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THE CASE OF HOISTLANDIC FISHING RIGHTS

Republic of Hoistland (Applicant) v. Republic of Cyclonia (Respondent)

RECORD 7th Wenceslao de la Paz Moot Court Competition 2021

UNIVERSITY OF SAN AGUSTIN College of Law

THE CASE OF HOISTLANDIC FISHING RIGHTS

NOTIFICATION, DATED 19 NOVEMBER 2021, ADDRESSED TO
THE SECRETARY OF FOREIGN AFFAIRS OF THE REPUBLIC OF HOISTLAND
AND THE SECRETARY OF FOREIGN AFFAIRS OF THE REPUBLIC OF CYCLONIA

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TABLE OF CONTENTS
____________________________________________________________________________

INDEX OF AUTHORITIES 3

TABLE OF ABBREVIATIONS 4

QUESTIONS PRESENTED 5

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7

SUMMARY OF ARGUMENTS 9

ARGUMENTS

I. HOISTLAND IS A STATE AND AS SUCH THE COURT CAN 11

EXERCISE ITS JURISDICTION OVER ITS CLAIMS.
II. THE REPUBLIC OF CYCLONIA VIOLATED INTERNATIONAL 11
LAWS IN THEIR TREATMENT OF THE HOISTLANDICS.
II.1. Article 27 of the ICCPR 11

II.2. Article 11 of the Intangible Cultural Heritage 13

II.3. Article 6 of the ICESR in regards to their line of work 13
II.4. Article 17 of the Refugee Convention in their right to wage-earning 15
employment

CONCLUSION AND PRAYER 19

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INDEX OF AUTHORITIES

____________________________________________________________________________

DECLARATION, TREATIES, AND CONVENTIONS

International Covenant on Civil and Political Rights, 23 March 1976,

Assembly resolution 2200A (XXI) …………………………………………………………. 10,11

International Covenant on Economic, Social and Cultural Rights, 3 January 1976, ……….. 12

Convention Relating to the Status of Refugees Adopted, 28 July 1951, …………………...13,14

MonteVideo Convention, 23 December 1933, ………………………………………………..9

Intangible Cultural Heritage Convention, 27 September to 17 October 2003 ……………….11,12

BOOKS AND JOURNALS

EVANS, D. 2020. THE KURDISH QUEST FOR INDEPENDENCE AND THE LEGALITY OF

SECESSION UNDER IN OF SECESSION UNDER INTERNATIONAL LAW Retrieved from

wustl.edu ………………………………………………………………………………………………. 17

OTHER LEGAL AUTHORITIES

Global Compact on Refugees, December 2018……………………………………………... 14

United Nations High Commissioner for Refugees…………………………………………...11

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Universal Declaration of Human Rights …………………………………………………..... 14

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TABLE OF ABBREVIATIONS
____________________________________________________________________________

1.
UNESCO: United Nations Educational, Scientific and Cultural Organization

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

3. UN: United Nations

4. ICJ: International Court of Justice

5. ICCPR: International Covenant on Civil and Political Rights

6. VCDR: Vienna Convention on Diplomatic Relations

7. VCLT: Vienna Convention Law Treaties

8. UNHCR: United Nations High Commissioner for Refugees

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QUESTIONS PRESENTED
____________________________________________________________________________

The questions presented, as certified by this Honourable Court, are as follows:

I. Whether or not Hoistland is a state and as such the court can exercise its jurisdiction over

its claims?

II. Whether or not the Republic of Cyclonia violated provisions of International Law?

III. Whether or not the Government of Cyclonia violated the principle of non-discrimination

in regards to international law?

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STATEMENT OF JURISDICTION
____________________________________________________________________________

The Republic of Hoistland, the applicant, alongside the Republic of Cyclonia, the respondent,

hereby submit a dispute to the International Court of Justice (ICJ). The dispute at hand relates to

rights under Article XXVII of the International Covenant on Civil and Political Rights (ICCPR),

Article VI of the International Covenant on Economic, Social and Cultural Rights (ICESCR),

and Article XI of the Intangible Cultural Heritage Convention.

The Applicant reverently requests for this Honourable Court to adjudge the dispute in

accordance with the rules and principles of international law in relevance to Article XL, Par. 1 of

the Statute of the International Court of Justice, including any applicable declarations and

treaties.

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STATEMENT OF FACTS
____________________________________________________________________________

Background of the Parties

Hoistland and Cyclonia are two states located in the Caribbean. Both countries are

members of the UN and are parties to the ICJ Statute, ICCPR, ICESCR, VCDR, VCLT,

Montevideo Convention, Intangible Cultural Heritage Convention, Refugee Convention, and

Refugee Protocol .

Grapple Net Fishing

Grapple-net fishing is a traditional fishing technique developed by the Hoistlanic

fisherfolk in the 1750s. This fishing technique involved the embedding of thin bamboo sticks

into the seabed to create a barrier which blocks the path of the fish, channeling them to a net

(Compromis, Par. 6). The practice was eventually inscribed on the Representative List of the

Intangible Cultural Heritage of Humanity on January 28, 2012.

The Minamino Eruption

The Minamino Volcano is located in the southern portion of the Hoistland territory. It

erupted on July 16, 2016 which resulted in the destruction of property and loss of lives. The

surviving Hoistlandic population were also displaced and sought refuge in other Caribbean

Islands including Cyclonia. The eruption did not cease for two years, and the Hoistlandic Agency

of Volcanology eventually deemed the island unsafe for residential and commercial purposes.

On May 23, 2019, the Hoistland government managed to secure an agreement with Jubilaria

wherein the latter leased a portion of their territory to the former.

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The Anti-Grapple Net Act

The Anti Grapple-Net Act was passed by the Cyclonian Congress on October 11, 2020

after complaints and practices of “fencing” from the Cyclonian fishing community rose due to

the Hoistlandic practice of grapple-net fishing. The law provides for the penalty to those caught

practicing grapple-net fishing and cash incentives for the Hoistlandic fisherfolk who apply as

workers in the Cyclonian fishing companies. However, the passing of the law merely resulted in

the penalty of 51 Hoistlandic fisherfolk, a stark contrast to the six who received cash incentives.

The practice of fencing, on the other hand, was not penalized.

Diplomatic Exchanges

A series of diplomatic exchanges occurred between the Republic of Hoistland and the

Republic of Cyclonia between June 18, 2021 until September 2021. In the first diplomatic note

sent by the Hoistlandic government on June 18, 2021, they raised the contention that there are

violations of international law with regard to the “Anti Grapple-Net Act” and the “fence-building

acts” which proved to have discriminatory effects against the Hoistlandic citizens. This was

answered by the Cyclonian government in their diplomatic note stating that the Cyclonian

government successfully addressed the situation, as proven by the absence of escalation of

violence with regard to the alleged discrimination. In addition to that, they also raised the

contention that Hoistland is no longer a state and has no more right to participate as a member of

the United Nations. The parties eventually agreed to commence proceedings after lengthy

negotiations in September 2021, without prejudice as to Hoistland being a state.

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SUMMARY OF ARGUMENTS
____________________________________________________________________________

I. HOISTLAND IS A STATE AND AS SUCH THE COURT CAN EXERCISE ITS

JURISDICTION OVER ITS CLAIMS.

The Republic of Hoistland is still a state, and as such, this Court can still exercise its

jurisdiction over their claims. Hoistland satisfies all the requisites necessary to be

considered as state as per the Montevideo Convention. The issue on the statehood of

Hoistland is still pending as well, so the status quo remains.

II. THE REPUBLIC OF CYCLONIA VIOLATED INTERNATIONAL LAWS IN

THEIR TREATMENT OF THE HOISTLANDICS.

The Republic of Cyclonia violated several international laws in their treatment of the

Hoistlandic. The Hoistlandic who are staying in Cyclonia were not given the right to

practice their own culture and tradition, a right afforded to them as part of the minority,

being asylum-seekers. Not being able to practice their own culture may result in them

being denied their cultural heritage as Hoistlandics.

As a party to the Intangible Cultural Heritage Convention, Cyclonia also has the

obligation to safeguard the intangible cultural heritage covered by this convention,

including the practice of grapple-net fishing. They directly violated the provisions of the

treaty when they passed the Anti-Grapple Net Act, which sought to ban the tradition of

grapple-net fishing.

In addition to that, by passing this law and by not penalizing the fence-building of the

Cyclonians, the government of Cyclonia also violates the rights of the Hoistlandic to earn

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employment. Cyclonia also violated the principles equality and non-discrimination by

passing this law as its implementation includes merely the restriction on the practice of

grapple-net fishing of the Hoistlandics.

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ARGUMENTS
____________________________________________________________________________

I. Hoistland is a state and as such the court can exercise its jurisdiction over its claims.

A. The status quo remains and Hoistland is still a state based on the establishment of

facts and the September 2021 negotiations between state parties-- court

proceedings shall commence without prejudice to the statehood of Hoistland.

Furthermore. Cyclonia seeking an order from the court is still pending and the

status quo still prevails given that Hoistland is still considered a state.

B. The Republic of Hoistland still satisfies the requisites of statehood as per the

Montevideo Convention (1933). The facts establish that Hoistland still has a

permanent population, a government, the capacity to conduct international

relations and a defined territory. The current territory as defined in the 50-year

period or at an earlier period if the volcanic activity from the Minamino Volcano

ceases lease contract between Jubilaria and Hoistland stretches to a 15-kilometer

parcel of land territory. 1

II. The Republic of Cyclonia violated provisions of international law on the following:

Article 27 of the ICCPR.

A. The claims of the Republic of Cyclonia that the Hoistlandic people are not

minorities is against the provisions of international law.

1
Montevideo Convention on the Rights and Duties of States

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B. As stated in the Article 27 of the ICCPR, Hoistland fisherfolk contend that as

minorities, they should not be denied the right to enjoy their own culture in which

Grapple-Net fishing has long been part of their culture, where their economy is

mainly from agriculture, fishing and tourism. 2

C. Article 1 of the Minorities Declaration refers to minorities as based on national or

ethnic, cultural, religious and linguistic identity, and provides that States should

protect their existence. According to the UNHCR, response should fully include

minorities and indigenous peoples, including dedicated resources for their

protection and support. Refugees, asylum-seekers, and internally displaced and

stateless persons who are members of minorities and indigenous peoples are

likely to be affected both by the immediate events leading to their forcible

displacement and by the legacy of discrimination. 3

D. Cyclonia’s contention that Hoistland fisherfolk are considered minorities is not

valid in accordance with the Article 1 of United Nations Minorities Declaration.

Hence, they have the responsibility to protect their existence and shall not be

denied the right, in community with the other members of their group, to enjoy

their own culture, to profess and practise their own religion, or to use their own

language. 4

2
Article 27 of the International Covenant on Civil and Political Rights
3
UNHCR, UN Refugee Agency
4
Article 1 of the United Nations Minorities Declaration

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Article 11 of the Intangible Cultural Heritage.

A. In Article 11 of the Intangible Cultural Heritage on Role of States Parties, each

state party in Paragraph 1 shall “take the necessary measures to ensure the

safeguarding of the intangible cultural heritage present in its territory”. In which

the Republic of Cyclonia being a participatory state shall also come up with

safeguarding measures in identifying intangible cultural heritage present in its

territory and in this case is the cultural heritage of Grapple-Net fishing by the

people of Hoistland being the minority group. 5

B. Grapple-Net Fishing of the Republic of Cyclonia was inscribed UNESCO’s Lists

of Intangible Cultural Heritage on January 28, 2021. The purpose of this list is to

ensure better protection of important intangible cultural heritages worldwide and

the awareness of their significance. This is opposed to the Republic of Cyclonia’s

claim that Grapple-Net Fishing is not their cultural heritage, thus, should not be

prohibited nor erased. 6

Article 6 of the ICESR in regards to their line of work.

A. On November 20, 2020, Cyclonia accepted the Hoistlandic people with open arms

in the country and stated that Hoistlandic people should not be critical of them.

This violates Article 19 Sec. 1 of the ICCPR which states that “Everyone shall

have the right to hold opinions without interference.”. 7

5
Article 11 of the Intangible Cultural Heritage on Role of States Parties
6
UNESCO’s Lists of Intangible Cultural Heritage
7
Article 19 Sec. 1 of the International Covenant on Civil and Political Rights

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B. As regards the alleged violation of the ICESCR, the Act provides not just

economic alternatives, but also incentives to the Hoistlandic people to ensure their

gainful employment. Article 1 Section 1 of the ICESR promotes the right of self-

determination where the Hoistlandic people have the right to pursue economic

and cultural development. 8

C. Hoistlandic people have not violated provisions of international law and local law,

however, the actualization and emergence of the Anti Grapple-Net Fishing Act

paved the way for these violations.

D. The “Anti Grapple Net Fishing Act” is against the Article 6 of the International

Covenant on Economic, Social, and Cultural Rights states that “ The States

Parties to the present Covenant recognize the right to work, which includes the

right of everyone to the opportunity to gain his living by work which he freely

chooses or accepts, and will take appropriate steps to safeguard this right.” 9

E. According to the ICESR, it is the duty of the State Party to take “steps to achieve

the full realization of this right shall include technical and vocational guidance

and training programmes, policies and techniques to achieve steady economic,

social and cultural development and full and productive employment under

conditions safeguarding fundamental political and economic freedoms to the

individual.” Hence, state policies should not be contradictory to the realization of

these rights.

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Article 1 Section 1 of the International Covenant on Economic, Social, and Cultural
Rights
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Article 6 of the International Covenant on Economic, Social, and Cultural Rights
F. Article 17 Section 1 of the ICESR also states that, “The States Parties to the

present Covenant shall furnish their reports in stages, in accordance with a

programme to be established by the Economic and Social Council within one year

of the entry into force of the present Covenant after consultation with the States

Parties and the specialized agencies concerned.” The Republic of Cyclonia has

not furnished any report in regards to the entry of the Hoistlanders wherein they

did not indicate factors and difficulties in their obligations as hosts to the

Hoistlanders. 10

Article 17 of the Refugee Convention in their right to wage-earning employment.

A. In accordance to Article 1(A)(2) of the 1951 Convention, it defines a refugee as

“an individual who is outside his or her country of nationality or habitual

residence who is unable or unwilling to return due to a well-founded fear of

persecution based on his or her race, religion, nationality, political opinion, or

membership in a particular social group”. Hoistlandic people, therefore, are

refugees that are unable to return, hence, are called ‘Climate refugees’, as contrast

to Cyclonia’s claim that they are not. 11

B. Article 17 of the Refugee Convention on Wage-earning employment states that,

“1. The Contracting States shall accord to refugees lawfully staying in their

territory the most favourable treatment accorded to nationals of a foreign country

in the same circumstances, as regards the right to engage in wage-earning

employment.” 12

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Article 17 Section 1 of the International Covenant on Economic, Social, and Cultural
Rights
11
Article 1(A)(2) of the 1951 Refugee Convention
12
Article 17 of the Refugee Convention

C. As refugees of the Contracting State, it is the duty of Cyclonia to give favourable

treatment to Hoistlandic people who are minorities and asylum seekers, especially

in regards to employment.

D. Paragraph 2 of the same article also notes that restrictions on the employment of

aliens for the protection of the national labour market shall not be applied to a

refugee who was already exempt from them at the date of entry into force of this

Convention who fulfills at least one of the stated conditions. Hoistlandic people

then could not be restricted because they have completed three years' residence in

the country. 13

VI. The Government of Cyclonia’s violated the principle of non-discrimination in regards to

international law in violation of the following:

A. Principles of equality and non-discrimination are part of the main foundations in the rule

of law, including international law. Article 2 of the UDHR prohibits discrimination on

the following 10 grounds: “race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth and other status.” This also pertains to

discriminatation against “indigenous peoples, migrants, minorities, people with

disabilities, discrimination against women, racial and religious discrimination, or

discrimination based on sexual orientation and gender identity”. The Republic of

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Cyclonia has violated these principles by denying the status of Hoistlanders as minorities

as asylum seekers and as ‘climate’. 14

13
Article 17(2) of the Refugee Convention
14
Article 2 of the UDHR

B. Minority-refugees’ preservation of their cultural identity may also be disrupted by

assimilation policies such as that in the case of the Anti Grapple-Net Fishing where they

are pushing the Hoistlandic people to assimilate to their culture in the way of the given

statute. In the case of Kurdish repression in Turkey, the reduction of the opportunities for

members of refugee groups to interact with one another weakens their bond and hampers

cultural identity. 15

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EVANS, D. 2020. THE KURDISH QUEST FOR INDEPENDENCE AND THE LEGALITY OF
SECESSION UNDER IN OF SECESSION UNDER INTERNATIONAL LAW

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CONCLUSION & PRAYER

____________________________________________________________________________

In view of the foregoing, the Court is respectfully requested to find, adjudge and declare that:

I. Hoistland is still a state and therefore the court may exercise jurisdiction over its claims

II. Hoistland is entitled to make claims for Cyclonia failure to afford the rights to the of the

Hoistlandic fisherfolk in their territory consistent with international law

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