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					                   2006-07
NIAGARA INTERNATIONAL MOOT COURT COMPETITION



                 A Dispute Arising Under

      The Statute of the International Court of Justice

                        March 2007




                 THE GOVERNMENT OF
                      CANADA
                      (Applicant)

                             v.

               THE GOVERNMENT OF
          THE UNITED STATES OF AMERICA
                    (Respondent)




           MEMORIAL OF THE APPLICANT

                    TEAM # 2007-19A
                                                TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................. i
STATEMENT OF FACTS ............................................................................................................. ii
QUESTIONS PRESENTED ............................................................................................................v
JURISDICTIONAL STATEMENT .............................................................................................. vi
INDEX OF AUTHORITIES......................................................................................................... vii
SUMMARY OF THE ARGUMENTS ............................................................................................1
ARGUMENT ...................................................................................................................................2
  I. RESPONDENT‟S EXERCISE OF JURISDICTION OVER THE MAPLE PRINCESS
  WAS UNLAWFUL UNDER INTERNATIONAL LAW ...........................................................2
     A. Respondent‟s exercise of jurisdiction over The Maple Princess was inconsistent with
     customary international law. ....................................................................................................2
       1. The Maple Princess was not engaged an activity contrary to international law when
       the Navy Seals boarded the vessel. ......................................................................................3
       2. Coast Guard boarded The Maple Princess without Applicant‟s consent, violating
       international law...................................................................................................................4
     B. The flag-state rule is the governing maritime rule, superceding the principle of
     universal jurisdiction. ...............................................................................................................5
  II. RESPONDENT VIOLATED THE LAW OF THE SEA WHEN IT BOARDED THE
  MAPLE PRINCESS WITHOUT APPLICANT‟S CONSENT. ...................................................7
     A. Respondent violated Applicant‟s freedom on the high seas when it first boarded The
     Maple Princess.........................................................................................................................7
     B. The Coast Guard contravened Article 108 of UNCLOS when it boarded The Maple
     Princess ....................................................................................................................................9
  III. RESPONDENT VIOLATED INTERNATIONAL LAW BY CONDUCTING THE
  TARGETED KILLING OF CANADIAN CITIZEN MAX AZIZ. ...........................................10
     A. Respondent‟s conduct was illegal because Mr. Aziz was classified as a “protected
     person” under international law .............................................................................................11
     B. Self-Defense Justification is not applicable to Respondent‟s situation............................13
  IV. HEAD OF STATE IMMUNITY SHOULD PREVENT THE FORFEITURE OF THE
  MAPLE PRINCESS. ...................................................................................................................15
     A. Heads of Government are covered by Head of State immunity. ...................................16
     B. The Commercial use exception to Head of State immunity does not apply. .................18
CONCLUSION ..............................................................................................................................20




                                                                                                                                                 i
                                  STATEMENT OF FACTS

       Mr. Mohamed “Max” Aziz was a citizen and resident of Canada. He ran a successful

import-export business based in Galway, Ireland, and since his days at the University of Queens‟

School of Business in Kingston, Ontario, he had been a close friend of Flan Tomigan. In April

2006, Mr. Tomigan and his wife invited Mr. Aziz and his wife to join them for a sailing trip in

that would take place in July, as the Tomigans would be heading back from Ireland to Nova

Scotia, Canada.

       Mr. Tomigan had leased an 85-foot luxury yacht from his half-brother, Stephen Sharper,

who is the Prime Minister of Canada. The written lease agreement provided that the Tomigans

would use Sharper‟s boat for their summer vacation during June and July 2006 at a cost of $500

per month. The yacht is registered in Canada as The Maple Princess, and is used by the Prime

Minister primarily for family vacations, as well as to entertain Canadian officials and foreign

dignitaries. The Maple Princess flies a Canadian flag and bears a giant red maple leaf, as well as

the writing “Thinking new boat? Think Canadian!” on its hull. On the stern of the vessel, in large

block letters, are the words “Nova Scotia, Canada.”

       Based on the analysis of banking records, the United States Central Intelligence Agency

had suspected that Mr. Aziz was a financial figure in the Al-Qaeda terrorist organization. During

the first two weeks of June 2006, the U.S. National Security Agency intercepted a series of

encrypted e-mail messages which indicated that he was planning a trip from Ireland to Nova

Scotia on July 2, 2006, aboard The Maple Princess. On June 21, the U.S. President issued a Top

Secret Presidential Decision Directive (PDD 2006-08). PDD-2006-08 authorized “a targeted

killing of Osama bin Laden‟s chief financier, Mohamed Aziz, who is expected to be found

aboard a pleasure yacht in the high seas off the coast of Canada on or around July 15, 2006.” The




                                                                                                ii
Government of Canada was neither informed of the directive nor of the preparations for its

execution.

       On July 16, a U.S. Navy Special Ops vessel was dispatched to follow The Maple Princess

as it sailed from Ireland to Canada. When The Maple Princess was 260 miles off the coast of

Nova Scotia, a team of six U.S. Navy Seals boarded the vessel in the middle of the night. The

Seals discovered all four passengers asleep. They subsequently rendered all of them unconscious

with Taser guns, and then the Seals identified Aziz and shot him in the head, tossing his body

overboard.

       During the operation, the Seals discovered two large suitcases aboard the ship: one

containing Swiss Bearer Bonds, and the other containing a powdery substance suspected to be

heroin. Once the Seals killed their target, they took the Bearer Bonds with them, but left the

heroin behind. The three other passengers remained unconscious aboard The Maple Princess,

still headed towards Nova Scotia. As the Seals disembarked, they notified the U.S. Coast Guard

of the suspected heroin.

       Soon after, the U.S. Coast Guard deployed an MH-68 “Shark” helicopter to the location

of The Maple Princess, which was then slightly over 200 nautical miles off the coast of Nova

Scotia. Once more, without notifying Canada, two of the “Shark” crew members, as U.S. agents,

boarded the vessel, identified the heroin, and seized the ship.        The agents took the three

remaining passengers into custody, and sailed the yacht into Portsmouth Harbor Station. Several

hours later, Mr. Tomigan was jostled awake by officials, who demanded documentation and

identification. Once satisfied, the Coast Guard released the detained passengers, but held The

Maple Princess and its contents. Thereafter, the Government of Canada instituted forfeiture

proceedings under the federal civil forfeiture statute, 21 U.S.C. Section 881.




                                                                                              iii
       In United States v. The Maple Princess, the U.S. District Court for the District of New

Hampshire decided that the Government of Canada would not be able to retain The Maple

Princess. In a separate case, styled Aziz v. Rumsfeld, the U.S. District Court for the District of

Columbia dismissed Mrs. Estelle Aziz‟s case against the U.S. Government for the killing of her

husband. The Government of Canada and Mrs. Aziz each petitioned the U.S. Supreme Court for

writs of certiorari. The U.S. Supreme Court denied each petition. Out of concern for potential

violations of international law, both the United States and Canada agreed to submit the dispute to

the International Court of Justice by compromis.




                                                                                                iv
                                    QUESTIONS PRESENTED

The Applicant and Respondent refer four questions to the Panel:


   1. Whether Respondent‟s exercise of “universal jurisdiction” over The Maple Princess

       lawful under international law;



   2. Whether Respondent violated the Law of the Sea when it boarded, searched, and seized

       The Maple Princess, without first obtaining the approval of Applicant despite the

       governing flag-state rule;



   3. Whether Respondent violated international law when it conducted the targeted killing of

       Canadian citizen Max Aziz; and



   4. Whether the doctrine of Head of State immunity prevents U.S. judicial forfeiture

       proceedings against The Maple Princess.




                                                                                                v
                              JURISDICTIONAL STATEMENT

       The Parties, through special agreement, pursuant to Article 40(1) of the Statute of the

International Court of Justice refer this dispute to the International Court of Justice for a binding

declaratory judgment pursuant to Article 36(1).        Article 36(1) confers upon the Court the

jurisdiction to resolve those specific issues as described in the compromis.




                                                                                                  vi
                                 INDEX OF AUTHORITIES

International Treaties, Instruments and Documents

Charter of the United Nations, June 26, 1945, 59 Stat.1031.

Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316.

Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6
U.S.T. 3516.

Geneva Convention on the High Seas of 29 April 1958, September 30, 1962, 13 U. S. T. 2312, T.
I. A. S. No. 5200.

International Covenant on Civil and Political Rights, opened for signature, December 16, 1966,
6 I.L.M. 368.

ICRC, Commentary on Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9*.

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, 28 I.L.M. 493.

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3.

Vienna Convention on Diplomatic Relations, Nov. 13, 1972, 23 U.S.T. 3227.

International Case Law & International Arbitration Decisions

Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14).

Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14).

Domestic Case Law

In re Florsheim Group Inc., 336 B.R. 126 (N.D. Illinois, 2005).

Tabion v. Mufti, 73 F.3d 535 (4th Circ. 1996).

Tachiona v. Mugabe, 169 F.Supp.2d 259 (S.D.N.Y. 2001).

United States v. Flores, 289 U.S. 137 (1933).




                                                                                                vii
United States v. Marino-Garcia, 679 F.2d 1373, (C.A.11.Fla., 1982).

United States v. Yunis, 924 F.2d 1086. (C.A.D.C. 1991).

Treatises

Restatement (Third) of Foreign Relations Law, REST 3d FOREL.

Academic Sources

Shobba Varughese George. Head-of-State Immunity in the United States Courts: Still Confused
After All These Years. 64 Fordham L. Rev. 1051 (1995).

James A. Green, Docking the Caroline: Understanding the Relevance of the Formula in
Contemporary Customary International Law Concerning Self-Defense. 14 Cardozo J. Int‟l &
Comp.L. 429 (2006).

Malvina Halberstam, Terrorism on the high seas: The Archille Lauro, Piracy and the IMO
Convention on maritime safety, 82 Am. J. Int'l L. 269 (1988).

David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitmate Means of Self-Defence?, 16 Eur. J. Int‟l L. 171 (2005).

Vincent-Joël Proulx, If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflections
On the Indefinite Detention and Targeted Killing of Suspected Terrorists. 56 Hastings L.J. 801
(2005).

Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for
Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int'l L. 111 (2003).

Michael P. Scharf, The ICC’s jurisdiction over the nationals of non-party states: a critique of the
U.S. Position, 64-WTR Law & Contemp. Probs. 67 (2001).

Michael A. Tunks, Diplomats or Defendants? Defining the Future of Head of State Immunity.
52 Duke L.J. 651, 654 (2002)(citing Jerrold L. Mallory, Resolving the Confusion Over Head of
State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169 (1986)).

Salvatore Zappalà. Do Heads of State Enjoy Immunity from Jurisdiction for International
Crimes? The Ghaddafi Case Before the French Cour de Cassation. 12 EJIL 595, 601 (2001)
(citing Andrea Bianchi. Immunity Versus Human Rights: The Pinochet Case, 10 EJIL (1999)).

Other Sources

Statute of the International Court of Justice, 59 Stat. 1031.

United Nations Office on Drugs and Crime, available online at Monthly Status of Treaty
Adherence, January 2005 online: http://www.unodc.org/unodc/en/treaty_adherence.html.


                                                                                                viii
                              SUMMARY OF THE ARGUMENTS

       Universal jurisdiction must be exercised in accordance with international law.

Respondent overstepped its jurisdictional boundaries by disregarding the international principle

of comity and the flag-state rule, which both grant Applicant jurisdiction over The Maple

Princess. In so doing, Respondent contravened principles of customary international law as well

as several international treatises and agreements.

       Respondent further contravened the Law of the Sea by failing to cooperate with

Applicant in its rogue mission to take down Max Aziz, aboard The Maple Princess. By failing to

relay the intelligence gathered by its agencies to Applicant and by failing to request Applicant‟s

authority to board a vessel under Canadian jurisdiction, Respondent breached customary

international law.

       Respondent violated international law when it conducted the targeted killing of Canadian

citizen Max Aziz. Respondent‟s activity was unlawful according to both the Geneva

Conventions and basic tenets of international law. The execution contravenes principles of

international human rights, especially with respect to the inherent right to life of every

individual. Additionally, a claim of self-defense in not applicable to this situation because it

does not meet the principles required for its justification.

       Head of State immunity prevents the judicial forfeiture of The Maple Princess. The

International Court of Justice has previously found immunity applicable to both heads of state

and heads of government. Additionally, Prime Minister Sharper is protected under diplomatic

immunity, which further prevents judicial forfeiture, since no commercial activity existed when

Mr. Tomigan used The Maple Princess to sail to Ireland and back to Canada.




                                                                                                1
                                           ARGUMENT

    I. RESPONDENT’S EXERCISE OF JURISDICTION OVER THE MAPLE
       PRINCESS WAS UNLAWFUL UNDER INTERNATIONAL LAW

      Generally, the country in which an act is done is the sole arbiter of that act‟s lawfulness or

unlawfulness. This tenet is the governing principle of the United Nations whose purpose is to

preserve the “sovereign equality of all its Members.”1 International law recognizes several types

of extraterritorial jurisdiction that a state may exercise if appropriate.2 However, Respondent‟s

exercise of universal jurisdiction offends the principles of international law and interferes with

the universally recognized maritime flag-state rule.


           A. Respondent’s exercise of jurisdiction over The Maple Princess was
              inconsistent with customary international law.

      Universal jurisdiction is a theory of extraterritorial jurisdiction whereby certain behaviors,

universally condemned and deemed unlawful by the international community, thus allowing

states to assert authority over the persons and things involved such behaviors.3          Universal

jurisdiction is most often asserted “in territory over which no country has jurisdiction or in

situations which the territorial state is unlikely to exercise jurisdiction.”4 The high seas are an

example over which universal jurisdiction can be applied because “no state can validly purport to

subject any part of the high seas to its sovereignty.”5


1
  Charter of the United Nations, Oct. 24, 1945, 59 Stat. 1031, art 2 para. 1 [hereinafter U.N.
Charter].
2
  Case Concerning the Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14).
3
  Anthony Sammons, The “Under-Theorization” of Universal Jurisdiction: Implications for
Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. Int'l L. 111,141
(2003).
4
  Michael P. Scharf, The ICC’s jurisdiction over the nationals of non-party states: a critique of
the U.S. Position, 64-WTR Law & Contemp. Probs. 67, 80 (2001).
5
  United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, [hereinafter
UNCLOS], art. 89.


                                                                                                  2
     A state must show that its exercise of universal jurisdiction does not interfere with

customary international law. This is known as the Lotus principle.6 In addition to articulating this

non-interference policy, the Lotus court also stated that “[a] State contemplating bringing

criminal charges based on universal jurisdiction must first offer to the national State of the

prospective accused person the opportunity itself to act upon the charges concerned.”7 Therefore,

according to the Lotus principle, Applicant should have been presented with the opportunity to

act before Respondent carried out its mission. However, Respondent failed to request

Applicant‟s authorization before following PDD 2006-08, which is a violation of customary

international law and prohibited.


               1. The Maple Princess was not engaged an activity contrary to international law
                  when the Navy Seals boarded the vessel.

     According to custom, jurisdiction can be granted to a state if it can establish either

territoriality, nationality, or that it has flag-state jurisdiction.8 However, universal jurisdiction

grants an exception to the principle of sovereign equality. In order for a state to exercise

universal jurisdiction it must identify an offence contrary to the cooperative interests of the

international community, punishable under customary international law.9 Customary

international law recognizes offences such as genocide, crimes against humanity, piracy and war

crimes10 as universally condemned crimes.11 Though there is some debate over adding other


6
  S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 as cited in Arrest Warrant of 11 April
2000 (Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14) [hereinafter, Congo v. Belg.].
7
  Congo v. Belg., 2002 I.C.J. 3 (joint separate opinions of Judges Higgins, Kooijmans and
Buergenthal) at para. 59.
8
  UNCLOS, supra note 5, arts. 91, 92; Geneva Convention on the High Seas, arts. 5,6.
9
  Congo v. Belg., 2002 I.C.J. 3 (joint separate opinions of Judges Higgins, Kooijmans and
Buergenthal) at para. 21.
10
   Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, Part 2, art.
5.1; Scharf, supra note 4, UNCLOS, supra note 5, art. 101(a).


                                                                                                   3
offences such as maritime terrorism to the list, widening the scope of this carefully designed

exception broadens the limited purpose of universal jurisdiction, and stands the risk of

encroaching on individual state jurisdiction.12 It is not individual states‟ preferences for action

that govern in the ICJ court, but rather practices recognized by customary international law. 13

Even staunch supporters of expanding the limits of universal jurisdiction recognize that,

     even if one finds sufficient historical and/or teleological justification for concluding
     that the piracy provisions of the Geneva and UN Conventions are applicable to
     maritime terrorism, it would be preferable to adopt a convention dealing with
     maritime terrorism specifically, as has been done with airplane hijacking and
     sabotage, hostage taking and attacks on diplomats, the other terrorist acts that have
     begun to plague the international community. . .14

     Respondent‟s courts have upheld its own exercise of authority over terrorists;15 however

this skirts the ultimate issue: terrorism is not a universally recognized punishable offense. The

history of anti-terrorism treaties indicates that “customary international law [does] not extend

universal jurisdiction over terrorist acts.”16 Furthermore, neither territoriality, nationality nor

flag-state jurisdiction have been established. Respondent‟s first boarding of The Maple Princess

was therefore an infraction on international law falsely cloaked under the pretense of universal

jurisdiction when in fact no such jurisdiction existed.


               2. Coast Guard boarded The Maple Princess without Applicant‟s consent,
                  violating international law.

     According to customary international law, the traffic of drugs is not an enumerated offence


11
   U.N. Charter, supra note 1, art. 2, paras. 4, 7.
12
   Scharf, supra note 4, at 141.
13
   Statute of the International Court of Justice, T.S. No. 993, [hereinafter, ICJ Statute], art. 38.
14
   Malvina Halberstam, Terrorism on the high seas: The Archille Lauro, Piracy and the IMO
Convention on maritime safety, 82 Am. J. Int'l L. 269, 291 (1988).
15
   United States v. Yunis, 924 F.2d 1086 (C.A.D.C. 1991); United States v. Marino-Garcia, 679
F.2d 1373, (C.A.11.Fla., 1982).
16
   Scharf, supra note 4, at 100.


                                                                                                       4
allowing for a state to exercise the universal jurisdiction exception to state sovereignty. Instead,

the traffic of illicit drugs and psychotropic substances is governed by treatises and conventions17

which hold greater weight in the ICJ court.18 Both the United Nations Convention on the Law Of

the Sea (UNCLOS), and the United Nations Convention against Illicit Traffic in Narcotic Drugs

and Psychotropic Substances 1988 (the 1988 Convention) reserve jurisdiction over such matters

to the flag-state, and recognize that authorization must be granted by the flag-state in order for

extraterritorial jurisdiction to be permitted.19

      Respondent‟s second boarding of The Maple Princess was unauthorized. Instead of seeking

Applicant‟s authorization, Respondent simply dispatched its Coast Guard based on intelligence

that its Navy Seals had obtained while illegally aboard the vessel. Without requesting

Applicant‟s consent, Respondent‟s exercise of jurisdiction over The Maple Princess was

unlawful under international law.


            B. The flag-state rule is the governing maritime rule, superceding the principle
               of universal jurisdiction.

      Under the flag state rule, a state accepts responsibility for and retains authority over a

vessel once it grants a vessel registration and allows it to fly the state flag. In return, the ship

accepts that it will be governed by that state‟s laws.20 In essence, the flag-state rule in maritime

law determines a ship‟s nationality and jurisdiction. It has been articulated in numerous treaties

and agreements including UNCLOS, 1988 Convention, and the Geneva Convention on the High




17
   UNCLOS, supra note 5, art 108(1); United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, 28 I.L.M. 493, art. 4 [hereinafter 1988
Convention].
18
   ICJ Statute, supra note 13, art. 38.
19
   UNCLOS, supra note 5, art. 108; 1988 Convention, supra note 17 at arts. 4, 17.
20
   UNCLOS, supra note 5, art. 94.


                                                                                                  5
Seas of 29 April 1958, to name a few.21 Incidentally, the United States Supreme Court ruled that

the flag-state rule supercedes the principle of universal jurisdiction, stating that the ship is

“deemed to be a part of the territory of that sovereignty, and not to lose that character when in

navigable waters within the territorial limits of another sovereignty.”22

     Respondent recognizes that the flag state rule, reproduced in the Restatement, 23 is based on

the principle of comity as its “courts assume that Congress incorporated choice-of-law principles

consistent with principles of international comity.”24 A nation will therefore refrain from “the

threat or use of force against the territorial integrity or political independence of any state, or in

any other manner inconsistent with the purposes of the United Nations”25 and will further abstain

from exercising jurisdiction in order to preserve the sovereign equality among nations.26

     Respondent‟s Navy Seals boarded The Maple Princess when the vessel was on the high

seas, 260 nautical miles off the coast of Nova Scotia.27 Applicant‟s consent was never sought by

Respondent under the principle of comity. Further, The Maple Princess is a registered, Canadian

ship, flying a Canadian flag, clearly bearing a large red maple leaf, the writing “Thinking new

boat? Think Canadian!” on its hull,28 and in large block letters on the stern of the yacht, “Nova

Scotia, Canada.”29 There could have been no mistake that under the flag-state rule, The Maple

Princess was outside Respondent‟s jurisdiction.

     According to the Lotus principle, the flag-state rule under customary international law

21
   UNCLOS supra note 5, arts. 3, 17, 87, 92, 116; 1988 Convention, supra note 27, art. 17, s. 3;
Geneva Convention on the High Seas of 29 April 1958, art. 6.
22
   United States v. Flores, 289 U.S. 137, 156 (1933).
23
   Restatement (Third) of Foreign Relations Law, REST 3d FOREL ss. 501, 522.
24
   In re Florsheim Group Inc., 336 B.R. 126, 131 (N.D. Illinois, 2005).
25
   U.N. Charter, supra note 1, art. 2, para. 4.
26
   Id. at para. 7.
27
   Compromis, para. 7.
28
   Id. at para. 2.
29
   Compromis Corrections and Clarifications, para.1.


                                                                                                    6
prohibits Respondent from asserting jurisdiction on The Maple Princess. The vessel was

properly within Applicant‟s jurisdiction in both boarding instances. Despite flag-state based

jurisdiction and the principle of comity, Respondent exercised jurisdiction contrary to

international law and proceeded to board the vessel, taser four innocent Canadians and shoot Mr.

Aziz in the head before unceremoniously tossing his body overboard.


 II. RESPONDENT VIOLATED THE LAW OF THE SEA WHEN IT BOARDED THE
     MAPLE PRINCESS WITHOUT APPLICANT’S CONSENT.

     UNCLOS codifies the conduct of United Nations members at sea in accordance with the

principles of the U.N. Charter,30 namely that of equal sovereignty.31 Respondent‟s actions aboard

The Maple Princess did not demonstrate equal sovereignty nor were they authorized by

Applicant. This conduct therefore violates the principles set forth in UNCLOS.


           A. Respondent violated Applicant’s freedom on the high seas when it first
           boarded The Maple Princess.

     Part VII of UNCLOS governs waters outside the exclusive economic zone, territorial sea

and internal waters of a state, known as the high seas32 and guarantees a vessel freedom on the

high seas and freedom of navigation.33 In addition, Part VII requires that ships display their

nationality by flying the flag of the state in which they are registered and with whom exclusive

jurisdiction lies.34 This is known as the flag-state rule. Respondent recognizes and reiterates the

flag state rule in its own Restatement (Third) of Foreign Relations Law.35 States must respect

flag-state jurisdiction and need to report to the flag-state, any grounds it has to believe “that

30
   UNCLOS, supra note 5, preamble.
31
   U.N. Charter, supra note 1, art. 2, para. 1.
32
   UNCLOS, supra note 5, art. 86.
33
   Id. arts. 87, 90.
34
   Id. art. 92.
35
   Restatement (Third) of Foreign Relations Law, REST 3d FOREL ss. 501, 522.


                                                                                                 7
proper jurisdiction and control with respect to a ship have not been exercised” and must request

authorization to act.36

     The most common exceptions to the flag-state rule are piracy, which is defined by

UNCLOS as “any illegal acts of violence or detention or any act of depredation, committed for

private ends by the crew or the passengers of a private ship. . .”37 or where the vessel is

stateless.38 In both cases, universal jurisdiction can be exercised because the vessel is “beyond

the territorial reach of any single nation” 39 and the international community has a shared interest

in protecting international waters. UNCLOS is clear. Unless a vessel falls within a category of

exception, the flag-state will maintain jurisdiction over it.

     Respondent interfered with The Maple Princess’ guaranteed freedom of navigation when it

first boarded the vessel on the high seas, 260 miles off the coast of Nova Scotia. The Maple

Princes was navigating its way back to Canada, where it is registered and with whom jurisdiction

properly lies. The Maple Princess was not engaging in any acts pillaging or detention. As such,

the piracy exception does not apply. Neither was The Maple Princess stateless. The Maple

Princess is registered under Applicant, flies Applicant‟s flag, and bears several distinct ensigns

that demarcate it as a ship under Applicant‟s exclusive jurisdiction pursuant to the flag-state rule.

     In the first two weeks of June, Respondent obtained intelligence it believed linked Mr. Aziz

to a terrorist group.40 A month later, Respondent acted on that intelligence, deploying its Navy

Seals to kill Mr. Aziz without first conferring with Applicant though there was sufficient time to

do so. By acting independently on the intelligence in such a vicious manner and neglecting to



36
   Id. at art. 94(6).
37
   Id. at art. 101(a).
38
   S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10.
39
   Sammons, supra note 3, at 126.
40
   Compromis, para. 5.


                                                                                                    8
inform or afford Applicant a chance to properly respond to the intelligence, Respondent failed to

adhere to UNCLOS‟ freedom of navigation and flag-state jurisdiction provisions, interfering

with Applicant‟s freedom on the high seas in direct contravention of UNCLOS.


            B. The Coast Guard contravened Article 108 of UNCLOS when it boarded The
            Maple Princess

      Respondent‟s Coast Guard boarded The Maple Princess when the vessel was between 260

and 200 nautical miles off the shore of Nova Scotia based on the suspicion that the vessel had

heroin aboard.41 Respondent‟s action was neither authorized nor in compliance with the

provisions set froth in UNCLOS. Article 108(1), governing the high seas, requires that “[a]ll

states cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic

substances”42 (emphasis added). The illicit traffic in narcotic drugs and psychotropic substances

is specifically governed by the 1988 Convention, of which both Applicant and Respondent are

signatories.43 Under Article 4 of the 1988 Convention, a state must first establish jurisdiction

over a vessel by establishing either that the offence was committed within its territory, flag-state

jurisdiction, or that there has been authorization by the flag-state to exercise jurisdiction pursuant

to Article 17.44

        When the Coast Guard acted on the Navy‟s information, The Maple Princess was on the

high seas.45 Respondent did not have jurisdiction based on Article 4 of the 1988 Convention,

because The Maple Princess was outside Respondent‟s territory, nor was the vessel under

Respondent‟s flag-state jurisdiction as The Maple Princess flies Applicant‟s flag. Further,

41
   Compromis, para. 9.
42
   UNCLOS, supra note 5, art. 108(1).
43
   United Nations Office on Drugs and Crime, available online at Monthly Status of Treaty
Adherence, January 2005 online: http://www.unodc.org/unodc/en/treaty_adherence.html
44
   1988 Convention, supra note 17 at art. 4.
45
   UNCLOS, supra note 5, Part V.


                                                                                                    9
Respondent did not cooperate with any nation. Respondent acted alone in its own interests, and

not in the interest of all States.

          Article 17 of the 1988 Convention, governing the traffic of substances by way of sea,

requires that a state obtain authorization from the flag-state in order to take action on a vessel

suspected of trafficking of prohibited substances.46 Article 17 goes on to echo the principle of

equal state sovereignty, requiring that the acting state “take into account of the need not to

interfere with or affect the rights and obligations and the exercise of jurisdiction of costal States

in accordance with the international law of the sea.”47

        Respondent did not comply with Article 17. It did not request confirmation of registry with

Applicant, nor seek Applicant‟s authorization to take measures upon The Maple Princess.

Instead, Respondent proceeded to board and search The Maple Princess and detain its

passengers. Respondent acted unilaterally and interfered with Applicant‟s right to exercise

jurisdiction over The Maple Princess by its flagrant disregard for Applicant‟s flag-state

authority. This is a clear violation of UNCLOS principles and the 1988 Convention, which

require the flag-state to first authorize any acts taken by a non-flag-state actor.


III. RESPONDENT VIOLATED INTERNATIONAL LAW BY CONDUCTING THE
     TARGETED KILLING OF CANADIAN CITIZEN MAX AZIZ.

          Respondent violated international law by conducting the targeted killing of Canadian

citizen Max Aziz. According to Article 6 of the International Covenant on Civil and Political

Rights (ICCPR), “[e]very human being has the inherent right to life. The right shall be protected




46
     1988 Convention, supra note 17 at art. 17(3).
47
     Id. at art. 17(11).


                                                                                                  10
by law. No one shall be arbitrarily deprived of his life.”48 Respondent‟s actions violated this

fundamental premise, along with other tenets of international law, such as killing a citizen

classified as a “protected person” and claiming self-defense where it is not applicable.


           A. Respondent’s conduct was illegal because Mr. Aziz was classified as a
           “protected person” under international law

       Before the events of September 11, 2001, international human rights discourse only

recognized two classifications of individuals during times of turmoil: prisoners of war (POWs)

and protected persons.49 However, after September 11th, Respondent created a third classification

under the precepts of the Geneva Conventions to counteract terrorist activity: “international

outlaws.”50 Respondent believes that these “enemy combatants” are not be protected by Geneva

Conventions under international law.51

       However, combatants have traditionally been afforded the same protection as “protected

persons.” This idea is set out in the Convention Relative to the Protection of Civilian Persons in

Time of War (Fourth Geneva Convention).52 Accordingly, Article 3(1)(d) of the Fourth Geneva

Convention lists the rights given to civilians, which can also be applied to combatants.

       (1) Persons taking no active part in the hostilities…shall in all circumstances be
       treated humanely…To this end, the following acts are and shall remain prohibited
       at any time…(d) the passing of sentences and the carrying out of executions
       without previous judgment pronounced by a regularly constituted court…53


48
   International Covenant on Civil and Political Rights (ICCPR), opened for signature, December
16, 1966, 6 I.L.M. 368, 370.
49
   Vincent-Joël Proulx, If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflections
On the Indefinite Detention and Targeted Killing of Suspected Terrorists., 56 Hastings L.J. 801,
825 (2005).
50
   Id. at 860.
51
   Id.
52
   Id. at 861.
53
   Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), Aug. 12, 1949, art. 3(1)(d), 6 U.S.T. 3516, 3520.


                                                                                                 11
Conversely, enemy combatants as defined by Respondent, have not traditionally been afforded

POW status. This is according to the Convention Relative to the Treatment of Prisoners of War

(Third Geneva Convention). According to Article 4(A)(2)(d) of the Third Geneva Convention,

combatants who are afforded POW protection are defined as members who “conduc[t] their

operations in accordance with the laws and customs of war.”54 Since terrorist organizations do

not abide by the laws and customs of war, they cannot be considered “combatants.”55

       In this case, Respondent violated the Fourth Geneva Convention with the targeted killing

of Max Aziz. It is evident that this Convention does not recognize the term “enemy combatant”

as employed by Respondent. Mr. Aziz was not a POW at the time of his killing therefore by

definition he was a civilian who should have been protected from a targeted killing. Here,

Respondent did not pay due regard to international law and conducted the unlawful activity.

       Respondent contends that Mr. Aziz was directly involved in the terrorist attacks on

September 11th, and therefore is not protected as a “civilian.” However, direct participation in

terrorist activities has been defined as “actions, which by their nature or purpose are likely to

cause actual harm to the personnel and equipment of the armed enemy forces.”56 Mr. Aziz‟s

activity did not fit the definition of “hostilities” in the Geneva Conventions. Furthermore, Article

3 of the Fourth Geneva Convention recognizes that conflicts exist that are not “of an

international character”57 as in the instant case. Pursuant to Article 3, this Tribunal should find

that Respondent violated international law by executing Mr. Aziz because, as Article 3(1)(d)




54
   Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), Aug.
12, 1949, art. 4(A)(2)(d), 6 U.S.T. 3316, 3320.
55
   David Kretzmer, Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitimate Means of Self-Defence?, 16 Eur. J. Int‟l L. 171, 191-92 (2005).
56
   Id.
57
   Fourth Geneva Convention, art. 3, 6 U.S.T. 3516, 3520.


                                                                                                 12
dictates, it is unlawful to execute an individual “without previous judgment pronounced by a

regularly constituted court.”


            B. Self-Defense Justification is not applicable to Respondent’s situation

         Respondent‟s claim of self-defense in the targeted killing of Mr. Aziz is unjustified. His

killing was neither a necessity for the U.S., nor was he an imminent threat. Therefore, self-

defense is not applicable to this situation.

         Article 51 of the United Nations charter indicates that a country may use self-defense in

the event that it is a victim of an armed attack.58 The history behind the self-defense justification

stems from the 1830s, when the British pre-emptively attacked a privately-owned U.S. steamship

named the Caroline. Britain had believed that U.S. citizens nearby would potentially attack

British soldiers in the area, so the Caroline was torched and eventually towed over Niagara

Falls.59 In a subsequent exchange of letters between the U.S. Secretary of State and the British

Special Representative to the United States, questioning the purpose of the attack, the Caroline

Doctrine was born. This doctrine established that in order for a country to be justified in using

self-defense, the requirements of necessity, proportionality, and an “imminent threat” must be

met.60

         Necessity looks at that need for responding to an attack. “The criterion of „necessity‟ in

customary international law is not to be viewed as a requirement of „absolute necessity‟ or „do-

or-die.‟ Nonetheless, it can still be said that necessity is only established if the action is to be




58
   U.N. Charter, supra, note 1, art. 51.
59
   James A. Green, Docking the Caroline: Understanding the Relevance of the Formula in
Contemporary Customary International Law Concerning Self-Defense. 14 Cardozo J. Int‟l &
Comp.L. 429, 433 (2006).
60
   Id. at 435-36.


                                                                                                  13
considered a „last resort.‟”61 Proportionality looks at the scope of the response as compared to

what it will accomplish. “States appear to refer to proportionality as requiring equivalence

between the response and the level of force required to abate the attack being responded to.”62

Finally, an “imminent threat” means that there must be a temporal connection between the attack

that was carried out versus the threat that was trying to be avoided.63

        Respondent is unable to meet the requirements of necessity, proportionality, and

“imminent threat” in this matter. As to necessity, Respondent‟s Navy Seals could have detained

Mr. Aziz after they boarded. All of the passengers were already unconscious prior to shooting

Mr. Aziz. The Seals could have easily kept him in custody at that point and brought him ashore.

Additionally, not once did Respondent confer with Applicant. Since Respondent knew of Mr.

Aziz‟s whereabouts, it could have arranged for a hand in his capture. It was not necessary to

respond by killing Mr. Aziz, when other options were available.

        Regarding proportionality, it is difficult to gauge the exact level of danger Respondent

was trying to avoid. Even though Respondent has felt the tremendous effects of the September

11th attacks, one cannot determine with any specificity whether attacks on U.S. soil will occur

again, or be of the magnitude that occurred in 2001. Therefore, it cannot be established that

Respondent‟s killing of Mr. Aziz was proportional to the harm it was trying to avoid.

        Mr. Aziz‟s pleasure cruise with his wife and close friends did not pose an imminent threat

on Respondent. Mr. Aziz was going to be occupied for an entire month aboard an 85-foot yacht,

enjoying a summer vacation. Respondent acted based only on information that he was aboard

The Maple Princess, and not based on intelligence that Mr. Aziz was planning a terrorist plot or



61
   Id. at 452.
62
   Id. at 458.
63
   Id. at 464.


                                                                                               14
masterminding an attack on the U.S. Respondent‟s actions were not in response to an imminent

threat; therefore Respondent‟s actions violate customary international law.

          Respondent contends that since it is fighting a war on terrorism, attacks are always

imminent, so the targeted killing of Mr. Aziz was justified as pre-emptive self-defense. However,

besides not meeting the requirements that justify using self-defense, this argument has no merit

when viewed in conjunction the foundation of Article 6 of the ICCPR64 on international human

rights, namely that “no one shall be arbitrarily deprived of his life,” which is the foundation of

Article 6 of the ICCPR. Additionally, Article 51 specifically states that self-defense is only

applicable where an armed attack has “occurred” against a member of the United Nations.65 If

Respondent contends that the targeted killing was in response to the September 11th attacks, then

it is stretching its line of reasoning and justification into dangerous territory. By doing so,

Respondent could strike 20 years later, and still claim self-defense based on those attacks. If this

justification is accepted, then there would never be an end to these deprivations of human life.

          In this matter, Mr. Aziz was a classified as a “protected person.” Additionally, the

justification for self-defense is not applicable here because Respondent‟s actions do not comport

with the requirements of proportionality, necessity, and “imminent threat.” Therefore, the

targeted killing of Mr. Aziz was unlawful and violated international law.


IV. HEAD OF STATE IMMUNITY SHOULD PREVENT THE FORFEITURE OF THE
        MAPLE PRINCESS.

          Respondent should be prevented from the judicial forfeiture of The Maple Princess

because it does not comport with international law on the issue of Head of State immunity.

Additionally, the forfeiture does not fit into an exception for this type of immunity. Head of State

64
     ICCPR, supra note 48.
65
     U.N. Charter, supra note 1, art 51.


                                                                                                   15
immunity seeks to “(1) recogniz[e] an appropriate degree of respect for foreign leaders as a

symbol of their state‟s sovereign independence and (2) ensur[e] that they are not inhibited in

performing their diplomatic functions.”66 Respondent‟s actions in seizing the pleasure yacht of

Canadian Prime Minister Stephen Sharper do not give the degree of respect necessary to a leader

of government, nor does it allow Prime Minister Sharper to continue with his diplomatic

functions.


             A. Heads of Government are covered by Head of State immunity.

       Head of State immunity can be applied in specific situations where the actions of a

country‟s leader are in dispute.67 The concept has not been codified, but it has been addressed in

tribunals in both individual countries and within the International Court of Justice (ICJ).

International customary law on this issue has been formed through both state practice and opinio

juris, which is where states‟ behavior is believed to be obligatory under international law.68

       In the case of the Arrest Warrant of 11 April 2000 (Congo v. Belg.)69, the ICJ dealt with

determining whether the minister of foreign affairs for the Democratic Republic of Congo had

immunity from an arrest warrant issued for suspected the violation of the Geneva Conventions of

1949 while visiting Belgium.70 Belgium also believed Minister Yerodia had committed war

crimes against the people in his country.71 In deciding that Minister Yerodia had immunity from

the arrest warrant, the ICJ declared that since the minister of foreign affairs is responsible for the


66
   Michael A. Tunks, Diplomats or Defendants? Defining the Future of Head of State Immunity.,
52 Duke L.J. 651, 654 (2002)(citing Jerrold L. Mallory, Resolving the Confusion Over Head of
State Immunity: The Defined Rights of Kings, 86 Colum. L. Rev. 169, 179 (1986)).
67
   Id. at 655.
68
   Id. at 658.
69
   Arrest Warrant of 11 April 2000 (Congo v. Belg.), 2002 I.C.J. 121 (Feb. 14).
70
   Id. at 8.
71
   Id. at 8.


                                                                                                   16
conduct of his State‟s relations with others, he should be provided with immunity against

charges, such as criminal prosecution, which may prevent him from carrying out his functions.72

It is of importance to note that in this case the ICJ specifically stated, “The Court would observe

at the outset that in international law it is firmly established that, as also diplomatic and consular

agents, certain holders of high-ranking office in a State, such as the Head of State, Head of

Government, and Minister of Foreign Affairs, enjoy immunities from jurisdictions in other

states, both civil and criminal.”73

          The ICJ decision in the Arrest Warrant of 11 April 2000, gives credence to the idea that

Prime Minister Sharper enjoys immunity from a judicial forfeiture of The Maple Princess. His

protection against both civil and criminal actions, recognized in the highest court in international

law, should preclude Respondent from taking his yacht. Additionally, since Prime Minister

Sharper‟s yacht has been used to host foreign dignitaries, which has in turn made him

responsible for the conduct of Canada as an official representative of the country, a judicial

forfeiture of The Maple Princess should not be permitted. The forfeiture interferes with his

duties as the head of Canada‟s government and will take away from his role in State relations.

          Respondent contends Prime Minister Sharper uses the yacht predominantly for family

use, so it does not represent the country of Canada to other countries. But because Prime

Minister Sharper has hosted foreign dignitaries aboard his boat, and because it is registered as a

Canadian flag ship, The Maple Princess is a vehicle to further support the Prime Minister‟s

duties to his country and to countries abroad.

          While the distinction between Head of State and Head of Government was seemingly

followed in the lower court‟s decision in this case, it is imperative to note that not only has the

72
     Id. at 20.
73
     Id. at 18.


                                                                                                   17
ICJ not recognized a distinction between Head of State and Head of Government with respect to

immunity, but even U.S. case law has held that a non-Head of State can be included under the

Head of State immunity doctrine. In Tachiona v. Mugabe74, the U.S. District Court for the

Southern District of New York, held that Head of State immunity applied to both the president

and foreign minister of Zimbabwe. This interpretation of the Head of State immunity doctrine,

made by a U.S. district court, indicates that a Head of Government, such as Canadian Prime

Minister Sharper, should be included under Head of State immunity. This immunity would then

protect The Maple Princess from judicial forfeiture.


           B. The Commercial use exception to Head of State immunity does not apply.

       In the alternative that Head of State immunity does not apply, Prime Minister Sharper is

also protected by diplomatic immunity. Under the Vienna Convention on Diplomatic Relations,

Article 31 states that “(1) A diplomatic agent shall enjoy immunity from the criminal jurisdiction

of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction,

except in the case of: (c) An action relating to any professional or commercial activity exercised

by the diplomatic agent in the receiving State outside his official functions.”75

       The lease of The Maple Princess was not for commercial activity. The yacht is a custom-

built 85-foot luxury yacht, which was purchased for $5.8 million.76 A $500 per month agreement

between Prime Minister Sharper and Mr. Tomigan for the use of The Maple Princess does not

comport with the idea of a commercial activity, because it would simply not profitable for

Sharper. Likewise, there were no indications in the written lease agreement about commercial


74
   Tachiona v. Mugabe, 169 F.Supp.2d 259, 296 (S.D.N.Y. 2001).
75
   Vienna Convention on Diplomatic Relations, Nov. 13, 1972, art. 31(1)(c), 23 U.S.T. 3227,
3241.
76
   Compromis, para. 1.


                                                                                                 18
activities. The written lease simply indicated that Mr. Tomigan and his wife intended to sail the

vessel on a roundtrip voyage to Ireland and back for a summer vacation.77

          In the context of Article 31 on Diplomatic Relations, section (c) specifically indicates that

the commercial activity must be conducted in the “receiving state.” So even if the activity was

characterized as “commercial”, the activity was not located in U.S. territory, therefore,

Respondent cannot exercise control of the yacht, nor can it institute forfeiture proceedings

against the vessel.

          Moreover, Respondent‟s own State Department recognizes that the term “commercial

activity” as used in Article 31 on Diplomatic Relations, “focuses on the pursuit of trade or

business activity; [and] does not encompass contractual relationships for goods and services

incidental to the daily life of the diplomat and family in the receiving state.” 78 Using

Respondent‟s own definition of “commercial activity”, Prime Minister Sharper‟s $500 exchange

with his half-brother, Mr. Tomigan, did not constitute a commercial activity, and therefore, the

commercial use exception does not apply here.

          Respondent‟s action regarding the judicial forfeiture of The Maple Princess should be

prohibited. Not only are heads of government protected under Head of State immunity, but Prime

Minister Sharper is further protected under diplomatic immunity, which only allows a forfeiture

of a vessel if engaged in commercial activity. Here, the agreement between Mr. Tomigan and

Prime Minister Sharper was not of a commercial nature, therefore, no exception to the immunity

exists in this matter. Accordingly, The Maple Princess should not be forfeited to the Respondent.




77
     Compromis, para. 2.
78
     Tabion v. Mufti, 73 F.3d 535, 538 (4th Circ. 1996)


                                                                                                    19
                                       CONCLUSION

THEREFORE, in light of the facts and arguments set out above, the Applicant respectfully

submits that this Honorable Court adjudge and declare that:

   i)      Respondent‟s exercise of “universal jurisdiction” over The Maple Princess lawful
           under international law;

   ii)     The Respondent violated the Law of the Sea when it boarded, searched, and seized
           The Maple Princess without first obtaining Applicant‟s approval;

   iii)    The Respondent violated international law when it conducted the “targeted killing” of
           Canadian citizen Max Aziz; and

   iv)     The doctrine of Head of State immunity prevents the judicial forfeiture of The Maple
           Princess.

ALL OF WHICH IS RESPECTFULLY SUBMITTED BY

Counsel for the Applicant, the Government of Canada (Team #2007-19A)




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