Written Submission for Applicants

TEAM CODE

FOURTH NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES MOOT

COMPETITION
ON
MARITIME LAW

BEFORE THE PERMANENT COURT OF ARBITRATION AS GIVEN

UNDER

ARTICLE 2 OF INTERNATIONAL CONVENTION ON SALVAGE 1989 AND

ARTICLE 288 OF UNCLOS 1982

REPUBLIC OF BISMUTH AND STATE OF GERMANIUM

(APPLICANTS)

V.

REPUBLIC OF ADENIA AND FUSCHIA

(RESPONDENTS)

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Table of Contents

LIST OF ABBREVIATIONS .................................................................................................... 4

INDEX OF AUTHORITIES...................................................................................................... 5

STATEMENT OF JURISDICTION.......................................................................................... 7

SUMMARY OF FACTS ........................................................................................................... 8

SUMMARY OF ARGUMENTS .................................................................................................. 9

ARGUMENTS ADVANCED ................................................................................................. 11

ISSUE 1: BISMUTH IS NOT LIABLE TO IN LAW FOR THE LOSS OCCASIONED TO

FUCHSIA DUE TO CAPSIZING OF MV ADONIS ............................................................. 11

1.1 MV ADONIS violated rules laid down by Bismuth ...................................................... 11

1.2 Bismuth was not liable for the explosion of MVADONIS ............................................ 11

1.2.1 Relations between Germanium and Bismuth ......................................................... 12

1.2.2 Bismuth did not have any knowledge about the mines........................................... 12

1.3 Sweeping of Aquaba Strait by FNS VICTORY is Illegal ............................................. 12

ISSUE 2: THE COAST GUARD OF BISMUTH IS ENTITLED TO CLAIM SALVAGE

REMUNERATION.................................................................................................................. 13

2.1 The International Convention on Salvage 1989 applies to the case .............................. 13

2.2 Right to claim salvage reward........................................................................................ 13

2.2.1 Services must be rendered to a legally recognized subject of salvage ................... 13

2.2.2 Services rendered are proven to be successful ........................................................ 14

2.2.3 The cargo was in real danger .................................................................................. 14

2.2.4 Services rendered were in fact voluntary. ............................................................... 14

ISSUE 3: WHETHER THE CREW AND CAPTAIN ABOARD THE MV MONTENEGRO

CAN BE TRIED FOR PIRACY UNDER THE SUPPRESSION OF UNLAWFUL
ACTIVITIES ACT, 2002......................................................................................................... 16

A. 3.1 Municipal law does not cover acts of piracy under UNCLOS ............................ 16

B. 3.2 The act of MV Montenegro did not amount to Piracy ........................................ 17

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1. 3.2.1 The Act of Possessing Mines does not constitute the offence of Piracy under
Art.101 of UNCLOS ........................................................................................................ 17

2. 3.2.2. The Captain and the Crew cannot be prosecuted under SUA Act, 2002..... 18

ISSUE 4: THERE EXISTED NO GENUINE LINK BETWEEN MV PRIDE AND ADENIA

AND HENCE RIGHT TO VISIT EXERCISED BY THE COAST GUARD OF BISMUTH
ON MV PRIDE WAS LEGALLY VALID ............................................................................. 20

4.1 Travaux préparatoires of the 1958 and the 1982 convention implies effective control of
MV PRIDE by Adenia is an essential condition .................................................................. 20

4.1.1 Genuine link is an important concept while registering vessels. ............................ 22

4.2 Consequently, relaxation of registration norms by Adenia was illegal ......................... 22

4.3 MV PRIDE was flaying a flag of convenience .............................................................. 23

4.5 Alternatively, Adenia, by breaching its obligations under the 1984 treaty, has forfeited
the right to invoke the treaty ................................................................................................ 24

PRAYER .................................................................................................................................. 26

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LIST OF ABBREVIATIONS

1. ICJ –International Court of Justice

2. ITLOS – International tribunal on laws of sea
3. UNCLOS ¬- United Nations Convention on Law Of Seas 1982
4. ICOS – International Convention on Salvage 1989
5. Govt. – Government

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INDEX OF AUTHORITIES
CASES CITED:

 Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15

XII 49, International Court of Justice (ICJ), 15 December 1949,
 The Charlotte, 3 W. Rob 68 (1848), 71
 The Panthom [1866] LR. 1 A&E. 60
 The Impoco, 287 F. 400, 402 (S.D.N.Y. 1922)
 Republic of Bolivia v. Indemnity (1909) K.B. 785; Athens Maritime Enterprises
corporation v. Hellenic Mutual War Risks Assn. (Bermuda Ltd.) 2 Lloyd‟s Rep 483
 Filartiga v. Pena Irala, 630 F. 2d 876 (2d Cir. 1980) and United States v. Yousef, 327
F. 3d 56 (2d Cir. 2003) (universal jurisdiction originated from the historical treatment
of maritime piracy).
 United States v. Dire, 680 F 3d 446 (4th Cir 2012) at 454
 United States v. Said, 2010 WL 3893761 (ED Va 2010) at 32.
 The Arctic Sunrise Case (Kingdom of Netherlands v. Russian Federation) PCA Case
No. 2014-02
 Rainbow Warrior (New Zealand v. France) Arbitration Tribunal, 82 I.L.R. 500
(1990).
 Republic of Italy v. Union of India (2013) 4 SCC 721
 Advisory Opinion of the ICJ in Constitution of the Maritime Safety Committee of the
Inter-Governmental Maritime Consultative Organization, 1959 ICJ 267
 Territorial Dispute (Libya/Chad) case [1994] ICJ Rep. 6
 Maritime Delimitation and Territorial Questions (Bahrain/Qatar) case [1995] ICJ Rep
 Oil Platforms (Iran/USA) case (Prelminary Obections) [1996] II ICJ Rep. 812
 Kasikili/Sedudu Island (Botswana/Namibia) case (2000) 39 International Legal
Materials 310
 Nottebohm case (Liechtenstein v. Guatemala) [1955] ICJ Rep. 4
 Advisory Opinion on the Constitution of the Maritime Safety Committee of the Inter-
Governmental Maritime Consultative Organisation [1960] ICJ Rep. 150.
 Barcelona Traction case (Belgium v Spain), [1970] ICJ Rep. 1

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 ICJ, Advisory Opinion on the Constitution of the Maritime Safety Committee of the
Intergovernmental Maritime Consultative Organisation, Pleadings, Oral Arguments
and Documents, pp. 188
 Diversion of Water from the Meuse (Netherlands v Belgium), P.C.I.J. (1937), Series
A/B, No. 70.
 Piracy Jure Gentium v. JCPC [1934] UKPC 54 at 213 [Piracy Jure Gentium].

STATUTES/CONVENTIONS REFFERED:
 United Nations Convention On Law Of Sea 1982
 International Salvage Convention 1989
 The Law of Salvage (1958 & Supp. 1974)
 Merchant Shipping Act 1958
 Admiralty Court Act 1840
 Coast Guards Act 1978
 1958 Convention on the High Seas 13 UST 2312/450 UNTS 11
 The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act 2002

BOOKS

 D. P. O‟Connell, The International Law of the Sea (Vol. II, Oxford University Press
1984)
 H Meyers, The Nationality of Ships (1967).
 M. S. McDougal and W. T. Burke, The Public Order of the Oceans (1962

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STATEMENT OF JURISDICTION

The Republic of Adenia [“Adenia”] and the Republic of Bismuth [“Bismuth”] hereby submit
the present dispute to the Permanent Court of Arbitration [“PCA”] pursuant to an arbitral
tribunal constituted under Article 288 along with annex VII of the 1982 United Nations
Convention on the Law of the Sea and Article 2 of International Convention on Salvage 1989

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SUMMARY OF FACTS
1. Aquaba strait is used for international navigation and lies between Republic of Adenia and
Bismuth. It connects the Darian Sea with the Bay of Mahia leading to the Pagian Sea. „Point
Perde‟, is narrowest point with the width of 11 nautical miles. Port Changi is situated along
the coast of Adenia. Three decades ago, Adenia and Bismuth fougt naval wars and under the
guidance of AMRC, a mechanism for regulating the activities was put. In 1984 a multilaretal
treaty was signed by all the countries along Mahia Rim to respect and honor the member
states and prevent searches and seizure of other‟s ships. A lighthouse has been erected by
Bismuth at point Pedre which acts a navigational guide.Afetr the war, Bismuth enacy=ted a
rule laying down lanes for vessels to pass and vessels from Changi port had to pay charges
fixed by them. Vessels skipping the lanes and passing through Bismuth‟s waters were
harassed by navy of Bismuth and it led to seizure at times which was harmful to business of
Changi port. Adenia dispatched its naval vessels to secure the movement of its vessels from
the port to Bay of Mahia. On 12th March, 2016, a vessel, MV ADONIS, of state Delphi and,
was hit by underwater mines while exiting the strait. After the explosion a fire broke out on
board and substantial part of floating cargo was captured by coast guard of Bismuth and MV
ADONIS with her crew of 13 nationals of Fuschsia, and cargo left on board sank in Bay of
Mahia.

2. Fuchsia outraged by the loss of life of its citizens guided its naval vessel, FNS VICTORY,
to sweep into Aquaba strait and it recovered live mines from the strait along Point Pedre
which were manufactured in Republic of Germanium. Fuchsia sought compensation for its
loss and make Bismuth liable. On Bismuth‟s denial Fuchsia sought assistance from Adenia
and the naval vessels of Adenia began searching all merchant ships of Bismuth. Anither
vessel, MV PRIDE, owned by Fuchsia but carrying the flag of Adenia was found in opened
sea and was boarded and searched by coast guard of Bismuth. Adenia brought up the matter
before AMRC and contended that Bismuth violated the terms of 1984 treaty. In the meantime
on one of the searches conduvted by Adenia, on MV MONTENEGRO, a vessel flying the
flag of Helios. She was commanded to sail to Port Manuci in Adenia and was detained there.
Her master and crew were arrested and interrogated by authorities of Fuchsia. They found
explosives used to manufacture underwater mines. They were declared as pirates and trial
commenced against them under the SUA act. Helios approached the ITLOS seeking release
of MV MONTENEGRO and its crew. ITLOS directed the release of the vessel on condition
that Helios deposits 1 million pounds. Parties referred to PCA.

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SUMMARY OF ARGUMENTS
1. BISMUTH IS NOT LIABLE TO IN LAW FOR THE LOSS OCCASIONED TO
FUCHSIA DUE TO CAPSIZING OF MV ADONIS

MV ADONIS was itself found to be violating various provisions of UNCLOS. The

underwater mines that were placed were not laid by Bismuth and there is no evidence to show
that bismuth had any knowledge of the same. Also, FNS VICTORY violated the sovereignty
of Bismuth.

2. THE COAST GUARD OF BISMUTH IS ENTITLED TO CLAIM SALVAGE

REMUNERATION.

Pursuant to article 2 of the ICS1989, the aforementioned convention shall apply to arbitral
proceedings relating salvage that are brought in a State party. In consequence, due to the fact
that Bismuth is a State Party, the ICS1989 provisions apply to this case. The Coast Guard of
Bismuth has satisfied all the essential elements to prove Salvage. The salvage operation
carried out by Bismuth entitles them to compensation.

3. WHETHER THE CREW AND CAPTAIN ABOARD THE MV MONTENEGRO

CAN BE TRIED FOR PIRACY UNDER THE SUPPRESSION OF UNLAWFUL
ACTIVITIES ACT, 2002.

Piracy is „robbery and depredation on the sea or navigable rivers, etc., or by descent from the
sea upon the coast, by persons not holding a commission from an established civilized state1.
Traditionally piracy has been declared as a hosti humani generis. This „peril of the sea‟ has
been recognized since ancient times and is considered as a crime against humanity under
customary international law. However, under this rule, only a state which had a nexus with
the commission of the crimes by pirates could prosecute them for the same2. Piracy is the
original crime of universal jurisdiction3. In response, all nations were deemed to be free to
declare war against piracy; indeed not only did every community enjoy the right of self-
defence against piracy, but all civilized states had an affirmative obligation to suppress the
crime. Piracy is frequently called an “international crime,” or an offense against the law of
1
Republic of Bolivia v. Indemnity (1909) K.B. 785; Athens Maritime Enterprises corporation v. Hellenic
Mutual War Risks Assn. (Bermuda Ltd.) 2 Lloyd‟s Rep 483
2
Burgess, Douglas Richard II, Hostis Humanis Generis: Piracy, terrorism and a new International Law (Thesis
for LLM, 2003A) available at https:// circle.ubc.ca/bitstream/handle/2429/14412/ubc_2003-0366.pdf (Last
Visited on 16 April 16, 2017)
3
See, Filartiga v. Pena Irala, 630 F. 2d 876 (2d Cir. 1980) and United States v. Yousef, 327 F. 3d 56 (2d Cir.
2003) (universal jurisdiction originated from the historical treatment of maritime piracy).

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nations. Piracy is a domestic or municipal crime of universal jurisdiction, meaning that

international law recognizes that all nations may assert jurisdiction over such cases, but do so
through domestic criminal law systems4. The counsel seeks to make three submissions; first
submission pertains to the establishment of enforcement jurisdiction of the Republic of
Adenia. Second, the counsel seeks to prove that vessel MV Montenegro has violated
provisions of the SUA Act. And third, that the said vessel can be prosecuted under municipal
laws for the offence of piracy.
ISSUE 4: THERE EXISTED NO GENUINE LINK BETWEEN MV PRIDE AND
ADENIA AND HENCE RIGHT TO VISIT EXERCISED BY THE COAST GUARD
OF BISMUTH ON MV PRIDE WAS LEGALLY VALID

Article 5 of the High Seas Convention, 1958 and Article 91 of the United Nations Convention
on the Law of the Sea, states that “there must exist a genuine link between the state and the
ship; in particular, the State must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag.” Since the convention
does not define what is meant by a genuine link, the meaning can be interpreted in the light of
the object and purpose of the convention and by utilizing the (1) travaux préparatoires of each
convention.5 This can be done by utilizing the canons of interpretation as is laid down in
VCLT as provisions of VCLT concerning the interpretation of treaties also represent
customary international law.6 (2) consequently, the relaxation of registration norms by
Adenia was illegal and therefore (3) the right to visit exercised by the coast guards of
Bismuth were proper.

4
Blackstone, IV Commentaries on the Laws of England, at 65–69.
5
Robert R Churchill, The Meaning of “genuine link” Requirement in relation to the nationality of ships, 2000,
ITTF < http://seafarersrights.org/wp/wp-content/uploads/2014/11/INTERNATIONAL_ARTICLE_GENUINE-
LINK-REQUIREMENT-IN-NATIONALITY-OF-SHIPS_2000_ENG.pdf> accessed 27th june 2017
6
See: Territorial Dispute (Libya/Chad) case [1994] ICJ Rep. 6 (para. 41), the Maritime Delimitation and
Territorial Questions (Bahrain/Qatar) case [1995] ICJ Rep. 6 (para. 33), the Oil Platforms (Iran/USA) case
(Prelminary Obections) [1996] II ICJ Rep. 812 (para. 23) and, most recently, the Kasikili/Sedudu Island
(Botswana/Namibia) case (2000) 39 International Legal Materials 310, para. 18.

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ARGUMENTS ADVANCED

ISSUE 1: BISMUTH IS NOT LIABLE TO IN LAW FOR THE LOSS OCCASIONED

TO FUCHSIA DUE TO CAPSIZING OF MV ADONIS

1.1 MV ADONIS violated rules laid down by Bismuth

Article 41 of UNCLOS 19827 gives rights to bordering states of straits used for international
navigation to establish sea lanes and traffic separation. It is also essential for a bordering state
to refer its proposal to establish sea lanes to a competent international organisation with a
view of their adoption.8 Also, a bordering state can make laws and regulations relating to
transit passage as given under UNCLOS. Article 42 of UNLCOS states that “states bordering
straits may adopt laws and regulations relating to transit passage through straits, in respect to
…. Safety of navigation and regulation of maritime traffic”9

In furtherance with this, Bismuth made sea lanes and traffic separation schemes and they
were accepted as part of agreement under Association of Mahia Rim Countries.10 To regulate
the same in a safe manner and without causing harm and in furtherance to Article 42,
Bismuth fixed certain amount that is to be paid from time to time.

Article 41 and 42 of UNCLOS, impose duty on ships passing through strait used for
international navigation to adhere by the sea lanes and traffic separation scheme established.

MV ADONIS which was bound to bay of Mahia, skipped Point Pedre and skipped the sea
lanes made by bismuth. It violated provisions of UNCLOS

1.2 Bismuth was not liable for the explosion of MVADONIS

In order to make Bismuth liable for the explosion of MV ADONIS, certain facts must be
proved which involve, bismuth laying the underwater mines, these mines were laid by a third
Power on behalf of Bismuth, that these mines were laid with the help or acquiescence of
Bismuth, Bismuth knew about the existences of these mine before the incident took place.
For a charge of such exceptional gravity against a state would require a degree of certainty. 11

7
Article 41 (1) of United Nations Convention On Law Of Sea 1982
8
Article 41 (4) of United Nations Convention On Law Of Sea 1982
9
Article 42 (1) (a) of United Nations Convention On Law Of Sea 1982
10
MOOT CASE, Para 1
11
Corfu Channel Case (United Kingdom v. Albania); Assessment of Compensation, 15 XII 49, International
Court of Justice (ICJ), 15 December 1949, available at: http://www.refworld.org/cases,ICJ,402398c84.html
[accessed 25 June 2017]

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1.2.1 Relations between Germanium and Bismuth

The mere fact that the explosives found were made in Gemanium and Germanium is an ally
of Bismuth does not prove anything. Similar was held in the Corfu Channel Case 12 where the
court said that “however close may be the bonds uniting its signatories, in no way it leads to
the conclusion that they participated in a criminal act”

1.2.2 Bismuth did not have any knowledge about the mines
The fact that the mine laying happened in the territorial waters of Bismuth does not in any
way imply that bismuth had the knowledge about the laying of the mines. The ICJ in Corfu
channel case held that, It is clear that knowledge of the mine laying cannot be imputed to the
Albanian Government by reason merely of the fact that a minefield discovered in Albanian
territorial waters caused the explosions of which the British warships were the victims. It is
true, as international practice shows that a State on whose territory or in whose waters an
act contrary to international law has occurred may be called upon to give an explanation. It
is also true that that State cannot evade such a request by limiting itself to a reply that it is
ignorant of the circumstances of the act and of its authors. The State may, up to a certain
point, be bound to supply particulars of the use made by it of the means of information and
inquiry at its disposal. But it cannot be concluded from the mere fact of the control exercised
by a State over its territory and waters that that State necessarily knew, or ought to have
known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should
have known, the authors. This fact, by itself and apart from. Other circumstances, neither
involves prima facie responsibility nor shifts the burden of proof.13

The court in this case held Albania liable upon the examination of indirect evidence. Those
were the fact that Albanian govt. constantly kept a close watch over the waters of North corfu
channel. In the present case this did not happen. Bismuth did not keep a very close watch on
its territorial waters and hence bismuth cannot be held liable.

1.3 Sweeping of Aquaba Strait by FNS VICTORY is Illegal

Sovereignty of a coastal state extends beyond its land territory to adjacent sea belt, called
territorial sea14. Coastal state has all the rights over its territorial sea. Furthermore, If any
warship does not comply with the laws and regulations of the coastal State concerning

12
Id.
13
Id.
14
Article 2 of UNCLOS 1982

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passage through the territorial sea and disregards any request for compliance therewith which
is made to it, the coastal State may require it to leave the territorial sea immediately.15

In the present case, the warship of Fuchsia i.e. FNS VICTORY has not only violated
UNCLOS by sweeping the strait without the permission of Bismuth but has also violated the
sovereignty of Bismuth by doing so. Hence, the acts carried by FNS VICTORY are illegal.

ISSUE 2: THE COAST GUARD OF BISMUTH IS ENTITLED TO CLAIM

SALVAGE REMUNERATION.

2.1 The International Convention on Salvage 1989 applies to the case

Pursuant to article 2 of the ICS1989, the aforementioned convention shall apply to arbitral
proceedings relating salvage that are brought in a State party. In consequence, due to the fact
that Bismuth is a State Party, the ICS1989 provisions apply to this case.16

2.2 Right to claim salvage reward

Salvage has been defined as “Salvage operation means any act or activity undertaken to
assist a vessel or any other property in danger in navigable waters or in any other waters
whatsoever”17 The term salvage is a very old principle which comes from a Latin principle
jus liquidissimum meaning those that save the property should be rewarded fairly. In other
words, salvage is a claim brought by a third party volunteer who has assisted the ship and
cargo to save it from a peril. Given that It is well settled that services rendered in order to
constitute salvage must fulfil four requirements52: (a) Services must be rendered to a legally
recognized subject of salvage (b) services rendered must be successful (c) The subject of the
salvage must be in real danger (d) the service must be voluntary

2.2.1 Services must be rendered to a legally recognized subject of salvage

Pursuant to clause 1 of the ICS 1989 the subject of the salvage must be “any ship or craft or
any structure capable of navigation”. It is beyond any doubt that the Bismuth is under the
scope of what is considered a subject of salvage.

15
Article 30 of UNCLOS 1982
16
Bismuth is a State Party according to International Maritime Organization documentation on
https://imo.amsa.gov.au/public/parties/salvage89.html
17
Definition under Art.1 of the International Salvage Convention 1989

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2.2.2 Services rendered are proven to be successful

On grounds of article 12 of the ISC 1989 no salvage reward is due unless the salvage
operation has had a useful result. In other words, in order to be entitled to claim salvage
property must be saved in whole or at least in part53. Since the cargo which was found
floating in the strait was saved by the coast guard vessels of Bismuth18, it is clear that the
salvage has had an useful and valuable effect.

2.2.3 The cargo was in real danger

In the light of Article 1 of the ICS 1989 it is a requirement to consider the operations
performed as salvage that the vessel must be in danger. As for the concept of danger, it must
not be necessarily imminent and absolute, but it is sufficient that at the time the assistance is
rendered the cargo has encountered any damage or misfortune which might possibly expose it
to destruction if the services were not rendered19. Further, danger must not be necessarily
absolute, being for these purposes sufficient a state of difficulty and reasonable
apprehension.20

In the present case the cargo on which was floating in the strait was in real danger as it was
exposed to severe damage if not destruction. It is undoubted that the cargo found floating
could reach a safe place on itself and the cargo would have been exposed to wider damage if
the services were not rendered.

Furthermore, the contents of the cargo were not known so the possibility of huge damage to
the environment could not be ruled out. A dangerous cargo possesses a high risk of damage
to the port and the environment in case of an accident.

2.2.4 Services rendered were in fact voluntary.

A salvage award is compensation to volunteer salvors and others who participate in a
successful rescue of property from a maritime peril.21 If the parties have a contract for the
salvage services, the terms of that contract will generally govern the compensation and no
additional salvage award will be made;22 but, when no prior agreement for salvage services
exists, admiralty law allows for a non-contract salvage award to encourage voluntary

18
MOOT CASE, p.3
19
The Charlotte, 3 W. Rob 68 (1848), 71
20
The Panthom [1866] LR. 1 A&E. 60
21
M. Norris, The Law of Salvage § 3 (1958 & Supp. 1974).
22
Id. § 159

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assistance to those in peril at sea.'23 The issue that arises most frequently when the Coast
Guard or Navy is involved is whether the services were voluntarily provided. Because no
claim for a noncontract salvage award can survive unless the efforts were voluntary, the
answer to this question will often decide the case.

In Impoco case24, a case relating to voluntary nature of the services provided by US Navy
held that “Such services are voluntary, and they are just as voluntary in the case of men of
war and public vessels generally as they are in the case of private vessels; i.e., it is no part of
their duty to render such services. While I can see that a sovereign would and perhaps should
consider it beneath his dignity to ask for compensation for services in saving property at sea,
I can imagine no legal reason to prevent him from doing so.25 Adding to this, the
Government of Bismuth has a right to claim for salvage services provided by Coast Guard on
the behalf of the govt.26

It might be contended that the Coast Guard has a pre-existing duty to protect and preserve life
and property at sea.27 It is argued that, such a statutory duty is permissive. The language of
the specifically applicable statues28 states that "the Coast Guard may… rescue and aid
persons and protect and save property…” It is of prime importance to point out the “may”
given in the statue, it gives discretion to the Coast Guard in deciding whether or not to
undertake the rescue. Similar was held by the Fifth Court of Appeal of United States in
American Oil Case29.

Furthermore, the duty of the Coast Guard to protect and preserve life and property at sea is
towards the maritime and national interests of Bismuth in the Maritime zones of Bismuth30.
So even if there existed a mandatory duty on the coast guards, it would be towards the
national interests of bismuth and not towards MV Adonis, a foreign vessel.

23
Id. §§ 3, 232-235. See, e.g., The Blackwall, 77 U.S. (10 Wall.) 1 (1870).
24
The Impoco, 287 F. 400, 402 (S.D.N.Y. 1922)
25
Id. at 402
26
Section 402 (3) Merchant Shipping Act 1958 read along with Section 6 of the Admiralty Court Act 1840
27
Section 14 (2) (f) of Coast Guards Act 1978
28
Id.
29
397 U.S. 1036 (1970)
30
Section 14 (1) of Coast Guards Act 1978

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ISSUE 3: WHETHER THE CREW AND CAPTAIN ABOARD THE MV

MONTENEGRO CAN BE TRIED FOR PIRACY UNDER THE SUPPRESSION OF
UNLAWFUL ACTIVITIES ACT, 2002.
Piracy is „robbery and depredation on the sea or navigable rivers, etc., or by descent from the
sea upon the coast, by persons not holding a commission from an established civilized state .

Traditionally piracy has been declared as a hosti humani generis. This „peril of the sea‟ has
been recognized since ancient times and is considered as a crime against humanity under
customary international law. However, under this rule, only a state which had a nexus with
the commission of the crimes by pirates could prosecute them for the same. The counsel
humbly submits that the mere possession of explosive material does not amount to the
offence of piracy under UNCLOS. Secondly, the petitioner would like to submit that flag
state jurisdiction applies in the present fact situation and that Republic of Adenia cannot
claim to exercise valid jurisdiction as it is not a piractic act.

A. 3.1 Municipal law does not cover acts of piracy under UNCLOS
The LOSC is the primary frame of reference for making that assessment in case an action
falls under the SUA Convention or the SUA Protocol . Justice Moore‟s dissent in the SS
Lotus Case , in which he categorically stated that it is not municipal law of the states which
governs piracy but piracy as a law of nations which should be considered. In counter piracy
measures there is always the availability of protection of state authorizing the act of counter
piracy and also the flag state jurisdiction thereby curbing the right of universal jurisdiction.
The SS Lotus case provides jurisdiction to the state, the flag of which is displayed by the
ship. Thus, the flag state has jurisdictions over the matters governing the ship. This premise
when juxtaposed to the fact that universal jurisdiction was not meant to try counter-piracy
measures as opposed to piratic acts, gives an interpretation that flag-state jurisdiction curbs
the utility of universal jurisdiction in counter piracy measures . States amended the SUA
convention, seeking to remove universal jurisdiction in matters of acts of counter-piracy by
curbing the universality of jurisdiction . Such intent could not be effectively applied, as states
which had ratified the SUA convention prior to the amendment, did not reflect the
amendment in their domestic law . A consequence of the SS Lotus case, ships are now
considered floating territories . Therefore the laws of the nation which the flag of the ship
bears are the laws applicable to the ship. The municipal laws of the state and therefore of the
possibility of the use of force would be governed by the flag country of that ship. Therefore,
the counsel humbly submits that according to the SS lotus decision and the general principle
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laid down in the Arctic Sunrise case that in the presence of flag state jurisdiction and piracy
law defined as a law of nations and that the jurisdiction normally resides with the state whose
flag is shown on the vessel, the Republic of Adenia cannot claim jurisdiction .

B. 3.2 The act of MV Montenegro did not amount to Piracy

The In its 36 diplomatic note of 1 October the Russian Federation informed the Kingdom of
the Netherlands that a criminal investigation had been instituted into piracy committed by an
organized group under Russian law. It also would appear that the content of this domestic law
provision differs from the definition of piracy in the Convention. To justify the boarding of
the Arctic Sunrise on the suspicion that the vessel was engaged in piracy, the actions
concerned need to qualify as piracy under international law, notably article 101 of the
Convention. The facts in the present case do not provide reasonable grounds for suspecting
that the crew of the MV Montenegro engaged in piracy.

Article 58 of the LOSC , which refers to the freedom of navigation of all states in the
exclusive economic zone of the coastal state. Ships exercising the freedom of navigation are
in principle only subject to the jurisdiction of the flag state – the Netherlands in the case of
the Arctic Sunrise. Defining the actions of the crew of the Arctic Sunrise as piracy resolves
the issue of the exercise of enforcement jurisdiction. Article 105 of the LOSC provides that
every state may seize a pirate ship and arrest the persons on board on the high seas and in the
exclusive economic zone.

1. 3.2.1 The Act of Possessing Mines does not constitute the offence of
Piracy under Art.101 of UNCLOS
Relying on piracy in the present fact situation also raises a number of problems. Article 101
of the LOSC is only applicable if the act is carried out by the crew of a ship or aircraft
against another ship or aircraft, and thus excludes similar actions directed against a fixed
platform. Secondly, the acts have to be committed for private ends. It would seem difficult to
maintain that the actions of the crew of the MV Montenegro were carried out for private
ends.

Piracy as defined under article 101 is:

a) 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 or private aircraft, and directed

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a. on the high seas, against another ship or aircraft, or against persons or property on board
such ship or aircraft;

b. against a ship, aircraft, persons or property in a place outside the jurisdiction of any state;
any act of voluntary participation in the operation of a ship or of an aircraft with knowledge
of the facts making it a pirate ship or aircraft;

c) any act of inciting or intentionally facilitating an act described in subparagraph (a) or (b).

The geographical location of piracy has relocated from the high seas to coastal areas. With
this current repositioning, the definition of piracy under UNCLOS has lost its ability to
capture the modern nature of the crime, since the act must be committed on the high seas to
be recognized under international law as piracy . Further limitation with the definition of
piracy is the “two ship rule”. UNCLOS refers to piracy as an act committed by the crew or
passengers of a private ship against another ship, or against persons or property on board such
ship as in the case of Achille Lauro . On October 10, 1985, four Palestine‟s boarded a ship as
normal passengers. Upon being discovered that they were transporting heavy armament they
took control of the ship as she was Sailing form Alexandria to Port Said. The Palestine‟s
killed American passenger Leon Klinghoffer and threw his body over board after their
requests to dock at Tartus was refused The Achille Lauro incident did not include two ships,
hence under the provision this act would have not been considered as piracy. This incident
however gave rise to the SUA Convention.

2. 3.2.2. The Captain and the Crew cannot be prosecuted under SUA
Act, 2002.
India in 2002 after ratifying the SUA convention passed The Suppression of Unlawful Acts
Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002
with the object of criminalising acts on board a ship or facility. The United Nations
Convention on the Law of the Sea, 1982 had not been incorporated as a national legislation
by India, the Indian Penal Code does not address piracy issues and India was also not a
signatory of the 1988 SUA convention (India became a party to the SUA in 2002). For the
domestic legislation to operate the Act must have been committed within the territorial
jurisdiction of Adenia.

Section 3 of the Penal Code reproduced above has the following attributes:

(a) It applies to all persons including foreigners and is not confined to citizens of India.

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(b) The said section presupposes the existence of an Indian law under which a person can be
made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.

(c) If such an Indian law exists, then the person liable under that law is to be dealt with
according to the provisions of the Indian Penal Code for such offence committed beyond
India.

(d) While being so dealt with under the Indian Penal Code, a presumption follows that the
offence had been committed within India.

The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial
operation and specifically deals with and empowers authorities to take legal action with
respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial
waters of India. Investigating agencies have so far chosen not to invoke SUA Act 2002
However as on date the Government of India too has refused to invoke SUA Act, 2002 in the
Enrica Lexie case . Also, it is pertinent to note that the IPC does not expressly define or
criminalise piracy and nor does it list the possession of explosives on board a ship as a
criminal offence. Therefore, invoking the domestic provisions and in light of the decision of
the Supreme Court in 2013, the counsel humbly submits that the domestic courts of Adenia
cannot exercise jurisdiction as it does not specifically criminalise such offence which is a
necessary pre-condition for such application of the said Act .

The counsel humbly submits that the domestic law of Republic of Adenia does not apply to
the present case and that the allegation against the crew and captain does not come under the
purview of piractic acts under customary international law or under any domestic laws of the
Republic of Adenia. Therefore, the counsel humbly submits that the petitioners in the case
must return the vessel and let the captain and crew go back to the flag state country . In light
of the above quoted provisions and decisions cited the court must not take cognizance of the
matter as the requisite jurisdiction is absent

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 Written Submission for Applicants

ISSUE 4: THERE EXISTED NO GENUINE LINK BETWEEN MV PRIDE AND

ADENIA AND HENCE RIGHT TO VISIT EXERCISED BY THE COAST GUARD
OF BISMUTH ON MV PRIDE WAS LEGALLY VALID

Article 5 of the High Seas Convention, 1958 and Article 91 of the United Nations Convention
on the Law of the Sea, states that “there must exist a genuine link between the state and the
ship; in particular, the State must effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag.” Since the convention
does not define what is meant by a genuine link, the meaning can be interpreted in the light of
the object and purpose of the convention and by utilizing the (1) travaux préparatoires of each
convention.31 This can be done by utilizing the canons of interpretation as is laid down in
VCLT as provisions of VCLT concerning the interpretation of treaties also represent
customary international law.32 (2) consequently, the relaxation of registration norms by
Adenia was illegal and therefore (3) the right to visit exercised by the coast guards of
Bismuth were proper.

4.1 Travaux préparatoires of the 1958 and the 1982 convention implies effective control
of MV PRIDE by Adenia is an essential condition
To shed light on what is meant by genuine link, it is important to look into the preparatory
materials of both the 1958 convention and the 1982 UN convention on the LOS as Article 5
of the 1958 convention forms the basis for Article 91 of the 1982 convention.
In the 1951 session of The international law commission, the special Rapporteur on the Law
of the Sea, Mr Fran ois, emphasized that if there was no real connection between the flag
State and the crew and ownership of the vessel, it would be difficult for the flag State to
regulate the vessel properly.33 The United Kingdom and Netherlands supported this

31
Robert R Churchill, The Meaning of “genuine link” Requirement in relation to the nationality of ships, 2000,
ITTF < http://seafarersrights.org/wp/wp-content/uploads/2014/11/INTERNATIONAL_ARTICLE_GENUINE-
LINK-REQUIREMENT-IN-NATIONALITY-OF-SHIPS_2000_ENG.pdf> accessed 27th june 2017
32
See: Territorial Dispute (Libya/Chad) case [1994] ICJ Rep. 6 (para. 41), the Maritime Delimitation and
Territorial Questions (Bahrain/Qatar) case [1995] ICJ Rep. 6 (para. 33), the Oil Platforms (Iran/USA) case
(Prelminary Obections) [1996] II ICJ Rep. 812 (para. 23) and, most recently, the Kasikili/Sedudu Island
(Botswana/Namibia) case (2000) 39 International Legal Materials 310, para. 18.

33
Robert R Churchill, pg. 11

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observation and stated that the flag state must effectively exercise jurisdiction and control
over ships flying its flag.34 Even though, the convention left it to the states to decide upon the
granting of nationality, the commission made it clear that the grant of its flag cannot be a
mere administrative formality, with no accompanying guarantee that the ship possess a real
link with its new State but that there should exist a relationship between the state and ship
owner other than mere registration or the mere grant of a certificate of registry. 35 This view
was taken up by the 1982 convention also and the requirement of effective jurisdiction and
control in the administrative, technical and social matters over ships flying its flag was
incorporated into Article 94 of the convention as duties of flag state. Therefore, in view of the
obligations of flag States under Articles 94 and 217 of UNCLOS, the requirement of a
genuine link in Article 91, while not defined, does imply that the link must be such as to
enable the flag State to exercise effective control over the ship and to meet its obligations
under UNCLOS and other instruments.36

Further, in the Nottebohm case37, the court defined nationality as:

“… a legal bond having as its basis a social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the existence of reciprocal rights and
duties,” and noted that a substantive connection should exist between the individual and the
state of his nationality. This judgement had a significant influence on the development of the
concept of genuine link.38

It is clear that MV PRIDE which was flying the flag state of Fuschia and also owned by the
citizens of Fuschia, switched to the flag of Adenia for taking benefit of the relaxed norms of
Adenia. There was no real or genuine link between MV PRIDE and Adenia as is required
under the 1958 convention or the 1982 convention. The granting of nationality was a mere
administrative formality and there was no relationship between the state and the ship owner.

34
Yearbook of the international law commission, 1951, Vol II, Pg. 23
35
ibid pg. 279
36
UN Document A/54/429, Para 184.
37
Nottebohm case (Liechtenstein v. Guatemala) [1955] ICJ Rep. 4
38
Oude Elferink, Alex G.; „The Genuine Link Concept: Time for a Post Mortem‟ in Dekker, Ige F. and Post,
Harry H.G.; On the Foundations and Sources of International Law, TMC Asser Press, Hague, 2003.

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4.1.1 Genuine link is an important concept while registering vessels.

Judge Moreno Quintana in his dissenting opinion in the IMCO case39 opined that:

“The registration of shipping by an administrative authority is one thing, the ownership of a

merchant fleet is another. The latter reflects an international economic reality which can be
satisfactorily established only by the existence of a genuine link between the owner of a ship
and the flag it flies. This is the doctrine expressed by Article 5 of the Convention on the High
Seas which constitutes at the present time the opinio juris gentium on the matter.”40

Judge Jessup in his separate opinion in the Barcelona Traction case41 argued that the concept
of genuine link was common to the nationality of people, ships and companies, and that in
each of these cases other States were not bound to recognise the grant of nationality where no
genuine link existed.42

“If a State purports to confer its nationality on ships by allowing them to fly its flag, without
assuring that they meet such tests as management, ownership, jurisdiction and control, other
States are not bound to recognise the asserted nationality of the ship.”43

4.2 Consequently, relaxation of registration norms by Adenia was illegal

Article 91 of the Law of the Sea convention 1982 mandates the requirement of genuine link
between MV PRIDE and Adenia and also effective jurisdiction over the vessel, both of which
are absent in the instant case.

Adenia, with the sole motive of enhancing its economic interest in the Changi Port by
attracting more number of vessels to the area and thereby bringing them under the ambit of
the 1984 treaty, relaxed its norms for registering the ships thus attracting all the ships to
change their registry and to re- register them at Adenia without due regard for the
requirement of genuine link between Adenia and the vessels.44 This policy of the relaxation

39
Advisory Opinion on the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organisation [1960] ICJ Rep. 150.

40
Rhea Rogers, Ship registration: A critical Analysis, 2010, World maritime University Dissertations
41
Barcelona Traction case (Belgium v Spain), [1970] ICJ Rep. 1
42
ibid pg. 188
43
ICJ, Advisory Opinion on the Constitution of the Maritime Safety Committee of the Intergovernmental
Maritime Consultative Organisation, Pleadings, Oral Arguments and Documents, pp. 188
44
compromis para 2

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of registration norms is in utter disregard of the principle of genuine link mandated under
Article 91 of the 1982 convention.

In addition to the the relaxation of registration norms, Adenia also facilitated the movement
of these vessels through Bismuth‟s territorial waters45 which poses threat to coastal safety of
Bismuth because of the movement of Adenia‟s warships and various vessels flying flags of
convenience through Bismuth‟s territorial waters.

Therefore, it is humbly submitted that the relaxation of registration norms by Adenia is illegal
and consequently, the re-registration of MV PRIDE under the flag state of Adenia in the
absence of genuine link between the two is also unlawful.

4.3 MV PRIDE was flaying a flag of convenience

A Flag of Convenience is the flag of any country allowing the registration of foreign-owned
and foreign-controlled vessels under conditions which for whatever reasons, are convenient
for the persons registering the vessels.46 This essentially means that there will not be any
genuine link between the flag state and the vessel.

Pursuant to this definition, MV PRIDE was flying a flag of convenience as it was owned by
the citizens of Fuchsia and re-registered in Adenia after Adenia‟s policy of relaxation of
registration norms for commercial expediency.

4.4 Right to visit was proper and there was no violation of 1984 treaty.

MV PRIDE was found in suspicious circumstances in the open sea which was the reason for
the coast of Bismuth to board and search the ship.

Article 110(2) of LOSC states that the warship may proceed for verification of the ship‟s
right to fly the flag and if the suspicion is not allayed it can check the ship‟s papers.47 Only if
suspicion remains after the documents have been checked can it board the ship.

In the instant case, Bismuth was found in suspicious circumstances and it is well recognized
in customary international law that the warships have a right to approach to ascertain the
nationality of the ships.48

45
ibid
46
Boczek, BA 1962, Flags of Convenience: An International Legal Study, Harvard University Press, Cambridge
47
Nordquist, M.H. (Ed.); United Nations Convention on the Law of the Sea 1982: A Commentary
48
Malcom N. Shaw, International law (7th edn, Cabridge University press 2016) 445

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Here, since MV PRIDE was flying a flag of convenience, there existed no genuine link
between the ship and the flag state which allayed suspicions regarding the ships right to fly
the flag and its documents and hence there was no violation of the 1984 treaty.

Further, since the ship was found in suspicious circumstances, the coast guard can exercise
their right to visit in order to protect its territory.

4.5 Alternatively, Adenia, by breaching its obligations under the 1984 treaty, has
forfeited the right to invoke the treaty
Article 60 of the Vienna Convention on the Law of Treaties clearly state that a material
breach of a treaty entitles the other parties to invoke the breach as a ground for suspending or
terminating the treaty. A Party specifically affected by the treaty can invoke it as a ground for
suspending the operation of the treaty between itself and the defaulting state.49

Material breach of a treaty implies the violation of provision essential to the accomplishment
of the object or purpose of the treaty.50

Further, in the case of Diversion of Water from the Meuse51, Belgium contended that by
performing activities contrary to the terms of the treaty of 1863, Holland had forfeited the
right to invoke the treaty against it.52 Belgium asserted a right to to suspend the operation of
one of the provisions of the treaty on the basis of Holland's alleged breach of that provision,
although it pleaded its claim rather as an application of the principle of inadimplenti non est
adimplendum.53 Judge Anzilotti in his dissenting opinion expressed the view that the
principle underlying the Belgian contention is "so just, so equitable, so universally
recognized that it must be applied in international relations also".

The main objective of the Treaty on Mutual Recognition and Respect of Flags,1984 was to
mutually respect and honour the flags of member States and prevent search and seizure of
each other‟s ships.54

Adenia, by stopping and searching all merchant ships flying the flag of Bismuth plying along
the Aquaba strait and within the Bay of Mahia,55 has materially breached the provision of the

49
Nordquist, M.H. (Ed.); United Nations Convention on the Law of the Sea 1982: A Commentary
50
ibid
51
Diversion of Water from the Meuse (Netherlands v Belgium), P.C.I.J. (1937), Series A/B, No. 70.
52
ibid
53
ibid
54
compromis para 1
55
compromise para 5

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treaty which is vital for the accomplishment of the treaty. Further, by indulging in this
activity, Adenia has forfeited the right to invoke the 1984 against Bismuth and has discharged
Bismuth from the obligations under the same.

Therefore, it is humbly submitted that Bismuth by exercising the right to visit on MV PRIDE
has not violated the Treaty on Mutual Recognition and Respect of Flags,1984 because of the
application of the principle of inadimplenti non est adimplendum.

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PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed by the Applicants in this matter that the Hon‟ble Permanent Court of
Arbitration may be pleased to declare and adjudge:

1. That Bismuth is not liable in law for loss occasioned to Fuchsia due to capsizing of MV
Adonis.
2. That the Coast Guard of Bismuth is entitled to claim salvage remuneration.
3. That the captain and crew on board the ship are guilty of the offence of piracy and acts
under the SUA Act, 2002 and must be punished with imprisonment up to 14 years.
4. That the Right to Visit and exercised by Coast Guard Bismuth on MV Pride is legally
valid. The relaxation of registration norms is legally valid.
5. Or pass any other Order that this Hon‟ble Supreme Court of India may deem fit and
proper in the interest of justice, equity and good conscience.
All of which is respectfully submitted

Counsel for the Applicants

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