Question: Assessing Arcadia's Legal Options under UNCLOS in the Dispute with Rivoli

Arconia and Rivoli are neighbouring states with adjacent coasts to the Indian Ocean. About 80 nautical miles from the land boundary of the two states is located a group of islands called the Paradero Islands. Arconia and Rivoli have a longstanding dispute about sovereignty over the Paradero Islands. They also have not delimited their maritime boundary. They are both parties to the UN Convention on the Law of the Sea (UNCLOS), but Arconia has made a declaration under Art 298(a) UNCLOS excluding disputes under Articles 15, 74, and 83. None of the two have made a choice of means for the settlement of disputes under UNCLOS. Lately, tensions have ignited between the two states. After a recent election in Rivoli, a new government was elected. Shortly, after its election, the Rivoli government adopted the Maritime Sovereignty Act which declared the following: (a) the Paradero Islands are integral part of the territory of Rivoli; (b) Rivoli shall have an exclusive economic zone extending 200nm from the baselines, from which the breadth of the territorial sea is measured, in all maritime areas in which its entitlement does not overlap with that of another state; (c) all Arconian ships are prohibited from entering the territorial sea of Rivoli; and (d) all Arconian ships are prohibited from fishing in the exclusive economic zone of Rivoli. Shortly after the Act became effective, Rivoli’s coast guard spotted a small-sized Arcadian fishing boat, MV Racoon, fishing within 20 nm from the coast of Rivoli. After boarding, Rivoli’s coast guard found 300 kilos of tuna on board. Rivoli arrested the Racoon and its crew. A Rivoli court ordered a bond of 100 million US dollars to be posted for their release. Under Rivoli law, unauthorized fishing is punished by imprisonment of at least 3 months, a fine up to 2 million US dollars, and any catch is subject to confiscation. Advise Arcadia about the legality of Rivoli’s conduct under the UNCLOS, whether it can bring proceedings against Rivoli under the UNCLOS, and before what international court or tribunal. Specifically, consider whether Arcadia can institute proceedings against Rivoli with respect to:

(a) the sovereignty over Paradero Islands;

(b) the delimitation of the maritime boundary;

(c) the legality of the prohibition of entry of Arconian vessels into Rivoli’s territorial sea;

(d) the legality of the prohibition of fishing by Arconian vessels in Rivoli’s EEZ; and/or

(e) the release of the Racoon and its crew.

DRAFT/STUDY TIPS:

Title: Assessing Arcadia's Legal Options under UNCLOS in the Dispute with Rivoli

Introduction:

The longstanding territorial dispute between Arconia and Rivoli over the Paradero Islands, coupled with the unresolved maritime boundary delimitation, has escalated due to Rivoli's recent enactment of the Maritime Sovereignty Act. This legislation not only asserts sovereignty over the contested islands but also imposes restrictions on Arconian vessels, including prohibiting their entry into Rivoli's claimed territorial sea and exclusive economic zone (EEZ). The arrest of the Arconian fishing vessel, MV Racoon, and its crew, along with the exorbitant bond demanded for their release, has further heightened tensions between the two states. As an advisory to Arcadia, this analysis delves into the legality of Rivoli's actions under the United Nations Convention on the Law of the Sea (UNCLOS) and explores the available legal avenues for Arcadia to address the various aspects of the dispute.

Thesis Statement: While Rivoli's actions raise several concerns under UNCLOS, Arcadia possesses limited options for instituting proceedings due to Rivoli's declaration under Article 298(a), which excludes certain disputes from compulsory dispute settlement mechanisms. However, Arcadia can still pursue legal recourse for specific aspects of the dispute, such as the release of the Racoon and its crew, through appropriate international courts or tribunals.

I. Sovereignty over the Paradero Islands

The dispute over the sovereignty of the Paradero Islands is a long-standing issue between Arconia and Rivoli. Under UNCLOS, the determination of sovereignty over islands falls within the realm of territorial disputes, which are governed by principles of international law and historical claims. Article 121 of UNCLOS defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide." However, UNCLOS does not provide a mechanism for resolving territorial sovereignty disputes.

Given that Arconia has made a declaration under Article 298(a), excluding disputes concerning the interpretation or application of Articles 15, 74, and 83 from compulsory dispute settlement procedures, Arcadia may face challenges in instituting proceedings against Rivoli specifically regarding the sovereignty over the Paradero Islands. This exclusion encompasses disputes related to the delimitation of territorial seas (Article 15) and exclusive economic zones (Articles 74 and 83).

Nevertheless, Arcadia can explore alternative avenues for resolving the territorial dispute, such as bilateral negotiations, mediation, or reliance on other sources of international law, including the principles of acquisition and loss of territory, as well as historical claims and evidence of effective control over the islands.

II. Delimitation of the Maritime Boundary

The unresolved maritime boundary between Arconia and Rivoli is another contentious issue that intersects with the dispute over the Paradero Islands. Articles 74 and 83 of UNCLOS provide the legal framework for the delimitation of the exclusive economic zone and continental shelf, respectively, between states with opposite or adjacent coasts.

However, due to Arconia's declaration under Article 298(a), Arcadia may be precluded from instituting compulsory proceedings against Rivoli concerning the delimitation of the maritime boundary under UNCLOS. This exclusion applies to disputes involving the interpretation or application of Articles 74 and 83, which govern the delimitation of the EEZ and continental shelf.

Arcadia could explore alternative dispute resolution mechanisms, such as bilateral negotiations or mediation, to reach an agreement on the maritime boundary delimitation with Rivoli. If these efforts are unsuccessful, Arcadia may need to rely on other sources of international law, including customary international law principles and judicial decisions, to assert its position on the maritime boundary.

III. Legality of the Prohibition of Entry of Arconian Vessels into Rivoli's Territorial Sea

The prohibition of Arconian vessels from entering Rivoli's claimed territorial sea, as stipulated in the Maritime Sovereignty Act, raises concerns under UNCLOS. Article 17 of UNCLOS guarantees the right of innocent passage for foreign ships through the territorial sea of a coastal state.

While Arconia's declaration under Article 298(a) does not exclude disputes concerning the interpretation or application of Article 17, the issue of innocent passage is inherently linked to the unresolved maritime boundary and territorial sea delimitation. Rivoli's claim to a territorial sea may be contested by Arcadia, given the overlapping maritime claims and the sovereignty dispute over the Paradero Islands.

Arcadia could argue that Rivoli's blanket prohibition on Arconian vessels entering its claimed territorial sea violates the right of innocent passage under UNCLOS. However, the success of such a claim may hinge on the resolution of the underlying territorial and maritime boundary disputes.

IV. Legality of the Prohibition of Fishing by Arconian Vessels in Rivoli's EEZ

Rivoli's prohibition on Arconian vessels fishing in its claimed exclusive economic zone (EEZ) is another point of contention under UNCLOS. Article 56 of UNCLOS grants coastal states sovereign rights for the purpose of exploring, exploiting, conserving, and managing the natural resources within their EEZ. However, Article 58 also recognizes the freedom of navigation and overflight, as well as the freedom to lay submarine cables and pipelines, within the EEZ.

While coastal states have jurisdiction over living resources within their EEZ, Article 62 of UNCLOS requires them to promote the objective of optimum utilization of these resources and to give other states access to any surplus allowable catch. Additionally, Article 73 allows coastal states to take enforcement measures, including boarding, inspection, arrest, and judicial proceedings, to ensure compliance with their laws and regulations in the EEZ.

Arcadia could argue that Rivoli's blanket prohibition on Arconian vessels fishing in its claimed EEZ is inconsistent with the provisions of UNCLOS, particularly if Rivoli fails to provide access to any surplus allowable catch or if the enforcement measures taken against the MV Racoon are disproportionate.

However, Arconia's declaration under Article 298(a) may limit Arcadia's ability to institute compulsory proceedings against Rivoli on this matter, as it involves the interpretation or application of Article 74 (delimitation of the EEZ).

V. Release of the Racoon and Its Crew

The arrest of the Arconian fishing vessel, MV Racoon, and its crew, as well as the exorbitant bond demanded for their release, raises concerns under UNCLOS. Article 73(2) of UNCLOS requires that arrested vessels and their crews be promptly released upon the posting of reasonable bond or other security.

Unlike the other aspects of the dispute, Arcadia can potentially institute proceedings against Rivoli concerning the release of the Racoon and its crew under Article 292 of UNCLOS. This article provides a specific procedure for the prompt release of vessels and crews upon the posting of reasonable bond or other security.

Arcadia could initiate proceedings before the International Tribunal for the Law of the Sea (ITLOS) or another appropriate international court or tribunal, as specified in Article 292, to seek the prompt release of the Racoon and its crew. Arcadia would need to demonstrate that the bond demanded by Rivoli is unreasonable and disproportionate, given the nature of the alleged offense and the potential penalties under Rivoli's laws.

Conclusion:

The escalating tensions between Arconia and Rivoli over the Paradero Islands and the unresolved maritime boundary have been exacerbated by Rivoli's enactment of the Maritime Sovereignty Act and the arrest of the Arconian fishing vessel, MV Racoon. While Arcadia's options for instituting compulsory proceedings against Rivoli under UNCLOS are limited due to Rivoli's declaration under Article 298(a), excluding certain disputes from compulsory settlement mechanisms, Arcadia can still explore alternative legal avenues.

Regarding the sovereignty over the Paradero Islands and the delimitation of the maritime boundary, Arcadia may need to rely on bilateral negotiations, mediation, or other sources of international law, as UNCLOS does not provide a mechanism for resolving territorial disputes, and Arconia's declaration precludes compulsory proceedings on delimitation issues.

Concerning the legality of the prohibition of entry of Arconian vessels into Rivoli's claimed territorial sea and the prohibition of fishing in Rivoli's claimed EEZ, Arcadia can argue that these measures violate the provisions of UNCLOS. However, the success of such claims may depend on the resolution of the underlying territorial and maritime boundary disputes.

Notably, Arcadia has a stronger legal footing to institute proceedings against Rivoli for the prompt release of the Racoon and its crew under Article 292 of UNCLOS. By demonstrating that the bond demanded by Rivoli is unreasonable and disproportionate, Arcadia can seek recourse before the International Tribunal for the Law of the Sea (ITLOS) or another appropriate international court or tribunal.

In conclusion, while the dispute between Arconia and Rivoli over the Paradero Islands and the unresolved maritime boundary presents complex legal challenges, Arcadia is not without legal recourse under UNCLOS. Despite the limitations imposed by Arconia's declaration under Article 298(a), Arcadia can still explore alternative dispute resolution mechanisms and rely on other sources of international law to assert its claims over the sovereignty of the islands and the delimitation of the maritime boundary.

Regarding the legality of Rivoli's actions, such as the prohibition of Arconian vessels from entering its claimed territorial sea and fishing in its claimed EEZ, Arcadia can argue that these measures violate UNCLOS provisions. However, the success of such claims may hinge on the resolution of the underlying territorial and maritime boundary disputes.

Notably, Arcadia has a stronger legal footing to institute proceedings against Rivoli for the prompt release of the Racoon and its crew under Article 292 of UNCLOS. By demonstrating that the bond demanded by Rivoli is unreasonable and disproportionate, Arcadia can seek recourse before the International Tribunal for the Law of the Sea (ITLOS) or another appropriate international court or tribunal.

Ultimately, while the legal landscape is complex, Arcadia has various options to pursue, ranging from diplomatic negotiations to invoking relevant provisions of UNCLOS and other sources of international law. A comprehensive strategy that combines legal avenues with diplomatic efforts may be the most effective approach to resolving this multifaceted dispute with Rivoli in a peaceful and equitable manner.