i MOOT COURT COMPETITION

TELDERS INTERNATIONAL LAW

2023

Brackfish is served

Written Memorial on behalf of Astoriana

(Applicant)

Registration number
12A
 ii

(a) Table of Contents

(a) Table of Contents ....................................................................................................................ii

(b) List of Abbreviations .............................................................................................................. iii
(c) List of sources ........................................................................................................................iv
(d) Statement of Relevant Facts: .................................................................................................xv
(e) Issues .................................................................................................................................. xvii
(f) Summary of Arguments .........................................................................................................xx
(g) Arguments ............................................................................................................................. 1
(h) Submissions ......................................................................................................................... 25
 iii

(b) List of Abbreviations

ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts

Art. Article/s

Datmars People’s Republic of Datmars

EIA Environmental Impact Assessment

FIT Fertilizer Import Treaty

Ibid. Ibidem.

ICESCR International Covenant on Economic, Social and Cultural Rights

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ILC International Law Commission

ITLOS International Tribunal for the Law of the Sea

p. page

pp. pages

Para. paragraph

PCA Permanent Court of Arbitration

Problem Brackfish is served case (Astoriana v. Ravenshout)

PST Peace Settlement Treaty for International Disputes

UN United Nations

UNCLOS United Nations Convention on the Law of Sea

v. versus

VCLT Vienna Convention on the Law of Treaties

 iv

(c) List of sources

Treaties and international instruments:

Articles on States Responsibility for Internationally Wrongful Acts, 2001, hereinafter cited as:

ARSIWA

Convention for the Pacific Settlement of International Disputes, hereinafter cited as: 1907 Hague

Convention

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972,

hereinafter cited as: London Convention

Permanent Court of Arbitration Rules, 2012, hereinafter cited as: PCA Rules

Statute of the International Court of Justice, 1945, hereinafter cited as: ICJ Statute

The United Nations Convention on the Law of the Sea, hereinafter cited as: UNCLOS

Vienna Convention on the Law of Treaties 1969, hereinafter cited as: VCLT

ICJ and PCIJ cases:

Air Service Agreement of 27 March 1946 between the United States of America and France.

R.I.A.A., vol. XVIII, (1978) hereinafter cited as: Air Service Agreement

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia

and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Preliminary Objections, Judgment,

I.C.J. Reports 1996, hereinafter cited as: Bosnian Genocide

 v

Arbitral award made by the King of Spain on 23 December 1906, Judgment of 1960, ICJ Reports

1960, hereinafter cited as: King of Spain Arbitral Award

Arbitral Award of 31 July 1989, Judgment, I.C.J. Reports 1991, p. 53 (Guinea-Bissau/Senegal),

hereinafter cited as: Guinea v. Senegal

Brazilian Loans, PCIJ, 12 July 1929, hereinafter cited as: Brazilian Loans

Case Concerning Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v.

United States of America), Merits, Judgement of 27 June 1986, hereinafter cited as: Nicaragua

Case concerning The Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.

Nigeria), ICJ, Judgement of 11 June 1998, hereinafter cited as: Cameroon v. Nigeria

Corfu Channel, Assessment of Compensation, Judgment, I.C.J. Reports 15 December 1949,

hereinafter cited as: Corfu Channel Compensation

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory

Opinion, I.C.J. Reports 1954, p. 53), hereinafter cited as: Effect of Awards of Compensation

Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, hereinafter cited

as: Factory at Chorzow

Fisheries case, Judgment of December 18th, 1951, I.C.J. Reports 1951, p. 116.; hereinafter cited

as: Fisheries

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I. C.J. Reports 1998,

p. 432, hereinafter cited as: Fisheries Jurisdiction

 vi

Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J.

Reports 1973, p. 3, hereinafter cited as: UK v. Iceland

Gabčíkovo-Nagymaros Project (Hungary/Slovakia) case, ICJ. Judgment of September 25 1997,

hereinafter cited as: Gabcikovo-Nagymaros Project

German Settlers in Poland, Advisory Opinion, 1923, P.C.I.J., Series B, No. 6, hereinafter cited as:

German Settlers in Poland

LaGrand (Germany/USA) Case, ICJ Reports 2001; hereinafter cited as: La Grand

Legal status of Eastern Greenland, P.C.I.J. (1933), Series A/B, No. 53, hereinafter cited as:

Eastern Greenland

Legality of Use of Force (Serbia and Montenegro/Belgium)(Preliminary Objections) Case, ICJ

Reports 2004; hereinafter cited as: Legality of Use of Force

Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, Judgment,

I.C.J. Reports 2017, p. 3, hereinafter cited as: Somalia v. Kenya

Monetary gold removed from Rome, Judgment of 15 June 1954, ICJ Reports 1954, hereinafter cited

as: Monetary Gold

Nicaragua case, Judgment of 26 November 1984, Jurisdiction of the Court and Admissibility of

the case, ICJ Reports 1984, hereinafter cited as: Nicaragua Jurisdiction

North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, hereinafter cited as: North Sea

Continental Shelf
 vii

Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4.",

hereinafter cited as: Nottebohm

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, hereinafter

cited as: Pulp Mills

Serbian Loans, PCIJ, 12 July 1929, hereinafter cited as: Serbian Loans

Societe Commerciale de Belgique, Judgment of 15 June 1939 SERIES A./B., No 78, hereinafter

cited as: Societe Commerciale de Belgique

The Kasikili/Sedudu Island (Botswana/Namibia) Case, ICJ Reports 1991, hereinafter cited as:

Kasikili/Sedudu Island

United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), [1980],

hereinafter cited as: Tehran Hostages

Other international awards:

The South China Sea Arbitration, (Phil v. China) PCA. Case No 2013-2019, hereinafter cited as:

South China Sea

The M/V “VIRGINIA G” case, Panama v Guinea-Bissau, ITLOS, hereinafter cited as: M/V

VIRGINIA

The M/V "SAIGA' (No.2) case Saint Vincent and the Grenadines V. Guinea, ITLOS, hereinafter

cited as: M/V SAIGA (No.2)

 viii

Delimitation Ghana v Cote d’ivoire judgment, ITLOS, Judgment of December 2017, hereinafter

cited as: Ghana v. Cote D‘ivoire

South China Sea Award on Jurisdiction and Admissibility 2015 and Award 2016 - PCA Case No

2013-19, hereinafter cited as: South China Sea, award on Jurisdiction and admissibility

„Arctic Sunrise” (Kingdom of the Netherlands v. Russian Federation), Order of 25 October 2013,

ITLOS Reports 2013, p. 224, hereinafter cited as: Arctic Sunrise

Liberian Eastern Timber Corporation (LETCO) v Republic of Liberia, ICSID Case No. ARB/83/2,

Award, 31 March 1986, 2 ICSID Reports 343, hereinafter cited as: LETCO

Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No.

ARB(AF)/11/2, Award. 6 April 2016; hereinafter cited as: Crystallex

Responsibilities and Obligations of States with respect to Activities in the Area, Advisory Opinion,

1 February 2011, ITLOS Reports 2011, p. 10, hereinafter cited as: Activities in the Area

Maritime International Nominees Establishment (MINE) v. Government of Guinea (Guinea),

ICSID, Decision, (Case ARB/84/4), para. 5.08., p. 10, hereinafter cited as: MINE v. Guinea

Island of Palmas, PCA, Award of 4 April 1928, hereinafter cited as: Island of Palmas

Trail Smelter case, Award: April 16, 1938, and March 11, 1941, hereinafter cited as: Trail Smelter
 ix

Books:

Arato, J. Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation

over Time and Their Diverse Consequences, 9 Law and Practice of International Courts and

Tribunals (2010), 443 - 496 hereinafter cited as: Arato

Cavaglieri, "II decorso del tempo ed i suoi effetti sui rapporti giuridici internazionali", 5 Rivista

di diritto internazionale (1926), 190-200, hereinafter cited as: Cavaglieri

Combacau, S. Sur Droit International Public, 11th ed., Paris, L.G.D.J. (2014), hereinafter cited as:

Combacau

Crawford, J. State Practice and International Law in Relation to Succession, 2014 hereinafter cited

as: Crawford

Dörr, O. and Schmalenbach, K. Vienna Convention on the Law of Treaties A Commentary, 2012,

hereinafter cited as: Dörr, Schmalenbach

Hollis, D. The Oxford Guide to Treaties (2nd Ed.), 2020, hereinafter cited as: Hollis

Shaw, M. International Law (6th ed.), Cambridge University Press 2008, hereinafter cited as:

Shaw

Simma, B. and Kill, T. Harmonizing Investment Protection and International Human Rights: First

Steps Towards a Methodology, in Binder, et al (eds.), International Investment Law For The 21st

Century: Essays In Honour Of Cristoph Schreur (2009), hereinafter cited as: Simma
 x

Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4:

Treaty Interpretation and Other Treaty Points, B.Y.I.L., Vol. 33 (1957). hereinafter cited as:

Fitzmaurice

Villiger, Mark E. Commentary on the 1969 Vienna Convention on the Law of Treaties, 2009,

hereinafter cited as: Villiger

Vucas, B. The Law of the Sea: Selected Writings (Publications on Ocean Development; volume 45,

45), hereinafter cited as: Vucas

Articles:

Árnadóttir S., Termination of Maritime Boundaries Due to a Fundamental Change of

Circumstances, Utrecht Journal of International and European Law, (2016); hereinafter cited as:

Arnadóttir

Boyle, A. E., Marine Pollution under the Law of the Sea Convention, The American Journal of

International Law, Vol. 79, No. 2 (Apr., 1985); hereinafter cited as: Boyle

Fitzmaurice, M., Material Breach of Treaty: Some Legal Issues in: Austrian Review of

International and European Law Online, (2003), hereinafter cited as: Material Breach

Flemme, M., Due Diligence in International Law, Faculty of Law University of Lund, (2004);

hereinafter cited as: Flemme

Mullerson, R., New Developments in the Former USSR and Yugoslavia, The International and

Comparative Law Quarterly, Vol. 42, No. 3 (Jul.,1993); hereinafter cited as: Mullerson
 xi

Oesch, M. Commercial Treaties, Oxford Public International Law, April 2014. p. 4, hereinafter

cited as: Commercial Treaties

Perzigian, A. B., Detailed Discussion of Genetic Engineering and Animal Rights: The Legal

Terrain and Ethical Underpinnings, Animal Legal and Historical Center, Michigan State

University college of Law, (2003); hereinafter cited as: Discussion of Genetic Engineering

Simma, B., ‘Reflections on Article 60 of the Vienna Convention on the Law of Treaties and Its

Background in General International Law’ in: 20 Österreichische Zeitschrift für öffentliches

Recht, (1970); hereinafter cited as: Simma, Reflections on Article 60 of the VCLT

Tiantian, He. Commentary on Award on Jurisdiction and Admissibility of the Philippines-instituted

Arbitration under Annex VII to the UNCLOS: A Discussion on Fact-Finding and Evidence, 2016,

hereinafter cited as: Discussion on Fact-Finding and Evidence

Van Eenennaam, Alison L. Genetic Engineering and Fish, Department of Animal Science,

University of California, (2005), hereinafter cited as: Van

Yee, S., Intervention in an Arbitral Proceeding under Annex VII to the UNCLOS?, Chinese Journal

of International Law, Vol. 14, No. 1, (March 2015), hereinafter cited as: Sienho Yee

Zhang, C. and Chang, Y.-C. The Russian Federation Refuses to Appear before the ITLOS and the

Annex VII Arbitral Tribunal, Chinese Journal of International Law, Volume 14, Issue 2, (June

2015); hereinafter cited as: Zhang and Chang

 xii

Zou, Keyuan, and Qiang, Ye. Interpretation and Application of Article 298 of the Law of the Sea

Convention in Recent Annex VII Arbitrations: An Appraisal. Ocean Development and International

Law, vol. 48, no. 3-4, 2017, hereinafter cited as: Zou

Reports and Commentaries:

Council of Europe, Preliminary Draft Report оn The Pilot Project оf The Council оf Europe оn

State Practice Regarding State Succession аnd Issues оf Recognition, 16th Meeting, Paris, 17-18

September 1998, hereinafter cited as: Council of Europe

Draft articles on Prevention of Transboundary Harm from Hazardous Activities with

commentaries, 2001, Yearbook of the International Law Commission (2001), vol. II, Part Two,

hereinafter cited as: DAPTH

Draft articles on Responsibility of States for Internationally Wrongful Acts with commentaries,

2001, Yearbook of the International Law Commission (2001), vol. II, Part Two; hereinafter cited

as: DARSIWA

Draft Articles on the Law of Treaties with commentaries, 1966, Yearbook of the International Law

Commission (1966), vol. II, hereinafter cited as: DALT

Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of

Hazardous Activities (2006), Yearbook of the International Law Commission, 2006, vol. II, Part

Two, hereinafter cited as: Allocation of Loss

 xiii

Study Group of the International Law Commission, Mr. Martti Koskenniemi, Fragmentation of

International Law: Difficulties Arising from The Diversification and Expansion of International

Law, Fifty-eighth session, Document A/CN.4/L.682, hereinafter cited as: Doc A/CN.4/L.682

UN General Assembly, Fragmentation of International Law: Difficulties Arising from The

Diversification and Expansion of International Law (2006), Document A/CN.4/L.702,

International Law Commission, 2006, hereinafter cited as: Doc A/CN.4/L.702

Yearbook of the International Law Commission (1974), vol. II, Part 1, A/CN.4/SER.A/1974/Add.l

(Part 1), hereinafter cited as: ILC Yearbook 1974

Zimmermann, A./ Devaney, J. State Succession in Matters Other than Treaties, 2019 hereinafter

cited as: Zimmermann

Websites:

National Weather Service at <https://www.weather.gov/jetstream/gen_slides> last visited on

13.03.2023, hereinafter cited as: National Weather Service

New Substances Notification Regulations (Organisms) at

<https://www.canada.ca/en/environment-climate-change/services/canadian-environmental-

protection-act-registry/general-information/fact-sheets/new-substances-notification-regulations-

organisms-2020.html> last visited on 13.03.2023, hereinafter cited: New Substances

Other:

Brackfish is served case (Astoriana v. Ravenshout), hereinafter cited as: Problem

 xiv

Clarification Questions 2023; hereinafter cited as Clarifications

 xv

(d) Statement of Relevant Facts:

Astoriana and Ravenshout are neighboring states. Both of them have access to the Harlim Sea. The

States also border the People’s Republic of Datmars. Astoriana and Ravenshout are members of

the United Nations. Astoriana achieved statehood in 1979, when a peaceful revolution led to the

formal division of the Confederacy of Datmars into Astoriana and the People’s Republic of

Datmars. Both Astoriana and Ravenshout are parties to the UNCLOS, ICCPR, ICESCR and 1907

Hague Convention.

The States concluded the 2015 Fertilizer Import Treaty, under which Ravenshout agreed to keep

35% of its stock reserved for sale to Astoriana.

Due to food insecurity, in 2008 the State of Ravenshout undertook a development of a project to

develop a new species, namely the brackfish, which is a large, protein-rich and nearly boneless

fish. The first shipments of this product began in 2015.

On 16 June 2018 the brackfish entered the territorial waters of Astoriana and arrived in the

Himbeau Bay. Within hours the brackfish completely destroyed the kelp, which Astoriana uses as

a common food staple. Due to the violent attack of the fish, the wooden support beams of

Himbeau’s pleasure piers were destroyed, causing many boats, restaurants, iconic ferris wheel, and

bungee jumping facility to collapse into the water. 270 people perished, including the local band

Himbeau Party Patrol. Majority of the people, located in the area, drowned or experienced

immeasurable horror from the attack. After completely ruining the country’s most popular seaside

resort town, the brackfish shifted to cannibalism. The horrific event ended on 18 June 2018 with a

strong tide which flung the remaining brackfish population’s bloated bodies across the beach and

onto Himbeau’s boardwalk promenade. On 19 June, the front page of the Himbeau Times showed
 xvi

piles of brackfish, debris, and human bones piled against the famous ‘The Seaweed Eater’

sculpture.

In the hours following the arrival of the brackfish in Himbeau Bay, and again on 19 June 2018,

Astoriani President Athena Green called Prince Fritz IV of Ravenshout to urgently request a

meeting. She finally reached him on 19 June and they had a phone call during which Prince Fritz

IV did not express any concerns that Ravenshout’s project destroyed the Himbeau bay.

On 21 September 2018, Astoriana instituted arbitration proceedings against Ravenshout pursuant

to Annex VII to UNCLOS. Astoriana requested the arbitral tribunal to rule that Ravenshout

breached its obligations toward Astoriana under UNCLOS. On 22 September 2018, the

government of Ravenshout declared that it would not participate in the arbitration.

A tribunal was constituted on 30 November 2018 in accordance with Article 3 of Annex VII to

UNCLOS. Datmars requested to participate in the proceedings in February 2019. On 17 March

2019, the tribunal permitted Datmar’s participation after seeking the parties’ consent.

On 1 May 2022 the tribunal issued an award stating that Ravenshout was responsible for breaching

articles of UNCLOS. After addressing damages in relation to life, property, and the marine

environment - including an extensive tabulation of clean-up costs - the tribunal ordered Ravenshout

to pay 3 billion USD.

On 11 October 2022 in a speech Prince Fritz V stated that Ravenshout had terminated the FIT and

had suspended all fertilizer shipments to Astoriana. Additionally, he denounced the 1 May 2022

award. On 31 October 2022, Astoriana instituted proceedings against Ravenshout before the ICJ,

concerning both the 1 May 2022 award and Ravenshout’s 11 October 2022 cancellation of a series

of scheduled fertilizer shipments under the FIT.

 xvii

(e) Issues

I. Does the ICJ have jurisdiction to rule in the case and is the dispute before it is admissible?

A. Does The Court have jurisdiction to rule in the case?

1. Is Astoriana bound by the Treaty after the dissolution of the Confederacy?

2. Does the brackfish dispute fall under the fisheries reservation?

3. Does the ICJ have jurisdiction to rule upon the arbitral award’s validity and binding

force?

4. Does the Court have jurisdiction over the dispute concerning the alleged breach of

the FIT?

B. Are all Astoriana's submissions admissible?

1. Is the dispute related to the brackfish admissible?

a. Does the arbitral award dispute differ from the one on the merits related to

UNCLOS?

b. Is the claim related to UNCLOS relevant only if the arbitral award is found void?

c. Is Datmars an indispensable third party?

2. Is the issue related to the Fertilizer import treaty admissible?

II. Is the May 2022 award valid and binding under international law and shall Ravenshout

provide the compensation awarded to Astoriana therein?

A. Is the award of May 2022 valid and binding under international law?

1. Does the tribunal have jurisdiction to review the dispute between the States?

a. Does Article 287 (5) of UNCLOS confer jurisdiction upon the tribunal?

i. Is the arbitral tribunal’s jurisdiction based on Article 287 UNCLOS?

ii. Does UNCLOS’ settlement procedure supersede the one in the PST?
 xviii

b. Is the tribunal entitled to decide on the issue of its jurisdiction?

2. Is the award well founded in fact?

3. Is the award well founded in law?

4. Is Ravenshout bound by the tribunal's decision despite its non-appearance in the

proceedings?

a. Was the arbitration necessary for the dispute resolution?

b. Does Ravenshout remain a party to the proceedings despite its refusal to

participate?

5. Is Datmars’ intervention in accordance with the procedural requirements?

a. Was Datmars intervention necessary for the tribunal to obtain evidence?

b. Has the tribunal sought the parties’ consent?

B. Shall Ravenshout provide the compensation awarded to Astoriana by the tribunal?

1. Is the award final and without appeal?

2. Consequently, shall Ravenshout pay the compensation provided in the award?

III. Did Ravenshout breach UNCLOS and does it owe reparations?

A. Has Ravenshout committed various breaches of due diligence provisions in UNCLOS?

1. Has Ravenshout failed to prevent and control pollution of the marine environment?

2. Has Ravenshout failed to assess the potential effects of its activities?

3. Has Ravenshout failed to prevent the pollution of the marine environment caused as a

result of the brackfish’s introduction?

4. Has Ravenshout caused transboundary harm to Astoriana by breaching the prohibition

of land-based pollution?

5. Did Ravenshout notify Astoriana of imminent or actual damage?

B. Is there force majeure that could preclude Ravenshout’s wrongfulness?

 xix

C. Shall ICJ order Ravenshout to pay full reparations?

IV. Did Ravenshout breach the Fertilizer Import Treaty and shall it pay reparations?

A. Is the FIT still in force?

1. Is the FIT terminated in accordance with customary law?

2. Is there material breach of the FIT caused by Astoriana?

a. Can the abduction of turkeys by the Convocation be attributed to Astoriana?

b. Has Astoriana breached provision with essential meaning to the accomplishment

of the purpose of the treaty?

3. Is there a fundamental change of circumstances?

B. Has Ravenshout breachеd its obligations under the FIT?

1. Has Ravenshout breached the FIT?

2. Can Ravenshout’s breach be justified by countermeasures?

C. Shall Ravenshout pay reparations to Astoriana?

 xx

(f) Summary of Arguments

I. The ICJ has jurisdiction to rule in the case and the dispute before it is admissible

A. The Court has jurisdiction to rule in the case

1. Astoriana is bound by the Treaty after the dissolution of the Confederacy

2. The brackfish dispute does not fall under the fisheries reservation

3. In any event, ICJ has jurisdiction to rule upon the arbitral award’s validity and

binding force

4. The Court has jurisdiction over the dispute concerning the alleged breach of the

FIT

B. All of Astoriana’s submissions are admissible

1. The dispute related to the brackfish is admissible

a. The arbitral award dispute differs from the one on the merits related to UNCLOS

b. The claim related to UNCLOS is relevant only if the arbitral award is found void

c. Datmars is not an indispensable third party

2. The issue related to the Fertilizer import treaty is admissible

II. The May 2022 award is valid and binding under international law and Ravenshout must

provide the compensation awarded to Astoriana therein

A. The award of May 2022 is valid and binding under international law

1. The tribunal has jurisdiction to review the dispute between the States

a. Article 287 (5) of UNCLOS conferred jurisdiction upon the tribunal

i. The arbitral tribunal’s jurisdiction is based on Article 287 UNCLOS

ii. UNCLOS’ settlement procedure supersedes the one in the PST

b. The tribunal is entitled to decide on the issue of its jurisdiction

 xxi

2. The award is well founded in fact

3. The award is well founded in law

4. Despite its non-appearance in the proceedings, Ravenshout is bound by the tribunal's

decision

a. The arbitration was necessary for the dispute resolution

b. Ravenshout remains a party to the proceedings despite its refusal to participate

5. Datmars’ intervention is in accordance with the procedural requirements

a. Datmars intervention was necessary for the tribunal to obtain evidence

b. The tribunal has sought the parties’ consent

B. Ravenshout must provide the compensation awarded to Astoriana by the tribunal

1. The award is final and without appeal

2. Consequently, Ravenshout must pay the compensation provided in the award

III. Ravenshout has breached UNCLOS and therefore owes reparations.

A. Ravenshout has committed various breaches of due diligence provisions in UNCLOS

1. Ravenshout failed to prevent and control pollution of the marine environment

2. Ravenshout failed to assess the potential effects of its activities

3. Ravenshout failed to prevent the pollution of the marine environment caused as a

result of the brackfish’s introduction

4. Ravenshout has caused transboundary harm to Astoriana by breaching the

prohibition of land-based pollution

5. Ravenshout did not notify Astoriana of imminent or actual damage

B. There is no force majeure that could preclude Ravenshout’s wrongfulness

C. Astoriana requests the ICJ to order Ravenshout to pay full reparations

IV. Ravenshout has breached the Fertilizer Import Treaty and shall pay reparations.
 xxii

A. The FIT is still in force

1. The FIT is not terminated in accordance with customary law

2. There is no material breach of the FIT caused by Astoriana

a. The abduction of turkeys by the Convocation cannot be attributed to Astoriana

b. Astoriana has not breached provision with essential meaning to the

accomplishment of the purpose of the treaty

3. There is no fundamental change of circumstances

B. Ravenshout has breachеd its obligations under the FIT

1. Ravenshout has breached the FIT

2. Ravenshout’s breach cannot be justified by countermeasures

C. Ravenshout shall pay reparations to Astoriana

 1

(g) Arguments

I. ICJ has jurisdiction to rule in the case and the dispute before it is admissible

A. The Court has jurisdiction to rule in the case

ICJ has jurisdiction under Art. 36 (1) and Art. 37 ICJ Statute in accordance with the PST. When a

treaty or convention in force provides that a matter is referred to the PCIJ, ICJ has jurisdiction over

the issue.1 As the PST refers all disputes, which may arise between Astoriana and Ravenshout to

this Court,2 ICJ has jurisdiction over the present case.

1. Astoriana is bound by the PST after the dissolution of the Confederacy

In cases of dissolution,3 successor states are bound by treaties which have been in force for the

predecessor state.4 Automatic succession is part of customary international law5 as evident from

abundant state practice, including that of SFRY, CSFR, Bosnia and Herzegovinа, Gran Colombia,

United Kingdom of Norway and Sweden, Austria-Hungary, Iceland-Denmark.6 In all of these

instances, the practice in question emanates from the belief that automatic succession has a legally

binding character, thereby evidencing the existence of opinio juris7 as well. Thus, Astoriana is

bound by the PST after the dissolution of the Confederacy.

1
ICJ Statute, Art. 37.
2
Problem, para. 25.
3
Clarification No. 43.
4
Gabcikovo-Nagymaros Project, para. 124.
5
Crawford, p. 93-114.
6
Council of Europe, 1997; ILC Yearbook 1974; Zimmermann, p. 516; Mullerson, p. 299.
7
North Sea Continental Shelf, para. 77.
 2

In the alternative, even if Astoriana is not automatically bound by the PST, Ravenshout has

acquiesced to Astoriana’s claim of succession. In cases of state succession, acceptance may not

only be expressed explicitly, it can also be derived from the mere silence of a state,8 especially if

that state is specifically addressed.9 Acquiescence postulates that the absence of an objection over

an extensive period of time may be interpreted as consent.10 In the present case, Ravenshout has

not objected to Astoriana’s statement made prior to the Confederacy’s dissolution,11 suggesting its

satisfaction with the method of dispute settlement at the time of Astoriana's proclamation.

Accordingly, Ravenshout has acquiesced to Astoriana’s claim of succession.

2. The brackfish dispute does not fall under the fisheries reservation

Ravenshout might submit that the Court cannot review the dispute based on Article II PST, as all

disputes related to fisheries shall not be referred to the ICJ.12 While there is no explicit definition

of the term “fisheries” under international law, the term is predominantly used by international

courts in view of maritime delimitation, navigation and fishing activities.13 In addition, under

customary international law, the general rule of treaty interpretation is based on the principle of

good faith, the intention of the parties which appears from the ordinary meaning of the words in

their context and in the light of the treaty’s object and purpose.14

8
Cavaglieri, pps. 190, 200.
9
Combacau, p. 99.
10
Nicaragua Jurisdiction, para. 47, 109.
11
Problem, para. 1.
12
Ibid., para. 25.
13
Ghana v. Cote D’Ivoire, para. 194; Fisheries, p.13; Fisheries Jurisdiction, p. 16.
14
Legality of Use of Force, para. 100; LaGrand, para. 99; Kasikili/Sedudu Island, para. 18;
Guinea v. Senegal, para. 48.
 3

Furthermore, under the principle of contemporaneity, the terms of a treaty must be interpreted

according to the meaning attributed to them at the time of conclusion of the treaty15 to ascertain

the original intent of the parties.16 Here, it was impossible for both States to foresee the future

invention of the brackfish as the needed technology was not developed yet. However, if

Ravenshout alleges that a word must be given an unusual or an exceptional meaning, it lies within

the Respondent to prove that.17 Without clear subsequent practice,18 it cannot be presumed that the

parties were aware of the term’s potential evolution.19 Hence, the interpretation of the term

“fisheries” is limited to its ordinary meaning and ICJ has jurisdiction to rule on the matter.

3. In any event, ICJ has jurisdiction to rule upon the arbitral award’s validity and binding

force

A refusal to act in accordance with an award issued by an arbitral tribunal constitutes a dispute,20

unrelated to fisheries. Rather, the core of the present case is whether ICJ reaffirms the validity of

the arbitral award by assessing the tribunal’s jurisdiction and the compliance with the procedural

requirements.21 In view of that, ICJ has jurisdiction to reaffirm the award.

4. The Court has jurisdiction over the dispute concerning the alleged breach of the FIT

15
Fitzmaurice, p.212; Island of Palmas, p. 14.
16
Simma and Kill, p. 694.
17
Eastern Greenland, p. 49.
18
Kasikili/Sedudu Island, para. 49.
19
Arato, p. 443; Certain Activities, para. 66.
20
Guinea v. Senegal, para. 24; King of Spain Arbitral Award, p. 214.
21
Guinea v. Senegal, para. 24.
 4

As argued, the PST refers all disputes between the two States to the ICJ. Thus, all disputes related

to the FIT also fall in the scope of Article 37 ICJ Statute and ICJ has jurisdiction over this issue.

B. All of Astoriana’s submissions are admissible

1. The dispute related to the brackfish is admissible

In the present case the res judicata principle was not violated as the Court is asked to reaffirm the

award of another judicial body (a.) and there are no duplicative claims present (b.). In any event,

Datmars is not an indispensable third party and its absence from the proceedings does not affect

the admissibility of the case (c.).

a. The arbitral award dispute differs from the one on the merits related to UNCLOS

The res judicata principle of international law safeguards the final and binding effect of judicial

decisions.22 The Court is not asked to examine the dispute on the merits again, but rather to reaffirm

the award of the arbitral tribunal.23 Moreover, ICJ has recognised itself as competent to decide on

issues concerning the meaning or the scope of a judgment of international tribunals. 24 As in the

current case the award’s validity and binding force are disputed, the case is admissible.

b. The claim related to UNCLOS is relevant only if the arbitral award is found void

The res judicata principle bans the relitigation of claims on which a jurisdiction has already issued

a judgment.25 Should ICJ reaffirm the arbitral award, Astoriana’s submission related to UNCLOS

will not be examined in substance. Thus, no duplicative claims are raised by the Applicant.

c. Datmars is not an indispensable third party

22
Bosnian Genocide, para. 116.
23
King of Spain Arbitral Award, p. 26.
24
Cameroon v. Nigeria, para. 12.
25
Effect of Awards of Compensation, p. 53.
 5

While it is true that the conduct of a State which forms “the very subject matter” of a case makes

that State an indispensable third party to the case,26 this is not the present situation. Datmars is an

intervenor and not a party to the case before the arbitral tribunal and is not bound by its award. 27

Furthermore, Datmars’ environment has not been harmed by the brackfish and and the FIT is a

bilateral treaty only between Astoriana and Ravenshout. Hence, Datmars’ intentions are limited to

assisting ICJ in rendering a fair judgment but the role of the State cannot be deemed indispensable

on any of the reviewed matters. Accordingly, Astoriana's submissions are admissible.

2. The issue related to the FIT is admissible

The potential violation of the FIT has not been decided on by any judicial body by far. As the

treaty concerns shipments to Astoriana,28 direct rights of the State were violated and it has legal

standing to bring this issue before the Court. Consequently, the dispute is admissible and shall be

reviewed by ICJ in accordance with the PST regime.29

II. The May 2022 award is valid and binding under international law and Ravenshout must

provide the compensation awarded to Astoriana therein.

A. The award of May 2022 is valid and binding under international law

In order to be valid and binding under international law,30 an award must be rendered by a tribunal

which has jurisdiction (1.), and that award must be well founded in fact (2.) as well as in law (3.).

26
Monetary gold, p. 33.
27
South China sea, para. 637, 105.
28
Problem, para. 5.
29
See section A above.
30
Arctic sunrise, p.35; UNCLOS, Art. 9; South China sea Jurisdiction, para. 15.
 6

Moreover, there are insufficient grounds to invalidate the award on the basis of Ravenshout’s

refusal to participate (4.) or Datmars’ intervention in the proceedings (5.).

1. The tribunal has jurisdiction to review the dispute between the States

In order to determine whether a tribunal has jurisdiction, there must be a dispute between two

states concerning the interpretation or application of a treaty. 31 The present dispute is related to

Ravenshout’s breach of its obligations under UNCLOS. 32 As the current case concerns the

application of UNCLOS, the tribunal’s jurisdiction stems from the invoked provisions.

a. Article 287 (5) UNCLOS conferred jurisdiction upon the tribunal

i. The arbitral tribunal’s jurisdiction is based on Article 287 UNCLOS

Since both States are parties to UNCLOS33 and have not agreed to the same procedure of dispute

settlement, the case must be referred to international arbitration under Annex VII of UNCLOS.34

Arbitration is the default forum both for cases in which a declaration has not been made and for

those in which the fora elected by the states involved in the dispute are not the same.35 Due to the

impossibility of determining the “same procedure”, as the parties have chosen different fora for

the settlement of the dispute, the arbitration tribunal is the only one with jurisdiction to review the

case between Astoriana and Ravenshout.36

ii. UNCLOS’ settlement procedure supersedes the one in the PST

31
Zou, p. 333.
32
Problem. para, 14.
33
Ibid., para 1.
34
UNCLOS, Art. 287; Somalia v. Kenya, para. 123.
35
Ibid.
36
UNCLOS, Art. 287, para. 5.
 7

UNCLOS applies as lex specialis and lex posterior in relation to the PST, since it only concerns

disputes related to the law of the sea.37 In accordance with the customary lex specialis rule,38

whenever two or more norms regulate the same matter, the more specific norm prevails over the

general one.39 In the case between Astoriana and Ravenshout, both UNCLOS and the PST are part

of the same regime,40 since they prescribe a dispute settlement procedure. However, the PST refers

to all disputes in general, whereas UNCLOS only governs those related to the law of the sea. The

essence of the instant dispute is the genetic engineering of a new species and its consequences,

both falling in the scope of UNCLOS.41 Accordingly, UNCLOS applies as lex specialis and

therefore derogates the PST, which governs all issues not specifically regulated. In addition,

UNCLOS was ratified after the PST entered into force,42 thus it applies as lex posterior.

b. The tribunal is entitled to decide on the issue of its jurisdiction

ICJ has recognised a tribunal’s right “to decide as to its own jurisdiction”.43 The arbitral tribunal

in the current case has discussed the matter of its jurisdiction in the 1 May 2022 award and has

found no reason to refrain from exercising it.44 Thus, the tribunal was entitled to render a decision.

2. The award is well founded in fact

37
Somalia v. Kenya, para 114.
38
Doc. A/CN/4/L.702, p. 8.
39
Doc. A/CN.4/L.682, para. 56; Shaw, p.124; Hollis, p. 449.
40
Doc. A/CN/4/L.702, para. 26.
41
UNCLOS, Art. 297.
42
Problem, paras. 1, 3.
43
Nottebohm, para. 119.
44
Problem, para. 19.
 8

The arbitral proceedings comprise two indispensable stages – determining the disputed fact and

applying the existing law.45 In the Corfu Channel case, the ICJ held that “it is sufficient for the

court to convince itself by such methods as it considers suitable that the submissions are well

founded”.46 Similarly, a crucial step in the legal proceedings before an arbitral tribunal is that it

verifies the facts on a sound basis.47 Taking into consideration not only Astoriana’s submissions,

but also the evidence provided by Datmars,48 in the case at hand the tribunal was satisfied that

Ravenshout had breached the UNCLOS provisions invoked by Astoriana.49

3. The award is well founded in law

The tribunal’s decision regarding Ravenshout’s breach of Art. 192, 194, 196, 198, 206 and 207

UNCLOS must also be well founded in law.50 As established in the ICJ’s case-law, an award is

valid and binding only if it is a reasoned one.51 The Court has stated in the case of Guinea v.

Senegal, that such reasoning is sufficient when it is possible without difficulty to determine why

the tribunal has reached the conclusion at hand,52 which has also been reaffirmed by international

tribunals.53 The tribunal in the present case gave sufficient reasons for its decision by estimating

45
Discussion on Fact-Finding and Evidence, p. 105.
46
Corfu Channel Reparations, p. 248; Tehran Hostages, para. 11.
47
Discussion on Fact-Finding and Evidence, p. 100.
48
Problem, para. 20.
49
Ibid.
50
Discussion on Fact-Finding and Evidence, p. 100.
51
Guinea v. Senegal, para. 42.
52
Ibid., para. 43.
53
MINE v. Guinea, p. 105.
 9

the damages caused by Ravenshout related to life, property, and the marine environment and

ordering the Respondent to pay full reparation to Astoriana.

4. Despite its non-appearance in the proceedings, Ravenshout is bound by the tribunal's

decision

a. The arbitration was necessary for the dispute resolution

The Respondent may advance the argument that under UNCLOS parties shall exchange views and

engage in a non-binding procedure of dispute settlement before having recourse to a tribunal.54 In

this regard, the President of Astoriana has proposed a high-level meeting.55 However, the manner

in which Prince Fritz IV has responded56 suggests that Ravenshout would not willingly engage in

a negotiation procedure. Therefore, Astoriana has validly seized the arbitral tribunal.57

b. Ravenshout remains a party to the proceedings despite its refusal to participate

The absence of a party in the proceedings does not constitute a bar to the proceedings, when it has

nevertheless been given the opportunity to present its observations on the subject.58 Similarly to

the Arctic Sunrise and South China Sea arbitration cases,59 the arbitral tribunal in the present case

observed that Ravenshout refused to submit its views although it had been given sufficient

opportunity to do so.60 The fairness of the proceedings demanded that they continue despite the

54
UNCLOS, Art. 283, 286.
55
Problem, para. 11.
56
Ibid., para. 11.
57
Ibid., para. 14.
58
Arctic Sunrise, para. 48; Zhang and Chang, p. 407.
59
Arctic Sunrise, para. 48; South China sea Jurisdiction, paras. 113, 114.
60
Problem, para. 18.
 10

Respondent’s non-participation.61 Equivalently, had the arbitral tribunal refused to render a

decision due to Ravenshout’s absence, Astoriana would have been at a disadvantage due to the

impossibility of solving the dispute. However, the non-appearing State still has to assume its

obligations,62 and thus, Ravenshout has to comply with the award.

5. Datmars’ intervention is in accordance with the procedural requirements

The intervention of a third party is well-known in arbitration.63 Due to the increasing importance

of the matter, some international instruments specify the role of an intervenor - it can present oral

and written observations as well as provide evidence.64 The 1907 Hague Convention, to which

both States are parties,65 allows a tribunal to obtain evidence through the government of a third

state.66 Hence, Datmars’ intervention cannot invalidate the award.

a. Datmars intervention was necessary for the tribunal to obtain evidence

International arbitrators have broad discretion in the assessment of evidence, 67 which includes

obtaining evidence through a third state.68 In the present case, Datmars filed a request to intervene

61
Sienho Yee, p. 98.
62
Arctic Sunrise, para. 53.
63
PCA Rules, Art. 17, para. 5.
64
London Convention, Annex VII, Art. 6.
65
Problem, para. 1.
66
1907 Hague Convention, Art. 76.
67
Discussion on Fact-Finding and Evidence, p. 103.
68
1907 Hague Convention, Art. 76.
 11

in the proceedings and presented evidence which was key for the resolution of the dispute.69 In

accordance with ICJ’s case-law,70 Datmars’ intervention in the arbitral proceedings was allowed.

b. The tribunal has sought the parties’ consent

An Annex VII arbitral tribunal has no power to make, without the consent of the parties, any rule

of procedure providing for intervention by a third State in an arbitral proceeding. 71 However, the

tribunal has sought the approval of both parties before allowing Datmars to enter the proceedings.72

Accordingly, Ravenshout could have expressed its disagreement with Datmars’ intervention,

however it has not exercised this right.73 Due to the lack of response in over a month,74 the tribunal

had to decide on Datmars’ intervention in the abscense of the Respondent’s explicit consent.

B. Ravenshout must provide the compensation awarded to Astoriana by the tribunal

1. The award is final and without appeal

Arbitral awards under Annex VII of UNCLOS are final and without appeal unless the parties have

agreed otherwise in advance.75 If no such agreement is present, the res judicata principle dictates

the binding force of the award.76 Astoriana and Ravenshout have not made such an agreement and

therefore, the award of the arbitral tribunal is binding for both States.

69
Problem, para. 20.
70
Monetary Gold, p. 17.
71
Sienho Yee, p. 91.
72
Problem, para. 18.
73
Ibid.
74
Ibid.
75
UNCLOS, Annex VII, Art. 11.
76
Societe Commerciale de Belgique, p. 16.
 12

2. Consequently, Ravenshout must pay the compensation provided in the award

Ravenshout must pay Astoriana the compensation provided in the arbitral tribunal’s decision. The

sum of 3 billion USD provided by the tribunal for the damages caused by Ravenshout’s violation,77

is to be considered fair compensation,78 corresponding to the situation which would have existed,

had Ravenshout not breached its obligations under UNCLOS.

III. Ravenshout has breached UNCLOS and therefore owes reparations

In the event that this Court deems the 1 May 2022 award not valid and binding, Ravenshout is

nonetheless responsible for breaching Art. 192, 194, 196, 198, 206 and 207 UNCLOS (A.).

Furthermore, Ravenshout cannot rely on force majeure to preclude its wrongful acts (B.).

Therefore, Ravenshout owes Astoriana full reparations (C.).

A. Ravenshout committed various breaches of due diligence provisions in UNCLOS

Both Astoriana and Ravenshout are parties to UNCLOS 79 and shall comply with its provisions.

Due diligence obligations, enshrined in Art. 192, 194, 196, 198, 206 and 207 UNCLOS, require

states to inform themselves of the foreseeable factual and legal circumstances and to take

appropriate measures to address them.80 Such obligations impose an obligation of conduct that

includes the obligation to adopt all applicable and necessary measures to prevent, reduce and

77
Problem, para. 20.
78
Factory at Chorzow, p. 47.
79
Problem, paras. 1, 2.
80
DAPTH, p. 154.
 13

control pollution.81 Non-compliance could lead to harm caused in the territory of a state other than

the state of origin, i.e transboundary harm.82

By breaching its due diligence obligations, Ravenshout caused transboundary harm to Astoriana.

Ravenshout has violated its due diligence obligations under Art. 192 and 194 UNCLOS (1.).

Additionally, Ravenshout has failed to assess the potential effects of its activities (2.). The

Respondent has failed to take all measures necessary to prevent, reduce and control pollution of

Astoriana’s marine environment, resulting from the intentional introduction of the brackfish83 (3.)

and from its land-based sources (4.). Lastly, Ravenshout did not notify Astoriana of the imminent

danger for its marine environment (5.).

1. Ravenshout failed to prevent and control the pollution of the marine

environment

As a general principle of environmental law, states shall refrain from polluting other states’

territory.84 Under Art. 192 and 194 UNCLOS states have a positive duty to take all measures for

preventing pollution of the marine environment and to ensure85 that activities will not cause

damage to other States.86 This includes a due diligence obligation87 closely related to the obligation

81
Pulp Mills, paras. 186–187.
82
DAPTH, Art. 2 (c).
83
Flemme, p. 19, 20; UNCLOS Art. 4, para. 1.
84
Trail Smelter case, p. 1965.
85
South China Sea, para. 941.
86
UNCLOS, Art. 194.
87
South China Sea, para. 959.
 14

of transboundary harm prevention.88 Contrary to the customary obligation of cooperation in good

faith to take preventive or minimization measures,89 Ravenshout never consulted with Astoriana

nor initiated any communication between the two States.

2. Ravenshout failed to assess the potential effects of its activities

According to Art. 206 UNCLOS and customary international law,90 states have the obligation to

assess the potential effects of their activities on the marine environment and shall communicate

reports of the results of such assessments.91 In order to fulfil its obligations, Ravenshout must have

prepared an EIA92 and it must have also communicated it.93 However, the Respondent failed to

adequately evaluate serious threats to the marine environment.94 The Respondent did not publish

the findings of its risk assessments,95 and breached its obligations to ensure monitoring and

environmental assessment.96 Ravenshout’s studies were incomplete as they mainly focused on the

alternatives to the complex, location selection, and physical integrity, 97 neglecting the protection

of the environment. As the Respondent was aware of the eroded nature of the Nassau range and

88
DAPTH, p. 154.
89
Ibid.
90
Activities in the Area, para. 145; Pulp mills, para. 205; Costa Rica v. Nicaragua, para. 157.
91
UNCLOS, Art. 206.
92
Pulp mills, para. 205; Costa Rica v. Nicaragua, para. 157.
93
UNCLOS, Art. 206; South China Sea, para. 991; Activities in the Area, para. 145.
94
Clarification No. 1.
95
Ibid., No. 4.
96
UNCLOS Art. 204, 205.
97
Clarification No. 39.
 15

its direct proximity to Lake Tauredunum,98 and noting that landslides triggered by earthquakes can

cause tsunamis,99 Ravenshout should have done extra research and should have acted more

cautiously when building the aqua complex.100 Furthermore, Dr. Probleem, who participated in the

assessments of the aqua complex, and the arbitral tribunal, concluded that Ravenshout had

disregarded grave risks, which ultimately contributed to the disaster.101 Accordingly, Ravenshout

failed to comply with its obligations under Art. 206 UNCLOS.

3. Ravenshout failed to prevent the pollution of the marine environment caused

as a result of the brackfish’s introduction

In conformity with Art. 196 UNCLOS, states must take measures to prevent pollution from

introduction of new species.102 As the brackfish is genetically engineered organism,103 it is a new

species created intentionally falling under the scope of this provision. The creation of new species

is a hazardous activity,104 i.e an activity not prohibited by international law that produces physical

transboundary effects and carries a risk of causing significant damage. 105 ILC defines the term

“significant damage” as a damage which must lead to real detrimental effects. 106 This includes

98
Clarification No. 1.
99
National Weather Service.
100
Clarification No. 1.
101
Problem, para. 20; Clarification No. 27, 1.
102
UNCLOS, Art. 196.
103
Problem, para. 7.
104
Discussion of Genetic Engineering.
105
Allocation of Loss, p.62.
106
Ibid., p.65.
 16

negative impacts on the human health and life, the environment and property of other States.107

The brackfish incident had catastrophic consequences for Astoriana resulting in damages caused

to life, property, and the marine environment.108

In addition, genetically engineered fish and aquatic organisms can cause unpredictable

environmental concerns even if they are let out by accident. 109 For instance, scientists have

calculated that if genetically engineered salmon escaped into a native environment, it would take

only 40 generations for the wild salmon to be completely wiped out.110 In the present case, the

behavior of the brackfish was not tested in the high sea,111 and the accident has led to the

aforementioned damages.112 Thus, Ravenshout breached its obligations under Art. 196.

4. Ravenshout has caused transboundary harm to Astoriana by breaching the

prohibition of land-based pollution

Under Art. 207 UNCLOS, states shall prevent and control pollution from land-based sources

including rivers and structures.113 The enforcement of the rules for complying with this provision

remains within the states’ discretion, however, the result shall be restrainment from pollution.114

107
Allocation of Loss, p. 65.
108
Problem, paras. 9, 20.
109
Van, p. 1.
110
Discussion of Genetic Engineering.
111
Clarification No. 42, 44.
112
Problem, paras. 9, 20.
113
UNCLOS. Art. 207.
114
Vucas, p. 238.
 17

Contrary to its obligation, Ravenshout did not adopt any laws or regulations for the protection of

the marine environment from its activities in the estuary.115

Additionally, the brackfish is a substance, contributing to the “pollution of the marine

environment” within the meaning of Art. 1, para. 1 (4) UNCLOS.116 The brackfish entered the

area of Himbeau Bay through the Blozen River after the dislodging of the aqua complex.117

Therefore, this is a breach that falls within the scope of Article 207 UNCLOS.

5. Ravenshout did not notify Astoriana of imminent or actual damage

According to Art. 198 UNCLOS, states have a duty to immediately notify other states if they might

be affected by damage, arising from pollution.118 The notification duty and response requirement

thus assist States in assessing the situation better by taking the needed preventive measures. 119

Ravenshout should have taken precautionary measures, corresponding with its obligation to

immediately notify Astoriana which was likely to be affected by such damage. 120 However, even

when Astoriana’s President urgently tried for three days to initiate a meeting with Prince Fritz IV,

Ravenshout’s representatives were unreachable prior to President Green’s call on 19 June.121 Thus,

Ravenshout breached its obligations under Art. 198 UNCLOS.

B. There is no force majeure that could preclude Ravenshout’s wrongfulness

115
Clarification No. 32.
116
UNCLOS, Art. 1 (4); New substances.
117
Problem, para. 8.
118
UNCLOS, Art. 198.
119
Flemme, p. 17; Boyle, p. 370.
120
UNCLOS, Art. 198.
121
Problem, para. 11; Clarification No. 15.
 18

The Respondent cannot justify its non-compliance with UNCLOS due to force majeure.122 In order

for force majeure to exist three cumulative conditions must be met: the act at hand must be brought

about by an irresistible force or an unforeseen event, the act shall make it materially impossible in

the circumstances to perform the obligation, and the act must be beyond the control of the state.123

However, while the Applicant agrees that an earthquake can be an irresistible force beyond the

control of the State, the earthquake itself did not make it materially impossible for Ravenshout to

perform its obligations. Although the earthquake has caused the initial incident,124 Ravenshout

could still perform its obligations. Moreover, between the time of the earthquake’s beginning and

the end of the brackfish attack Ravenshout had enough time to notify Astoriana of the upcoming

danger, which was clearly not the case.125

C. Astoriana requests the ICJ to order Ravenshout to pay full reparations

It is a well-established principle that a state which has suffered damage caused by another state, is

entitled to reparations.126 Reparation must wipe out all the consequences of the illegal act and re-

establish the situation which would have existed if that act had not been committed.127 In

compliance also with the principle “the polluter pays”, in order to compensate for the negative

122
ARSIWA, Art. 23.
123
DARSIWA, p. 76.
124
Problem, para. 8.
125
Ibid., paras. 8, 9, 10, 11; Clarification No. 15.
126
M/V VIRGINIA, para. 427.
127
Factory at Chorzów, p. 47.
 19

effects caused,128 the responsible state is liable to pay compensation.129 Therefore, ICJ shall order

Ravenshout to pay full compensation to Astoriana for the loss of life and property and the

environmental harm caused in the amount of 3 billion USD as awarded by the tribunal.130

IV. Ravenshout has breached the Fertilizer Import Treaty and shall pay reparations.

The FIT remains in force since Ravenshout has not terminated it in accordance with customary

treaty law (A.). Furthermore, Ravenshout has breached its obligations, deriving from the FIT (B.)

and therefore owes reparations to Astoriana (C.).

A. The FIT is still in force

The FIT is still applicable as Ravenshout has failed to terminate it (1.). Furthermore, there is no

material breach on behalf of Astoriana (2.) or a fundamental change of circumstances (3.), which

could justify the termination of the FIT.

1. The FIT is not terminated in accordance with customary law

In accordance with the customary rule, a treaty can be terminated in conformity with its provisions

or by consent of all the parties.131 As the FIT contains no compromissory clause,132 the treaty could

have been terminated only through the consent of both parties.133 However, immediately after

Ravenshout has announced that it terminates the Treaty with immediate effect, 134 Astoriana

128
Allocation of Loss, p. 74.
129
UNCLOS, Art. 304, M/V SAIGA (No.2), paras. 167, 169.
130
Problem, para. 20.
131
VCLT, Art. 54; Villiger, p. 689.
132
Clarification No. 2, 11.
133
Material Breach, p. 11.
134
Problem, para. 24.
 20

dispatched a letter of objection to the termination.135 It is clear that Astoriana did not consent to

the FIT termination, nor was it consulted in relation to it. Hence, Ravenshout has not terminated

the treaty and it remains in force.

2. There is no material breach of the FIT caused by Astoriana

As established by customary law, material breach entitles the other party to invoke the breach as a

ground for terminating the treaty.136 In order for a material breach to be invoked, there shall be a

breach of a provision essential to the accomplishment of the object or purpose of the treaty137

attributable to a State.138 However, in the present case these elements are not present.

a. The abduction of turkeys by the Convocation cannot be attributed to Astoriana

A conduct of a group of persons can be regarded as an act of the state only if there were direct

instructions by the latter.139 This depends on the “degree of control” exercised which is essential

in order to determine whether an act is attributable to the state.140 As states can act only by and

through their agents and representatives,141 the Convocation’s conduct would be attributable to

Astoriana only if Astoriani representatives controlled the group’s actions. While it is true that the

Convocation is an organization consisting of Astoriani nationals,142 no state representatives take

135
Clarification No. 40.
136
Gabčíkovo-Nagymaros Project, para. 99; VCLT, Art. 60.
137
VCLT, Art. 60, para. 3 (b).
138
Simma, pps. 5-38.
139
ARSIWA, Art. 8.
140
Nicaragua, para. 86.
141
German Settlers in Poland, para. 22.
142
Problem, para. 22.
 21

part in the decision-making process. Although the Convocation sometimes acts as an auxiliary

force,143 the decision to infiltrate Cornucopia was not taken or directed by the state authorities,

which is necessary when discussing auxiliary force.144 ICJ has previously elaborated that without

clear evidence that a state has exercised certain degree of control, it cannot be concluded that an

act by a person or a group can be attributed to that same state.145

In the instant case, Minister Mangan is the only one involved with the Convocation. However, his

position is merely ceremonial, which does not necessarily mean that the State has control over the

Convocation, as neither he, nor any other state representative is part of the group. 146 Despite the

subsidies provided,147 there is no clear evidence that Astoriana had actually exercised any degree

of control.148 A general situation of dependence and support is insufficient to justify attribution of

the conduct to the State.149 Thus, the Convocation’s acts are not attributable to Astoriana.

b. Astoriana has not breached provision with essential meaning to the accomplishment

of the purpose of the treaty

In order for a treaty to be terminated on the ground of material breach, the breach must be essential

to the accomplishment of the object or purpose of the treaty.150 In the current case, Ravenshout

143
Ibid.
144
DARSIWA, p. 47.
145
Nicaragua, paras. 109, 115.
146
Problem, para. 22.
147
Ibid.
148
Nicaragua, paras. 109, 115.
149
DARSIWA, pps. 47, 48.
150
VCLT, Art. 60, para. 3 (b); Gabčíkovo-Nagymaros Project, para. 106.
 22

cannot justify that the abduction of turkeys by the Convocation is a material breach of the FIT.

Тhe FIT’s object and purpose are not the turkeys, but the friendly relations, commerce, and

investment between the two States.151 These are of essential meaning to the accomplishment of

the FIT’s purpose, namely that Astoriana receives 35% of Ravenshout’s production. As Astoriana

wishes to continue the agreement between the two States, there is no breach on behalf of the

Applicant with regard to the essential purpose of the treaty.

3. There is no fundamental change of circumstances

Although a fundamental change of circumstances may justify a demand for the termination or

revision of a treaty,152 there are five strict conditions that must be present cumulatively: 153 there

has to be fundamental change that affected the essential basis of the parties’ consent to be bound

by the treaty, which change was unforeseen and radically transformed the obligations still to be

performed.154 In the current case, however, there was no change that radically transformed

Ravenshout’s obligations. In order for radical transformation to exist the change must so

considerably transform the originally undertaken obligations155 that the state which undertook

them can no longer be required to perform those obligations. 156 Even if the change affects

Ravenshout economically, it cannot lead to the radical transformation required for fundamental

151
Problem, para. 5; Commercial Treaties, para. 6.
152
DALT, p. 257.
153
Ibid., p. 259.
154
VCLT Article 62; Gabčíkovo-Nagymaros Project, para. 104; Árnadóttir, p. 1.
155
U.K. v. Iceland, para. 43.
156
Dörr, Schmalenbach, p. 1089.
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change to be invoked.157 Although the remaining turkey population cannot meet pre-10 October

production levels,158 the reserved 35% are based on a percentage of the entire production. Since

Ravenshout’s obligation was not radically transformed, it cannot rely on a fundamental change of

circumstances as a ground for the FIT’s termination.

B. Ravenshout has breachеd its obligations under the FIT

1. Ravenshout has breached the FIT

The principle of pacta sunt servanda enshrines that treaties must be performed by the parties in

good faith.159 Under the FIT, Ravenshout has reserved 35% of its stock for Astoriana, however by

canceling a series of scheduled fertilizer shipments,160 it breached its obligations under the treaty.

2. Ravenshout’s breach cannot be justified by countermeasures

Countermeasures must be taken in response to a previous internationally wrongful act of another

State and must be directed against that State.161 They have to be proportionate to the alleged

breach162 and shall be applied after notification to the responsible state.163 However, these

conditions are not met in the present case, as Astoriana has not committed any internationally

wrongful act towards Ravenshout.164 Moreover, Ravenshout’s decision to deprive Astoriana from

157
Brazilian Loans, para. 66; Serbian Loans, para. 82; Dörr, Schmalenbach, p. 1080.
158
Clarification No. 16.
159
DALT, p. 211.
160
Problem, paras. 5, 25.
161
Gabčíkovo-Nagymaros Project, para. 83.
162
DARSIWA, p. 134.
163
Air Service Agreement, paras. 83, 85; DARSIWA, p. 136.
164
See Section IV.A.2.a.
 24

its reserved stock165 seems to have a rather punitive effect in contrast to the purpose of

countermeasures - to encourage the responsible State to comply with its obligations.166

Additionally, Ravenshout must have notified Astoriana of its decision to take countermeasures and

should have addressed Astoriana’s specific conduct in order to cease the wrongful act before

canceling the shipments.167 Hence, Ravenshout’s acts cannot be justified as countermeasures.

C. Ravenshout shall pay reparations to Astoriana

Reparation must wipe out all the consequences of the illegal act and re-establish the situation which

would have existed if that act had not been committed.168 Ravenshout must therefore compensate

Astoriana for the damages caused to the Applicant by canceling the shipments before 31

October.169 As compensation covers any financially assessable damage “including loss of profits

insofar as it is established”,170 compensation for the loss of future profits would put Astoriana

back in the situation in which it would have been with regard to the fertilizer supplies,171 had

Ravenshout complied with its obligations. Therefore, Ravenshout shall pay compensation to

Astoriana covering the lost profits for the remaining time in which the FIT would be in force.

165
Problem, para 24.
166
DARSIWA, p. 135.
167
ARSIWA, Art. 43.
168
Factory at Chorzów, p. 47; Corfu Channel Compensation, p. 249; Gabcikovo-Nagymaros
Project, para. 129, 152; Bosnian Genocide case, para 460.
169
Clarification No. 29.
170
ARSIWA, Art. 36 (2).
171
LETCO, para. 119; Crystallex, para. 879.
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(h) Submissions

Astoriana respectfully requests the Court to adjudge and declare that:

I. ICJ has jurisdiction to rule in the case and the dispute before it is admissible.

II. The May 2022 award is valid and binding under international law and Ravenshout must

provide the compensation awarded to Astoriana therein.

III. Ravenshout has breached UNCLOS and therefore owes reparations.

IV. Ravenshout has breached the Fertilizer Import Treaty and shall pay reparations.