Respondent Memorial - Competitors 1 & 40

IN THE INTERNATIONAL COURT OF JUSTICE

SPRING TERM, 2010

THE REPUBLIC OF ASPATRIA

APPLICANT

V.

THE KINGDOM OF RYDAL

RESPONDENT

BRIEF FOR RESPONDENT

Competitor # 1: Issue A

Competitor #40: Issue B

i

TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................... iii

STATEMENT OF JURISDICTION................................................................................................1

QUESTIONS PRESENTED ............................................................................................................2

STATEMENT OF FACTS ..............................................................................................................3

SUMMARY OF PLEADINGS........................................................................................................8

PLEADINGS ............................................................................................................................................ 11

I. SOVEREIGNTY OVER THE WINDSCALE ISLANDS BELONGS TO

THE KINGDOM OF RYDAL BY REASON OF FIRST OCCUPATION,

BY OCCUPATION FOLLOWING PLUMBLAND’S ABANDONMENT

OF THE ISLAND, OR BY ACQUISTIVE PRESCRIPTION.

ASPATRIA’SS CLAIM TO SOVEREIGNTY OF THE ISLANDS

UNDER THE PRINCIPLE OF UTI-POSSEDETIS IS WITHOUT

MERIT. ......................................................................................................11

A. Rydal obtained full possession of the Windscale Islands due to the fact

that it was the first to discover and occupy them. ................................11

B. Plumbland failed to achieve territorial sovereignty over the Windscale

Islands by effective possession because its acts of occupation on the

Islands were not peaceful, actual, or continuous ................................13

C. Even if Aspatria had some legal claim to the Islands in 1799, Rydal

has established territorial sovereignty over the Windscale Islands by

acquisitive prescription because its possession was exercised a titre de

souverain, was peaceful, uninterrupted, and public, and continued for a

sufficient period of time. ......................................................................15

D. Aspatria’s claim over the Windscale Islands under the principle of uti

possidetis juris is invalid because Aspatria did not exercise

administrative functions over the Islands at the moment of

independence and Rydal was the de facto possessor of the Islands.

..............................................................................................................19

II. THE ISLANDERS ARE ENTITLED TO INDEPENDENCE UNDER

THE RIGHT OF SELF-DETERMINATION BECAUSE THEY ARE A

NON-SELF-GOVERNING TERRITORY, BUT EVEN ASSUMING

ii

THAT THEY ARE NOT A NON-SELF-GOVERNING TERRITORY

THEY ARE ENTITLED TO INDEPENDENCE UNDER THE RIGHT

OF INTERNAL SELF-DETERMINATION. ...........................................20

A. The Islanders have a right to external self-determination because they

are a non-self-governing territory. ......................................................20

B. Assuming the islands are not a non-self-governing territory, they are

still entitled to independence under the right of self-determination

because self-determination also encompasses a remedial right of

secession. ............................................................................................24

CONCLUSION AND PRAYER FOR RELIEF ............................................................................29

iii

INDEX OF AUTHORITIES

TREATIES PAGE

International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 .......20, 25

International Covenant on Economic, Social and Cultural Rights, Jan 3, 1976, 993

U.N.T.S. 3. ........................................................................................................................25

CASES

Case Concerning the Frontier Dispute (Burkina Faso v. Mali) 1986 I.C.J. 554 (December 22).

............................................................................................................................................19

Chamizal Arbitration (U.S. v. Mex.), reprinted in 5 Am. J. Int’l L. 806 (1911) .................... 15-17

The Clipperton Island Case (Fr. v. Mex.) (1931), reprinted in 26 Am. J. Int’l L. 390 (1932).

...................................................................................................................................... 11-13

The Eastern Greenland Decision (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53, (April 5) ......13

The Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928)

.......................................................................................................................... 13, 15-17, 19

Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.) .............................................20, 25

Western Sahara, Advisory opinion, 1975 I.C.J. 12, 30-31 (Oct. 16) ...........................................22

The Aaland Islands Question, Report Presented to the Council of the League of Nations by the

Commission of Rapporteurs, League of Nations Doc. B7 21/68/106 (1921) ............. 25-26

UNITED NATIONS DOCUMENTS

Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514

(XV), (Dec. 14, 1960) .......................................................................................................21

Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, G.A. Res. 50/6,

U.N. Doc. A/RES/50/6 (Nov. 9, 1995) ...............................................................................9

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625

(XXV) (Oct. 24, 1970). ...............................................................................................22, 24

G.A. Res. 1541 (XV), (Dec. 15, 1960) ...................................................................................21, 23

U.N. Charter art. 73........................................................................................................................21

World Conference on Human Rights, June 14-25, 1993 Vienna Declaration and Programme of

Action, U.N. Doc. A/CONF.157/23 (July 12, 1993). ........................................................25

iv

STATEMENTS OR REPORTS TO TRIBUNALS PAGE

Oral Statements of the Representatives of the Authors of the Unilateral Declaration of

Independence, Daniel Müller, Accordance with International law of the Unilateral

Declaration of Independence by the Provisional Institutions of Self-Government of

Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at http://www.icj-

cij.org/docket/files/141/15712.pdf (last visited Feb. 20, 2010) ........................................26

Report by Thomas M. Franck: “Opinion Directed at Question 2 of the Reference”, Reference re

Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), in Self-Determination in International

Law: Quebec and Lessons Learned 75, 79 (Anne Bayefsky ed., 2000) .....................25, 27

Written Statement of the Republic of Albania, Accordance with International Law of the

Unilateral Declaration of Independence by the Provisional Institutions of Self-

Government of Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at

http://www.icj-cij.org/docket/files/141/15618.pdf (last visited Feb. 20, 2010) ...............26

Written Statement of the Swiss Confederation, Accordance with International Law of the

Unilateral Declaration of Independence by the Provisional Institutions of Self-

Government of Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at

http://icj-cij.org/docket/files/141/15614.pdf (last visited Feb. 20, 2010) .........................26

ARTICLES

C.H.M. Waldock, Disputed Sovereignty in the Falkland Island Dependencies, 25 Brit. Y.B. Int’l

L. 311 (1948). ...................................................................................................................13

Cedric Ryngaert and Christine Griffioen, The Relevance of the Right to Self-Determination in the

Kosovo Matter: In Partial Response to the Agora Papers, 8 Chinese J. Int’l L. 573 (2009)

............................................................................................................................................25

D.H.N. Johnson, Acquisitive Prescription in International Law, 27 Brit. Y.B. Int’l L. 332 (1950).

...................................................................................................................................... 15-17

Friedrich August Freiherr Von der Heydte, Discovery, Symbolic Annexation and Virtual

Effectiveness in International Law, 29 Am. J. Int’l L. 448 (1935). ..................................13

Joshua Castellino, Territorial Integrity and the “Right” to Self-Determination: An Examination

of the Conceptual Tools, 33 Brooklyn J. Int’l L. 503 (2008). ......................................13,19

Thomas D. Grant, Regulating the Creation of States from Decolonization to Secession, J. Int’l L.

& Int’l Rel. 11 (2009) ................................................................................................. 25-26

BOOKS

I. Brownlie, Principles of International Law, 148 (1966). ............................................................17

Joshua Castellino, International Law and Self-Determination: The Interplay of Politics of

Territorial Possession with Formulations of Post-Colonial „National Identity 13-14

(Mortinus Nijhoff Publishers 2000). .................................................................................20

1

STATEMENT OF JURISDICTION

The Republic of Aspatria and the Kingdom of Rydal, in accordance with Article 40(1) of

the Statute of the International Court of Justice, hereby submit to this Court its dispute

concerning the Windscale Islands. Pursuant to article 36(1) of the Statute, the Court has

jurisdiction to decide all matters referred to it for decision.

2

QUESTIONS PRESENTED

Rydal asks the Court to adjudicate and declare that:

1. Rydal is permitted under international law to take steps giving effect to independence for

the Windscale Islands because:

a. Sovereignty over the Islands belongs to Rydal; and

b. The Islanders are entitled to independence as an exercise of their right to self-

determination.

3

STATEMENT OF FACTS

The Windscale Islands (“the Islands”) are an archipelago lying in the Eden Ocean 500

miles west of the Republic of Aspatria.1 The Islands are approximately 7,500 miles away from

the Kingdom of Rydal2. They were first discovered by Captain Geoffrey Parrish on a voyage of

naturalist discovery under a commission from the King of Rydal in 1777.3 Captain Parrish

recorded in his ship’s log that at the time of discovery, there were no signs of human habitation,

and that before his ship departed, his crew took a short leave on one of the larger islands and left

behind the flag of Rydal and a stone carved with a declaration asserting the sovereignty of King

Andrew of Rydal and his successors over the Islands.4

The following year, the Viceroy of Aspatria, which was at that time a colony of

Plumbland, sent a Lieutenant of the Aspatrian Navy to settle the Islands.5 A fort and settlement

named Salkeld were maintained on one of the Islands until 1799, when the settlers left the Island,

leaving behind a flag of Plumbland and a notice declaring that the Islands were the territory of

the King of Plumbland.6 There was no return to the Islands by Plumbland or its Viceroyalty,

Aspatria. Historians say that the Islands were used by pirates, slave-ships, and other seafarers

during the period of the Aspatrian settlement at Salkeld.7

On the night of 6 September, 1813, the naval ship HMS Applethwaite of Rydal, under the

command of Admiral George Aikton, was wrecked on one of the smaller islands in the

1 International Court of Justice, Special Agreement, December 28, 2009 [hereinafter Stip.] ¶ 1.

2 Id. ¶ 4.

3 Id. ¶¶ 1, 5.

4 Id. ¶ 5.

5 Id. ¶ 6.

6 Id. ¶ 7.

7 Id. ¶ 8.

4

archipelago.8 Admiral Aikton’s nautical charts indicated the Islands belonged to Rydal.

9 He and

the other survivors of the wreck build a settlement named St. Bees.10

When a slave ship, The

Unthank, from the State of Sodor drifted into the harbor of St. Bees with a broken mast in 1815,

Admiral Aikton informed the crew that they had landed on Rydalian territory, declared the slaves

free, and offered refuge to the crew and former slaves, who then swore allegiance to the Queen

of Rydal.11

By 1816, Admiral Aikton and his men had explored most of the Islands and begun to

cultivate the land and domesticate the wild equine species native to the Islands.12

There is no evidence that any other ships visited the Islands until 1817, when a ship was

sent by the Viceroy of Aspatria to the Islands to establish a penal colony.13

Admiral Aikton and

his men turned away the Aspatrian ship, threatening the crew with arrest.14

When the King of

Rydal protested the Rydalian presence in the Islands the following year, the Queen of Rydal

adopted the actions of Admiral Aikton, and reaffirmed the sovereignty of Rydal over the

Islands.15

In March 1819, Queen Constance of Rydal appointed a Governor to the Islands.16

As

part of Treaty of Great Corby, signed 22 September 1821, King Piero of Plumbland

acknowledged the sovereignty of Queen Constance over the Windscale Islands.17

A succession of Rydalian governors has continued to exercise control over the entire

Windscale archipelago until the present day.18

The early inhabitants brought by HMS

8 Id. ¶ 10.

9 Id.

10 Id.

11 Id. ¶ 12.

12 Id.

13 Id. ¶ 14.

14 Id.

15 Id. ¶¶ 15-16.

16 Id. ¶ 16.

17 Id. ¶ 20.

18 Id. ¶ 28.

5

Applethwaite and The Unthank inter-married and produced offspring, and the population was

further supplemented by other immigrants, mainly from Rydal.19

The population eventually

grew to 4,420 in 1899, and 7,054 in 1999.20

Farming and fishing were developed and the harbor

was used as a strategic harbor for Rydal’s navy.21

Rydal levied duties on all goods imported to

the Islands from outside Rydal.22

The Islands have depended heavily on investment from Rydal,

which has paid for the introduction of telephones and radio transmissions, and the building of an

airport.23

Aspatria declared its independence from Plumbland in October 1819.24

When a

constitution was drafted the following year, it asserted Aspatrian sovereignty over the Islands.25

In 1826, a force was sent by the President of Aspatria in a failed attempt to take the Islands.26

The following year, an ambassador to Rydal was sent by the President, who argued that the

Islands belonged to Aspatria.27

These claims were rejected by the Foreign Minister of Rydal,

and no further claims were asserted for 18 years.28

In 1845, Aspatria again raised its claims to

sovereignty through a permanent diplomatic mission to Rydal, and regularly reiterated them until

1880, when Aspatria recalled its ambassadors.29

There were no diplomatic protests for the next

19

Id. 20

Id. 21

Id. 22

Id. ¶ 31. 23

Id. ¶ 32. 24

Id. ¶ 17. 25

Id. ¶ 19. 26

Id. ¶ 22. 27

Id. ¶¶ 23-24. 28

Id. ¶¶ 25-27. 29

Id. ¶¶ 27, 30.

6

30 years until a new ambassador was appointed in 1910.30

Since then, trade has steadily

increased between Aspatria and Rydal.31

Rydal joined the United Nations in 1945 and pursuant to its obligations under article 73

of the U.N. Charter, it designated the Islands as a non-self-governing territory and regularly

transmits reports about the status of the Islands.32

In 1947, Rydal gave the Islands a constitution

which granted universal suffrage for all adult residents of the Islands to choose members of the

Assembly of the Islands.33

This constitution handed day to day governance of the Islands to the

Assembly, subject to the approval of the Rydal appointed Governor of the Islands.34

Citizens of

the Islands do not possess full Rydalian citizenship rights.35

For instance they do not vote for

members of the Rydalian Parliament and lack representation in that body.36

In 1997 substantial oil reserves were discovered within the baselines of the Islands.37

This oil energized the already growing independence movement on the Islands.38

The discovery

of oil also increased Aspatrian claims to sovereignty over the Islands.39

In 2003 Aspatria

purported to grant an exclusive license to extract oil from the Islands to an Aspatrian company,

MDR Limited.40

30

Id. ¶ 30. 31

Id. ¶ 39. 32

Id. ¶ 34. 33

Id. ¶ 35. 34

Id. 35

Id. ¶ 44. 36

Id. 37

Id. ¶ 42. 38

Id. ¶ 43. 39

Id. ¶ 45. 40

Id. ¶¶47-48.

7

MDR Limited also submitted a bid to the Assembly of the Islands, which the Assembly

accepted.41

However, the Governor of the Islands withheld approval, and the bid was thus

rejected.42

The Governor’s actions caused the independence movement in the Islands to pressure

the Assembly to hold a plebiscite.43

The plebiscite’s results unequivocally indicated that the

Islands wanted full independence, and rejected the possibility of unification with Aspatria.44

Following the plebiscite the King of Rydal pledged to offer the full support of Rydal in

transitioning the Island to full independence.45

The president of Aspatria condemned the

plebiscite as being illegal and claimed that Rydal could not grant independence over the Islands

because they lacked sovereignty.46

41

Id. ¶¶51, 53. 42

Id. ¶ 55. 43

Id ¶ 56. 44

Id. ¶ 57. 45

Id. ¶ 58. 46

Id. ¶ 59.

8

SUMMARY OF PLEADINGS

Sovereignty over the Windscale Islands rightfully belongs to the Kingdom of Rydal.

Rydal was the first to discover the Islands, and at the time of the discovery the Islands were

completely uninhabited and had the international legal status of territorium nullius.

Consequently, when Rydal made its first appearance there and manifested its intent to act as

sovereign over the Islands, the taking of possession was complete. When Plumbland settled the

Islands the following year, its occupation was ineffective in establishing sovereignty, because its

actions were an illegal usurpation of Rydal’s sovereignty, and its occupation was not exclusive

or continuous.

Even if Plumbland had some legal claim to the Islands when the settlement of Salkeld

was deserted in 1799, since that time Rydal has acquired territorial sovereignty by acquisitive

prescription. Rydal has continuously and peacefully exercised its sovereignty over the Islands for

nearly 200 years, and protests on the part of Plumbland and Aspatria have been insufficient to

overcome the presumption of acquiescence. Finally, in the interest of preserving the status quo,

the principle of utipossidetis juris does not favor granting sovereignty to Aspatria, as Aspatria

has not undertaken any administrative acts in the Islands for over 200 years.

Regardless of which State has sovereignty over the Islands, their right to self-

determination entitles them to independence. The right of external self-determination applies to

all non-self-governing territories; this right applies to colonies and any territory under foreign

subjugation. Colonies are defined as being geographically separated and ethnically/culturally

distinct from the administering state. Administering states are required to file reports about their

non-self-governing territories under the U.N. charter. The Islands are a non-self-governing

9

territory. Regardless of the de jure sovereignty over the islands, Rydal has possessed de facto

sovereignty for more than 150 years. The Islands have been a colony this entire time. They are

geographically separated by approximately 7,500 miles. Islanders are ethnically distinct from

Rydalians in that Islanders are the descendants of Rydalians and freed slaves from Sodor.

Assuming arguendo that de jure sovereignty over the Islands controls, the Islands would

still be a non-self-governing territory of Aspatria. The Islands are geographically separated by

500 miles of ocean and consist of a population ethnically distinct from Aspatria. Given that the

Islands have not been administered by Aspatria over the course of their history, placing the

Islands under Aspatrian control would be subjugating the Islands to a foreign power.

Assuming the Islands are not a non-self-governing territory, the universal right of internal

self-determination entails a remedial right to secession. This right to remedial secession comes

into play when a group’s right to internal self-determination is violated to the point that secession

becomes the only way for the group to exercise its right to internal self-determination. Here, the

Islands have had their right to internal self-determination violated by both Rydal and Aspatria.

Rydal has failed to give the Islands representation in the Rydalian parliament; the democratically

elected Assembly of the Islands which performs the day to day governance of the Islands is

subject to the approval of the Rydal appointed Governor. As such, Islanders lack the ability to

determine their own governmental fate. Attached to the right of self-determination is the right of

a state to determine how its natural resources will be used. Rydal has denied this right by

rejecting the Assembly approved bid to extract oil.

Although the Court should look to the de facto situation of the Islanders in determining

whether their right to internal self-determination has been violated, even if the court holds that it

10

must be Aspatria who has violated the Islands’ right to self-determination, the Islanders are still

entitled to remedial secession. The Islanders have exercised their right of internal self-

determination by having a plebiscite which Aspatria has condemned and declared illegal. This

refusal to accept the plebiscites results and to attempt to assert control over the Islands shows

that Aspatria is not respecting the Islanders’ right to internal self-determination.

11

PLEADINGS

I. SOVEREIGNTY OVER THE WINDSCALE ISLANDS BELONGS TO THE

KINGDOM OF RYDAL BY REASON OF FIRST OCCUPATION, BY OCCUPATION

FOLLOWING PLUMBLAND’S ABANDONMENT OF THE ISLAND, OR BY

ACQUISITIVE PRESCRIPTION. UTI POSSIDETIS?

A. Rydal obtained full possession of the Windscale Islands due to the fact that it was the first

to discover and occupy them.

The Clipperton Island case makes clear that from the moment when an occupying state

makes its appearance in a completely uninhabited territory, which comes under the absolute and

undisputed disposition of that state, the taking of possession must be considered as

accomplished, and the occupation thereby completed.47

In such circumstances, it is unnecessary

to inquire into subsequent acts of occupation in order to establish effective possession.48

The

mere appearance in the territory coupled with the intention to act as sovereign is sufficient to

establish territorial sovereignty. 49

The Clipperton Island case involved a dispute between Mexico and Spain over sovereign

rights to an island off the coast of Mexico.50

Mexico claimed that it had inherited sovereignty

over the Island when it gained independence from Spain, which, Mexico claimed, had been the

first discoverer of the Island.51

However, Mexico failed to prove that Spain had actually

discovered the Island, or that either Spain or Mexico had ever exercised sovereignty there.52

Consequently, the Island, which was completely uninhabited, was in the legal situation of

territorium nullius when a French Naval officer, arrived on the Island 1858 and proclaimed

47

(Fr. v. Mex.) (1931), reprinted in 26 Am. J. Int’l L. 390, 394 (1932) [hereinafter Clipperton Island]. 48

Id. 49

Id. at 393. 50

Id. at 390. 51

Id. at 392. 52

Id. at 392-93.

12

French sovereignty there.53

Despite the fact that the French officer never landed on the Island

and left no sign of sovereignty there, and no positive or apparent act of sovereignty over the

Island was take for over 30 years,54

the arbitrator, Emperor Victor Emmanuel III of Italy, held

that the mere fact the France was the first to conclusively make an appearance at the Island and

make a clear declaration of its intention to act as sovereign was sufficient to establish legal

sovereignty, due to the fact that the Island was completely uninhabited and were at the absolute

and undisputed disposition of France.55

When the Windscale Islands were first discovered in 1777 by a captain of the Rydalian Navy,

it was completely uninhabited, and there is no evidence of any other state making a claim to the

Islands prior to that date.56

The Islands therefore had the legal status of territorium nullius and at

the absolute and undisputed disposition of the Kingdom of Rydal. Upon discovery, the Rydalian

ship landed on one of the larger Islands and left behind a flag of Rydal and a stone carved with a

declaration asserting the sovereignty of Rydal over the Islands.57

These actions by a Rydalian

officer clearly show the intention of the Kingdom of Rydal to act as sovereign over the Islands,

and were in fact more substantial than the actions taken by the French explorers in the Clipperton

Island case. Following that precedent, it must be concluded, that at the moment a Rydalian ship

first appeared on the Islands and the intention of Rydal to act as sovereign was made clear,

possession must be considered accomplished, and occupation complete.

53

Id. at 391. 54

Id. 55

Id. at 394. 56

Stip. ¶ 5. 57

Id.

13

B. Plumbland failed to achieve territorial sovereignty over the Windscale Islands by

effective possession because its acts of occupation on the Islands were not peaceful,

actual or continuous.

Effective occupation denotes not the physical settlement of a territory, but the actual,

continuous and peaceful display of state functions.58

The exercise or display of sovereignty must

be (1) peaceful, (2) actual, (3) sufficient to confer a valid title to sovereignty, and (4)

continuous.59

Under the doctrine of intertemporal law, in a dispute over sovereignty the claimant

must show that sovereignty existed at the moment which must be considered critical.60

The

critical date is the date at which sovereignty becomes contested.61

In order for a possession to be considered peaceful, there must not be a usurpation of

another’s subsisting sovereignty. 62

Only terra nullius, or unoccupied territory, can be subject to

effective occupation.63

Territory which has been discovered by another State with an intention to

act as sovereign is terra prohibita with respect to all other States.64

The actual taking of

possession “consists in the act, or series of acts, by which the occupying state reduces to its

possession the territory in question and takes steps to exercise exclusive authority there.”65

Failure to show continuing state activity is fatal to proof of title by occupation, regardless of any

intention to the contrary.66

58

C.H.M. Waldock, Disputed Sovereignty in the Falkland Island Dependiencies, 25 Brit. Y.B. Int’l L. 311, 334 (1948). 59

Id. at 335. 60

The Island of Palmas Case (Neth. v. U.S.), 2 R.I.A.A. 829, 839 (Perm. Ct. Arb. 1928) [hereinafter Palmas]. 61

See The Eastern Greenland Decision (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53, at 46 (April 5) [hereinafter Eastern Greenland]. 62

Waldock, supra note 58, at 336. 63

See Joshua Castellino, Territorial Integrity and the “Right” to Self-Determination: An Examination of the Conceptual Tools, 33 Brooklyn J. Int’l L. 503, 533 (2008). 64

Friedrich August Freiherr Von der Heydte, Discovery, Symbolic Annexation and Virtual Effectiveness in International Law, 29 Am. J. Int’l L. 448, 453-54 (1935). 65

Clipperton Island, 26 Am. J. Int’l L. at 393. 66

Waldock, supra note 58, at 337.

14

When the first ship from Plumbland arrived at the Islands in 1778,67

the Islands were no

longer terra nullius, but terra prohibita, due to the fact that the Islands had already been

discovered by a Rydalian ship the year before, and sovereignty over the Islands had been

declared by the captain of the ship.68

Therefore, Aspatria’s subsequent settlement of the Islands

was not peaceful, but a usurpation of the subsisting sovereignty of Rydal.69

Further, the

settlement and fort at Salkeld were not sufficient to establish effective possession, because the

Islands were also utilized by pirates, slave ships and other seafarers during the period of

settlement.70

The survivors the HMS Applewaither and The Unthank were also able to occupy

the Islands for several years before any protest was made by Plumbland.71

Thus, Plumbland’s

control over the Islands was not exclusive. Finally, Plumbland’s occupation was not continuous.

The critical date for this portion of the dispute is when the King of Plumbland officially protested

Rydal’s presence on the Islands in 1818.72

By that time, Plumbland had abandoned the

settlement at Salkeld and had not made an appearance for 19 years.73

Meanwhile, Rydalian

officers and citizens had exercise actual control over the Islands for five years.74

Therefore,

because Plumblands occupation of the Islands was not peaceful, actual, or continuous, they failed

to establish sovereignty by effective occupation.

67

Stip. ¶ 6. 68

Id. ¶ 5. 69

Id. ¶ 6. 70

Id. ¶ 8. 71

Id. ¶ 10-15. 72

Id. ¶ 15. 73

Id. ¶ 7. 74

Id. ¶ 10-14.

15

C. Even if Aspatria had some legal claim to the Islands in 1799, Rydal has established

territorial sovereignty over the Windscale Islands by acquisitive prescription because its

possession was exercised a titre de souverain, was peaceful, uninterrupted, and public,

and continued for a sufficient period of time.

Acquisitive prescription is the means under international law by which legal recognition of

sovereignty over a territory is given to state in cases where that state has, in fact, exercised its

authority in a continuous, uninterrupted and peaceful manner over the area concerned for a

sufficient period of time.75

In order to acquire prescriptive possession, the following elements

must be met: (1) the possession of the prescribing state must be exercised a titre de souverain;

(2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4)

the possession must endure for a certain length of time.76

The leading cases in international law with respect to acquisitive prescription are the Island

of Palmas Case77

and the Chamizal Arbitration.78

The Island of Palmas Case was a dispute

between the United States and the Netherlands over a sparsely inhabited island off the coast of

the Phillipines.79

The United States claimed that it had inherited a superior title to the Island

from Spain, the discoverer of the Island.80

The arbitrator, however, found in favor of the

Netherlands based on its continuous and peaceful display of sovereignty on the Island.81

The

Chamizal arbitration between the United States and Mexico involved a dispute over a tract of

land between the old river of the Rio Grande and its current bed.82

The arbitrators in that case

75

D.H.N. Johnson, Acquisitive Prescription in International Law, 27 Brit. Y.B. Int'l L. 332-34 (1950). 76

Id. at 343-47. 77

Palmas, 2 R.I.A.A. 829. 78

(U.S. v. Mex.), reprinted in 5 Am. J. Int'l L. 782 (1911) [hereinafter Chamizal]. 79

Palmas, 2 R.I.A.A. at 829. 80

Id. at 837. 81

Johnson, supra note 75, at 342. 82

Id. at 340.

16

rejected the United State’s claim to acquisitive prescription because they found that its acts were

not “undisturbed, uninterrupted, and unchallenged.”83

The first element of acquisitive prescription requires that the possession of the prescribing

state must be exercised a titre de souverain, or without admitting the sovereignty of another

state.84

Instead, the possession must be intended as an act of sovereignty by the prescribing

state.85

Legislation with respect to the possessed territory as such and acquiescence in that

legislation by other states concerned can be key evidence in support of this factor.86

This element

was not disputed in the Chamizal Arbitration, and in the Island of Palmas case, the Island was

first colonized by the Dutch East India Company, whose actions the arbitrators determined were

assimilated by the Netherlands.87

Second, the possession of the prescribing state must be peaceful and uninterrupted.88

This is

perhaps the most essential element of prescription, and requires a display of authority by one

party, and acquiescence in that display by the other party.89

While acquisitive prescription does

not operate in cases where possession is maintained by force, it can operate in cases where the

initial act of taking possession is forcible so long as the subsequent possession is peaceful. 90

The effectiveness of diplomatic protest is unclear, but mere protest not followed up by other

action becomes “academic and useless.”91

Prior to around 1919, before the inception of the

League of Nations, forceful opposition of some sort was required.92

In the Chamizal Arbitration,

possession by the United States was found to not be peaceful, as threats were made by American

83

Chamizal, 5 Am. J. Int’l L. at 806. 84


Id. 86

Id. 87


Id. 89

Id. 90

Id. at 346. 91

Id. 92

Id.

17

officials against any attempt exercise authority in the disputed area.93

A convention concluded

and treated by the parties as the source of all rights of each party in the area further undermined

the American claim to prescription.94

Conversely, in the Island of Palmas Case, the

Netherlands’ presence on the Island was not contested for a period of 240 years.95

The third requirement, that the possession be public is simply a consequence of the

requirement that there be acquiescence on the part of other states concerned.96

There can be no

acquiescence where there is no knowledge of the possession. The final element requires that the

possession endure for a certain length of time.97

However, it is unclear what length of time

would suffice. Some scholars have suggest a fixed length of time, such as 50 years,98

while

others suggest that it depends on the circumstances of the particular case.99

From the moment that the Islands were first discovered by a Rydalian officer in 1777, the

Kingdom of Rydal has always considered the Island its own sovereign territory.100

When

Aspatria contested the Rydalian presence in 1818, the Queen of Rydal reaffirmed Rydalian

sovereignty, rejected Aspatria’s claims over the Islands, and adopted the actions of the crew of

the HMS Applethwaite, who had been in the islands for five years.101

Rydal has legislated

extensively with respect to islands by appointing governors, investing heavily in its

infrastructure, and imposing duties on imported goods.102

Rydal’s possession was therefore

exercise a titre de souverain.

93

Chamizal, 5 Am. J. Int’l L. at 807. 94

Id. at 806. 95



Id. 98

See id. at 347. 99

I. Brownlie, Principles of Public International Law, 148 (1966). 100

Stip. ¶ 5. 101

Id. ¶ 15. 102

Id. ¶ 16, 28, 32, 32.

18

Rydalian possession of the Islands has also been peaceful and uninterrupted. There was no

Aspatrian or Plumblandian presence on the Islands when the HMS Appelthwaite arrived in 1813,

and Rydal never initiated conflict with respect to the Islands.103

The King of Plumbland signed

an accord with Rydal in 1821, explicitly recognizing Rydalian sovereignty over the Islands.104

Assuming arguendo that Aspatria had some legal interest in the Islands, and that repulsion of the

Aspatrian penal ship in 1817 and the Aspatrian assault 1826 were considered hostile on behalf of

Rydal, there was never any conflict after 1826, and the initial use of force does not negate the

fact that the possession was peaceful from that point on.105

Diplomatic protests were not

initiated until Rydal had been in possession of the islands for 14 years in 1827, and there have

been two periods from 1827-1845 and 1880-1910, in which no protests were made.106

By the

time Aspatria brought its claims before the United Nations 1949, its protests had become

academic and useless.107

Meanwhile, Rydal’s control of the Islands has never been interrupted.

Therefore, Rydal’s possession has been peaceful and continuous.

Finally, there can be no doubt that Rydal’s possession of the Islands has been public and

endured for a sufficient period of time. Plumbland and Aspatria have been aware of Rydal’s

presence in the Islands since 1818, and Rydal has effectively administered the Islands for nearly

200 years.108

By any account, this must be considered a sufficient time period to meet the final

element. Therefore, because all element of acquisitive prescription have been met, Rydal has

achieved territorial sovereignty over the Windscale Islands.

103

Id. ¶ 10. 104

Id. ¶ 20. 105

Id. ¶ 14, 23. 106

Id. ¶ 24. 107

Id. ¶ 36. 108

Id. ¶ 15, 16, 32,

19

D. Aspatria’s claim over the Windscale Islands under the principle of uti possidetis juris is

invalid because Aspatria did not exercise administrative functions over the Islands at the

moment of independence and Rydal was the de facto possessor of the Islands.

Uti posseditis juris is the principle which upgrades former administrative delimitations

established during colonial periods to international frontiers.109

According to this principle, by

becoming independent, a new state acquires sovereignty with the territorial base and boundaries

left to it by the colonial power.110

The clear emphasis of the principle is on maintaining the

status quo, and should be used to restrict conflict and consolidate de facto positions in a moment

of transition.111

“If a dispute arises as to the sovereignty over a portion of territory, it is customary

to examine which of the States claiming sovereignty possesses a title…superior to

that which the other State might possibly bring forward against it. However, if the

contestation is based on the fact that the other Party has actually displayed

sovereignty, it cannot be sufficient to establish the title by which territorial

sovereignty was validly acquired at a certain moment; it must be also shown that

the territorial sovereignty has continued to exist and did exist at the moment for

which the decision of the dispute must be considered critical.”112

Whatever legal claim Aspatria may have to the Windscale Islands, the fact remains that Aspatria

has undertaken no administrative functions in the Islands for over 200 years.113

The Kingdom of

Rydal has exercise de facto control over the Islands since 1813 when the HMS Applethwaite first

arrived there.114

When Aspatria declared independence in 1820, the Islands had already been

under the control of Rydalian officers and citizens for seven years.115

The Kingdom of Rydal

governed the Islands effectively from 1819, and the Islands have relied on Rydal for substantial

109

Case Concerning the Frontier Dispute (Burkina Faso v. Mali) 1986 I.C.J. 554, 566 (December 22). 110

Id. at 568. 111

See Joshua Castellino, supra note 63, at 531. 112


Stip. ¶ 7. 114

Id. ¶ 10. 115

Id. ¶ 18.

20

investment in their infrastructure.116

The principle of uti possidetis emphasizes preserving the

status quo and preventing conflict. In this case, the status quo at the moment of Aspatria’s

independence, continuing to today has been Rydal’s sovereignty over the Islands. Therefore,

Aspatria’s claim to the Islands under the principle of uti possidetis juris must fail.

II. THE ISLANDERS ARE ENTITLED TO INDEPENDENCE UNDER THE RIGHT OF

SELF-DETERMINATION BECAUSE THEY ARE A NON-SELF-GOVERNING

TERRITORY, BUT EVEN ASSUMING THAT THEY ARE NOT A NON-SELF-

GOVERNING TERRITORY THEY ARE ENTITLED TO INDEPENDENCE UNDER

THE RIGHT OF INTERNAL SELF-DETERMINATION.

International law recognizes a universal right to self-determination117

, but it draws a

distinction between two different kinds of self-determination. Internal self-determination is a

universal right to determine one’s own government; external self-determination is a peoples’

right to break from a mother state into a new state.118

The right to external self-determination

arose out of U.N. efforts towards decolonization119

but has expanded to include a right of

remedial secession for any group which is being denied its right of internal self-determination.120

The Islanders have a right to external self-determination under both the right to be free as a

colony and under its right of internal self-determination.

A. The Islanders Have a Right to External Self-Determination Because They Are a Non-

Self-Governing Territory.

Early U.N. instruments which discuss or affirm a right to external self-determination

were restricted to the right of colonies to seek independence from their administering states. For

instance the “Declaration on the granting of independence to colonial countries and peoples,”

116

Id. ¶ 16, 32. 117

International Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]. 118

Joshua Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity 13-14 (Mortinus Nijhoff Publishers 2000). 119

Id. at 22. 120

Reference re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 134 (Can.) [hereinafter Secession of Quebec].

21

noted that “all peoples have the right to self-determination.”121

This resolution required that

Non-Self-Governing Territories be given independence.122

Nonetheless, the resolution also

sought to protect States’ rights to “national unity and territorial integrity.”123

Resolution 1541

clarified the scope of 1514 by offering guidance as to States’ obligations under Chapter XI of the

U.N. Charter.124

The resolution clarifies that non-self-governing territories are those territories

“then known to be of the colonial type,”125

and that such territories were considered to be

progressing towards full self-government.126

It further states that a territory is non-self-

governing if it is geographically separate and ethnically/culturally distinct127

, or if the

relationship between the administering state and the territory was such that the territory is

arbitrarily in a position or status of subordination.128

Finally, Resolution 1541 notes that a non-

self-governing territory obtains full self government by emergence as a sovereign state, free

association with an independent state or integration with an independent state.129

Taken

together, Resolutions 1514 and 1541 create an obligation for administering states to report on

their colonies130

; and ultimately to allow those colonies to exercise their right to self-

determination to become an independent state.131

The resolutions define what a colony is and

how such a colony is to be treated.

121

Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514 (XV), (Dec. 14, 1960). 122

Id. ¶ 5. 123

Id. ¶ 6. 124

Under Chapter XI, states administering non-self-governing territories have reporting requirements. U.N. Charter art. 73 para e. 125

G.A. Res. 1541 (XV), Principle I, (Dec. 15, 1960). 126

Id. at Principle II. 127

Id. at Principle IV. 128

Id. at Principle V. 129

Id. at Principle VI. 130

Id. at Principle I; U.N. Charter art. 73, para. e. 131

G.A. Res. 1514, supra note 121, ¶5; G.A. Res. 1541, supra note 125, Principle VI.

22

The Declaration on Principles of International Law Concerning Friendly Relations and

Cooperation among States132

affirmed the right of colonies to self-determination by noting that

“Every State has the duty to promote . . . realization of the principle of equal rights and self-

determination of peoples . . . in order . . . to bring a speedy end to colonialism.”133

The

Declaration goes on to require States to “[bear] in mind that subjection of peoples to alien

subjugation, domination and exploitation constitutes a violation of the principle, as well as a

denial of fundamental human rights, and is contrary to the charter.”134

An important limitation to the concept of self-determination is the territorial integrity of a

given state. In the Western Sahara Case, the I.C.J. addressed the balance of territorial integrity

against self-determination. Spain was seeking to apply the right of self-determination to its

colony in Western Sahara, but Morocco and Mauritania claimed that the territory in question

constituted part of their territorial sovereignty before colonization.135

The court recognized the

importance of the concept of self-determination, but also noted the relevance of territorial

integrity.136

Morocco and Mauritania’s respective claims to territorial sovereignty would, if

legitimate, prevent Spanish Sahara from exercising its right of self-determination.137

However,

the court found that there were insufficient territorial ties to find that Spanish Sahara constituted

part of Morocco and Mauritania’s territorial sovereignty and so held that the territory was

entitled to its right of self-determination.138

132

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV) (Oct. 24, 1970). 133

Id. at The principle of equal rights and self-determination of peoples. 134

Id. 135

Western Sahara, Advisory Opinion, 1975 I.C.J. 12, 30-31 (Oct. 16). 136

Id. at 29-30. 137

Id. at 30-31 138

Id. at 68.

23

The Windscale Islands are a colony for purposes of Chapter XI of the U.N. Charter and

thus possess a right to external self-determination. Regardless of the de jure situation of the

Islands, they are and always have been de facto colonies of Rydal; the fact that the Islands are a

colony of Rydal is confirmed by the fact that Rydal has designated the Islands as a non-self-

governing territory and submit reports under its Article 73 requirements.139

The Islands were

properly so designated because they are geographically separate from Rydal and ethnically and

culturally distinct as required under Resolution 1541.140

The Islands are more than 7,000 miles

away from Rydal141

and its population is mostly descended from Rydalians and freed slaves from

Sodor.142

The Islands have also been placed in an arbitrary state of subjection because they do

not possess full Rydalian citizenship.143

Given this relationship, the Islands must be considered a

colony of Rydal. Regardless of who has the de jure claim to the Islands, the Islands have

effectively been a colony of Rydal for more than 150 years, and should be afforded the remedies

for colonies.144

The Court should not rule out self-determination based on an abstract question of

international law.

Assuming arguendo, that the Islands’ relationship with Rydal is irrelevant to the Islands’

right of self-determination, the Islands relationship to Aspatria still requires that the Islands have

a right to external self-determination. Aspatria’s relationship to the Islands is best described as

the relationship of a foreign country to another. Aspatria does not administer the Islands and for

all of the relevant history has not; its connection to the Islands is tenuous at best. As such, the

139

Stip. ¶ 34. 140

G.A. Res. 1541, supra note 125, Principle IV. 141

Stip. ¶ 4. 142

Stip. ¶ 28. 143

Stip. ¶ 44. 144

Stip. ¶¶ 10, 15.

24

Islanders’ right to be free of alien subjugation, domination and exploitation145

dictates that their

right to self-determination be recognized by the Court. Insofar as Aspatria could start to

administer the Islands, they would have to be considered a non-self-governing territory under

Article 73 of the U.N. Charter. The Islands are geographically separated from Aspatria by 500

miles of the Eden Sea.146

Islanders’ are culturally and ethnically distinct from Aspatria; as stated

above their population consists mostly of the descendants of Rydalians and freed slaves from

Sodor.147

Aspatria has also placed the Islands in an arbitrary role of subjugation by contesting

the legality of the Islands’ plebiscite.148

By bringing this case before I.C.J., Aspatria is refusing

to recognize the right of self-determination of the Islands and attempting to prevent the Islands to

choose their own destiny. Thus, even assuming that the controlling relationship for purposes of

self-determination is the relationship between Aspatria and the Islands, the Islands are still a

colony of Aspatria, and thus entitled to exercise a right of external self-determination.

B. Assuming the Islands Are Not a Non-Self-Governing Territory, They Are Still

Entitled to Independence Under the Right of Self-Determination Because Self-

Determination Also Encompasses a Remedial Right of Secession.

Where early references in U.N. documents clearly indicated that a right of external self-

determination was limited to the colonial context, later declarations and covenants made the right

of self-determination broader. For instance, the International Covenant on Civil and Political

Rights (hereafter ICCPR) and the International Covenant on Economic, Social and Cultural

Rights both include the right of self-determination in their first Articles (which are the same):

“All peoples have the right of self-determination. By virtue of that right they freely determine

145

G.A. Res. 2625, supra note 132, The principle of equal rights and self-determination of peoples. 146

Stip. ¶ 1. 147

Stip. ¶ 28. 148

Stip. ¶ 59.

25

their political status and freely pursue their economic, social and cultural development.”149

This

language is relevant for what it does not include; it does not reference the limitation of territorial

integrity. The language is broader. The Covenants go on to tether the right to self-determine

how a peoples’ natural resources are used to the right of self-determination.150

Later, the Vienna

Declaration and Programme of Action noted the right of self-determination but added, “this shall

not be construed as authorizing or encouraging any action which would dismember, impair, or

totally or in part, the territorial integrity or political unity of sovereign and independent States

conducting themselves in compliance with the principle of equal rights and self-

determination.”151

For the first time, the U.N. limited the concept of territorial sovereignty to

States complying with the principle of self-determination. Scholars and judges have read the

language of the ICCPR, ICESCR, and the Vienna Declaration to mean that the right of internal

self-determination could entail a right of external self-determination.152

The Supreme Court of Canada recognized that in situations where a group’s right to

internal self-determination is violated that group has the right to exercise their internal right to

self-determination through secession.153

This argument has been repeated by a number of

scholars154

and most notably by the delegates of the Authors of the Unilateral Declaration of

149

ICCPR, supra note 117, art. 1, ¶ 1; International Covenant on Economic, Social and Cultural Rights art. 1, ¶ 1, Jan. 3, 1976, 993 U.N.T.S. 3.[hereinafter ICESCR] 150

ICCPR, supra note 117, art. 1, ¶ 2; ICESCR, supra note 149, art. 1, ¶ 2. 151

World Conference on Human Rights, June 14-25, 1993 Vienna Declaration and Programme of Action, Art. I ¶ 2, U.N. Doc. A/CONF.157/23 (July 12, 1993). See also Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, G.A. Res. 50/6, ¶ 1, U.N. Doc. A/RES/50/6 (Nov. 9, 1995). 152

See, e.g., Report by Thomas M. Franck: “Opinion Directed at Question 2 of the Reference”, Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.), in Self-Determination in International Law: Quebec and Lessons Learned 75, 79 (Anne Bayefsky ed., 2000) [hereinafter Report by Thomas M. Franck] 153

Secession of Quebec, supra note 120, at ¶133-34. 154

Cedric Ryngaert and Christine Griffioen, The Relevance of the Right to Self-Determination in the Kosovo Matter: In Partial Response to the Agora Papers, 8 Chinese J. Int’l L. 573, ¶ 6 (2009); Thomas D. Grant, Regulating the Creation of States from Decolonization to Secession, J. Int’l L. & Int’l Rel. 11, 28 (2009). See also The Aaland Islands

26

Independence of Kosovo.155

A number of states subscribed to this position in their written

statements to the court regarding Kosovo’s declaration of independence.156

Jurists have differed

on the requisites of a valid claim of external self-determination arising from an internal right of

self-determination157

but the common theme is that a group must have its right to internal self-

determination violated.158

In the Aaland Islands case, the Commission of Rapporteurs, “The

separation of a minority from the State of which it forms a part . . . can only be considered as an

altogether exceptional solution, a last resort when the State lacks either the will or the power to

enact and apply just and effective guarantees.”159

Thus, insofar as international law might

recognize such a right, it would only do so when the State is not effectively guaranteeing the

rights of a minority. Thomas Grant describes the situation where such a right might attach by

saying the State has to fail in its obligations, despite the best efforts of the group to participate in

the government of the State.160

Thomas Franck argues that when a State grossly denies a

minority its right to “enjoy their own culture, to profess and practice their own religion, or to use

their own language,” the international legal and political system may intervene to help the

Question, Report Presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B7 21/68/106, at 28 (1921) [hereinafter Aaland Islands Question]. 155

Oral Statements of Representatives of the Authors of the Unilateral Declaration of Independence, Daniel Müller, at 45-46, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at http://www.icj-cij.org/docket/files/141/15712.pdf (last visited Feb. 20, 2010). 156

Written Statement of the Swiss Confederation, at 17, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at http://www.icj-cij.org/docket/files/141/15614.pdf (last visited Feb. 20, 2010) [hereinafter Written Statement of Switzerland]; Written Statement of the Government of the Republic of Albania, at 43-44, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Req. for Advisory Op.) (Order of Oct. 10, 2008), available at http://www.icj-cij.org/docekt/files/141/15618.pdf (last visited Feb. 20, 2010). 157

Compare Grant, supra note 154, at 28 with Written Statement of Switzerland, supra note 156, at 17. 158

See Grant, supra note 154, at 28; Written Statement of Switzerland, supra note 156, at 17; Secession of Quebec, supra note 120, at ¶ 134. 159

Aaland Islands Question, supra note 154, at 28 (1921). 160

Grant, supra note 154, at 28.

27

oppressed population achieve secession.161

The right recognized by scholars encompasses an

idea of remedial secession for a group which is unable to participate in their government.

The Islanders are entitled to independence under the right of internal self-determination

because refusing to give them independence would be contrary to their desires. Again, a

distinction between de facto control and de jure control is enlightening. The Islanders are

entitled to external self-determination because the de facto governing body in the Islands has

been Rydal and Rydal has denied the Islands their right of internal self-determination. In

deciding whether the Island’s right to internal self-determination has been violated, the Court

cannot simply ignore history in determining whether the Islanders have a right to external self-

determination. The Islands have not properly been able to exercise their right of internal self-

determination since Rydal began administering the Island. Although Islanders can vote for

member of the Assembly of the Islands which governs the day to day operations of the Island,

governance is subject to the approval of the Governor, who is appointed by the King of Rydal.162

Islanders do not vote for members of the Rydalian Parliament and lack representation in that

body.163

This lack of representation and total control over governance became especially clear

when the Governor of the Islands rejected the bid to extract oil approved by the democratic

Assembly.164

As such, the Islanders have not had the opportunity to exercise their right of self-

determination and as a result are entitled to external self-determination. It would be absurd for

the Court to conclude that the Islands have been deprived of their right to internal self-

determination for almost 200 years but are still not entitled to exercise their right of external self-

determination. It would be especially absurd if the Islanders’ were not entitled to exercise their

161

Report by Thomas M. Franck, supra note 152, at 79. 162

Stip. ¶ 35. 163

Stip. ¶ 44. 164

Stip. ¶¶ 53-54.

28

right of external self-determination because a country which does not even administer the Islands

has failed to violate their right to internal self-determination. Thus, the court should restrict its

analysis of whether the Islanders’ rights to internal self-determination have been violated to an

analysis of Rydal’s treatment of the Islands.

Nonetheless, assuming arguendo that de jure control of the Islands is the relevant

consideration for analyzing the Islanders’ internal self-determination rights, the Islanders’ are

still entitled to exercise their right of internal self-determination to seek independence. The

Islanders have exercised their right of internal self-determination by having a plebiscite and

expressing their desire to be an independent State.165

Aspatria has already declared the plebiscite

illegal and stated its intention to ignore the Islanders’ desire to seek independence.166

The Court

cannot ignore the fact that the Islands are not currently controlled by Aspatria or the fact that the

Islands want independence. By handing the Islands to Aspatria, both the Court and Aspatria

would be ignoring the Islanders’ right to self-determination. This is not a case where a State’s

rights to territorial sovereignty require the Court to uphold and preserve the status quo; the status

of the Islands will change regardless of the Court’s decision and as such, the question before the

court is whether the Islanders’ have a say in what will become of their Islands.

165

Stip. ¶ 57. 166

Stip. ¶ 59.

29

CONCLUSION AND PRAYER FOR RELIEF

For the reasons set forth above, Rydal requests the International Court of Justice should declare

that:

1. Rydal may lawfully take steps giving effect to the independence of the Windscale Islands

and sovereignty over the Islands belongs to Rydal.

2. The Islanders are entitled to independence based on the principle of self-determination.

CERTIFICATION

The undersigned do hereby certify that the Respondent’s memorial submitted is the work-

product solely of the undersigned, and that the undersigned have not given or received any

outside assistance in connection with the preparation of the memorial. Grenadier participants

will not share or discuss their research with members of the 2010 George Washington

University Law School Jessup Team as practice judges.

/s/ Competitor #1 2/21/2010

Agent 1 Date

/s/ Competitor #40 2/21/2010

Agent 2 Date

Respondent Memorial - Competitors 1 & 40

Documents

Transcript of Respondent Memorial - Competitors 1 & 40