PIL III-C (A.Y.

2018-2019)
Moot Problem*

1. The Republic of Davidus and the Democratic People’s Republic of Golithnum are two
coastal States bordering the Mercelia Sea. Davidus is a two-island nation, while
Golithnum shares its western border with the Islamic Kingdom of Vietnum. Davidus,
Golithnum, and Vietnum are all developing nations, but Golithnum is on track to
ascending to the top spot of technology-exporting states, and has set its eyes on joining
the OECD in 2021. Davidus’ economy, on the other hand, is fueled in equal parts by
agricultural production, and its sizeable fishing fleet.

2. For decades, the three nations have been embroiled in a bitter dispute over the extent of
their jurisdiction in the Mercelia Sea, each with claims of territorial sovereignty over
maritime features located at great distances from any of the respective States’ shores. Since
the 1960s, the disputes have revolved around a triumvirate of rocks in the middle of the
Mercelia Sea, the “Three Kings”. The Three Kings are located at least 250 nautical miles
from any of the three States, and are submerged during high tide but visible at low tide.
While the features remain unoccupied, all three States have occasionally exercised their
right to patrol the “territorial waters” around the Three Kings, leading to skirmishes
among their respective maritime patrol boats. In the period between 2000-2010, such
encounters were noted to have occurred 43 times, which rose to almost triple such number
between 2011-2015.

3. In the last two decades, Golithnum had undergone significant changes in its foreign and
trade policy owing to governmental transition from almost half a century’s worth of
military rule, to a “True Eastern Democracy”, under the leadership of its current President
Tony March. Despite this development, rumors and intelligence reports abound that
Golithnum periodically sends arms and support to rebel forces in the southern provinces
of Davidus. Former Davidian President Lowell Lane previously chastised in the media
“certain States who act like roguish elements by endorsing the actions of men who wish
to subvert the democratic values of modern Davidian society.”

4. President Lane’s untimely death in 2015 resulted in a softening of relations between the
two nations. Vice-President Roe Lodex who automatically succeeded into the presidency
 is known to have numerous business associates in Golithnum prior to his debut in
government. In several public speeches President Roe Lodex declared that the next half
of 2015 would see an ushering of “Friendlier Relations among Mercelian Neighbors”.
Eager to swim in warmer waters, President March was quick to make a statement
regarding “the imminent rolling out of a significant Golithnum investment package for
its regional neighbors”. The two States enjoyed a period of relative peace during the
following months, citing for one, a gentlemen’s agreement to withdraw vessels from the
maritime area surrounding the Three Kings.

5. The highly regarded technological investments, as it turned out, largely translated to the
exporting of many of Golithnum’s controversial surveillance technology. By the end of
2015, Davidus’ 88 provincial districts have each received hundreds of closed-circuit
television (CCTV) camera units following the signing of development assistance
agreements, through Golithnum’s FireEye Corporation, a state-owned enterprise. Prior to
the delivery of the CCTV units to Davidus, FireEye CEO Remy Cox announced that, as a
gesture of goodwill, Davidus will also be receiving the newest range of VX20 camera
systems, never before released to the public, free of charge, which is expected to provide
greater assistance to its law enforcement officials in combating large-scale drug trafficking
in the country.

6. In early 2016, Golithnum tech entrepreneur and cyber rights activist Julius La Sange, who
had been living as an expatriate in Davidus for over five years, revealed that while
majority of the CCTV units conformed to the usual specifications of short-range, medium-
resolution, commercial-grade security cameras, units from the VX20 series were military-
grade cameras with superior capability in facial recognition, motion detection, and even
behavioral evaluation. In addition, La Sange expressed suspicion that VX20 systems had
the capability of introducing malware into the national broadband network, potentially
debilitating critical national infrastructure, including Davidus’ energy grid.

7. Meanwhile, in the Kingdom of Vietnum, a growing number of clashes between authorities

and the Lamir people, a largely Islamic indigenous group inhabiting the northern regions,
was reported in international media. The Lamir people claimed that their people have
been subjected to systematic abuse by the Vietnumese government since 2015—including
the rape of women, forced abortion, and the expulsion of numerous communities from
ancestral lands, to make way for tourist ventures with Golithnum investors. In the process
of defending their rights and demanding remedies before the Vietnumese legal system,
the protests of Lamir activists have been met with more violence, with the number of
extrajudicial killings reportedly rising to 5,898. Desperate to escape this pattern of
violence, families have resorted to migration by sea, hoping to find a safe haven before
other Mercelian neighbors.

8. By November 2016, around 29 such vessels carrying Lamir families, chief among them
women and children, have attempted to land on the southern shores of Golithnum. All,
save for one vessel which reportedly had two pregnant women on board, were turned
back by Golithnum’s Coast Guard and Border Police. According to leaked memos
appearing on La Sange’s blog, President March himself ordered that the boats be refused,
after giving them provisions sufficient for the boat occupants’ return to Vietnum, mindful
that “contrary action might result in further animosity between us and another Mercelian
 neighbor.” On December 25, 2016, Davidian Coast Guard vessels intercepted some of the
same vessels near its shores, and found most of the Lamir onboard either severely
malnourished or dead. In the next following weeks, several more boats would turn up
near Davidus. The Davidian Parliament was quick to condemn the “parties responsible
for this genocidal act—not only the home State of our Lamiran brothers, but also those
States that have turned their back against humanity.”

9. At around the same time, reports materialized in the news and social media of a
rekindling of Golithnum activity in the Three Kings area. Elements of the Golithnum
Coast Guard have been seen patrolling the area in increasing numbers, oftentimes
alongside civilian contingents aboard commercial fishing vessels. Satellite images leaked
by La Sange to international media showed proof that Golithnum was dredging and
reclaiming the features of Three Kings. These were corroborated by the eyewitness
accounts of Davidian fishermen who were reportedly driven away from Three Kings by
Golithnum’s Coast Guard, claiming that they were in its territorial waters. In some of
these images, reclamation was complete to up to eighty percent, with hangars that could
house massive industrial equipment and a runway already being built.

10. As if adding insult to injury, on January 1, 2017, divers at the Gregorian Reefs National
Park (blue box in map) recovered debris from the U/V Goliath, an unmanned underwater
vehicle being controlled from a research facility in mainland Golithnum. The U/V Goliath
was grounded at a major reef system at the National Park, instantly resulting in the
bleaching of the said reef. Environmental NGOs demanded the payment of damages in
favor of the Davidian government as well as the implementation of a satisfactory
rehabilitation plan for the destruction in the Gregorian Reefs. The Davidian Ministry of
Foreign Affairs quickly condemned the presence of the U/V Goliath within Davidian
waters. Golithnum, while expressing regret over the accident, claimed that the U/V
Goliath had every right to exercise archipelagic sea lanes passage within the archipelagic
waters of Davidus, on its way from the Mercelian Sea to the Southeastern Ocean. Davidus
staunchly claimed that no such passage regime applied to the sea area where Gregorian
Reefs was situated. According to Davidus, even under a claim of innocent passage in its
territorial waters, Golithnum’s excuse would not prosper, since the conduct of research is
inconsistent with said right.

11. Stirred by nationalist sentiment in the Davidian parliament and daily protests by the
public against President Roe Lodex’s “passive-pacifist and puppet-like” behavior with
respect to Golithnum’s actions in the Mercelia Sea, Davidian naval forces were soon
deployed to the vicinity of Three Kings, in addition to the usual Coast Guard vessels sent
for maritime patrols. In the morning of January 28, 2017, Davidian cutter N/V Lisso,
sailing close to the southern rock of Three Kings, was immediately met and reportedly
harassed by three Golithnum fishing vessels, manned by fishermen from Golithnum’s
Durmon Province. The Durmon Fishing and Maritime Defense Association claimed their
authority to conduct law enforcement as citizen complements of Golithnum’s Coast
Guard and Naval forces, though they were considered among legal circles as a “militia”
unit. Such authority was challenged by officers onboard the N/V Lisso, claiming that it
“would have no recourse but to board and arrest occupants of the fishing vessels or
otherwise use necessary and appropriate force, should you continue to block Davidian
access to the islands which are under our indisputable sovereignty”. Undaunted, one
 fishing vessel repeatedly radioed its warning that “further intrusion into the territorial
waters of Golithnum is illegal under international law, and would be met with
appropriate responses.” Golithnum Coast Guard vessels were observed arriving and
patrolling the vicinity of Three Kings as the standoff continued three days on.

12. At noontime on January 31st, Captain David Lee of the N/V Lisso radioed the Durmon
vessels repeating the warning that his men would be forced to board the vessels to arrest
its occupants if they continued blocking access to the Three Kings. After not receiving any
reply or indication that the vessels would retreat, the N/V Lisso proceeded to make its
approach. Once within firing range, the N/V Lisso was met with gunfire from the vessels.
While the ensuing encounter did not result in death (only minor injuries on both side), the
collision of the N/V Lisso with one of the Durmon vessels led to its sinking. Davidian
naval ships which soon arrived in the area rescued their men, and proceeded to arrest the
militia members.

13. Back at the mainland, the Davidian Attorney-General was quick to make statements
before the press that the arrested militia members will be prosecuted in accordance with
its criminal justice system, and meted the appropriate penalty, including, for crimes
committed at sea against persons in authority, the death penalty. Golithnum’s Foreign
Minister soon appealed to his Davidian counterpart stating that, “the arrested men of the
Durmon Association, while civilians in every sense of the word, deserve to be given
treatment akin to ‘prisoners of war’, and that inasmuch as they were acting in support of
law enforcement units in Golithnum’s territorial waters in the Three Kings, are entitled to
the appropriate immunities from your domestic legal system’s jurisdiction.”

14. The appeal was, however, ignored by Davidus, and instead, prosecution began for the
captured Durmon militia associates. Not long after, on February 14, 2017, the Davidian
capital of New Abraham experienced a massive blackout lasting seven hours, affecting
not only transportation but government work in the city. When power was restored, the
Davidian National Intelligence Agency issued a public statement that it had uncovered
evidence of the existence of a worm called “Gluxnet” within the control systems for the
national electricity grid, believed to have been in the system since 2015. Immediately
thereafter, La Sange published a vlog claiming that he had worked on the Gluxnet project
back in Golithnum, and the circumstances of the cyber attack strongly indicate that his
country was behind it. Golithnum strongly denied the accusation.

15. In June 2019, after several unsuccessful summits to resolve their differences and
continuing standoffs at sea and in the diplomatic arena, Davidus and Golithnum decided
to submit their claims to an arbitral tribunal at the Permanent Court of Arbitration. Both
States are parties to the 1949 Geneva Conventions and their Additional Protocols, the
Vienna Conventions on Diplomatic and Consular Relations, the 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol, and the UN Convention on the Law of the
Sea. After submitting their initial pleadings, the arbitral tribunal constituted narrowed the
issues for resolution as follows:

Davidus Golithnum
Whether or not international humanitarian law applies to the conflict Protacio Villanueva
between Davidus and Golithnum
 Whether or not members of the Durmon militia can be considered as Sadicon Samson
having the status of (or akin to) Prisoners of War
Whether the members of the Durmon can be brought under the Gerodias Belenzo
criminal jurisdiction of Davidian authorities
Whether or not the Lamir are refugees under international law Orias Arada
Whether or not Davidus has legal standing to bring claims against Doncila Oliquino
Golithnum for its refoulement of the Lamir
Whether or not the U/V Goliath is entitled to exercise archipelagic Dela Gabriel
sea lanes passage in the waters of Davidus Cruz
Whether or not, assuming that the applicable regime is innocent Mathay Gueco
passage, the U/V Goliath acted in conformity with the same
Whether or not the U/V Goliath enjoys the status of a ship immune De los Catotal
from coastal State jurisdiction Reyes
Whether or not Davidus is entitled to exercise criminal jurisdiction Mendoza Cruz, A.
following the collision and arrest made within the vicinity of the Gancayco Castillo
Three Kings
Whether Golithnum is entitled to claim a territorial sea area around Alonzo Cabais
the Three Kings
Whether Golithnum’s reclaiming of the features at the Three Kings Marmeto Eduardo
is in accordance with international law

16. Furthermore, in accordance with their Special Agreement dated 7 July 2019, Davidus and
Golithnum have further agreed to the creation of a Special Chamber, operating under the
provisions of general international law, and Parts 2 and 3 of the Rome Statute of the
International Criminal Court to which both States are parties, and the Elements of Crimes,
for the resolution of the following issues:

Davidus Golithnum
Whether or not Golithnum has used force against Davidus in Cruz, C. Apalla
violation of Art. 2 (4) of the UN Charter Molabola Escosio
- In respect of maritime activity
- In respect of activities in cyber space
Whether or not Davidus has used force against Golithnum in Barroga De
violation of Art. 2 (4) of the UN Charter Guzman
Whether or not the crime of aggression has been committed by Co Geotina
Golithnum’s responsible officers, through the acts of the Durmon
militia
Whether or not President March can be held personally criminally Bagayas Ortiz
responsible for the acts of the Durmon militia

17. Following correspondences between the Parties and the Tribunal and its Special Chamber,
a Preliminary Hearing has been set at 3 PM on December 3, 2019, at which each Party has
the opportunity to make brief statements of no more than five minutes on each issue that
has been pleaded.

*Some facts have been made sufficiently ambiguous or lacking in detail to accommodate arguments from
either party. Good luck!