Ratona Ouline-1.docx

Group II – Outline of Ratona’s Arguments Part I- Whether the establishment of Delfino Archipelago Marine Protected Area (MPA) and the measures taken by Ratona constitutes a violation of International Law. A. Ratona has legitimately exercised its sovereign rights over Delfino Archipelago based on Articles 56, 61, 192 and 194 of United Nations Convention on the Law of the Sea (UNCLOS) Similarly, Ratona has sovereign rights to take measures that are necessary to prevent, reduce and control pollution of the marine environment from any source. As discussed in the Chagos Arbitration case, the Tribunal rejects the suggestion that Part XII of the Convention which relates to the protection and preservation of the marine environment, is limited to measures aimed at controlling marine pollution. While the control of pollution is certainly an important aspect of environmental protection, it is by no means the only one. The Tribunal notes that Article 194(5) includes measures taken which are necessary to protect and preserve rare or fragile ecosystems. B. Ratona has legitimately exercised its rights and performed its obligations in good faith and with due regard to the rights and duties of other States based on Article 56(2) and 279 of the UNCLOS and generally accepted principles of International Law Upholding these, it is evident that Ratona and Asteria have entered into negotiations in good faith concerning the latter’s alleged fishing right over Delfino Archipelago to reach at an acceptable compromise and to reconcile their respective interests. Ratona’s continuous offer and efforts to enter into an amicable settlement with Asteria can be seen through the series of negotiations occurred between them, however, both states failed to come up with an agreement. A state is free to negotiate with other states and is not liable for failure to reach an agreement, provided it is done in good faith. Thus, all the efforts of Ratona to negotiate with Asteria shows that Ratona’s unilateral declaration of MPA does not constitute an abuse of Asteria’s rights because it entered into genuine, serious and good faith efforts to reach an agreement with Asteria as to how those rights may continue to be exercised. Consequently, Ratona has no liability with Asteria on account of the failed negotiations. On the contrary, despite of the failed negotiations, Ratona’s earnest and sincere efforts to settle the alleged fishing rights of Asteria can be appreciated through its proposal of a possible compensation to safeguard such alleged rights of Asteria which shows “due regard of the coastal state” to the rights of other States. Moreover, Ratona’s willingness to resolve the dispute before the International Court of Justice (ICJ) exhibits good faith in settling the concerned fishing rights of Asteria. Therefore, all of these acts of Ratona is in accordance with International Law and imposes no liability to Ratona.

C. Asteria is precluded from asserting its traditional fishing rights upon its ratification of the delimitation agreement without reference to their fishing rights based on the doctrine of estoppel. Although Asteria demanded special consideration of the fishing activities, there was no reference to the issue concerning the fishing rights of the Asterian fisherfolk in the agreement. They did not pursue to negotiate with Ratona about their fishing concerns after they have ratified the agreement. The agreement was ratified in 1995 and Asteria remained silent of their historic claims until year 2015, or after almost twenty (20) years. It can therefore be concluded that International estoppel is based on the principles of good faith and consistency in international relations. It has been applied to cases of acquiescence and also binds States even on unilateral declarations. Thus, such inconsistency of the government of Asteria gives rise to estoppel, by which, the unilateral declaration of the MPA Act have been considered binding between Ratona and Asteria. D. Ratona lawfully exercised its right to inspect foreign vessels within its EEZ under Article 73(1) of the UNCLOS Ratona in the exercise of its sovereign rights to conserve and manage the living resources in its EEZ may take such measures including inspection as may be necessary to ensure compliance with the MPA Act. Thus, the act of Ratonan Coast Guard in inspecting the Asterian fishing vessel within the Ratonan EEZ around Delfino Archipelago in suspected violation of the MPA Act constitutes exercise of legitimate sovereign rights by Ratona, and is not illegal, contrary to Asteria’s allegation. The mere presence of a fishing vessel within the EEZ of Ratona is a strong indication of violation of MPA Act which prohibits fishing within the EEZ, there is a probable cause for Ratona to take such precautionary measures. Moreover, the inspection conducted by Ratona is commensurate to ensure compliance with the MPA Act. It should be noted that Ratonan authorities did not arrest and impose any penalty on the Asterian vessel when the latter was suspected in violating the MPA Act, therefore Ratona did not take such measures in excess of its sovereign rights. Part II - Whether the traditional fishing rights of Asteria within Ratonan’s EEZ prevails over Ratona’s sovereign rights. A. The Sovereign Rights of Ratona prevails over the Asterian Traditional Fishing Rights within the Exclusive Economic Zone of Ratona There are three states that the foregoing is only applicable: 1. The geographically disadvantaged States; 2. Land Locked States; and 3. Archipelagic States.

The geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62 of the UNCLOS. These States shall be entitled to participate in the exploitation of living resources only in the exclusive economic zones of developed coastal States of the same sub-region or region having regard to the extent to which the coastal State, in giving access to other States to the living resources of its exclusive economic zone, has taken into account the need to minimize detrimental effects on fishing communities and economic dislocation in States whose nationals have habitually fished in the zone.1 The Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub-region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62 of the UNCLOS.2 An archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals.3 This, however, is without prejudice to Article 49 of the UNCLOS which covers the Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil. Under Article 55 of the UNCLOS, the exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. To that, the EEZ is not under the sovereignty of the coastal State but a specific legal regime whereby coastal States have sovereign rights and jurisdiction over the natural resources in the body of water, seabed and subsoil within their EEZ. Thus, in view of the foregoing, a coastal State’s sovereign rights over all living resources within their EEZ has completely superseded the traditional fishing rights of other States. Under Article 61(1) of the UNCLOS, the coastal State shall determine the allowable catch of the living resources in its exclusive economic zone. However, coastal state is solely responsible for determining its own allowable catch and surplus, if any

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ART.70. Right of geographically disadvantaged States Article 69 Right of land-locked States 3 Article 51 Existing agreements, traditional fishing rights and existing submarine cables 2

Under Article 62(2) of the UNCLOS, the coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein. In the paragraph 3 of the same article, in giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. Such access is dependent on the coastal State’s consent and discretion whether to grant or to deny the same to other States taking into account all relevant factors such as the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests However, the rights of other States “whose nationals have habitually fished in the zone” are specifically addressed in Article 62 of the Convention. Under this provision, coastal States are only obliged to permit fishing in the exclusive economic zone by foreign nationals in the event that the coastal State lacks the capacity to harvest the entire allowable catch. Even then, historic fishing in the area is only one of the criteria to be applied in allocating access, and foreign fishing is subject to the laws and regulation of the coastal State. The Tribunal considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in the areas that now form part of the exclusive economic zone and continental shelf of another State.4 States have, in accordance with the Charter of the United Nations and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.5 States have the sovereign right to exploit their natural resources pursuant to their environmental policies. Their duty is to protect and preserve the marine environment.6 The states shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State.7 In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the

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Philippines Vs. China Article 3, Convention on Biological Diversity 6 Article 56, UNCLOS 7 Article 56 (2), UNCLOS 5

provisions of this Convention and other rules of International Law in so far as they are not incompatible with this Part.8 It is general rule that traditional fishing rights are not absolute or impervious to regulation, thus, must necessarily be regulated to conserve the environment and prevent it from overexploitation. However, traditional fishing rights should be taken into consideration in exceptional circumstances as laid down in the Gulf of Maine case, which provides for catastrophic social and economic repercussions if fisheries rights are ignored. B.

Ratona and Asteria are both parties to the UNCLOS

Under the principle of “PACTA SUNT SERVANDA”, every treaty in force is binding upon the parties to it and must be performed by them in good faith. Under International Law, once a state ratified a treaty, the state concerned is bound by the rules laid down in that treaty.9 In the case of Philippines v. China, the following propositions fall within the basic rule of pacta sunt servanda: 1. To adjudge and declare that China shall respect the rights and freedoms of the Philippines under the Convention. 2. To adjudge and declare that China shall comply with its duties under the Convention, including those relevant to the protection and preservation of the marine environment in the South China Sea. 3. To adjudge and declare that China shall exercise its rights and freedoms in the South China Sea with due regard to those of the Philippines under the Convention. In view of the foregoing, what the Philippines is requesting is a declaration from the Tribunal that China shall do what it is already obliged by the Convention to do. States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.10 States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right. Thus, both Parties are obliged to comply with the Convention, including its provisions regarding the resolution of disputes, and to respect the rights and freedoms of other States under the Convention. In connection with present case, Ratona and Asteria as original parties in UNCLOS, shall be bound by the provisions in said Convention and has the obligation to comply with it in good 8

Article 58 (3), UCLOS Article 26, Vienna Convention on the Law of Treaties 10 Article 300, UNCLOS 9

faith. Whatever rules that may be applied before beyond contiguous zones are already superseded and regulated by the EEZ regime under UNCLOS, which has been widely accepted by States. Asteria had ratified UNCLOS with full knowledge of such regime, therefore, agreeing to be bound by the rules UNCLOS created, particularly the rules regarding historic titles and EEZ regime, thereby absorbing such historic rights. Therefore, any historic claim, such as traditional fishing rights that Asteria may have in Delfino Archipelago, will not prevail over Ratona’s sovereign rights as Ratona, being a coastal state, is under no obligation to recognize them since by accepting the EEZ regime, Asteria has given up any claims it may have had based on traditional or historic fishing rights. C. Ratona is not bound to recognize the traditional fishing rights of Asteria as there exist no bilateral agreement between the two states. As an incident of the sovereign rights of a coastal state, Ratona is not bound to recognize the traditional fishing rights of Asteria, unless both parties will enter into bilateral agreement. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of International Law. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of International Law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.11 In most cases, bilateral agreement as to delimitation of maritime boundaries contains provisions regarding traditional fishing rights of another state, which shows recognition by the coastal state. D. No express obligation for Coastal States to recognize traditional fishing rights contrary to archipelagic states pursuant to UNCLOS. It has been generally emphasized that the EEZ regime precludes States from making claims to traditional fishing rights in the EEZ of other States, thereby maintaining the argument that no obligation is expressly provided for under UNCLOS that Coastal States have to recognize historic rights unlike in archipelagic states.12 The latter shall respect the agreement with other states and shall recognize traditional fishing rights of bordering state within any part of the archipelagic waters. Without prejudice to article 49 of the UNCLOS (Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil), an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of

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Article 74(1), UNCLOS Article 55, Unclos

the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals. For the coastal states, traditional fishing rights has not been expressly reserved in the provisions under EEZ. However, a ‘consideration’ for traditional fishing in the EEZ is provided under Article 62 of UNCLOS, although the terms ‘traditional’ and ‘historic’ are not used. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.13 Ratona is solely responsible for determining its own total allowable catch, and therefore the surplus, if any. The provision only requires for Ratona to ‘consider’. Fishing practices of other States within EEZ are merely considerations to be taken into account by Ratona as a Coastal state, and thus it is within its discretion. The concept of historic rights remains relevant only to the extent that it is among the factors to be taken into account in giving access to surplus fish. Part III - Whether the Asteria is obliged to comply in the measures taken by Ratona in exercising its sovereign rights Evidently, as established in the preceding arguments, Ratona complied in good faith in establishing the MPA for the purposes of protecting its marine environment and as a result of legitimately exercising its sovereign rights and duties. It is expressly provided in the above-stated provision that Asteria in return, shall comply with the laws and regulations adopted by the Coastal State, Ratona Part IV- Whether Asteria have any legal Capacity to ask the court to abolish Ratona’s MPA. Based on the foregoing, the conduct of Asteria in assailing the MPA Act in Delfino Archipelago would infringe Ratona’s inherent rights and violate the principle of sovereign equality. These sums up that Asteria shall have no right to ask the Court to abolish the MPA Act of Ratona even if the latter were to violate International Law, as both states have an equal sovereign right under fundamental and generally accepted principles of International Law.

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Article 62(2)