zone Act 1974. <12><13>



                                                 ix
New Zealand, Marine Pollution Act 1974. <12><13>

France, IMCO Doc. LEG/CONF/C.1/S.R.11 at 10. <12><13>

Netherlands, IMCO Doc. LEG/CONF/C.1/S.R.2 at 4. <12><13>

China, A/AC.138/SCIII/S.R.25 at 68. <12><13>

Malta, Marine Pollution (Prevention and Control) Act 1977, Act No. XII of 1977<12>

CANADA, Arctic Waters Pollution Prevention Act 1970<12>

Ecuador, El Salvador, Peru, Uruguay, A/AC.138/S.C.III/L.41, 47.<12>

Japan, law Relating to the Prevention of Maritime Pollution and Maritime disaster. <13>

India, Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zone

Act 1976. <13>

Australia, Powers of Intervention Act of 1981.<13>




[Others]

The Honolulu Advertiser, Japan, Malaysia engage in pirate drill. 19 Nov. 2000. p. A-16. <2>

RECOMMENDATIONS ON TRAINING AND CERTIFICATION AND ON OPERATIONAL

PROCEDURES         FOR MARITIME          PILOTS      OTHER      THAN     DEEP-SEA PILOTS,

RESOLUTION A.960 (23) Adopted 5 December 2003. <4>

Simon Carroll, Greenpeace observer at the meeting, on Nov.20,1997. <17>

Letter from Don McKinnon, New Zealand Minister of Foreign Affairs and Trade, to Michael

Szabo, July.7,1999. <17>

Statement issued by Colombian Ministry of Foreign Affairs (May.2, 1995). <25>

Statement of Dominican Republic Vice President, Jacinto Paynando, head of government‟s



                                               x
Environmental Commission (Jan.20, 1995) Statement of Dominica President Joaquin

Balaguer(Feb.10 1995). <25>

Statement issued by Puerto Rico‟s Secretary of Natural and Environmental Resources (Dec.28,

1994). <25>

Fiji Opposes Shipment of Radioactive Waste to Japan”Kyoto News International, Feb.22 1995.

<25>

Statement of H.E. President Fidel V. Ramos on the Reported Plan to Transport Plutonium

Between France and Japan (Dec.21, 1994). <26>

Statement issued by Uruguay‟s Vice-Minister of Foreign Affairs, Carlos Perez del Castillo (Mar

13, 1995). <27>

Letter of John A.Mills, Secretary, Panama Canal Commission, to Paul Leventhal, Nuclear Control

Institute, Jan.28, 1998. <28>




                                              xi
STATEMENT OF JURISDICTION




  The Republic of Appollonia and The Kingdom of Raglan, subject to the objections to the

Court‟s jurisdiction reserved by the Republic of Appollonia, have agreed to submit the differences

between them Concerning the vessel the Mairi Maru by special agreement to the International

court of Justice in accordance with Article 40(1) to the Statute of the International Court of Justice.




                                                  xii
QUESTIONS PRESENTED




       The questions presented by the Republic of Appollonia and the Kingdom of Raglan for the

adjudication of the International Court of Justice are as follows;

 I.       Whether Raglan has standing to seek compensation for economic losses resulting from

          acts that occurred wholly outside of its territorial waters and exclusive economic zone; or

          not

 II.      Whether Appollonia violates obligations owed to Raglan under international law in

          transporting MOX through the waters of the Raglanian Archipelago; or not

 III.     Whether Raglan is responsible for the attack upon and wreck of The Mairi Maru and all

          consequences thereof by virtue of its failure to respond appropriately to pirate activities in

          its archipelagic waters and the acts of Thomas Good, which are imputable to Raglan; or

          not

 IV.      Whether Raglan is responsible for the loss of The Mairi Maru and the MOX and other

          cargo that she carried, because its scuttling of the vessel was illegal, and therefore owes

          compensation to Appollonia on behalf of its citizens who suffered direct financial and

          other losses; or not




                                                  xiii
 STATEMENT OF FACTS




  The Republic of Appollonia is a small, advanced, coastal nation. The Democratic Republic of

Maguffin is a large, developed island nation. The Kingdom of Raglan is an underdeveloped

archipelago nation, lying between Appollonia and Maguffin. Located in southeast from Raglanian

island are a small group of uninhabited sandbars, unclaimed by any nation, known as the “ Norton

Shallows”. This region has long been the basis for internationally renowned sport fishing, diving,

and eco-tourism industries. These activities are largely conducted by private Raglanian firms.

   In 1996, Appollonia concluded a “safeguards agreement” with the International Atomic

Energy Agency(IAEA). In 1995 the Appollonian Ministry of Energy ordered to produce fresh

mixed oxide fuel(MOX) using the plutonium which is by-product of the nuclear reaction. From

April 1997, it entered into a five-year agreement to sell surplus MOX to Maguffin Atomic

Recycling Company, Ltd,(MARC). In 1995, pirates began preying upon ships in the

Raglanian Archipelago waters. Because of it, the number of vessels traveling

through the archipelago was declined. Even in such situation, Appollonia continued

to ship MOX via private carriers through the archipelago during this period.

  In 1999, representatives from the IAEA inspected Appollonia's nuclear program

and noted its concern regarding procedures used in Appollonia's exportation of MOX.

The concern was that “Appollonia gives no notice to affected States such as Raglan

that MOX will be transported through their territorial waters or exclusive economic

zones. MOX is shipped without adequate safeguards on private vessels through

waters known to be frequented by pirates."               The Appollonian Energy Minister



                                                xiv
answered that its navy has no ability to protect the MOX shipments and Appollonia

has no intend to publicize the shipments or identify the cargo.

  In 1999, Raglan established "a comprehensive new anti-piracy program." that the

Raglanian Royal Navy will provide a naval officer to serve as pilot for nothing. It was

immediately popular and successful. In the first two years, no vessel piloted by a

Royal Navy officer was attacked by pirates. On November, 2001, Raglan began

selecting and training about 100 private contractors to serve as pilots, because the

Navy couldn‟t provide enough officer to meet every request. These contractors would

be paid by the Raglanian government.

  The Mairi Maru is a privately-owned, Appollonian-flagged vessel, manned by a

small crew, left Appollonia's port, on July 26, 2002, headed for Maguffin, on a course

which took it through the Raglanian Archipelago. It was carrying MOX. Only the

Appollonian Ministry of Energy, the headquarters of the IAEA , the Captain and

First Officer of the vessel aware that it was carrying MOX. Because of a severe storm,

the captain realized that he would now be forced to traverse the archipelago at night.

Therefore, Captain radioed the Raglanian Royal Navy and requested a pilot. The

assigned pilot, a private contractor who identified himself as Thomas Good, arrived

and boarded the ship. On July 27, Mr.Good revealed that he had brought on board

a small explosive device and ordered all the crew into the ship‟s galley. He and his

colleagues removed all the technical navigation and communication equipment from

The Mairi Maru, as well as the ship's safe. They then disembarked, leaving The

Mairi Maru to drift on a south-easterly course toward high seas.


                                          xv
  On July 28, in an intense storm, it ran aground on sandbars in the Norton

Shallows. The canisters leaked over 50kilograms of highly radioactive MOX pellets

directly onto the sandbar and into the surrounding waters. On July 29, Raglanian

Royal Navy spotted the grounded ship and approached The Mairi Maru to offer

assistance. Royal Navy doctors rescued the crews.

   On July 31, Raglanian Prime Minister sent a diplomatic message to the President

of Appollonia. He stated that Raglan has to quickly isolate the radioactive danger

and to clean up the area surrounding the sandbar because of the coming rainy

season. The entire region, which is vital to our thriving tourism industry, is already

heavily damaged. On August 4, he sent another diplomatic note that Raglan had

determined to scuttle The Mairi Maru because the heavy leaks. And later that

week, Raglan towed The Mairi Maru and scuttled it to the bottom of the Sand Deep.

President of Appollonia called upon Raglan to pay compensation to the crew

members injured by this accident, to the families of those killed, as well as to the

owners of the ship The Mairi Maru. On August 11, Prime Minister stated that

“Raglan condemns the attack, and strongly denies any responsibility for it. The

responsible parties were not acting with the authority of Raglan, which has invested

considerable effort and resources to combat maritime hijackings throughout its

territory and its seas”. And he accused Appollonia of violating its duties as an

exporter of nuclear materials.

   On October 28, 2002, the owners and insurers of The Mairi Maru initiated a civil

lawsuit against Raglan in a Raglanian civil court for compensation for the loss of The



                                         xvi
Mairi Maru.     The trial court dismissed the action, relying upon the judicial

immunity traditionally enjoyed by the Raglanian armed forces in actions seeking

money damages for actions taken as part of national defense activities. The decision

was upheld by the Supreme Court of Raglan, and no further appeal was available.

On November 1, the surviving members and the families of those who had died also

filed a lawsuit but the same results with above.

  Shortly after July 1, 2003, President Stark and Prime Minister Price agreed to

bring this case before the International Court of Justice. The Raglanian government

estimates that it will take five years to decontaminate the area affected by

radioactive materials spilled from The Mairi Maru. The process will cost the

government of Raglan approximately 160 million Euro. During those five years, the

area will be completely unusable for tourism or sport fishing, and the Raglanian

tourism industry will lose approximately 100 million Euro. Appollonia does not

dispute these figures.




                                         xvii
SUMMARY OF PLEADINGS




  Raglan respectfully requests that the ICJ adjudge and declare:

  I. Raglan is not responsible for attack on The Mairi Maru and owes no compensation to for any

injury resulting therefrom because she responded appropriately to maritime crime in its

archpelagic waters and fulfilled due diligence obligations to control her territory. And the acts of

Thomas Good are not imputable to Raglan because Raglan private pilots are not employed by

domestic law to exercise elements of governmental authority and even if empowerment by not

domestic law were accepted, Mr. Good did not act in its official capacity and the acts of Mr. Good

did not commanded and ruled by Raglan.

  II. Ragulan did not violate any obligation owed to Appollonia under international law in the

scuttling of The Mairi Maru because she did not violate any international law on prohibiting from

dumping radioactive wastes to the sea because she was in emergency situation. And she did not

violate Appollonia‟s flag state jurisdiction, because coastal States have the right to take measures

to protect their rights from pollution in the high seas. And even if the scuttling was illegal, it is

justified as a countermeasure and Raglan may rely on necessity as a circumstances precluding

wrongfulness.

 III. Appollonia violated international law by transporting MOX through Raglan's archipelagic

waters.

 To put it concrete, Appollonia violated the obligation of prior notification to or the consent of

Raglan. Appollonia is directly obliged to do. Even if this is not adequate, Appollonia is obliged to

control the activities of private individuals and, considering the circumstances in this case, the



                                                xviii
obligation to control consists of the obligation of prior notification to or the consent of Raglan.

 Then, the obligation is not denied by the right of archipelagic sea lanes passage. Even if the

obligation of prior consent is denied, the one of prior notification is, all the same, not denied.

 IV. Appollonia, as a result of its unlawful shipment of MOX, must compensate Raglan for both

the resulting injury to its fishing and tourist industries and the cost of decontaminating the area. It

is because Appollonia violated sovereignty of Raglan. Even if Appollonia didn‟t violated such a

bilateral obligation, it violated obligation erga omnes and Raglan can demand compensation.




                                                  xix
PLEADINGS
I. Raglan is not responsible for attack on The Mairi Maru and owes no
compensation to for any injury resulting therefrom.

I-A. Raglan responded appropriately to maritime crime in its archipelagic waters
and fulfill due diligence obligations to control her territory.

    States owe due diligence obligations to control her territory. 1 Outbreaks of damage

don‟t cause immediately responsibility of states i.e. lack of due diligence cause it. 2

The obligations are fulfilled when States do his utmost possible measure in the

circumstance. 3

Firstly, pirate activities as maritime crime become different crimes dependent on place

it happened. In the high sea or exclusive economic zone (hereinafter EEZ), it is

“piracy”. 4In other hand, in archipelagic or territorial waters, it is considered as “armed

robbery against ships” and they must be discriminated. 5 If piracy were crime in

archipelagic or territorial waters, costal States‟ administration and jurisdiction would

have been violated, 6 because every State may seize piracy. 7So Malaysia and many


1 Affaire du dtroit de Corfou (Eng. v. Alv.) I.C.J. Reports 1949 p.22.



2 4 Acts of the Conference for the Codification of International Law 143 (Minutes of the Third Committee, League of

Nations) U.N.Doc.C/351(c) M/145(c) (V.1930)
                                               .

3 E.Almaguer (U.S.A.) v. United Mexican States, (1929), 4 R.I.A.A; British Practice in International Law 120 (E. Lauterpact

ed. 1965)
            .

4 United Nations Convention on the Law of the Sea, [hereinafter UNCLOS] Art.58.2, 101.



5 IMO A.922 (22)
                   .

6
    The Honolulu Advertiser, Japan, Malaysia engage in pirate drill. 19 Nov. 2000. p.

                                                              1
other States claimed that piracy and armed robbery against ships must be discriminated

and the latter is under coastal jurisdiction. 8 To count this, it is considered that

regulation of armed robbery against ships is to strengthen marine police: for example

patrol, as effective as States can. 9 If danger water faced several States and the

situation needed especially partnership, they might do it. 10Therefore maritime crime in

archipelagic waters is armed robbery against ships and it is one of obligations to

control her territory to strengthen marine police as effective as States can.

     Secondly, when pirates who committed in the high sea or EEZ go underground in

own territory, States must search and bring them to judge because they have obligation

to control her territory not to be used for preparation of illegal acts and judge

individuals who committed a crime. 11 If State didn‟t regulate piracy, there would be




A-16.

7 UNCLOS art.105.



8
     Dato‟Noor Azuman Othman, “Maraysia‟s Perspective” the 4 th Meeting ICC IMB
Meeting on Piracy and Phantom Ships (June 2001), p. 7.

9
     MSC/Circ.622/Rev.1; Model Action Plan, Regional Conference on Combating Piracy
and     Armed       Robbery   against   Ships,   April   2000;   ASIAN-AFRICAN   LEGAL
CONSULTATIVE ORGANIZATION AALCO/43/BALI/2004/SD/S 2.

10
     1992 Mission to Combat Piracy, 28 Marine Pollution Bull.273 (1994).

11
     Case Concerning United States Diplomatic and Consular Staff in Teheran, I.C.J
Reports 1980, p. 3.



                                                 2
harbor of them. In fact, China seized but eventually released them, because of

imperfection in law system. 12 Therefore it is one of obligations to control own

territory to have law systems which can bring piracy to judge.

Finally, States have responsibility with respect to acts of private individuals: to control

them and cope with damage which private individuals caused. 13 But it doesn‟t be

brought to account when States knew or could know damage, because international law

don‟t require States to do impossibility. 14

As instances that States are accused of violation of due diligence obligation, when

States employ private individual as civil servant, inappropriate election cause

damage. 15 In Zafiro Case, although junior sailor‟s depredation was surely predicted,

but surveyor overlooked it. 16 In Teheran Case, although Iran administration knew

damage of attacked American embassy and she could indemnify or help, it was




12
     Piracy and Armed Robbery at Sea, Focus on IMO, Jan. 2000.

13
     Short v. Isramic Republic of Iran - U.S. Claims Tribunal (1987); Velasquez
Rodrigues case. Inter-American Yearbook on Human Rights, 1988. p.984. para.172.

14
     Supra note 1; L. Sohn and R. Boxter, Convention on the International Responsibility
of States for Injuries to Aliens 136-7 (Draft No.12 with Explanatory Notes 1961).

15
     Recueil des Décisions de la Commission de Conciliation Franco -Italienne, Fasc. 6.
1959. p.210.

16
     Zafiro Case (1925) 6 R.I.A.A. 161-164.



                                               3
neglected. 17 In addition, due diligence obligation of employment pilots is to make

them master knowledge and skill which is needed to carry out their task but States

don‟t be imposed on measures to especially prevent their illegal acts. 18 Therefore it is

one of obligations to control own territory to employ pilot with appropriate election

and indemnify or help damage if States knew or could know it.

     Above mentioned is possible measures in the circumstance on preventing maritime

crime and States must do them as they can.




     In this case, armed robbery against ships and piracy has occurred in Raglan

archiperagic waters and thereof. She has known this danger and established “a

extensive new anti-piracy program” which targeted on both piracy and armed robbery

against ships. Thanks to it, the number of attack considerably decreased. Then Royal

Navy employed private contractors as pilots because the Navy was no longer able to

provide enough officers to meet every request for an escort but the situation didn‟t

need especially partnership with other States. Therefore Raglan strengthened marine

police as effective as she can.



17
     Supra note 11. pp. 32-34, paras. 63-68.

18
      RECOMMENDATIONS             ON   TRAINING    AND   CERTIFICATION        AND    ON
OPERATIONAL PROCEDURES FOR MARITIME PILOTS OTHER THAN DEEP -SEA
PILOTS, RESOLUTION A.960 (23) Adopted 5 December 2003.



                                               4
  Raglan has in the past captured several alleged pirates and prosecuted them under

her criminal code which uses the definition of “piracy” contained in Article 101

resulting in two convictions. Therefore she has law systems which can bring piracy to

judge.

  She has properly selected and trained private pilots and, with regard to Mr. Good,

must not have owned obligation to prevent his illegal act because he has not been

located or apprehended and his piratical act could not be predicted. It may be probable

claim that Raglan didn‟t contact The Mairi Maru despite its divergence from sea-lanes

but from the beginning the Navy sent armed intervention to ships when had a distress

call from one of pilots so Raglan can‟t know accident without it. What‟s more,

navigation not using sea-lanes isn‟t banned. Next day, a patrol boat of the Raglanian

Royal Navy discovered the wrecked Mairi Maru and immediately helped them.

Therefore Raglan employed pilot with appropriate election and help damages which

she knew.

Hence, Raglan has taken all possible measures in the circumstance on preventing

maritime crime and Raglan responded appropriately to maritime crime in its

archipelagic waters and fulfill due diligence obligations to control her territory.


I-B. The acts of Thomas Good are not imputable to Raglan.

I-B-1. Raglan private pilots aren‟t empowered by domestic law to exercise elements of
governmental authority.


                                             5
     The conduct of a person who is empowered by domestic law to exercise elements of

governmental authority, acting in its official capacity, shall be considered an act of the

State even if he acted in excess of authority or contrary to instruction. 19 It may be

probable claim that empowerment by not domestic law should be accepted, 20 but in

Yeager Case, 21 and Iran Phillips Petroliam Inc. Case, 22 it was important antecedent

that a person was empowered by domestic law.

     In this case, there is no fact Raglan private pilots were empowered by its domestic

law but Prime Minister‟s statement. Hence, acts of Mr. Good are not be considered an

act of Raglan and imputable to her.


I-B-2. Even if empowerment by not domestic law were accepted, Mr. Good did not act
in its official capacity.

     Even if empowerment by not domestic law were accepted, any conducts of a person,

not acting in its official capacity, should not be considered an act of the State. 23

Therefore meanings of “acting in its official capacity” are serious problem and It may



19
     The Draft Articles on Responsibility of States for internationally wrongful acts
(2001) Art.5.7.

20
     I.L.M, vol. 37 (1998), p. 484.

21
     17 Iran-U.S.C.T.R., at 92.

22
     21 Iran-U.S.C.T.R., at 123, para. 465.

23
     Supra note 19.


                                              6
be criterions to judge it that a person acts under the appearance of its sta tus as an

                                                                24
officer or uses power or measures unique to official status.

     But it does not mean that a person who acts or used wherever part of acts would be

considered as acting in its official capacity. It should be in substantial part because if a

person who used it in preparation or commencement of execution which indeed

constitute fairly part but not core of acts would considered as such, it would expand

without end that possibility that States are responsible to private persons acts. In Caire

Case, it was considered an act of the State because officers used their power and

measure in not their preparation and commencement but the very core of acts: illegal

levy and bringing in. 25 To count this, the core of pirate activities is all illegal violence,

detention and depredation. 26 Therefore the pirate activities of a person who is

empowered to exercise elements of governmental authority should be considered an act

of the State if he acts under the appearance of its status as an officer or used his power

and measures unique to official status in such core part.




In this case, Mr. Good was employed by the Royal Navy and carried out the part of


24
     The “Caire case”, R.I.A.A., vol. V, at p.531; Petrolane. Inc. v. Islamic Republic of
Iran(1991) 27 Iran-U.S. C.T.R. 64 at p.92.

25
     Ibid .

26
     UNCLOS, art. 101.



                                              7
task as pilot: flew the flag on the Mairi Maru. So it is true that certain his act in its

official capacity should be considered as an act of Raglan. Pilotage itself is reasonably

his power and measures and if he caused collision, make the ship aground or levied

reward for pilotage, such acts should be considered as an act of Raglan.

It may probable claim that boarding is one of power or measure unique to pilot so he

did pirate activities acting in its official capacity. But boarding may be commencement

of execution but not core of piracy. And he didn‟t use his power in depredating as core

of piracy. His acts should be considered as an act of Raglan, if he depredated

shipments saying that it is needed to continue piloting, or pilots were given weapons

and he used it in depredating. But he actually used a small explosive device which has

no relation to pilot and did not ground depredation on pilotage. So he did not use any

power or measures unique to pilot in the core of pirate activities. In addition, his pirate

activities did not be considered as under the appearance of its status as an officer.

As mentioned, the acts of Thomas Good are not imputable to Raglan because he did

not act in its official capacity.




I-B-3.The acts of Mr. Good did not be commanded and ruled by Raglan.

     The acts of private person de fact commanded and ruled by States are considered as

acts of States. 27 Commands should not have general relation between acts and States


27
     Supra note 19, art.8.


                                             8
but concrete, and rules should be operative in every part of private persons‟ acts. In

Teheran Case, commander‟s declaration to encouragement to attack was so general and

did not have concrete relation between attack of embassy and States. 28 In Nicaragua

Case, If U.S. had ruled in every part of Contra, its acts would be acts of States. 29

     In this case, Raglan did not command to attack the Mairi Maru and rule in any part

of attack: when to do it, what to depredate, where to leave. Hence the acts of Mr. Good

did not be commanded and ruled and are not imputable to Raglan.


II. Raglan did not violate any obligation owed to Appollonia under international
law in the scuttling of The Mairi Maru.

II-A. Raglan did not violate any international law on prohibiting from dumping
radioactive wastes to the sea.

II-A-1. It does not exist any Customary International Law (hereinafter CIL) which is
the same with London Convention.

     It is required extensive and consistent State practices with opinio juris to exist

CIL. 30 Statements in international meeting are included in State practice. 31 Under

London Convention, dumping radioactive wastes is principally banned except for some



28
     Supra note 11, at 29-30, paras.58-61.

29
     I.C.J. Reports 1986, at 62-63,paras.109-110; at 64-65, para. 115-116.

30
     North Sea Continental Shelf (F.R.G. v. Den.; Neth.), I.C.J. Reports 1969 3, 41-44
(Feb. 20)

31
     Fisheries Jurisdiction (U.K. v. Ice.), I.C.J. Reports 1974 3, 47-48 (July 25)



                                              9
situations. 32 But Russia and other States conducted dumping inconsistent to such

situations. 33 Because of no consistent State practices, it does not exist any Customary

International Law (hereinafter CIL) which is the same with London Convention.

     In this case, Appollonia did not ratify London Convention. This convention is

incorporative to Appollonia because it has powers only over the party. 34


II-A-2.Even if the CIL existed, the dumping is not banned in emergency situation.

     Under London Convention, dumping radioactive wastes is principally banned except

for some situations in all waters except internal waters. 35 But in art 5(2), the dumping

is permitted in emergencies, posing unacceptable risk relating to human health and

admitting no other feasible solution 36 and before doing so the Party shall consult any

other country or countries that are likely to be affected and the Party shall inform the

Organization of the action it takes. 37

     In fact, South Africa had decided to sink the floating bow section of “CASTILLO


32
     London Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter (1972) art.4.5.

33
     Wasserman, Disposal of-Radioactive Waste, 19 J. WORLD TRADE L. at 427.

34
     Vienna Convention on the Law of Treaties (1969) art.26.

35
     Supra note 32, art. 3. 4, Annex I, para. 6.

36
     Ibid. 5(2).

37
     Ibid.


                                              10
DE BELLVER” which had broken in two parts after catching fire in August 1983. This

decision had been taken in order to prevent a risk to human health in the Saldanha Bay

area due to the possibility of contamination of fishing grounds rich on fish and cray

fish. 38 Since no other countries were likely to have been affected, consultation with

such countries had been considered but not found to be necessary. 39

     In this case, radioactive pollution caused the Mairi Maru crew‟s and maritime

creatures‟ death. If it might spread by the ocean currents and winds, Raglanian EEZ,

archperagic waters and mainland was highly polluted so Raglan had to prevent

unacceptable risk relating to human health. For that reason, it was needed to remove

pollution    already   occurred   and   prevent   further   pollution.   Raglan   begun

decontamination efforts and to prevent further pollution by securing and encasing but

fundamental solution is to remove The radiated Mairi Maru as source of pollution.

Therefore to immediately remove it to Sand Deep which is not influential is only w ay

to prevent danger. Consultation is not nessecary because place where it was removed is

deep ocean in high seas and no other countries were likely to have been affected. If it

was needed, since Appollonia neglected Raglan‟s diplomatic note to inform abou t the

scuttling for near one weak, at the beginning she did not have intention to consult with



38
     LDC.2/Circ.109.

39
     Ibid.


                                           11
Raglan. Concerning information to the Organization, Raglan sent a memorandum,

titled “London Convention Article Ⅴ Notification,” to the IMO.

     Hence, Raglan is in emergencies situation so the scuttling of The Mairi Maru did not

violate CIL the same as London Convention.


II-B. Under CIL, Raglan did not violate Appollonia’s flag state jurisdiction,
because coastal States have the right to take measures to protect t heir rights from
pollution in the high seas (hereinafter right of intervene).

     First of all, the right of intervention was empowered by the Intervention

Convention 40 and its parties have domestic laws and statements 41 and many

non-parties have domestic laws and statements to recognize it. 42 So the right of

intervention is recognized in CIL because extensive State practices with opinio juris

exists.

     As requirement of using the right, there should be at the least grave and imminent




40
     International Convention Relating to Intervention on the High Sea in Cases Oil
Pollution Casualties (1969) 9 I.L.M. 25-44

41
     Britain, Prevention of Oil Pollution Act 1971; U.S.A., Intervention on the High Seas
Act 1974; Bangladesh, Territorial Waters and Maritime Zone Act 1974; New Zealand ,
Marine Pollution Act 1974; France, IMCO Doc. LEG/CONF/C.1/S.R.11 at 10;
Netherlands, IMCO Doc. LEG/CONF/C.1/S.R.2 at 4;China, A/AC.138/SCIII/S.R.25 at
68.

42
     Malta, M ARINE P OLLUTION (P REVENTION AND C ONTROL ) A CT 1977, Act No. XII of
1977; CANADA, Arctic Waters Pollution Prevention Act 1970; Ecuador, El Salvador,
Peru, Uruguay, A/AC.138/S.C.III/L.41, 47.



                                             12
danger 43: pollution has an influence over human health and marine ecosystem or it is

highly predicted to expansion of damage owing to weather. 44 This is recognized so

many domestic law and international treaties. 45

     And more, proportionality may be required in some practices. 46 Proportionality

means that the extent of the damage which has been caused by the action is less

dangerous than the extent and risk of pollution if the action had not been taken and

there is the likelihood of the action being effective. 47 But Canada, Austria, and other

States are clearly against this requirement. 48 What‟s more, even parties of Intervention

Convention have domestic law that it is deleted. 49 So there is no extensive State



43
     Supra note 40, 41.

44
     Office of Response and Restoration, National Ocean Service, National Oceanic and
Atmospheric Administration, Wreck Removal and Scuttling: Unified Command
Decision Memo (Apr. 20, 1999)

45
     Supra note 40, 41.

46
     Supra note 40; Supra note 42, Malta.

47
     Ibid
.
48
     UN Doc.A/AC.138/S.C.III/S.R.32-34, 63; Third United Nations Conference on the
Law of the Sea, Official Records Vol. II, 314, para. 23.

49
     Japan, law Relating to the Prevention of Maritime Pollution and Maritime disaster;
supra note 41, Bangladesh; India, Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zone Act 1976; supra note 41, New Zealand;
Australia, Powers of Intervention Act of 1981.



                                            13
practices.

  As mentioned, under CIL, requirement of using the right of interventi on should be at

the least grave and imminent danger and, if any other is needed, it is proportionality.




  In this case, the wreck of the Mairi Maru caused radioactive pollution on the high

seas and this is more serious damage than a mere oil pollution: it has grave disaster for

marine ecosystem and human death. In addition, its danger was so heavy and imminent

that Raglanian EEZ, archiperagic waters and even its mainland would be polluted,

because she was entering the rainy season and strong storms will so on spread.

Accordingly, this radioactive pollution is grave and imminent danger for Raglanian

environment and people, so the scuttling of the Mairi Maru met the requirement of

using the right of intervention.

  And even if proportionality is needed, the scuttling met it. First, there was

above-mentioned extent and risk of pollution if the action had not been taken, on the

other hand, the extent of the damage which has been caused by the action is obviously

less. That is, there‟s no way to extend danger by the scuttling because prior sinking

The Mairi Maru, Raglanian Royal Navy secured and encased the MOX canisters to

prevent any further MOX leakage, and more in Sand Deep the ship will not move as it

is protected from wind and ocean currents.

  Concerning the likelihood of the action being effective, it is the benefit of such

                                           14
action that the extent of pollution is stifled only 15 km gain in two years later the

accident while the pollution right after wreck is spread to 15 km in just two day. If

Raglan had not immediately scuttled the ship to prevent extent of pollution, it would be

more serious.

     Hence, even if proportionality is needed, the scuttling of The Mairi Maru met

requirements under CIL.


II-C. Even if the scuttling of the Mairi Maru was illegal, under CIL, it is justified as a
countermeasure.

     An injured State may only take countermeasures against a State which is responsible

for an internationally wrongful act in order to induce that State to comply with its

                                               50
obligations to make reparation for injuries.        Countermeasure shall be appropriate to

injuries, that is, effects of it should not be over injuries from counter-states illegal

acts. 51It should be done after request to stop of illegal acts or compensation. 52

     In this case, if Appollonia followed international law by transporting MOX, it would

possible to prevent both the attack and wreck of The Mairi Maru. It is demonstrated in

III below. Therefore radioactive pollutions following the wreck of The Mairi Maru are



50
     Supra note 19, art. 49

51
     Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.) I.C.J. Reports.
1997, p.47

52
     Ibid.


                                             15
injures from Appollonia‟s illegal acts. Proportionality of countermeasure is met,

because Appollonia‟s injures are MOX and The Mairi Maru itself and it is clearly less

serious than Raglan‟s injures. Raglan requested compensation prior the scuttling The

Mairi Maru. Hence it is justified as a countermeasure.


II-D. Even if the scuttling of the Mairi Maru was illegal, under CIL, Raglan may
rely on necessity as a circumstances precluding wrongfulness.

     The term “necessity” is used to denote those exceptional cases where the only way a

State can safeguard an essential interest threatened by a grave and imminent peril is,

for the time being, not to perform some other international obligation of lesser weight

or urgency53. To rely on necessity, these three requirements should be met that the first

her act is only way to protect, the second does not infringe on counter -states‟ essential

interests and the third acting-state does not contribute to occurrence of necessity. 54

Essential interest contains infections on ecosystem and to break the ship which is a

source of marine pollution is not be considered as infringing on counter -states‟

essential interests. 55

     In this case, radioactive pollution may cause Raglanian environmental harm and


53
     Report of the International Law Commission on the work its 53rd Session, Genera l
Assembly Records, 56th Session, Supplement No.10, U. N. Doc. A/56/10, p.194

54
     Supra note 51.

55
     Ibid ; YEARBOOK OF THE INTERNATIONAL LAW COMMISSION ILC, Summary
records of the thirty-second session 5 may-25 july1980.


                                            16
people‟s death so essential interest was threatened by a grave and immin ent peril. It is

already observed that the scuttling is only way to prevent extent of pollution. And

more, Appollonian infringed interests are only economical loss of MOX and the Mairi

Maru itself so it is not essential interest. The necessity situation (t he attack of the Mairi

Maru) did not imputable to Raglan, above mentioned in A.

     Hence Raglan may relay on necessity as a circumstances precluding wrongfulness.


III. Appollonia violated international law by transporting MOX through Raglan's
archipelagic waters without prior notification to or the consent of that state.

III-A. Appollonia violated the obligation of prior notification to or the consent of
Raglan.

 Under customary international law, before a state transports ultrahazardous

radioactive materials, it has to notify to and consent with potentially affected states

about the transport. This obligation is accepted widespread state practices. At the IMO

Assembly in November 1997, Ireland introduced a Proposal calling for prior

notification of the nuclear shipments in order to ensure emergency preparedness,

stressing the severe consequences an accident would have on fisheries, agriculture, and

tourism. In the discussion that followed, the Irish proposal was supported by Iceland,

the Solomon Islands, Chile, and New Zealand. 56 Moreover, New Zealand, which

considered the Irish Proposal to be too weak, has recently articulated the position that



56   Simon Carroll, Greenpeace observer at the meeting, on Nov.20,1997.



                                             17
“there should be recognition in international law of the right of potentially affected

coastal states to prior notification, and, ideally, prior informed consent for shipments

of nuclear material.” 57 Then, the firm attitudes like New Zealand presume opinio juris.

In conclusion, the previously stated obligation is accepted as customary international

law.

 In this case, Appollonia transported MOX through Raglan‟s archipelagic waters

without prior notification to or the consent of that state. So, Appollonia violated the

previously stated obligation.




III-B. Appollonia has an obligation to control the activities of private i ndividuals,
and the fact constructs the violation of the obligation, that Appollonia transport
MOX through Raglan’s archipelagic waters without prior notification to or the
consent of that state.

 If Appollonia does not violate the direct obligation stated at III-A, it has an obligation

to control the activities of private individuals and it violated the latter obligation.

 Under customary international law, states have to prevent private individuals from

damaging other states with due diligence. 58 This obligation is applied in the context of

the conservation of environment. That is, states have to prevent private individuals




57   Letter from Don McKinnon, New Zealand Minister of Foreign Affairs and Trade, to
Michael Szabo, July.7,1999.


58   TAKANE SUGIHARA , GENDAI KOKUSAIHOU KOUGI , pp.317-319 (3rd ed. 2003).



                                             18
from causing the environmental harm with due diligence. 59 This obligation is applied

under customary international law. 60

 In the following parts, as a premise of argument, we demonstrate that (1) the

obligation is not limited in the own territory but applied over the territory and that (2),

when states deal with ultrahazardous activities against environment such as sea

shipment of radioactive materials, they have to accept the precautionary principle.

Finally, we demonstrate that (3) the fact constructs the violation of the obligation, that,

though Appollonia was able to do prior notification to and get the consent of Raglan in

conformity with the precautionary principle, it did not do so.




III-B-1. The obligation to control the activities of private individuals is not limited in
the own territory but applied over the territory.

 Traditionally, the obligation to control the activities of private individuals is applied

only in the territory. Physical control of a territory, and not sovereignty or legitimacy

of title, is the basis of State liability for acts affecting other States. 61 Therefore, in the

light of the recent affect of diversity, activities of private individuals should be



59   Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International
Responsibility of States , 35 GYIL 9(1992), pp.36-41.

60   Trail Smelter Arbitration, 3 UN R. Int‟l Arb. Awards 1941,p.1964; Lac Lanoux
Arbitration,24 I.L.R.101 (1957), p.128.


61   I.C.J. Reports (1971), p.54, para, 118.



                                               19
controlled not only by the state where the activities are taken but also by the state of

which the private individuals have nationality. 62 The wording in the Stockholm

                                                                  63
Declaration on the Human Environment principle 21                      , Rio Declaration on

Environment and Development Principle 2 64 and United Nations Convention on the

Law of the Sea article 194 65 support this view using not the phrase “activities within

their jurisdiction” but “activities within their jurisdiction or cont rol”. 66

 Accordingly, the obligation to control the activities of private individuals is not

limited in the own territory but applied over the territory.




III-B-2. When states deal with ultrahazardous activities against environment such as
sea shipment of radioactive materials, they have to accept the precautionary principle.

 Because the obligation to control the activities of private individuals is to make every

effort to fulfill the result, the degree of diligence that state must observe depends,

largely, on the particular circumstances of each specific case. 67 Therefore, in order to


62   Yoshitaka Saito, Ryoikigai no shizinkatudou to kokkasekinin , 20 M EIZI DAIGAKU
DAIGAKUIN KIYOU 91 (1983) pp.94-95.


63   Report of the Stockholm Conference, UN, Doc, A/CONF. 48/14, p.7.


64   Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/CONF.
151/5/Rev.1, 1992, 31 International Legal Material (1992), p.874.


65   UNCLOS art. 194.


66   Supra note 62 , p.94.

67   Supra note 59, p.44.

                                              20
settle the degree, it is desirable to refer to the principle which is internationally

accepted. 68 So, in the following parts, we refer to the precautionary principle.

     Rio Declaration on Environment and Development principle 15 provides, as the

definition of the precautionary principle, that “in order to protect the environment, the

precautionary approach shall be widely applied by States according to their capabilities.

Where there are threats of serious or irreversible damage, lack of full scientific

certainty shall not be used as a reason for postponing cost-effective measures to

prevent environmental degradation 69”. This principle is based on the thought that,

because, if once environment is destroyed, it is extremely hard or impossible to recover,

it is necessary to take precautionary approaches.

 The precautionary principle is endorsed by a lot of treaties and by virtually all recent

                        70
international forums.        However, no obligation is “directly” deduced because

obligations provided in these treaties are uneven. But the precautionary principle itself

is accepted as customary international law and it is very difficult to deny the

principle. 71 In the following parts, we demonstrate the precautionary principle is



68   R. L EFEBER , T RANSBOUNDARY E NVIRONMENTAL INTERFERENCE AND THE ORIGIN OF
STATE LIABILITY (1996), pp. 65-66.


69   Supra note 64.

70   UN Doc A/45/721, 19 November 1990, p20, para.60.


71   Y.van der Mensbrugghe, “Legal Status of International North Sea Conference

                                            21
accepted as customary international law.

 As the evidences of state practice, which is necessary condition of customary

international law, we mention a lot of treaties which adopt the precautionary principle,

such as Vienna Convention for the Protection of the Ozone Layer, Montreal Protocol

on Substances that Deplete the Ozone Layer, Basel Convention on the Control of

Transboundary Movement of Hazardous Wastes and Their Disposal, United Nations

Framework Convention on Climate Change and Convention on Biological Diversity. 72

 Then, as evidences of opinio juris, which is also necessary condition of customary

international law, we mention, in addition to the treaties, several resolutions and

declarations. The precautionary principle, since it was referred to in the preamble of

the declaration of First International Conference on the Protection of the North Sea in

1984, was referred in many declarations and decisions such as, Governing Council

Decisions of UNEP entitled “Precautionary approach to marine pollution”. 73 Moreover,

the declaration of Second International Conference on the Protection of the North Sea

and Nordic Board of Directors prompted states to adopt the precautionary principle in




Declarations” In Freestone and Ijilstra(eds), The North Sea: Perspectives on Regional
Environmental Co-operation,(1990) p.21.


72   David Freestone, Precautionary Principle , in INTERNATIONAL L AW AND GLOBAL
CLIMATE C HANGE (1991), pp.21-40.


73   C HIYUKI MIZUKAMI , KOKUSAI KANKYO - HOU (2001) 214-230.



                                           22
their domestic law. 74

 Therefore, this principle itself has been considered as customary international law

and it has to be taken account of to settle the degree of diligence that state must

observe. Additionally, sea shipment of radioactive materials is ultrahazardous activities

against the environment. 75

 So, when states deal with ultrahazardous activities against the environment such as

sea shipment of radioactive materials, they have to accept the precautionary principle.




III-B-3. The fact constructs the violation of the obligation, that, thoug h Appollonia was
able to do prior notification to and get the consent of Raglan in conformity with the
precautionary principle, it did not do so.

 In this case, indeed Raglan took some measures to avoid the environmental harm,

such as using double-hulled cargo ship. However, in conformity with the precautionary

principle, it was not enough. It is necessary not only to take the approaches about way

of transportation but also to do prior notification to and get the consent of the state

which a cargo ship passes through the territory of. It is because, in order to avoid an

unexpected accident such as a leak of radioactive materials, the cooperation of the

coastal state is important. 76 In fact, given the well-known dangers of such shipments,


74   Ibid .

75   Jon M. Van Dyke, The Legal Regime Governing Sea Transport of Ultrahazardous
Radioactive Materials , 33 OCEAN DEVELOPMENT & I NTERNATIONAL L AW 77(2002) p.78.

76   Ibid , p.85.

                                           23
had we known in advance of Appollonia's plans, Raglan would have either denied The

Mairi Maru access to Raglanian waters or provided, in addition to the pilot, armed

naval escort vessels to ensure its safe passage through the Raglanian Archipelago.

Moreover, necessity of notification and consent was argued by the IAEA.

 Indeed, Appollonia alleged a risk of a leakage of information. But the reasoning

doesn‟t hold water. It is because consultation regarding route selection and emergency

planning is in everyone‟s best interest and can only serve to make the shipments safer

for all concerned. 77

 Hence the demonstration at III-B-1, III-B-2 and III-B-3, Appollonia violates the

obligation to control the activities of private individuals.




III-C. Such the obligation mentioned at III-A and III-B is not denied by the right
of archipelagic sea lanes passage.

III-C-1. Vessels carrying radioactive material don‟t have the right of archipelagic sea
lanes passage and such the obligation mentioned at III-A and III-B is not denied by the
right.

 Archipelagic sea lanes passage means the exercise in accordance with this

Convention of the rights of navigation and overflight in the normal mode solely for the

purpose of continuous, expeditious and unobstructed transit between one part of the

high seas or an exclusive economic zone and another part of the high seas or an



77   Ibid , p.84.


                                             24
exclusive economic zone. 78 Though this right is clarified in United Nations

Convention on the Law of the Sea, vessels carrying radioactive material exceptionally

don‟t have the right of archipelagic sea lanes passage because it causes risk of grave

loss to the archipelagic state. 79

 We demonstrate this view is accepted as customary international law, referring to

shipment of Pacific Pintail and Akatuki maru.

 From July 21 to September 27, 1999, the Pacific Pintail traveled from France to Japan

carrying 446 kilograms of weapons-usable plutonium contained in 40 mixed

plutonium/uranium oxide (MOX) fuel elements. This transport was routed around the

Cape of Good Hope in South Africa, across the southern Indian Ocean, and then up

through the Tasman Sea and the western Pacific Island to Japan. This shipment has

been protested vigorously not to pass through the territorial seas or the archipelago

waters by affected nations in many parts of the world such as Antigua and Barbuda 80,

Colombia 81 , the Dominican Republic 82 , Puerto Rico 83 , the Republic of Fiji 84 , the


78   UNCLOS art. 53.


79   Supra note 75, p.78

80   Press Release issued by the Ministry of Foreign Affairs, Government of Antigua and
Barbuda (Dec.22, 1994).


81   Statement issued by Colombian Ministry of Foreign Affairs (May.2, 1995).


82   Statement of Dominican Republic Vice President, Jacinto Paynando, head of
government‟s Environmental Commission (Jan.20, 1995) Statement of Dominican

                                           25
Republic of Indonesian 85, the Republic of the Philippines 86, the Oriental Republic of

Uruguay87 and Mauritius 88.

 Moreover, several treaties which restrict the right of passage, such as Izmir Protocol 89

support acceptability as customary international law of the above view.

 Therefore, Vessels carrying radioactive material don‟t have the right of archipelagic

sea lanes passage and such the obligation mentioned at III-A and III-B is not denied by

the right.




President Joaquin Balaguer(Feb.10 1995).


83   Statement issued by Puerto Rico‟s Secretary of Natural and Environmental
Resources (Dec.28, 1994).


84   Fiji Opposes Shipment of Radioactive Waste to Japan Kyoto News International,
Feb.22 1995.


85   Irawan Abidan of the Indonesian Foreign Ministry informed the press on February
28, 1995.


86   Statement of H.E. President Fidel V. Ramos on the Reported Plan to Transport
Plutonium Between France and Japan (Dec.21, 1994).


87   Statement issued by Uruguay‟s Vice-Minister of Foreign Affairs, Carlos Perez del
Castillo (Mar 13, 1995).


88   Masako Sawai, Transoirt Ships on Their Way to Japan, Nuke Info Tokyo,
July/Aug.1994, p. 4.


89   Protocol on the Prevention of the Mediterranean Sea by Transboundary Movements
of Hazardous Wasters and Their Disposal, done at Izmir, Turkey, Oct.1, 1996 (visited
Nov. 28, 2004) <http://www.unep.ch/seas/main/med/medhaz.html>.



                                           26
III-C-2. The obligation of prior notification and the right of archipelagic sea lanes
passage are compatible, therefore the obligation is not denied by the right.

 If the right of archipelagic sea lanes passage denies the obligation of consent, it

doesn‟t deny the obligation of notification. It is because the obligation of prior

notification and the right of archipelagic sea lanes passage are compatible.

 Today, there are a lot of kind of vessels and cargos, like nuclear-powered vessels or

ultrahazardous materials, and threat and risk of shipment is increasing. 90 In the present

situation, not only a guarantee of benefit and freedom of navigation but also a

guarantee of peace, order and secure of coastal states are demanded. 91 Therefore, the

coastal states can take reasonable approaches to retain its security, and prior

notification, differing from prior consent, is not irrational approach, which doesn‟t

deny the right of archipelagic sea lanes passage. 92

 In fact, within a point of controversy about innocent passage of warships, Japan

disapproved the proposal of prior consent; on the other hand, it approved the proposal

of prior notification. 93 France approve the right of innocent passage of all vessels,


90   Norio tanaka, „Kakuheiki·Kiken Yugai Busshitsu‟ Tousaisenpaku no Ryokaitsuko to
Mugaiseikizyun , 2 KAIYOHOZYOUYAKUTAISEI          NO   H ATTEN TO KOKUNAISOTI 1 (1998),
p.16.


91   Ibid .

92   U.N. Conference on the Law of the Sea, Official Records, Vol. I, 82.


93   Supra note 90, pp.10-11.

                                             27
while, it demands tankers to do prior consent to it. 94 Moreover, the Japan stated on

December 18, 1997, that it would announce the route for its 1998 shipment of

radioactive materials the day after it left France 95 and the British provided advance

notification to the Panama Canal Commission regarding the 1998 shipment of

radioactive materials through the canal. 96     Then, the consistency of state practices,

including states under disadvantage, presumes opinio juris.

 In conclusion, the obligation of prior notification and the right of archipelagic sea

lanes passage are compatible, therefore the obligation is not denied by the right.




IV. Appollonia is responsible for the damage to the sandbar and the surrounding
waters as a result of its unlawful shipment of MOX, and must compensate Raglan
for both the resulting injury to its fishing and tourist industries and the cost of
decontaminating the area.

 What is controversial is whether Raglan has standing to seek compensation or not. In

the following parts, we demonstrate Raglan has standing to seek compensation.




IV-A. Because Appollonia violated sovereignty of Raglan, it has standing to seek
compensation for economic losses.




94   Revue Général de Droit International Public, Tome.82, 1979, 744 -746.


95   U.S. State Department PM Press Guidance, Jan. 14, 1998, at 4.


96   Letter of John A.Mills, Secretary, Panama Canal Commission, to Paul Leventhal,
Nuclear Control Institute, Jan.28, 1998.



                                           28
 Indeed, the sandbar and the surrounding is not territorial sea of Raglan. But, in

specific areas of the sea, coastal states are able to declare zones to which state

sovereignty is extended. 97 In fact, the legal principles of military alert zone, military

exclusion zone, historic water, and environmental exclusion zones are accepted. 98

 In this case, Raglan used exclusively the area of the sandbar and the surrounding

waters like its territorial sea and its sovereignty is extended to the area.

 Therefore, based on the violation of its sovereignty, Raglan has standing to seek

compensation.




IV-B. Because Appollonia violated obligation erga omnes, Raglan has standing to
seek compensation for economic losses.

 If its sovereignty is not extended to the area of the sandbar and the surrounding,

Raglan has no standing to seek compensation based on the violation of bilater al

obligation. But, Appollonia violated obligation erga omnes, and Raglan has standing to

seek compensation for economic losses.

 Obligation erga omnes is that which “, in view of the importance of the rights

involved, all States can be held to have a legal interest in their protection 99”. This


97   Donald R. Rothwell, Innocent Passage in the Territorial Sea: The UNCLOS Regime
and Asia Pacific State Practice , in N AVIGATIONAL R IGHTS AND F REEDOMS AND THE NEW
L AW OF THE SEA 74(2000) p.88.


98   Ibid , pp.88-92.

99   Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain)(Second Phase)I.C.J.

                                             29
conception is accepted in the Barcelona Traction case for the first time. Indeed, any

state doesn‟t have standing to seek compensation for economic losses only because one

state breached obligation erga omnes. It is because that, if a breach of an obligation

erga omnes consists immediately violation of an each legal interest of all states, the

state which has standing to seek compensation unlimitedly expands. 100 On the other

hand, if an obligation erga omnes take no effect in the secondary rule, the concept of

obligation erga omnes become meaningless. 101 Therefore, when a state breaches

obligation erga omnes, only the states which have additional requirements should have

standing to seek compensation. 102 The draft articles on responsibility of states for

internationally wrongful acts provide this “additional requirements” at article 42(b). 103

In the following parts, we demonstrate that, based on the article, Raglan has standing

to seek compensation for economic losses.


Reports, 1970, p.32


100   Atsuko Kanehara, Kokkasekininho ni okeru „Ippanrieki‟ Gainen no Tekiyo no
Genkai , 94-4 KOKUSAIHO GAIKOUZASSHI 1(1995), 9.

101   G.J. Perrin, Droit international public: Sources, sujets, caracteristiques(1999)752.


102   Jonathan I. Charney, Third State Remedies for Environmental Damage to the
World‟s Common Spaces , I NTERNATIONAL R ESPONSIBILITY        FOR   E NVIRONMENTAL H ARM
149(1991) pp. 159-160.


103   Report of the International Law Commission on the Work of its Fifty -third
Session(2001), G.A.O.R., Fifty-sixth Session, Supplement No. 10 (A/56/10), p.299,
para.11.



                                             30
 To prove this, as a premise of argument, we demonstrate that (1) the obligation stated

at III is obligation erga omnes. Then we demonstrate that (2) the breach of the

obligation specially affects Raglan and it has standing to seek compensation for

economic losses.




IV-B-1. The obligation stated at III is obligation erga omnes.

 The protection of environment of the high sea concerns international community as a

whole, because all over the world use the sea. Therefore it is considered as obligation

erga omnes. 104

 The obligation stated at III is to protect the environment not only of the waters of

coastal states but also of the high sea.

 Therefore, the obligation stated at III is obligation erga omnes.




IV-B-2. The breach of the obligation specially affects Raglan and it has standing to
seek compensation for economic losses.

 The draft articles on responsibility of states for internationally wrongful acts provide

that a state is entitled as an injured state to invoke the responsibility of another state if


104   Supra note 51, p.25; M. Spinedi, Les conséquences juridiques d‟un fait
internationalment illicite causant un dommage à l‟environnment , in I NTERNATIONAL
RESPONSIBILITY FOR E NVIRONMENTAL H ARM (1991), pp.87-93; Legality of the Threat or
Use of Nuclear Weapons, 1996 I.C.J. 104, pp.348-350 (July 8)(dissenting opinion of
Judge Weeramantry); Maurizio Ragazzi, The concept of International Obligation Erga
Omnes 154-163(1997); Riphagen, Fourth report, Yearbook of ILC, 1983, II-1, p.22.,
para. 120.



                                             31
the obligation breached is owed to the international community as a whole, and the

breach of the obligation specially affects that State. 105 However, these articles have no

binding force. Then, we demonstrate that the articles are accepted as customary

international law.




IV-B-2-i. The draft articles on responsibility of states for internationally wrongful acts
article 42 (b)(i) is accepted as customary international law.

 The definition in article 42 is closely modeled on article 60 of Vienna Convention on

the Law of Treaties, 106 although the scope and purpose of the two provisions is

different. 107 Despite these differences, the analogy with article 60 is justified because

article 60 seeks to identify the States parties to a treaty which are entitled to respond

individually and in their own right to a material breach by terminating or suspending

it. 108

 And, the draft articles on responsibility of states for internationally wrongful acts

generally support existence of customary international law. International law

commission, which drafted the articles, has produced many results of codification of



105   Supra note 19, art.42-b-I.

106   Supra note 34, p.331.

107   Supra note 53, 295-296, para.4.

108   Ibid .


                                           32
customary international law. Then, states and the court quoted the articles as customary

international law in a lot of contexts, such as the Rainbow Warrior Affair and

Gabčíkovo-Nagymaros Project case. 109

 Moreover, the view is accepted by many States such as New Zealand 110, Slovakia 111

and the United States. 112

 Therefore, article 42 (b)(i) is accepted as customary international law.




IV-B-2-ii. The breach of the obligation specially affects Raglan.

 For a state to be considered injured and to have standing to seek compensation it must

be affected by the breach in a way which distinguishes it from the generality of other

states to which the obligation is owed. 113

 In this case, the damage to the sandbar and the surrounding waters, where only firms

incorporated in Raglan engage in any commercial activities, affected Raglan in a way


109   The arbitral ruling of 6 Jult 1986 by the Secretary-General of the United Nations,
in: UNRIAA XIX, 199 et seq ; The arbitral decision of 30 April 1990, in: UNRIAA XX,
217 et seq ; I.C.J. Reports (1997) 7 et seq .


110   International Court of Justice. Nuclear Tests Case New Zealand vs. France , a
publication of the New Zealand Ministry of Foreign Affairs (1973) Vol. II, p. 73.


111   Report of the International Law Commission on the Work of its Fifty-third Session
(2001), G.A.O.R., Fifty-third Session, (A/CN.4/515), p.62, para.4.


112   Ibid , p.64, para.2.

113   Supra note 53, p.300, para.12.


                                                33
which distinguishes it from the generality of other states to which the obligation is

owed.

 Therefore, the breach of the obligation specially affects Raglan.




                                           34
PRAYER FOR RELIEF




Raglan respectfully requests that the ICJ adjudge and declare:

       (a)        Raglan is not responsible for the attack on The Mairi Maru and owes no

       compensation to Appollonia for any injury resulting therefrom;

       (b)        Raglan did not violate any obligation owed to Appollonia under international

       law in the scuttling of The Mairi Maru;

       (c)        Appollonia violated international law by transporting MOX through Raglan's

       archipelagic waters without prior notification to or the consent of that state; and

       (d)        Appollonia is responsible for the damage to the sandbar and the surrounding

       waters as a result of its unlawful shipment of MOX, and must compensate Raglan for

       both the resulting injury to its fishing and tourist industries and the cost of

       decontaminating the area.

                                                                   Respectfully submitted,

                                                                   Agents for Appollonia




                                                 35

				
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