« on: February 13, 2007, 12:57:14 AM »
Franconia and Blanconia are two neighbouring African States, members of the Organization of African Unity (OAU) and of the United Nations. Franconia was under the colonial rule of Elbia until it became independent on 25 May 1960. Blanconia was under the colonial rule of Rosia until its independence on 12 July 1961.
On 30 September 1968, Franconia and Blanconia concluded a Treaty of Friendship and Cooperation, in which they agreed, inter alia, to settle all their disputes peacefully, particularly those relating to the interpretation and application of treaties. They also reiterated their acceptance of the OAU resolution of 1964 concerning respect of the inherited colonial boundaries under the principle of uti possidetis.
Elbia and Rosia had concluded a treaty on 28 August 1923, determining the boundary between their respective colonial territories of Franconia and Blanconia. A section of the border, situated near an administrative centre of Elbia and known as the Flania Triangle remained unsettled. For administrative convenience, it was agreed between the two colonial powers that the Flania Triangle be temporarily administered by Elbia until a definitive boundary could be reached. This agreement was inspired by the fact that the Triangle was an important grazing ground for one of the nomadic tribes of Franconia. However no further agreements were reached on this section of the boundary.
Upon independence, Franconia issued a notification of succession to all treaties concluded by Elbia, including the Treaty of 1923. Blanconia, on the other hand, declared a "tabula rasa" with respect to treaties concluded by Rosia.
The Temple of the goddess Blan, considered by the Blanconians to be the mother of their nation, is located in a special section of Flania. Every year since the colonial era, a number of Blanconians attended the pilgrimage to the Temple. In 1989 and given the increasing number of pilgrims to Flania, Franconia which continued to administer the area after Elbia, changed the rules and imposed restrictions on the number of pilgrims that would be admitted there. This provoked a public outburst in Blanconia. The people of Blanconia called on their government to take action since, in their view, Flania's Temple was part of their historical heritage. A strong protest was sent to Franconia by Blanconia against these restrictions. Franconia ignored the protest. In the meantime, in order to boost its decreasing popularity, the government of Blanconia decided to invade Flania on 25 August 1989 ant took control over it from Franconian administrators. In response, Franconia dispatched its armed forces to the disputed area and immediately referred the matter to the Security Council of the United Nations. The Security Council was convened on 26 August 1989.
1. Prepare a concise statement containing the arguments which the Permanent Representative of Franconia is likely to make in the Security Council concerning the case.
2. Prepare a concise statement containing the arguments which the Permanent Representative of Blanconia is likely to make before the Security Council in response.
3. In your view, what should the Security Council do on this question? Explain.
Petrolminus is landlocked State neighbouring two coastal States: the Republic of Fishfull and the Kingdom of Mineralia. The three States have ratified the 1982 United Nations Convention on the Law of the Sea. (for the purposes of this question, assume that the Convention has already entered into force.)
On 15 May 1989, seventeen nationals of Petrolminus were arrested by the authorities of Fishfull while fishing in the exclusive economic zone (EEZ) of the coastal State, without permission. Their vessel was confiscated and its contents (tilapia fish which they have traditionally relied on for food) expropriated. The arresting authorities also claimed that the vessel used by the Petrolminus nationals in their illegal fishing polluted the area through excessive discharge of oil caused by a defect in the vessel. While the Petrolminus nationals in question were released and returned home, their vessel was detained by Fishfull authorities.
The Government of Petrolminus, having been informed of the incident, contacted the Government of Fishfull and suggested a meeting between them to deal with such problems which began to be of a recurring nature. In the Note to Fishfull, the Government of Petrolminus lamented the reluctance of both Fishfull and Mineralia to conclude with its appropriate bilateral agreements, in accordance with article 69 of the Law of the Sea Convention, to enable the nationals of the landlocked State to participate in the appropriate surplus of the living resources of the EEZ of the two neighbouring coastal States.
Petrolminus asserted, in particular, that, while the capacity of Fishfull to harvest tilapia fish in its EEZ was only 20%, the total allowable catch for that particular fish requires a harvesting capacity of over 67% as established by the scientific evidence provided by the Food and Agriculture Organization (FAO). This is to avoid under-utilization of that particular resource. Accordingly, the refusal of Fishfull to declare surplus with respect to tilapia fish and to allow Petrolminus to have access to such surplus was unreasonable and amounted to a violation of articles 61, 62 and 69 of the Law of the Sea Convention (Part V). Petrolminus demanded the immediate release of the vessel. The Government of Fishfull denied the assertions of Petrolminus regarding the surplus of the living resource and continued to detain the vessel.
Having failed to reach a settlement of these issues through direct negotiations between them, Petrolminus notified Fishfull of its intention to invoke the third-party procedures of Part XV of the Law of the Sea Convention against Fishfull. Both parties have made currently valid declarations under article 287 of the Convention, conferring jurisdiction to two different procedures under the article. Petrolminus conferred jurisdiction upon the International Court of Justice, while Fishfull conferred jurisdiction upon the International Tribunal for the Law of the Sea.
1. Outline how the disputes between Petrolminus (the Applicant) and Fishfull (the Defendant) should be handled under Part XV (full text made available to candidates for the examination) of the Convention, having regard to the substantive provisions of Part V (full text made available to candidates for the examination) of the Convention.
2. Which party, in your view, should prevail and on what issues?