memorial-rydal 618 (respondent-online submission)

TEAM CODE: 618R

THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

CASE CONCERNING “THE WINDSCALE ISLANDS”

IN THE INTERNATIONAL COURT OF JUSTICE

LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE

NETHERLANDS

THE REPUBLIC OF ASPATRIA

APPLICANT

v.

THE KINGDOM OF RYDAL

RESPONDENT

LA RÉPUBLIQUE D’ASPATRIA

DEMANDERESSE

v.

ET LE ROYAUME DE RYDAL

DÉFENDEUR

-MEMORIAL FOR THE RESPONDENT-

The 2010 Philip C. Jessup International Law Moot Court Competition

MEMORIAL FOR THE RESPONDENT

TEAM CODE: 618R

THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

CASE CONCERNING “THE WINDSCALE ISLANDS”

IN THE INTERNATIONAL COURT OF JUSTICE

LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE

NETHERLANDS

THE REPUBLIC OF ASPATRIA

APPLICANT

v.

THE KINGDOM OF RYDAL

RESPONDENT

LA RÉPUBLIQUE D’ASPATRIA

DEMANDERESSE

v.

ET LE ROYAUME DE RYDAL

DÉFENDEUR



TABLE OF CONTENTS

ABBREVIATIONS......................................................................................................I-III

INDEX OF AUTHORITIES........................................................................................IV-X

DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS

AND MUNICIPAL COURTS..........................................................................IV-VI

BOOKS CITED................................................................................................VI,VII

BOOKS REFERRED.......................................................................................VII-IX

JOURNALS,ARTICLES AND DIGESTS.............................................................IX

CONVENTIONS,TRESTIES,REPORTS AND U.N DOCUMENTS..............IX-X

WEB SOURCES.....................................................................................................X

STATEMENT OF JURISDICTION..................................................................................XI

QUESTIONS PRESENTED.............................................................................................XII

STATEMENT OF FACTS...................................................................................XIII-XVIII

SUMMARY OF PLEADINGS..............................................................................XIX-XXI

PLEADINGS AND AUTHORITIES..............................................................................1-30

PRAYER........................................................................................................................XXII



LIST OF ABBREVIATIONS

1. &: And

2. ¶: Paragraph

3. ¶¶: Paragraphs

4. A.D.: Anno Domini

5. A.F.D.I: Annual Foreign Direct Investment

6. A.J.I.L.: American Journal of International Law

7. ALEC: A & L Exploration Corporation

8. Art.: Article

9. B.F.S.P.: British and Foreign State Papers

10. BIT: Bilateral Investment Treaty

11. B.Y.I.L.: British Yearbook of International Law

12. Co.: Company

13. co.: cooperation

14. C. W. R. J.I.L.: Case Western Reserve Journal of International Law

15. e.g.: example

16. GAOR: General Assembly Official Records

17. G.A. Res.: General Assembly resolution

18. H.L.: House of Lords

19. Hon’ble: Honourable

20. H.V.I.L.J: Harvard International Law Journal

21. I.C.S.I.D.: International Centre for Settlement of Investment Disputes



I

22. ICESCR: International Covenant on Economic, Social and Cultural Rights

23. I.C.J.: International Court of Justice

24. I.C.J. Rep.: International Court of Justice Reports

25. I.L.R.: International Law reports

26. ILSA: Islanders Longing for Sovereignty and Autonomy

27. L.N.: League of Nations

28. L.N. Council Doc.: Council of the League of Nations Document

29. L.N.O.J.: League of Nations Official Journal

30. L.R. CP.: Court of Common Pleas Law Reporter

31. Ltd.: Limited

32. MDR Limited: Monte de Rosa Limited

33. MDR: Monte de Rosa Limited

34. mtg.: Meeting

35. No.: Number

36. Nos.: Numbers

37. NRA: Natural Resources Act

38. p.: page

39. pp.: pages

40. P.C.I.J.: Permanent Court of International Justice

41. Pvt.: Private

42. Rep.: Reports

43. Res.: Resolution

44. Rev. I.C.J.: Revision International Court of Justice

45. ROCO: Rydalian Oil Company



II

46. Ser.: Serial

47. Sess.: Session

48. Supp.: Supplement

49. U.N.: United Nations

50. UNCERD - United Nations Center For Economic Reform and Development

51. U.N. Doc.: United Nations Document

52. v.: versus

53. Vol.: Volume

54. W.C.R.: World Court Reports

55. Y.B.I.L.C: Yearbook of the International Law Commission



III

INDEX OF AUTHORITIES

[DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS

AND MUNICIPAL COURTS]

1. The Island of Palmas case (United States of America v. The Netherlands) , (1928)

22 A.J.I.L.875……………..............................................................................1,3,5,12

2. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No

53................................................................................................................................2

3. Western Sahara case, Advisory Opinion, 1975 I.C.J,

12…………………….............................................................................................2,1

5,18

4. Island of Pedra Branca case , (Singapore v. Malayasia) I.C.J. Rep. 2008 ,

228...........................................................................................................2,5,7,9,28,29

5. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No

53.............................................................................................................................2,4

6. Clipperton Island case (France v. Mexico), (1932) 26 A.J.I.L. 390……..............4,13

7. Frontier Lands Case ,(Belgium v The Netherlands), I.C.J. Rep.

1959 ,209......................................................................................................................

.......5

8. Temple of Preah Vihear case ,I.C.J. Rep. 1962 .6.................................................5,11

9. Sipadan Islands case(Indonesia v Malaysia), I.C.J. Rep. 2002,625...........................5



IV

10. British Guiana and Venezuela Boundary Arbitration, (1896) 89 B.F.S.P.

57…............................................................................................................................6

11. The case of the S. S. “Lotus”(France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10. .....8

12. Decision regarding Delimitation of the Border between the State of Eritrea and the

Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28,...............................7

13. Sipadan Islands case ( Indonesia v Malaysia), I.C.J. Rep. 2002, 625.....................5,8

14. Nottebohm case( Liechtenstein v. Guatemala), I.C.J. Rep. 1955 ,4.........................13

15. The Namibia Case, (1971) I.C.J. Rep, 16...............................................................14

16. Tata Celular v Union of India, (1994) 6 SCC 651..................................................22

17. Spencer v Hardinge (1870) 5 L.R. CP, 561..............................................................22

18. East Timor case I.C.J. Rep.1995,.90 at 102.............................................................23

19. Republic of Zaire v Democratic Republic of Congo I.C.J Rep. 2007,……...........23

20. Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, 77...........23

21. Pickersgill v Rodger,(1876) 5 Ch.D., 163................................................................25

22. Codrington v Codrington, (1875) 7 H.L. 854, 861..................................................25

23. Mihaly International Corporation v. Democratic Socialist Republic of Srilanka

I.C.S.I.D. case No- ARB/002/2 , 24.........................................................................26



V

24. Elettronica sicula S.p.A. (ELSI) case, (United States of America v. Italy) I.C.J.

Rep.15……………………………………………..………………………27,28,30

25. Asylum Judgment (Colombia v. Peru), I.C.J. Rep. 1950, 284.................................28

26. Barcelona Traction case (Belgium v. Spain) I.C.J. Rep. 1970 .46…...................27,28

[BOOKS CITED]

1. 2 L. OPPENHEIM ,OPPENHEIM’S INTERNATIONAL LAW, ( SIR ROBERT

JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH

EDITION)-………………………………………………………………..….3,14,19

2. The Cyprus case quoted in D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS

TEXT AND MATERIALS , (SWEET & MAXWELL, LONDON, 2ND EDITION

2001).........................................................................................................................12

3. D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT AND MATERIALS

, (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).................................14

4. K. C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, ( EASTERN

BOOK COMPANY 2006 EDITION)………………………...…………………...15

5. MATTHEW C. R. CRAVEN, THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS- A PERSPECTIVE OF ITS

DEVELOPMENT, ( CLARENDON PRESS OXFORD 1995)……….…………17



VI

6. TRAYNER, TRAYNERS LATIN MAXIMS, 11 (UNIVERSAL PUBLICATIONS,

4TH EDITION, 2005)...........................................................................................20,24

7. ROGER LOUIS, ENDS OF BRITISH IMPERIALISM: SCRAMBLE FOR

AFRICA, SUEZ & DECOLONIZATION, (OXFORD PUBLICATIONS)..........21

8. RICHARD STONE, MODERN LAW OF CONTRACT, (ROTLEDGE &

CAVENDISH,7TH EDITION).................................................................................21

9. G. H. TRIETEL ,OUTLINE OF LAW OF CONTRACT , 9 (OXFORD

PUBLICATION).....................................................................................................22

[BOOKS REFERRED]

1. T HE FUTURE OF INTERNATIONAL ECONOMIC LAW ,(WILLIAM J DAVEY

AND JOHN JACKSON OXFORD UNIVERSITY PRESS 2008)

2. BASIC DOCUMENTS IN INTERNATIONAL LAW ,( IAN BROWNLIE

OXFORD UNIVERSITY PRESS, 6TH EDITION 2009,)

3. DR. H. O. AGARWAL, A CONCISE BOOK ON INTERNATIONAL ALW AND

HUMAN RIGHTS, (CENTRAL LAW PUBLICATIONS 1ST EDITION 2007)

4. J.L. BRIERLY, THE LAW OF NATIONS AN INTRODUCTION TO THE

INTERNATIONAL LAW OF PEACE, (SIR HUMPHREY WADLOCK,

OXFORD UNIVERSITY PRESS 2008 1ST EDITION)



VII

5. K.C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, (EASTERN

BOOK COMPANY 2006 EDITION)

6. GERNOT BIEHLER, PROCEDURES IN INTERNATIONAL LAW,

(SPRINGLER 2008 EDITION)

7. CARL SCHMITT, THE LEVIATHAN IN THE STATE THEORY OF THOMAS

HOBBES, (THE UNIVERSITY OF CHICAGO PRESS, 2008)

8. INTERNATIONAL LAW AND POLITICS , (SHERLEY V. SCOTT, VIVA

BOOKS, 1ST EDITION 2008)

9. MARK WESTON JANIS, INTERNATIONAL LAW, (ASPEN PUBLISHERS, 5TH

EDITION 2008)

10. DR. H. O. AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS, (15TH

EDITION, CENTRAL LAW PUBLICATIONS, ALLAHBAD)

11. P. K. DAS, INTERNATIONAL LAW DOCUMENTS, (UNIVERSAL LAW

PUBLISHING COMPANY PRIVATE LIMITED, 2003 EDITION)

12. ASHWINIE KUMAR BANSAL, ARBITRATION AGREEMENTS AND

AWARDS, (UNIVERSAL LAW PUBLISHING COMPANY 2ND EDITION)

13. RULE OF LAW IN A FREE SOCIETY , (N.R. MADHAVA MENON OXFORD

UNIVERSITY PRESS 2008)

14. A.R. BISWAS, INTERNATIONAL LAW, (KAMAL LAW HOUSE CALCUTTA

1ST EDITION 1999)



VIII

15. WILFRED BOLEWSKI, DIPLOMACY AND INTERNATIONAL LAW IN

GLOBALIZED RELATIONS, (SPRINGLER)

16. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS ,

(1 BOOKWELL 2002)

17. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS ,

(2 BOOKWELL 2002)

[JOURNALS AND ARTICLES]

1. 1950 B.Y.B.I.L., Vol-XXII, p. 332............................................................................5

2. Report on the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26;

Franck (1983) 77 A.J.I.L. 109....................................................................................6

3. A.A. Idowu , Revisiting the Right to Self-Determination in Modern International

Law: Implications for African States , 6 European Journal of Social Sciences ,

Number 4 Rev. 43 (2008)....................................................................................16,18

4. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An

Evaluation of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J.

67 .............................................................................................................................27

5. Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II

Y.B.I.L.C.,Part Two.................................................................................................29



IX

[CONVENTIONS, TREATISIES, REPORTS AND U.N. DOCUMENTS]

1. Treaty of Washington, 1871; British Gyanna Arbitration, 1899...............................6

2. United Nations Charter..............................................................................12,14,18,26

3. United Nations World Conference on Human Rights, Part 1, ¶ 2 (Vienna

Declaration and Programme of Action) June 1993..................................................17

4. Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805.................................21

5. Vienna Convention on the Law of Treaties,Art. 2, 1969.........................................25

6. I.C.S.I.D. case No- ARB/002/2 ,¶ 24......................................................................26

7. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An

Evaluation of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J.

67 .............................................................................................................................27

8. UNITED NATION CENTRE FOR ECONOMIC DEVELOPMENT

DOCUMENT ...27

[WEB SOURCES]

http://www.pca-cpa.org/upload/files/EEBC-3.pdf...........................................7

http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands..................................10

STATEMENT OF JURISDICTION



X

XI

http://www.pca-cpa.org/upload/files/EEBC-3.pdf...........................................7

THE REPUBLIC OF ASPATRIA AND THE KINGDOM OF RYDAL SUBMIT THE

PRESENT DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE BY SPECIAL

AGREEMENT, DATED SEPTEMBER 10, 2010, PURSUANT TO ARTICLE 40(1) OF

THE COURT’S STATUTE. THE PARTIES HAVE AGREED TO THE CONTENTS OF

THE COMPROMIS SUBMITTED AS A PART OF THE SPECIAL AGREEMENT. IN

ACCORDANCE WITH ARTICLE 36(1) OF THE STATUTE OF THE COURT, EACH

PARTY SHALL ACCEPT THE JUDGMENT OF THIS COURT AS FINAL AND

BINDING AND SHALL EXECUTE IT IN GOOD FAITH IN ITS ENTIRETY.



QUESTIONS PRESENTED

1. WHETHER RYDAL MAY TAKE STEPS GIVING EFFECT TO THE

INDEPENDENCE OF THE WINDSCALE ISLANDS OR HAS TO CEDE

ADMINISTRATION OVER THE ISLANDS TO ASPATRIA.

2. WHETHER RYDAL’S REJECTION OF MDR’S BID CONSTITUTED A

VIOLATION OF THE ASPATRIA-RYDAL BIT.

3. WHETHER RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL

BIT TO PROTECT THE ASSETS OF ALEC.



XII

STATEMENT OF FACTS

[ENTITIES INVOLVED]

ASPATRIA - THE APPLICANT, FORMER COLONY OF PLUMBLAND

RYDAL - THE RESPONDENT

PLUMBLAND - THE FORMER COLONIAL PARENT STATE OF ASPATRIA

WINDSCALE ISLANDS - THE DISPUTED ARCHIPELAGIC TERRITORY

ROCO - MULTINATIONAL COMPANY INCORPORATED IN RYDAL

ALEC - A SUBSIDARY OF ROCO INCORPORATED IN ASPATRIA

MDR LTD. - ASPATRIAN INCORPORATION

[EVENTS LEADING TO THE DISPUTE]

FACTUAL HISTORY:

The present day developed coastal country Aspatria was a colony of the kingdom of

Plumbland from 1610 to 1820. Rydal, a constitutional monarchy has had established

several colonies throughout the world. Windscale Islands, the disputed territory, are an



XIII

archipelago in the Southern Hemisphere in the Eden Ocean, closest to the Republic of

Aspatria. ¶¶ 1-4

On 6th of December 1777, one Captain Geoffrey Parrish under the commission of the

King of Rydal discovered the Islands, as recorded in his ship’s log. A flag of Rydal and a

stone carved with a declaration asserting the Rydalian King’s sovereignty was left behind

on the Islands. Early next year, the viceroyalty of Aspatria, under the authority of

Plumbland sent a naval ship commanded by Lieutenant Manuel Ricoy to settle and claim

the Islands. After 20 years of settlement and establishment of the fort, inhabitants were

called back to the mainland Aspatria. A flag of Plumbland and a notice declaring

Aspatria’s title to the Islands by first occupation was left. Historians believe of the islands

being used by seafarers, pirates, slave-ships etc. during this period. Later, nautical charts

depicting the islands as the territory of Plumbland were produced in Plumbland and

Aspatria as well, ascribing the name ‘Windscale Islands’. ¶¶ 5-9

On 6th September 1813, Rydalian HMS Applethwaite, commanded by Admiral George

Aikton was wrecked on one of the smaller Islands. The members established a

‘temporary’ settlement named St. Bees. Rydal assumed HMS Applethwaite to be lost.

In1815, a slave ship called Unthank landed on St. Bees who swore loyalty to the Rydalian

Queen and the members were offered a refuge by Admiral Aikton. ¶¶ 10-13

In June 1817, Grizdale commanded by Commander Javier Crook who was sent by the

Aspatrian Viceroyalty to establish a penal colony, was confronted by Aikton with his

armed sailors which Crook protested as he left .In the mid 1818, King Piero protested

through a diplomatic note containing its claim over the Islands by first occupation, sent to



XIV

the Queen of Rydal. Rydal acknowledged of them being unaware of the survival of HMS

Applethwaite and rejected all Plumbland’s Claim. ¶¶ 14-16

Aspatria declared its independence on 2nd November 1820, and the constitution of the new

Republic of Aspatria provided that the Islands were a part of the same. Meanwhile,

Plumbland ceded the Islands to Rydal under the Treaty of Corby signed on 22nd

September 1821. ¶¶ 17-21

In 1826, President Diaz sent a force for seizure of the Islands. Next year, the Rydalian

Queen received the Aspatrian Ambassador formally and recognized the Aspatrian

Independence. In the subsequent meeting with Rydalian Foreign Minister Smith, Rydal

rejected the devolution of the Aspatrian viceroyalty by the principle of uti possidetis juris.

¶¶ 22-25

In 1841, Plumbland recognised Aspatria’s sovereignty and independence acknowledging

Aspatria’s continued claim to the Islands. In 1845, Aspatria established a permanent

diplomatic mission in Rydal. The Rydalian Foreign Ministry fervently dismissed all the

routinely reiterated Aspatrian claims to the Islands. ¶¶ 26, 27

The Islands though economically dependent on Rydal, remained poor by economic

standards. The Islanders were given the status ‘Rydalian Dependent Territory citizen’ and

not full Rydalian citizenship. Where as, since inception Aspatrian law has treated persons

born on the Islands as citizens of Aspatria. ¶¶ 31, 32

In 1947, the Islands were given constitution by Rydal confirming Rydalian sovereignty

over Islands and its resources. 1n 1949, Aspatrian Ambassador referred the dispute to the



XV

Secretary General of U.N. In 1962, before the Special Committee, the Rydalian Prime

Minister appeared and stated that Rydal respected the will of the Islanders. The delegation

routinely expressed its desire that the Islands remain a part of Rydal. Ten states located

near Aspatria and eight other states regularly supported Aspatria's claim to the Islands

before the U.N.S.C. and the General Assembly. ¶¶ 30-38

Owing to the increase of trade, the countries in 1985 entered in the Aspatria-Rydal BIT.

ROCO owns 80% shares of ALEC. NRA passed in Aspatria restricted Aspatrian

companies to act inconsistent with government license natural resources including

exploitation of energy resources making the same a criminal offence. In 1993, Aspatria

granted ALEC a license to exploit oil deposits in Aspatria.¶¶ 39-41

In 1997, oil was discovered within EEZ of the Islands. Rydal contracted with ROCO to

explore and map the oil reserves and as per the report submitted by ROCO the Islands

could become important oil producers. Owing to this discovery independence movement

in Islands was energised by ILSA. Aspatria too rejuvenated its claims over the Islands. ¶¶

42-44

MDR Limited owned by Monte de Rosa in 2003, gained an exclusive license to extract

the oil in the Windscale Islands from the Aspatrian government under NRA. The Prime

Minister of Rydal protested at the decision citing absence of Aspatrian sovereignty over

the islands. But subsequently he and MDR Ltd. took no steps to extract oil. ¶¶ 45-48

In December 2006, a scheme of Rydalian government to invite and evaluate bids for the

rights to exploit the oil reserves within the EEZ of the Islands by the Rydalian companies

was put forth, which was protested by Aspatrian authorities. Bids were only made by



XVI

ROCO & MDR Limited. ROCO in its bid listed the assets of ALEC. MDR Limited’s bid

being more beneficial was endorsed by majority of 20 to 15 which ILSA suspected. On

consultation with Prime Minister Abbott, Governor withheld her signature. On a call of

re-consideration ROCO bid was approved & Governor promptly signed the

recommendation. The ILSA members accepted the bid but with a concern over the high-

handed manner in which Governor treated the issue defeating the cause of self-

determination and called for independence of Islanders. Monte de Rosa denounced the

decision as discriminatory and violative of the BIT. ¶¶ 49-55

On 16 November 2007, the Public Prosecutor of Aspatria filed criminal charges against

ALEC under the NRA for materially participating in ROCO bid circumventing the

Aspatrian license, along with an administrative petition, for seizing its assets within

Aspatria to maintain status quo as warranted under Aspatrian criminal code, which was

granted. ALEC’s petition for cancellation of the order was denied, with no further appeal

being possible. Counsel for ALEC complained of slow pace of justice alleging permanent

seizure. On a protest of Prime Minister Abbott Aspatria denied the protection of assets of

ALEC by the BIT. Meanwhile, Monte de Rosa’s challenge and appeals in Rydalian courts

failed, on which he invoked his rights under the BIT. ¶¶ 56-61

Controversy of rejection of MDR’s bid led to non-violent protests across the Islands

calling for a referendum on independence, leading to a plebiscite in December 2008,

wherein 76% of the Islanders voted for independence. President Lavin condemned the

plebiscite as illegal. ¶¶ 62-65



XVII

Prime Minister Abott considering all issues, proposed for negotiation which President

Lavin accepted, and the two States concluded the present Special Agreement. ¶¶ 66-68



XVIII

SUMMARY OF PLEADINGS

1. RYDAL MAY TAKE STEPS GIVING EFFECT TO THE INDEPENDENCE OF

THE WINDSCALE ISLANDS.

A. SOVEREIGNTY OVER THE ISLANDS BELONGS TO RYDAL.

1.A.1 Rydal has an apparent title to territorial sovereignty of the Windscale

Islands by virtue of first discovery.

1.A.2 Aspatria had inherited the territory of the islands from Plumbland after its

independence. The territory was an inchoate title which was not qualified for

occupation.

1.A.3 Aspatria’s claim on the Islands on ground of uti possidetis juris principle is

not a valid claim.

1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the

Islands.

1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of

Aspatria.



XIX

B. THE ISLANDERS ARE ENTITLED TO INDEPENDENCE AS AN EXERCISE

OF THEIR RIGHT TO SELF-DETERMINATION.

1.B.1 The Islanders have a legal right to self -determination .

1.B.2 The claim by Rydal for providing the right of self-determination to the

Islanders is maintainable.

1.B.3 The application of right to self-determination subdues the interest of

territorial and political unity of Aspatria.

2. RYDAL’S REJECTION OF MDR’S BID DOESNOT CONSTITUTE A


2.1 Rydal has the authority to reject the MDR bid

2.1.1 Monte de Rosa’s intentions are clear owing to Actus exteriora

indicant interiora secreta

2.1.2 Prospective Threat to Public and National Interest



XX

3. RYDAL HAS A STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO

PROTECT THE ASSETS OF ALEC AND THE SEIZURE OF SUCH ASSETS

WAS A VIOLATION OF THE ASPATRIA-RYDAL BIT.

3.1 Nemo plus juris ad alium transfere potest quam ipse habet

3.2 Seizure of ALEC’s assets violates the Aspatria-Rydal BIT.

3.2.1 The International Law gives a binding recognition to the BITs

3.3 The Right of Diplomatic Protection.

3.4 Local remedies need not be exhausted owing to exception to the rule



XXI

PLEADINGS AND AUTHORITIES

1. RYDAL IS PERMITTED UNDER INTERNATIONAL LAW TO TAKE STEPS

GIVING EFFECT TO INDEPENDENCE FOR THE WINDSCALE ISLANDS.

1.A. Sovereignty over the Islands belongs to Rydal.

It is respectfully submitted that, the Kingdom of Rydal is having the sovereignty over

the Islands of Windscale archipelago.

Whether it be the question of Conduct, Title, Intention, Manifestation, Overt Act or

Sovereignty all the ingredients1 are fulfilled by the Respondent in order to establish

it’s valid claim over the Windscale archipalego.

Let’s understand it ex facie-:

1.A.1. Rydal has an apparent title to territorial sovereignty of the Windscale

Islands by virtue of first discovery.

When Captain Geoffrey Parrish, the commander of the “Wansfell”, set out on a

‘naturalist discovery’ under a commission of the King of Rydal, he recorded in his

ship’s log - “ we discovered ….. not appearing on our charts”. This means that the

Islands were a fresh discovery by the people of Kingdom of Rydal. The discovery was

not just that the Captain

1

? U.S.A v. Netherlands, (1928) 22 A.J.I.L 867-912. [ Hereinafter Island of Palmas case ]



1

Geoffrey just sighted the Island and claimed it as part of Rydal but as from the facts

itself it is evident that he took a short leave on one of the larger Islands and left behind

the flag of Rydal and stone carved with a declaration asserting the sovereignty of King

Andrew of Rydal. Now this establishes an undisputed sovereignty of the Kingdom of

Rydal over the said archipelago because at the time when the discovery of the

Windscale Islands was made by Captain Geoffrey, the Islands were uninhabited and

terra nullius and therefore the sovereignty is established through the doctrine of

occupation2. Establishment of a flag on a part of land is also the symbol of

sovereignty over that land, of the country to whom such flag belongs.3 This also point

towards the element of ‘intention’. Hereby leaving behind the flag and the carved

stone the subjects of the Kingdom of Rydal want to make it crystal clear that the said

archipelago belonged to the Kingdom of Rydal. It is necessary for the occupation over

the territory that there should be intention to establish sovereignty over the territory

concerned.4

1. A.2 The territory was an inchoate title which was not qualified for occupation

Now by completing the above mentioned acts the Kingdom of Rydal successfully

established an ‘inchoate title’5. As the discovery was made in the 18th -19th century

then it must be governed by the law prevailing at that time. At that time it was settled

that “though discovery does not create a definitive title of sovereignty, but only an

2 Western Sahara Case, I.C.J. Rep. 1975,p.12

3 I.C.J. Rep. 2008 ¶ 228.[ Hereinafter Island of Pedra Branca case ]

4 Denmark v. Norway, 1933 P.C.I.J. A/B No.53(3 W.C.R. 151), [ Hereinafter Eastern

Greenland Case]



2

3

‘inchoate title’ , such a title exists, without external manifestation, but such title of

discovery must be completed within a ‘reasonable period’ by the effective occupation

of the region claimed to be discovered”.6

Now here the words used are ‘without external manifestation’ and ‘reasonable period.’

The Respondents humbly submits that as mentioned above there was an external

manifestation of sovereignty i.e. the flag of Kingdom of Rydal, was left behind and

also a stone revealing the sovereignty of Rydal over the Islands. And as far as the

concept of ‘reasonable period’ is concerned then it will be clear from the further facts

that the Kingdom of Rydal had also committed such acts which completely entitles the

Kingdom of Rydal to assert the sovereignty over the Islands i.e. acts showing

manifestation of sovereignty.

Now in the year 1778 the Salkeld came across the Islands. And it is also averred that

Lieutanant Manual Ricoy established a Fort and settlement named Salkeld on one of

the Island. It is submitted that such settlement can not be said to be discovery of a

territory terra nullius. As mentioned before the Island was already discovered and was

under the

sovereignty of the Kingdom of Rydal. Though Commander Parrish landed on a bigger

Island and not on the Island on which the Salkeld landed but still the entire

5 2 L. OPPENHEIM ,O PPENHEIM’S I NTERNATIONAL L AW , 690 ( SIR ROBERT

JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )

6 Island of Palmas Case, supra note 1.



4

Archipelago belonged to the Kingdom of Rydal. Because it is not necessary that

display of sovereignty must be present at all the points and parts of the land.7

Also in the Island of Palmas case8 it was held that :

“In the exercise of territorial sovereignty there are necessarily gaps,

intermittence in time and discontinuity in space….. the fact that a State

cannot prove it’s display of sovereignty as regards such portion of

territory cannot forth with be interpreted as showing that the sovereignty

is inexistent….”

Moreover it will be seen that within the period of ‘reasonable time’ the Kingdom of

Rydal had successfully established its apparent manifestation of sovereignty over the

entire archipelago. Thus the settlement of Salkeld was an illegal possession of a

territory belonging to Rydal by an alien nation.

Moreover as far as the establishment of the Fort is concerned then it can not be

considered as a sovereign act under the International Law. A mere administrative act

done by a State official in a particular area can not deprive the legal title of another

State. 9

7 Eastern Greenland case, supra note 4.

8 (1928) 22 A.J.I.L 867-912.

9 Belgium v The Netherlands, I.C.J. Rep. 1959 p.209 [ Hereinafter Frontier Lands Case ]



In the case of Cambodia v Thailand10 the Hon’ble Court also held that mere

possession of an area by some other sovereign nation for discharging certain

administrative or other function can not disturb the title of the State concerned.

It may be averred by the Applicant that for 20 years the settlement was there on the

Salkeld and it existed undisturbed. For this, the Respondent will like to advance that

the Applicant can not take the advantage of the doctrine of acquisitive prescription.

Acquisitive Prescription is the means by which, under International Law legal

recognition is given to the right of a State to exercise sovereignty over land or sea

territory in cases where that State has, in fact, exercised it’s authority in a continuous

uninterrupted, and peaceful manner over the area concerned for a sufficient period of

time, provided that all other interested and affected States (in the case of land territory

the previous possessor) have acquiesced in this exercise of authority.11 Thus in order

to take advantage of this doctrine the other party must have the notice of the same

unless the contrary is proved.12 But here the Kingdom of Rydal was unaware of an

adverse possession of the Windscale

10

? I.C.J. Rep. 1962 p.6 [ Hereinafter Temple of Preah Vihear case ]

11 1950 B.Y.B.I.L., Vol-XXII, p. 332

12 See - Island of Pedra Branca case, supra note 3; Island of Palmas case, supra note 1;

Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case]; Report on

the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26; Franck (1983) 77

A.J.I.L. 109.



5

6

Salkeld Island by the Petitioners and therefore no question of acquiescence can arise.

On the contra pacem the defense of the principle of acquisitive prescription is

available to the Respondent because between 1880 to 1890 lodged no complaints

concerning the Islands and made no complaints to assert the control over them. And

thus the Islands for all this continuous period of 30 years remained under the

sovereignty of Rydal undisturbed and unopposed by any nation. If for continuous 20

years a sovereign exercises control over a territory unopposed and no action is taken

by the other nation claiming that territory then the latter loses his claim over it.13

1.A.3 Aspatria’s claim on the Islands on ground of uti possidetis juris principle is

not a valid claim.

As far as the discovery is concerned then it is evident from the facts itself that the

historians say that Islands were used by pirates, slave-ships, and other seafarers during

the period Ricoy and his men were in Salkeld. This means that the said Islands were

not uninhabitated at that time and thus the doctrine of uti possidentis has no relevance

for the petitioners. And moreover the Respondents were unaware of any foreign

possession of the Islands at that time. The works of Historians are also significant in

the International law. In the case of Pedra Branca/Palau Buteh14 the Court took in to

consideration the works of Grotious in determining the extent of the Sultan of Johor’s

13

? See- Treaty of Washington, 1871; British Gyanna Arbitration, 1899, [ Hereinafter Venezuela

Boundary Dispute case ]

14 I.C.J. Rep. 2008 ¶ 228



territories, while adjudicating the dispute pertaining to the island of Pedra Branca

between Singapore and Malaysia..

1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the

Islands.

On 9th September 1813, a naval ship of Rydal, HMS Applethwaite, under the

command of Admiral George Aikton, was wrecked on one of the smaller Islands in the

archipelago. Here as per the facts of the case the Admiral was made aware that the

said Islands belonged to Rydal as his nautical charts indicated the same. The Charts

and Maps occupy a significant place in International Law.15

The significant development took place when in may 1815 the Unthank, a slave ship

from the State of Sodor, drifted in to the harbour of St. Bees. Admiral Aikton rescued

all the 26 crew members and 150 slaves men, women and children to the shore. When

the crew of the Unthank were informed that they had landed on the Rydalian territory

then that crew swore loyalty to Queen Constance of Rydal. Moreover the Admiral also

declared the slaves as free. Now this whole incident involves two important acts.

Firstly act of Recognition and secondly act a titre de soverain. When the crew of the

vessel Sodor swore allegiance to Queen Constance then this means that the subjects of

a foreign nation recognized the existence of the sovereignty of Rydal over the

archipelago. A vessel of a foreign land is considered as part of that foreign land.16

15 See- Decision regarding Delimitation of the Border between the State of Eritrea and the

Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28 , ¶ 3.28. at http://www.pca-

cpa.org/upload/files/EEBC-3.pdf

16 France v. Turkey,1927 P.C.I.J. (Ser. A) No. 10. [ Hereinafter The case of the S. S. “Lotus”]



7

http://www.pca-cpa.org/upload/files/EEBC-3.pdf

http://www.pca-cpa.org/upload/files/EEBC-3.pdf

Moreover the Admiral declared all the slaves as free, because slavery was abolished in

Rydal. Thus this declaration of the Admiral Aikton extended the law of Rydalian

Kingdom to the Islands also. Thus the Respondent exercised the act a titre de

sovereign on the archipelago. Governance through law is the apparent manifestation of

the sovereignty.17

The words uttered by Admiral Aikton are also important. While informing the crew of

the Unthank the Admiral uttered the words like ‘they had landed on Rydalian

territory.’ Here the Admiral did not used the words like ‘you have landed on the Island

belonging to Rydal’ but on the contra pacem he used the word ‘territory’. This very

well establishes that the sovereignty of Rydal was not only exercised to any particular

Island but the entire Archipelago. Subsequently by 1816, the Admiral Aikton and his

men explored many Islands in the archipelago. Now this act leaves no doubt that the

entire Island was under the control of Admiral Aikton, the subject of Rydal. He also

discovered the abandoned Fort of Salkeld. Though the Flag of Plumbland was there

but nobody found any notice left by Ricoy. This means that even though if we assume

that the island of Salkeld belonged to Plumbland but no notice was found and the fort

was empty. Thus in good faith the Admiral also exercised the sovereignty over the

Island of Salkeld.

The apparent manifestation of sovereignty over the archipelago took place when the

Admiral Aikton did not allow The Grizdale to anchor on the cost of the Island of

Salkeld. Admiral Aikton informed Commander Crook that ‘he and his men must leave

17 Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case ]



8

9

at once or be subject to arrest’ and Commander Crook departed. This act of Admiral

Aikton is to be seen as conduct a titre de soverain. In the Island of Pedra Branca

case18, when the Singapore officials refused to allow the surveyors of a Malaysian ship

to land on the disputed Island of Palau Buteh, the Hon’ble Court held that “this

Singaporean conduct is to be seen as conduct a titre de soverain. The conduct of

Singapore in giving permissions for this visits does give significant support to

Singapore’s claim to sovereignty over Pedra Branca/Palau Buteh.”

1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of

Aspatria.

It is evident from the facts itself that the Windscale Islands i.e the Islanders never

intended to be a part of Aspatria because from the very inception they were treated to

be the Islands belonging to the Plumbland. Aspatria was a Viceroyalty of Plumbland

and as the Islands were nearer to Aspatria therefore they were just ‘administered’ by

the Viceroy appointed by Plumbland in Aspatria on behalf of Plumbland and not

‘governed’. The latter was performed by the Kingdom of Plumbland. It is analogous to

the situation when ‘aden protectorate’ was administered from the British colony of

India. In 1937 it was brought under the direct administration of the British Crown in

UK. The COCO Islands or Keeling Islands were the British Archipelagic colonial

Islands. Initially they were administered through Singapore. When the Japanese troops

conquered Singapore in 1942 during the Second World War the administration of the

said Islands was transferred to Ceylon, another British colony. And when in 1946

18

? Island of Pedra Branca case, supra note 3, ¶ ¶ 238, 239.



10

10

when Singapore was liberated from Japanese occupancy the said Island was again

brought under the administration of Singapore.19 In 1955 when Singapore was

declared independent the said Islands were directly brought under the control of

United Kingdom. Now here it must be noted that neither Aden was claimed as India’s

inherent part when it was separated from the Indian administration and neither the

COCO Islands can be said to belong to Japan when it occupied Singapore in 1942 and

neither Singapore can claim the COCO Islands when it got independence in 1955

because such above mentioned Islands and protectorate were just administered from

the above mentioned respected colonies on behalf of their colonial master. And due to

the reason that such colonies were closer to the said Islands.

The test to find out whether a said territory belongs to a particular country or not then

it must be shown that by transferring the said territory to some other country the

transfer will amount to a ‘cession’. But here in the above mentioned case when the

administration of aden was transferred from India to UK or COCO Islands

administration was transferred from Singapore to UK, then such transfer was not

considered as a cession. Because such Islands were never an integral part of that

particular colony administering it. A mere exercise of administrative function on a

particular territory do not amount to establishment of sovereignty.20

Now as far as the competency of Plumbland to recognize the Islands of Windscale

belonging to Rydal is concerned then the Respondent would like to submit that as

19 http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands

20

? Temple of Preah Vihar case, supra note 10, p.146.



11

argued before the Windscale Islands were never intended to be a part of Aspatria and

when the coup by General Diaz was brought, it is implied that the administration of

the said Islands would revert back to the Plumbland as the said Islands were always

administered on behalf of the Plumbland though it was just a claim. It is also evident

from the example of Singapore’s 1942 Japanese occupation. Therefore Plumbland is

competent enough to recognize the said Islands as belonging to Rydal through the

Treaty of Great Corby.

Moreover Aspatria has neither any de jure or de facto sovereignty over the Windscale

Islands. The only ground on which they are claiming the sovereignty over the said

Islands is that of the claim which has devolved upon them as a result of State

succession. But as mentioned above the said claim is also not devolved upon them and

it has very well remained with the Kingdom of Plumbland.

The other thing is that the only ground left with Aspatria is of contiguity. The said

Windscale Islands are only 600 miles from Aspatria and are much far away from

Rydal. Therefore the respondents would like to advance that even this defence is of no

avail to the petitioners as it is a well settled position of law that a nation can not claim

a portion of a territory on the ground of ‘Principle of Contiguity.’21

Moreover it is also humbly submitted that the country of Aspatria is not having any

right to claim the Islands of Windscale Archipelago. The Island’s population only

consists of the Rydalian immigrants and the offsprings produced by the marriages

taken place between the inhabitants of HMS Applethwaite, HMS Braithwaite and The

Unthank. There are no Aspatrian inhabitants who are permanently settled on the

21 Island of Palmas case, supra note 1.



12

Islands. The Austria was claiming South Tryol from Italy because of the German-

Austrian people living in majority there. The Island of Cyprus is claimed by Greece

and Turkey because of the Greek and Turkish populations are living in majority on

that Islands.22 Thus as per this illustrations it is clear that Aspatria’s claim over the

Islands is totally unwarranted.

The succession of Rydalian Governors of the Islands exercised the control over the

entire archipelago. In 1903 the King of Rydal directed to establish a Consultative

Assembly, In 1945 Rydal joined the united nations as an original member and by

designating the Islands as non-self governing it fulfilled it’s obligations under Article

73 of the Charter23 by regularly transmitting reports on this Islands to the Secretary

General. This all things indicates that Rydal has fulfilled it’s all obligations under the

International law and has exercised all functions a titre de sovereign over the Islands

and even the United Nations has recognized the Rydalian sovereignty over the Islands.

Moreover the Islands population also accepted the Rydalian Sovereignty over them.

They have a right to accept the Rydalian sovereignty because they are the citizens who

have acquired the citizenship of the said Islands by way of birth as well as

naturalisation.24

22 The Cyprus case quoted in D. J. HARRIS ,I NTERNATIONAL H UMAN R IGHTS T EXT

AND M ATERIALS , 920 (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).

23 Article 73 of the United Nations Charter.

24 Liechtenstein v. Guatemala, I.C.J. Rep. 1955 p.4 [ Hereinafter Nottebohm case ]



13

Moreover in the case of France v Mexico25 the Arbitrator awarded the Island of

Clipperton to the France on the basis of first discovery. Mexico claimed the Clipperton

Islands on the principle of uti possidetis as successor of Spain. Though Spain

exercised some control over the disputed Island for some time when France was not in

occupation of the island after the discovery but still the contention of France was

upheld because the France never had animus of abandoning the Islands.

1.B.The Islanders are entitled to independence as an exercise of their right to self-

determination.

1.B.1 The Islanders have a legal right to self -determination .

It is humbly submitted that the Islanders have a legal right to self-determination.

Rydal appraises the scope and the current status of the concept of self-determination to

which Aspatria is completely negligent.

The right to self-determination of peoples is a fundamental principle of International

Law26. The United Nations Charter27 also recognizes the principle of equal rights and

25 (1932) 26 A.J.I.L. 390 [ Hereinafter Clipperton Island case]

26D. J. HARRIS ,I NTERNATIONAL H UMAN R IGHTS T EXT AND M ATERIALS , 76

(SWEET & MAXWELL, LONDON, 2ND EDITION 2001) (Hereinafter Harris).

27 ? Article 1.



14

self-determination but the subsequent development of International Law28 has been

such that self-determination is now recognized as a right under customary

International Law29.

Other subsequent developments in International Law in regard to non-self governing

territories as enshrined in the Charter of the United Nations, made the principle of self-

determination applicable to such territories30. A specific chapter has been included in

the Charter of the United Nations on non-self governing territories31.In the present

world order, the right of self-determination has assumed a subject of serious concern

to all freedom-loving societies. Conversely, Aspatria purports an indifferent attitude

towards this strategic human right that the Islanders are entitled to.

Article 1 of the U.N. Charter common to the two International Covenants on Human

Rights, adopted by the U.N. General Assembly and opened for signature, ratification

and accession on 16 December, 1966, which States as follows:

“All peoples have the right of self- determination. By virtue of that right,

they freely determine their political status and freely pursue their

28 2 L. OPPENHEIM ,O PPENHEIM’S I NTERNATIONAL L AW , 714 ( SIR ROBERT

JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )

29 See for example, the Namibia Case, (1971) I.C.J. Rep. 16.

30 ? Ibid. at p. 31. See also, the Western Sahara Case (1975) I.C.J. Rep. 12 at 16.

31 ? K. C. JOSHI, I NTERNATIONAL L AW AND H UMAN R IGHTS , 62 ( EASTERN

BOOK COMPANY 2006 EDITION)



15

economic, social and cultural development.”32

1.B.2 The claim by Rydal for providing the right of self-determination to the

Islanders is maintainable.

The Respondent asserts the meaning and relevance of the concept of self-

determination in modern International Law, which Aspatria clearly fails to realise.

In accordance with the Declaration of the United Nations General Assembly33 on

Principles of International Law Concerning Friendly Relations and Co-operation

among States in line with the Charter of the United Nations, it is also the duty of States

to promote the right to self-determination of peoples. But the implementation of the

principle of self-determination requires every State to promote, through joint and

separate action, universal respect for, and observance of human rights and

fundamental freedoms in accordance with the Charter of the United Nations

Organisation34.

32 The International Covenant on Economic, Social and Cultural Rights and the

International Covenant on Civil and Political Rights both ratified by Nigeria in July 1993

33G.A Res. 2625 (XXV), 25th Sess., (Oct. 24, 1970)

34 A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:

Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev.

43 (2008)



In the East Timor case,35 the Hon’ble Court recognised its erga omnis character. In the

view of some writers, the principle of self-determination is also ius cogens36.

According to the tripartite typology, all human rights entail three forms of State

obligation, viz. The obligations to respect, protect, and fulfil37. Rydal has consistently

supported the process of fulfilment of its abovementioned obligations38, thereby

refuting a likely allegation that Rydal did not have bonafide intention to grant

independence to the Islanders.

1.B.3 The application of right to self-determination subdues the interest of

territorial and political unity of Aspatria.

The Respondent would like to draw the kind attention towards the unforeseen

consequences of the denial of the right to self-determination merely on the basis of

securing the territorial integrity.

Again, taking into account the particular situation of peoples under colonial or other

forms of alien domination or foreign occupation, the World Congress on Human 35 I.C.J. Rep. 1995, p.90 at 102

36 See Frank, (1976) 70 A.J.I.L 694 quoted in Harris, supra note 25,p.76

37Mr Eide, Right to Food at the Committee’s General Discussion , 3rd Sess. U.N Doc.

E/C.12/1989/SR.20.Cf also Eide A., Right to Adequate Food as a Human Right (1989)

quoted in MATTHEW C. R. CRAVEN, T HE I NTERNATIONAL C OVENANT ON

E CONOMIC, S OCIAL AND C ULTURAL R IGHTS- A P ERSPECTIVE OF ITS

D EVELOPMENT , 109 ( CLARENDON PRESS OXFORD 1995)

38 Compromis, ¶ 35.



16

17

Rights recognised39 the right of people to take any legitimate action, in accordance

with the Charter of the United Nations, to realize their inalienable right of self-

determination. The Congress considered the denial of the right of self- determination

as a violation of human rights and underlines the importance of the effective

realization of this right.

Despite the above stated efforts of the United Nations Organisation, there are still

incidents of war, violence and civil disobedience in various parts of the world due to

different forms of struggles by peoples against activities of governments perceived to

undermine their right of self-determination. Such violent incidents have led to colossal

loss of lives and property almost in the nature of the disaster experienced during the

Second World War and which led to the establishment of the United Nations Organisation

whose fundamental objective is to “…. save the succeeding generation from the scorch of war

which twice in our life-time has brought untold sorrow to mankind …”40 In order to sustain

the efforts of the United Nations Organisation in pursuing this laudable objective, the right of

peoples in all countries to self-determination must not be toiled with. The issue of self

determination was prominent in the Western Sahara case41. All parties supported the right of

the people of Western Sahara to self to self-determination, but appeared to apply differing and

39 United Nations World Conference on Human Rights, Part 1, ¶ 2 (Vienna Declaration

and Programme of Action) June 1993.

40 See the Preamble to the United Nations Charter.

41 I.C.J Rep. (1975) Pleadings C R, 75/8.11 .



18

self-serving contents to the concept42.

The General Assembly... declares that “Any attempt aimed at the partial or total

disruption of the national unity and the territorial integrity of a country is incompatible

with the Purposes and Principles of the of the Charter of the United Nations...”

It is clear that the injection of a legal principle of self-determination into the law about

acquisition and loss of territorial sovereignty is both important and innovative. The

infusion of the concept of rights of a ‘people’ into this legal scheme is therefore a

change which is more fundamental than it first appears43.

Hence there is a strong reason to accept the Rydalian claim to grant self-determination

to the Islanders, against the evident Aspatrian objections.

42 A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:

Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev.

47 (2008).

43 ? Flory, (1957) 3 A.F.D.I., 73, 76 ; 2 L. OPPENHEIM ,OPPENHEIM’S

INTERNATIONAL LAW, 715 ( SIR ROBERT JENNINGS AND SIR ARTHUR

WATTS, PEARSON EDUCATION, 9TH EDITION )



19

2. RYDAL’S REJECTION OF THE MDR BID DID NOT VIOLATE THE

ASPATRIA RYDAL BID.

It is respectfully submitted that the Rydal’s rejection of the MDR bid did not violate

the Aspatria-Rydal BID.

2.1 Rydal has the authority to reject the MDR bid

Not only this the Rydalian authority has a right to reject the bid on the following

grounds-

2.1.1 Monte de Rosa’s intentions are clear owing to Actus exteriora indicant

interiora secreta



20

‘Actus exteriora indicant interiora secreta’ 44 external acts reveals the internal secret

purpose or acts indicate the intention. The main purpose of the Treaty between the

Rydal and Aspatria was as the respected Prime Minister said was to ‘ focus upon the

matters of more significant mutual benefit’, it is under good faith that Rydal has

entered in to Reciprocal Investment Treaty with Aspatria despite of Aspatria’s non-

sensical claims on Windscale Islands. Thus this particular contract was to strengthen

commercial relations between the two countries. But as it is evident from the facts

itself that the bidder Mont de Rosa in a press interview said that “Islands belong to

Aspatria…. It’s my patriotic

responsibility to … oil is extracted by Aspatrian people”45. Thus these words indicate

the secret animus of the Mont de Rosa that the purpose of his participating in the

bidding of Rydalian oil Programme is to assert and strengthen the Aspatrian claims on

the Windscale Islands instead of intending of behaving in the professional manner. In

the 1950s the persons affiliated with the Anglo-Iranian Oil Company conspired with

the local Iranian favourable business communities like the Rashidian family, to topple

down the Musaddiq Government.46 Another example is of Roger Casement.47 The

British Government failed to take concessions with respect to Congo in the Berlin

44TRAYNER, T RAYNERS L ATIN M AXIMS , 11 (UNIVERSAL PUBLICATIONS, 4TH

EDITION, 2005).


46 Wm. ROGER LOUIS, E NDS OF B RITISH I MPERIALISM: S CRAMBLE FOR

A FRICA, S UEZ & D ECOLONIZATION , 737-9 (OXFORD PUBLICATIONS).

47 Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805.



21

Conference of 1885. Hence the Roger Casement, an Irish Patriot was sent in Congo as

British Consul in the year 1903.He gathered evidences which alleged that there is mal-

administration in Congo as a result of which in the year 1909 the Belgian Parliament

took the control of Congo from King Leopold.

The Respondent will like to advance that, it is a general principle of commercial law

that the authority who is making invitation for bidding, is fully entitled to reject any of

the bids made , and will not be obliged to accept the proposal of the highest bidder.48

In the case of Spencer v Hardinge49 the Hon’ble Court held that “The person to whom

a tender is made is normally free to accept or reject it as he pleases”. Thus there is no

obligation in accepting the bids from the persons to whom the tenders are made,

because it is just an invitation to bid and not an offer.50 Thus on the basis of this

decisions it is respectfully submitted that the national namely Mont de Rosa can not

ask for the acceptance of his bid as a matter of right, even though he was the highest

bidder.

2.1.2 Prospective Threat to Public and National Interest

It is respectfully submitted that in the cases concerning the Government contracts the

respective State Government may reject or accept any proposal or bids if it is

48 RICHARD STONE, M ODERN L AW OF C ONTRACT , 50 (ROTLEDGE &

CAVENDISH,7TH EDITION).

49 (1870) 5 L.R. CP., 561.

50 See- G. H. TRIETEL ,O UTLINE OF L AW OF C ONTRACT , 9 (OXFORD

PUBLICATION).



22

consistent with the public policies and national interest of the country. There is no

obligation on it to accept any of bids.51 Because the government is the sole guardian of

the territories and natural resources in the country and it is the best judge to decide as

to how this natural resources concentrated in the territory must be utilized for the

general benefit of the peoples.52 In the case of Republic of Zaire v Democratic

Republic of Congo53 also the principle of ‘public interest’ was recognized by the I.C.J.

Moreover it is a general principle of law that “if no rights of the national of a State are

violated, then the State can in no circumstances have a standing to exercise diplomatic

protection.”54

Thus in this way rejection of the MDR bid does not violate the Aspatrian-Rydal BIT.

And Aspatria has no standing to afford diplomatic protection to Mont De Rosa.

51 Tata Celular v Union of India, (1994) 6 SCC 651.

52 Reliance Industries Ltd v. Reliance Natural Resources Ltd.

53 I.C.J Rep. 2007.

54 Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, ¶ 77.



23

3. RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO

PROTECT THE ASSETS OF A RYDALIAN ENTERPRISE IN ASPATRIA AND THE

SEIZURE OF SUCH ASSETS WAS A VIOLATION OF THE ASPATRIA-RYDAL

BIT.

3.1 Nemo plus juris ad alium transfere potest quam ipse habet

That the grant of license to Mont de Rosa by the Aspatrian Government55 was totally

non-sensical and a nullity. It is covered by the maxim of Nemo plus juris ad alium

transfere potest quam ipse habet56 which means that “no one can transfer to another a

greater right than he has himself”. Here in this case as per the before-mentioned

arguments it is clear that Kingdom of Rydal exercises all the de jure and de facto

sovereignty over the Islands of Windscale and therefore the license granted by the

Government of Rydal to Mont De Rosa relating to the extraction of oil in the

Windscale Islands is illegal and worthless. This is also evident from the fact that even

55 Compromis ¶ 47.

56 TRAYNER, T RAYNERS L ATIN M AXIMS , 379 (UNIVERSAL PUBLICATIONS, 4TH

EDITION, 2005).



24

after the grant of the so called license the MDR took no steps to extract oil from the

Islands.57

On the one hand the President of Aspatria and its Ambassador publicly protested the

bidding process, but still do not stop the MDR to bid and on the other hand when the

bid gets rejected, the Aspatria claims that the Rydal’s rejection of MDR’s bid

constituted a

violation of the Aspatria- Rydal bid. Thus the Aspatria is blowing the hot and cold at

the same time. The Respondent will like to advance that the Aspatrian authorities by

claiming that ‘Rydal’s rejection of MDR’s bid constituted a violation of the Aspatrian-

Rydal BIT’ has accepted the sovereignty of Rydal over the Windscale Islands.

Because in the BIT itself it is stated that – ‘for investments by investors of one party in

the ‘territory of the other party’58. It had accepted the Rydalian authority competent

enough to accept bids and grant licenses in order to extract oil from the sea-bed of the

Windscale Islands. A person who want to take benefit of an instrument must also bear

the burden.59 He can not approbate and reprobate at the same time.60 Now the Aspatria

is ‘estopped’ from denying the sovereignty of Rydal over the Windscale Islands. The

claim of the Respondent further gets strengthens by the ‘conduct’ of the Aspatrian

National Mont De Rosa. When his bid gets rejected he filed the suits in the municipal

57 Compromis ¶ 48.

58

? See Vienna Convention on the Law of Treaties,Art. 2, 1969.

59 Pickersgill v Rodger,(1876) 5 Ch.D., 163.

60 Codrington v Codrington, (1875) 7 H.L. 854, 861.



25

courts of the Rydal in the Islands. This indicates that he has also admitted the

sovereign jurisdiction of the Kingdom of Rydal over the Islands of Windscale..

Thus by this above mentioned points it is clear that the License to extract the oil from

the sea beds of the Windscale Islands can only be granted by the Kingdom of Rydal

and the granting of license by the Aspatria to Mont de Rosa was an act without

authority and title. Thus it is covered by the doctrine of Nemo det quo non habet which

means that one can not

transfer what he himself has not got. This was also recognized by the ICSID in the

case of Mihaly International Corporation v. Democratic Socialist Republic of

Srilanka.61 The tribunal in this case said that “no one can pass a better title than what

he really has.

3.2 Seizure of ALEC’s assets violates the Aspatria-Rydal BIT.

The basis upon which the assets of ALEC were seized by the Aspatria was, that it

participated in the ROCO bid and violated the NRA by circumventing the Aspatrian

license which was given to MDR. The respondents will like to submit that as per the

above mentioned arguments it is very well made cleared that the said license granted

by Aspatria to the MDR was void and worthless, thus the reason which Aspatria has

shown to cease the ALEC’s Assets becomes unwarranted. ROCO is holding 80% of

the shares in the ALEC62. Thus by seizing all the assets of ALEC including vessels,

drilling equipment, and cash, ALEC will not be able to do business which will affect

61 I.C.S.I.D. case No- ARB/002/2 ,¶ 24.




26

the shareholders’ right to receive proper profits and dividends. The BIT between

Rydal-Aspatria also contemplates the investment which includes “shares, stock and

other forms of equity participation in an enterprise.”63 Thus by ceasing the ALEC’s

assets Aspatria has violated Article IV of the BIT by non-observance of the concept of

isonomia (equality in treatment).

3.2.1 The International Law gives a binding recognition to the BITs

Eventhough if Aspatria contends that the act of ALEC in participating in the ROCO

bid was inconsistent with the NRA then the respondent will like to advance that

though the said act is void under municipal law of Aspatria but still ALEC is the

subsidiary of ROCO and thus it can participate in the bid by virtue of the BIT treaty

signed between Aspatria and Rydal, because what is unlawful in the municipal law

may be wholly innocent of violation of a treaty provision.64 The main purpose of the

BIT is that without a BIT, international investors are forced to rely on host country law

alone for protection, which entails a variety of risks to their investments.65 In ratifying

a BIT, a country makes the treaty a part of its legal system, thus it becomes its duty to

implement it. It is due to this reason that the BITs are given a binding recognition by

of the UN Charter of Economic Rights and Duties66.

63 Article 3.

64 United States of America v Italy ,I.C.J. Rep. 1989, p. 15,¶ 72. [ Hereinafter Elettronica

sicula S.p.A. (ELSI) case]

65 Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An Evaluation of

Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J. 67 .

66 Article 2, U.N.C.E.R.D.



27

It can also be not said that the acquisition of the Assets of ALEC by the Aspatrian

authorities were reasonable. The said acquisition was not justifiable because there was

no emergency situation existing which could justify the said acquisition. In the case of

U.S.A v

Italy67 the Hon’ble I.C.J justified the ceasing of the Italian incorporated company

namely ELSI which was a subsidiary of the US companies, because the job of 800

workers was at stake. But here in this case no such situation is there. The said

acquisition of the ALEC’s assets by the Aspatrian authorities is arbitrary. It lacks due

process and rule of law.68 And thus violates Article V of the BIT.

3.3 The Right of Diplomatic Protection.

It is the fundamental principle of the International law that ‘whereby any violations of

the rights of a foreign national is also a violation of the rights of his State or

nationality.’69

Thus in this way the Rydal is having a right and standing to invoke the Aspatrian

Rydal BIT. Because in Belgium v. Spain 70 it was held that “to the extent that an

internationally wrongful act of a State causes direct injury to the rights of shareholders

as such , as distinct from those of the corporation itself, the State of nationality of any

67 Elettronica sicula S.p.A. (ELSI) case, supra note 64, ¶ 72.

68 Colombia v. Peru, I.C.J. Rep. 1950, p.284. [ Hereinafter Asylum Judgment ]

69 Temple of Preah Vihear case, supra note 10.

70 I.C.J. Rep. 1970, ¶ 46. [ Hereinafter Barcelona Traction case ]



28

such shareholders is entitled to exercise diplomatic protection in respect of its

nationals.”71

3.4 Whether local remedies must be exhausted.

It is very well accepted principle of the Customary International Law that local

remedies must be exhausted before international proceedings may be instituted. The

rule has been generally observed in cases in which a State has adopted the cause of its

national whose rights are claimed to have been disregarded in another State in

violation of International Law. 72

It is respectfully submitted that the counsel for ALEC, promptly filed a petition with

the Supreme Court of Aspatria, consistent with the Aspatrian law, asking that the order

be cancelled. As it is evident from the facts of the case that the supreme court denied

the ALEC’s petition in ALEC v Langdale Administrative Court, no further appeal lies.

Moreover as far as the criminal case i.e. prosecutor v ALEC is concerned then though

it is pending but still it is very popular that the criminal cases in Aspatria takes years to

conclude, thus resulting in tremendous loss to the shareholders of the ALEC.73

The Article 15, Draft Articles on Diplomatic Protection74 provide for Exceptions to the

local remedies rule. It is provided that:

71 Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II

Y.B.I.L.C.,Part Two.

72 Temple of Preah Vihear case, supra note 10, ¶ 42.


74 Article 15, supra note 71.



29

30

Local remedies do not need to be exhausted where:

….

(b) There is undue delay in the remedial process which is attributable to the State

alleged to be responsible;…

In these circumstances also the State can go for International settlement on behalf of

its aggrieved nationals if the delay which will be caused in getting the relief by way of

local remedies will result in to the irreparable loss to its national.75

PRAYER AND CONCLUSION

75 Elettronica sicula S.p.A. (ELSI) case, supra note 64 ,¶ 110.



XXII

Wherefore in the lights of the questions presented, arguments advanced, it is humbly prayed

that this Hon’ble Court be pleased to adjudge and declare that :

A) THAT SOVEREIGNTY OF THE ISLANDS BELONGS TO RYDAL.

B) THAT THE ISLANDERS ARE ENTITLED TO INDEPENDENCE BASED ON THE

PRINCIPLE OF SELF-DETERMINATION.

C) THAT RYDAL’S REJECTION OF MDR’S BID DID NOT CONSTITUTE A


D) THAT RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO

PROTECT THE ASSETS OF ALEC.

AND PASS ANY SUCH ORDER AS IT MAY DEEM FIT IN THE INTEREST OF

JUSTICE, EQUITY AND GOOD CONSCIENCE.

And pass any such order as it may deem fit in the interest of justice, equity and good

conscience.

PLACE: THE HAGUE S/D------------------------

DATE: Respectfully Submitted

Agents for the Republic of Rydal



memorial-rydal 618 (respondent-online submission)

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