Good afternoon MrPresident, your excellencies.

My name
is Philip Sparrow and I am appearing as counsel for the
respondent, the State of Ritania. I shall be addressing
the third and fourth of the claims before the Court
today, namely that Amaleas pursuit of the Ritanian
vessel violated international law and that Amalea had
no jurisdiction to try and convict Oscar de Luz.
With your permission I shall now begin my arguments.
With respect to the first of these claims, I shall argue that
the Amalean Coastal Protection Service had no good
reason to believe that the Daedalus, under the control
of Oscar de Luz, had violated applicable Amalean law;
that the vessel initiating pursuit, the Icarus, failed to
give an adequate auditory or visual signal prior the
commencement of pursuit; and that the Icarus violated
international law by allowing the collision with the
Daedalus.
Article 23of High Seas Convention, which is
representative of customary law with respect to hot
pursuit, (opinion juris, state practice)requires that hot
pursuit of a foreign ship may only commence once the
competent authorities of the coastal State have good
reason to believe that the ship has violated the laws
and regulations of that state.
The standard of good reason to believe has been
interpreted variously as requiring more than a mere
suspicion; further the commentary to article 111 refers
to the need for some tangible evidence or reason.

As an indication of current state practice, the 2007

treaty between Australia and France, two major seafaring
states, requires that there be direct visual contact
with a vessel as it is committing an offence.
It is clear, therefore, that there needed to be some
material or tangible evidence demonstrating that the
Daedalus had violated applicable Amalean law; it is also
clear that no such evidence could have been
forthcoming.
As the Daedalus was within the Contiguous zone of
Amalea at the time pursuit was initiated, the laws
applicable are those which come under the categories of
customs,
fiscal,
immigration
and
sanitary
regulations.
While the distress signal sent by the Rosehill and relayed
to the Icarus did indicatea suspicion that the Daedalus
was involved in human trafficking, which if validated,
would constitute a violation of the applicable laws, it has
already been established that suspicion is insufficient.
Furthermore, the flight of the Daedalus cannot, in itself,
provide good reason to believe there had been a
violation. The violation must have been of a specific
law, and while the flight may indicate criminal activity it
does not indicate the precise nature of the activity.
Moving on, a necessary requirement for lawful pursuit
is that the pursuing vessel give an auditory or visual
signal to stop prior to commencement. This was stated
categorically in Article 23 of the High Seas convention
and reiterated in article 111 UNCLOS, as well as being
included by Judge Anderson as one of the necessary
cumulative requirements.

Further, the law is also clear that a radio message

cannot be sufficient to satisfy this requirement. The
commentary to article 23 of the High seas Convention
explicitly excludes such messages, in order to ensure
that pursuit is not initiated from great distances.
Finally with respect to the pursuit, the Icarus has violated
international law in allowing the two vessels to
collide at great risk to the ship and her crew. (define use
of force, establish threshold of harm)
As there are no specific legal rules within either the High
Seas convention or UNCLOS regarding the use of force in
law enforcement operations, it is necessary to seek out
such rules within customary law, general principles and
the analogous rules regarding law enforcement found
within domestic law.
Domestic law concerning law enforcement is clear that an
illegitimate use of force can come about as a result of
recklessness on the part of the law enforcement official,
and does not require specific intent.
For example, the Australian Crimes Act requires that the
officer not do anything that is likely to cause the death
of, or grievous bodily harm to, the person; likewise, the
Canadian Criminal Code prohibits using force that is
intended or is likely to cause death or grievous bodily
harm.
It is clear, therefore, that a reckless act can constitute an
illegal use of force. It is also clear that the captain of the
Icarus did, in fact, act recklessly in maintaining his course
which clearly increases the likelihood that a collision, and
thus the risk of death or grievous bodily harm, will occur.
In New Zealands investigation report concerning the
collision between the Ady Gil and the ShonanMaru No.2, it

was also emphasized that, when the pilot of one of the

vessels is known to have been acting erratically, there is
a greater obligation on the part of the second vessel to
take additional precaution and care.
The conduct of the Icarus was also unnecessary,
unreasonable and excessive in the circumstances.
Customary law concerning hot pursuit maintains that the
sinking of a vessel must only be incidental to the use of
necessary and reasonable force, otherwise it will be
considered excessive.
The key factor to be taken into consideration in the
instant case is the existence of a suspicion that the
Daedalus was involved in human trafficking. If the Icarus
did indeed believe that this was the case, they were
obliged to take into account considerations of humanity,
as well as the fact that international law concerning
human trafficking requires that enforcement action
against vessels must take into account the safety and
humane treatment of any persons on board. Clearly,
maintaining a collision course with the vessel greatly
increases the risk to such persons.
Of course, if the Icarus did not believe the Daedalus was
involved in human trafficking, the pursuit was void ab
initio.
The failure to prevent the collision is also a violation of
article 10(1)(a) of the High Seas Convention, which
requires parties to take all necessary measures to avoid
collisions,
which
must
include
conforming
to
internationally accepted standards.
As Amalea is a member of the International Maritime
Organisation, these standards must include the
Convention on the International Regulations for

Preventing Collisions at Sea (see IMO resolution MSC

303/87), rule 14 of which requires that, when the risk of a
head on collision materializes, BOTH ships, regardless of
which ship created the risk, must alter their course to
starboard. Captain Haddock has manifestly failed in this
obligation. Further, rule 7 of the COLREGS requires that
when there is doubt as to whether the risk of a head on
collision exists, such risk shall be deemed to exist. This
provides yet more evidence that Captain Haddock had
acted unreasonably
To summarise, the Amalean Coastal Protection Service
had no good reason to believe that the Daedalus had
been involved in human trafficking, the Icarus gave
insufficient auditory and/or visual signal to stop prior to
commencing pursuit, and it then went on to exercise the
illegal use of force against the Daedalus in the course of
arresting Oscar de Luz. As such, both the pursuit and
arrest were illegal under international law
I shall now move on to the final issue before the Court
today, namely the illegal prosecution and detention of
Oscar de Luz. Ritania submits that Amalea had no
jurisdiction over crimes committed either on Excelsior
Island or within its safety zone, or over incidents of
navigation involving Ritanian-flagged vessels. Both the
illegal arrest and the refusal to divest jurisdiction
constitute internationally wrongful acts which Amalea is
obliged to remedy by returning de Luz to Ritania.
Firstly, Article 5 of the Continental Shelf Convention to
which both Ritania and Amalea are parties confers upon
Ritania the right to construct islands and other
installations as well as exclusive jurisdiction over such
islands.

It is common practice for members of the IMO to

automatically establish safety zones of 500 metres
around any and all offshore installations. Within these
zones, the coastal state has exclusive jurisdiction for the
purposes of protecting the installation, and it has been
argued by distinguished scholars (Soons, Papadakis) that
this must necessarily include penal jurisdiction.
With regards to the Rosehill incident, all the crimes and
all the deaths occurred within the safety zone and upon
Excelsior Island; they were thus clearly under the
exclusive jurisdiction of Ritania.
Ritania also has exclusive penal jurisdiction with respect
to all incidents of navigation involving vessels flying its
flag. This can be found in Article 11 of the High Seas
Convention to which Amalea is a party and not only
grants exclusive jurisdiction to the flag-state, but also
explicitly prohibits the exercise of penal jurisdiction by
third states.
As a member of the IMO, Amalea is required by the
Guidelines on the Fair Treatment of Seafarers in the Event
of a Maritime Accident to take steps to respect the
generally accepted provisions of maritime law regarding
the principle of exclusive flag state jurisdiction in matters
of collision.
The commentary to the High Seas Convention refers to
the
intolerable
interference
with
international
navigation that might arise if foreign vessels were
susceptible to being brought before foreign tribunals.
Applicant has relied on the Permanent Court of Justices
judgment in the Lotus case as a grounds for asserting
passive personality jurisdiction. However, international
law has taken a dim view of States violating the principles

of exclusive jurisdiction, with President Guillaume stating

that, since the Lotus judgment, the Charter of the United
Nations has strengthened the territorial principle and
Judge Fitzmaurice, in the Barcelona Traction case
emphasizing the obligation incumbent on States to avoid
undue encroachment more properly appertaining to, or
more appropriately exercisable by, another State.
Further, the ILC, in drafting the High Seas Convention,
explicitly rejected the Lotus judgment
To continue, Amalea cannot rely on the principle of male
captusbenedetentus to justify their failure to divest
jurisdiction over Oscar de Luz following his unlawful
arrest. While there are certain States who have employed
it in order to continue prosecution, still more have refused
to do so, holding that it would constitute a violation of
international law (R v ex parte Bennett). There is,
therefore, no uniform state practice. Further, while the
respondent has referred to the abduction of Adolf
Eichmann in order to demonstrate that the male captus
doctrine has achieved the status of customary law, they
have failed to acknowledge the harsh condemnation of
this action by the United Nations Security Councilat the
time. The Resolution demanded Israel make reparation
for the breach of Argentinian sovereignty which was only
withdrawn once Argentina had acquiesced. This also
raises a further objection to the doctrine, that it may only
be applied in the absence of a protest from the state
whos sovereignty has been violated or whos nationals
have been improperly apprehended.
In fact, this Court has endorsed the contrary principle of
ex injuria jus non oritur that legal rights cannot arise
from an unlawful act, stating that it is well recognized in
international law (Advisory Opinion on the Israeli Wall)

Both the arrest of Oscar de Luz, and the subsequent

refusal of the Amalean judicial system were, therefore,
internationally wrongful acts.
Under the ILCs Articles on the Responsibility of States for
Internationally Wrongful Acts, Ritania is entitled to
restitution for Amaleas unlawful acts.
The Articles require that the wrongful acts be attributable
to the State of Amalea, and in both respects this is
satisfied, as both the ACPS and the Court are organs of
the State under Article 4.
Further, there is nothing in the circumstances which
precludes the wrongfulness of either act. Articles 20 to 25
of the Articles provide for situations in which
internationally wrongful acts may be excused, however,
none of them are applicable.
Ritania has not acquiesced to Amaleas conduct, the
conduct did not constitute either an act of self-defence or
a lawful countermeasure to a prior unlawful act on the
part of Ritania, there was no force majeure compelling
such action, and there was no grave or imminent threat
to essential Amalean interest. While the Daedalus may
initially have posed a threat to certain Amalean interests,
upon fleeing back to Ritania, this threat disappeared.
Article 31 of the Articles require that the State which has
committed the wrongful act is obliged to make full
reparation for the injury caused.
As an indicator of what form this reparation must take,
the Permanent Court of International Justice, in the
Factory at Chorzow case, suggested that reparation must

as far as possible, wipe out all the consequences of the

unlawful act and reestablish the situation which would, in
all probability, have existed had that unlawful act not
been committed.
The reparation for the wrongful arrest and prosecution of
Oscar de Luz must, if it constitute adequate restitution,
take the form of his return to Ritania.
This is neither impossible nor overly burdensome and
must be initiated without delay.
With respect to Applicants submission that Amalea had
an autdedereautjudicare obligation to prosecute de Luz,
this is based on the faulty premise that Amalea was
unable to return him to Ritania. It was argued that, since
Ritania has not extended its penal code to explicitly cover
acts taking place within its exclusive economic zone, they
would not be able to prosecute de Luz themselves and
his crimes would go unanswered. However, as has
already been established, Ritania does have penal
jurisdiction over both ships flying its flag and crimes
taking place within the safety zone of Excelsior Island. As
such Ritania has already indicated an intention to
investigate the Rosehill incident once de Luz is returned.
In any event, the autdedereautjudicare obligation is not
applicable in the instant case. Neither the High Seas
Convention nor UNCLOS include such a provision; and the
academic theory which suggests that the obligation can
exist in customary law requires that the state concerned
be party to a large number of treaties which do include
the obligation.

On that note, The Republic of Ritania respectfully

requests this Court to adjudge and declare that:
Ritanias conduct with respect to the Excelsior Island
project complied in all respects with its obligations under
international law and the terms of the Malachi Gap Treaty,
and Ritania has no obligation to compensate Amalea for
any loss or damage allegedly caused by the 2009
landslide;
Milo Bellezzas salvage of the Cargast is unlawful, and the
cargo and artefacts recovered from the wreck properly
belong to Ritania, which has the right to protect them;
The Amalean Navys pursuit of Oscar de Luz into Ritanias
EEZ, and his subsequent arrest, were illegal;
Amalea was without jurisdiction to try Luz in connection
with the Rosehill collision, and must return him to Ritania
immediately