海洋法模拟法庭口头答辩.docx

Mr. President, your excellencies, and may it please the tribunal: This case is about how to legally and equitably delimit the maritime boundary between the Applicant and the Respondent, and the Applicant through its counsel respectfully submits four pleadings:
First, no customary line delimiting the respective EEZ and continental shelf exists.
Second, the appropriate form of the delimitation is a single maritime boundary drawn by the application of the equidistance/special circumstances rule.
Third, the Coff Island is a relevant circumstance in this case and it shall be given full delimitation effect in the present case.
Forth, the Tribunal has jurisdiction over the delimitation of the continental shelf beyond 200 nautical miles.

Now I will proceed to make the first two pleadings and my co-counsel will make the other two pleadings.

The Applicant’s first pleading is that there is no customary line delimiting the respective EEZ and continental shelf.

Firstly, There is no agreement between the Parties to support the existence of any customary line. Article 74 of UNCLOS provides that only if there is an effective delimitation agreement of the EEZ and the continental shelf between the parties, it may be accorded priority. Otherwise the procedure under UNCLOS should be followed to resolve the delimitation. In the present case, there is no delimitation agreement of the eez and continental shelf brtween the parties. The 1961 Treaty between Krensburg and Allbek is not a delimitation agreement of the EEZ and continental shelf.
Initially, in the scope of statute law, the notion of the EEZ only occurs in UNCLOS. Moreover, in the scope of customary law, the rules regarding to the EEZ were established until 1985 and became an essential matter to every coastal states.
Besides, the rules of “continental shelf” today is not equivalent to that of 1961 . Comparing the rules regarding to continental shelf in 1958 Convention on the Continental Shelf and 1982 convention on the law of the sea, it can be concluded that there are are many differences between them. The intentions behind these two rules are totally inconsistent. The latter one is not only based on the establishment of the EEZ, but also strongly influenced by the regulations of the EEZ.

1985?why

what kind of diffference

Why do you state these

In the present case, the 1961 Treaty only includes the following affairs:
(a) Krensburg’s recognition of Allbek’s sovereignty over Coff Island
(b) the delimitation line drawn by two states and
(c) the traditional fishing zone reserved in the surrounding waters of Coff Island.

Q: Don’t you just say that there is no delimitation line between the parties?
A:Although the two states draw a delimitation line in the gulf from the terminus of the land boundary between Allbek and Krensburg. We can clearly see that the length of the delimitation line drawn by the two countries in the treaty is only about one quarter of the length of the exclusive economic zone which is 200 nauticle miles.

Apparently, there exist no rules even no mention of the EEZ or continental shelf and no agreement can settle the future problems in the 1961 treaty. Therefore, the intention of the establishment of the 1961 Treaty Line is not to delimit the respective EEZ and continental shelf. The nature of the 1961 Treaty Line is only a method to delimit boundary of territorial waters, instead of a line delimiting the respective EEZ and continental shelf.

Why to interprete the intention of the parties

Secondly, the practice of the two states do not verify the extension of the 1961 treaty line as a Customary line. Custom is used in international law “as evidence of a general practice accepted as law” Article 38 of the Statute of the International Court of Justice
. To determine whether a custom is formed, it may be necessary to find out whether there are some basic elements. It is well acknowledged that at least three factors have to be taken into consideration in determining whether there is a customary line. Juridical régime of historic waters, including historic bays, the Yearbook of the International Law Commission, 1962, Vol. 2, p.13, paras. 80, 81.
These factors are: (a) the exercise of authority over the area by the state claiming the customary line; (b) the continuity of this exercise of authority; (c) the attitude of foreign states. If the facts lack any above factors, the extension of the 1961 Treaty Line simply cannot be deemed as customary line. In the present case, Allbek has never accepted the existence of the customary line, which leads to the lack of the third factor: the attitude of foreign states.
Initially, after Krensburg reiterated the customary maritime boundary line, Allbek expressed its disagreement. And it is publicly known that the two governments have been negotiating their maritime boundary in accordance with international law. Therefore, the customary line proposed by Krensburg has never been accepted by Allbek in any form. The 1961 treaty line cannot be regarded as a customary line.

Case:1951 fishery case
In the Fisheries case of 1951, Fisheries case(the United Kingdom v. Norway), Judgment, ICJ. Reports 1951, p.116.
the ICJ stated that from the point of view of the historic waters, Norway had used it without the objections of third states for a very long period of time. Thus the result would be that, even though the conduct of the state was not in conformity with the rules of international law, its jurisdiction would have to be recognized.
In the 1992 dispute between El Salvador and Honduras concerning the Bay of Fonseca, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Judgment, ICJ Report 2003, p.392
the ICJ also recognized that the fact that certain right was exercised for a prolonged period of time without the objection of a third state was an element of historic rights.
The two cases illustrate the point that exercising the right without the objections of third states for a very long period of time is essential in the historic rights. However, in the present case, Allbek has never exercised Krensburg’s rights in the delimitation area.(expressly or impliedly)

Refering to the second pleading , we submit that the appropriate form of the delimitation is a single maritime boundary drawn by the application of the equidistance/special circumstances rule.
First, the appropriate form of the delimitation is a single maritime boundary. It is noticeable that Articles 74 and 83 of UNCLOS provide for the same principles of delimitation for the EEZ on one hand and the continental shelf on the other. And there is no contrary provision in UNCLOS to prohibit such single line method. Moreover, the development in international judicial practice shows a clear tendency towards the establishment of a single line of delimitation between the maritime zones of states with opposite or adjacent coasts.
In Libyan versus Malta Continental Shelf case, ICJ observed that “as the 1982 Convention demonstrates the two institutions-continental shelf and EEZ are linked together in modern law.” Similarly, in the Bangladesh v. Myanmar case, the court stated that “international practice has largely converged around the drawing of a ‘single maritime boundary’ to delimit both zones.”

Libyan versus Malta Continental Shelf case

Bangladesh v. Myanmar case

Second, this single line is drawn by the application of the equidistance/special circumstances rule. According to the UNCLOS, the delimitation of the EEZ and the continental shelf between states with opposite or adjacent coasts shall achieve an equitable solution.
However, UNCLOS itself doesn’t provide any particular delimitation methods which can result in “equitable solution”. But the development in international judicial practice shows a clear tendency towards the application of the equidistance/special circumstances rule when judging maritime delimitation cases. For instance, The ICJ applied the equidistance/relevant circumstances method in delimiting adjacent coasts in Qatar v. Bahrain.

It cansupport our pleading because we are having the very similar situations. In this case, different from the previous cases using equidistance line on the basis of opposite geographic direction, it’s under the adjacent geographic situation, which enhanced the universality of the integration between the equidistance line and equitable principle.

Your excellencies , if there is no further questions, then my co-counsel will address the other two pleadings. Thanks for your time and attention.

引用

Angular bisector/其他原则 比较适用

调整（合乎比例）

Articles 74 and 83 of UNCLOS are applicable to the delimitation of the EEZ and the continental shelf. These articles provide delimitation must be effected “on the basis of international law, as referred to in article 38 of Statute of ICJ, in order to achieve an equitable solution.” There can be no doubt that “the object of delimitation is to achieve a delimitation that is equitable”. While this is the aim to be achieved, UNCLOS is nevertheless silent on the means to achieve this purpose. We do not object that according to article 38 of the Statute of ICJ, customary international law is one of the sources identified and the “equitable principle” as a customary international law should be applied to reach an equitable result of delimitation. UNCLOS simply provides that delimitation should lead to equitable solution on the basis of international law, there is no specific rule on how to delimit the maritime boundary. The equitable principle lacks legal certainty, so relevant states are always consistent in reaching equitable results in maritime delimitation, but always disagree with each other when it comes to define which principles are so called “equitable”.

The decided …in the present case, we are have the very similar situations. The present case is very comparabale to what the tribunal has already dealt with in that case.

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