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FACTS
The Reverentians and the Agnosticans were two ethnic groups. In 18th century, their
lands are administered into two colonies, based on the linguistic, cultural and religious
differences.
In 1925 those colonies gained independence and formed the Federal Republic of
Agnostica and the State of Reverentia.
Reverentia is a unitary state, while Agnostica has two provinces, which have sovereignty
over cultural affairs and education. Agnosticas Constitution allows dissolution by a
three-quarters vote of the federal parliament.
Nearly 30% of Agnosticas are ethnic Reverentians, called Agnorevs. Despite the
continuous attempts of the Reverentia to encourage them to return over 85 % of them
decided to remain citizens of Agnostica.
Within the territory of East Agnostica were the only areas in the world that contain
deposits of Marthite, a naturally-occurring mineral salt which was known to possess
mildly restorative properties. On 14 April 1938, Agnostica and Reverentia concluded a
bilateral treaty, called The Marthite Convention. Marthite has always been a core
ingredient in Reverentian traditional medicine but is virtually unknown outside the
Thanatosian Plains until the ILSA scientific report in 2011 which reported that high doses
of Marthite were over 90% effective in treating previously untreatable infant and earlychildhood diseases, afflicting tens of thousands of children worldwide.
The facilities in East Agnostica produced between 200 and 250 tonnes of Marthite per
year, and the Reverentian Marthite Trust (RMT) sold the entire output to traditional
medicine practitioners in Reverentia and East Agnostica.
RMT is to sell only to traditional practitioners located in the territory of the State Parties
at fixed price. RMT may not sold production outside Agnostica and Reverentia unless the
yearly supply exceeds demand from traditional practitioners by 25%. If the demand is
exceeded by 125% the salt may be sold without restriction on price, purchaser, or
intended use.
RMT shifted its focus to the international market, selling some 75% of the total quantity
of mined Marthite to pharmaceutical companies for as much as ten times its maximum
permitted sale price under the Marthite Convention.
On 1 February 2012, Agnostica proposed Reverentia to terminate the Marthite
Convention, due to the fundamental change in the science, offering reimbursement and
compensation. Reverentia rejected.
ISSUES
ISSUE 1: WHETHER REVERENTIAS SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA IS CONSISTENT WITH INTERNATIONAL LAW;
ISSUE 2: WHETHER EAST AGNOSTICAS SECESSION FROM AGNOSTICA
AND INTEGRATION INTO REVERENTIA ARE CONSISTENT WITH
INTERNATIONAL LAW, AND IN ANY EVENT, THIS COURT SHOULD NOT
ORDER THE RETROCESSION OF EAST AGNOSTICA TO AGNOSTICA
AGAINST THE EXPRESSED WILL OF ITS POPULATION;
ISSUE 3: WHETHER THE MARTHITE CONVENTION WAS IN EFFECT
UNTIL 1 MARCH 2013, AND AGNOSTICA BREACHED THAT CONVENTION;
AND
ISSUE 4: WHETHER REVERENTIAS REMOVAL OF THE SOFTWARE IN
THE MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.
ARGUMENTS
ISSUE:
1. WHETHER REVERENTIAS SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA WAS CONSISTENT WITH INTERNATIONAL LAW.
A. YES! Reverentias support for the Agnorevs in East Agnostica leading
up to the referendum did not violate the duty of non-intervention.
Reverentia did not intervene in Agnosticas affairs because it never
extended military, logistical, economic, or financial support for East
Agnosticas referendum of independence. Violations of the principle of
non-intervention have been limited by this Court primarily to specific
situations such as military intervention, occupation, or furnishing of
assistance to armed rebel movements. In Nicaragua v. United States
the Court specified the types of activities constituting illegitimate
intervention, such as the use of force, occupation, military activities, or
assisting armed rebel groups by extending financial support, training,
supply of weapons, intelligence and logistic support.
1 See U.N. Charter art. 1; International Covenant on Civil and Political Rights, art. 1, 1.
2 Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, 2010 I.C.J. 403, 423 123 (Jul. 22)
3 Alain Pellet, The Opinions of the Badinter Arbitration Committee: A second breath for the selfdetermination of peoples, 3 E.J.I.L. 178 (1992).
was assumed by that State to exist at the time when the treaty was
concluded.5
The error may lead to the nullity of the treaty if one speaks of an error
de facto6 alleged by the State to have existed at the moment the treaty
was concluded and forming an essential basis of its consent.7 However,
this doctrine does not satisfy the conditions in the present case.
The treaty was entered into out of respect for traditional Reverentian
medicine, emphasizing the lack of commercial significance8 to Marthite
which Agnostica claims was erroneously accepted by both the parties.
Although Marthite was virtually unknown outside the Thanatosian
plains,9 the treaty itself included provision for such commercial use up
to 25%.10 This substantiates that commercial use of Marthite was
envisaged and foreseen, although its extent and possibility was
unknown to the parties.
The erroneous assumption that Agnostica claims is indeed a pretext to
terminate the treaty unilaterally.
B. Agnosticas unilateral termination cannot be justified according to
the Doctrine of Fundamental Change of Circumstances.
The approach of the application of the doctrine of fundamental change
of circumstances is to admit the existence of the doctrine but it severely
restricts its scope.11
The doctrine of rebus sic stantibus rests upon the fact whether or not
the fulfillment of a treaty after occurrence of a change in the state of
facts would be so injurious and burdensome12 to at least one of the
parties that such party has a right under the law or right of necessity to
terminate the treaty.13 International law regards this doctrine as
justifying the repudiation of excessively burdensome obligations14 and
5 V.C.L.T., art. 65
6 L. Oppenheim, International Law, 1955, p. 342.
7 J.L. Brierly, The Law of Nations, 1955, p. 256. Hereafter referred to as Brierly.
8 1938 Marthite Convention, see Annex.
9 See Compromis, par. 9.
10 Marthite Convention, art. 4(d) limits the sale of Marthite outside Reverentia and Agnostica
except when supply yields the demand by 125% for tradition practitioners.
11 Free Zones of Upper Savoy and the District of Gex, Aug. 19, 1932 P.C.I.J. (ser. A/B) No. 46,
p. 156.
12 William W. Bishop, Jr., The Permanence of Treaties, 22 A.J.I.L. 89, 102 (1928).
13 Ibid.
14 Sinclair, The Vienna Convention on the Law of Treaties, 1984, p. 192-6.
it lacks the proper legal prescription for the very significant change of
circumstances in relation to an international agreement, if those cannot
qualify as falling within the legal rubric of rebus sic stantibus.15
The expectations of parties have considerable value in State practice
and the termination of a treaty is not the only proper effect of
invocation of a change of circumstances but, depending upon the
expectations of the parties, there can be suspension or limitation of
performance.16
However, a party cannot unilaterally renounce treaty obligations17
unless there is explicit provision for unilateral termination or an express
consent of the other parties concerned18 and a change of circumstances
may be invoked even if it was not totally unforeseeable, the parties may
be aware that there is a possibility of change.
The effect of change of circumstances can be related to the specific
expectations of the parties as implied by their knowledge of the
legislative basis of the agreement.19
In Free Zones,20 the right to invoke the clause as a ground for the
extinction of treaties was recognized, but Russia's claim to unilaterally
to denounce a treaty was rejected.21 The effect of the change is radically
to transform the scope of obligations still to be performed under the
treaty.22
I.LCs definition of the fundamental change of circumstances23 contains
a series of limiting conditions. a) The change must be of circumstances
existing at the time of the conclusion of the treaty; b) it must be a
fundamental one; c) it must also be one not foreseen by the parties; d)
the existence of those circumstances must have constituted an essential
basis of the consent; and, e) the effect of the change must be radically
to transform the extent of obligations still to be performed under the
treaty.
15 A. E. Boyle, The G/N Case: New Law in Old Bottles, Symposium: The Case Concerning the
G/N Project, 8 Y.B.I.E.L. 13 (1997).
16 Hackworth, Digest of International Law, 1943, p. 429. Hereafter referred to as Hackworth.
17 Sir Humphrey Waldock, Second Report on Law of Treaties, Y.I.L.C 84 (1963).
18 Hackworth, ibid.
19 Brierly, p. 256.
20 See note 8 above.
21 L.C. Green, International Law Through the Cases, 1959, p. 764.
22 Report of the I.L.C., Y.B. INTL L. COMMN 86 (1966).
23 Ibid.
Agnostica does not fulfil any of those conditions as the object of the
treaty, which is regard for traditional Reverentian medicine, has not
changed. Those circumstances exist as it did in1938 and in no way
radically transform Agnosticas obligations. Agnosticas obligations to
Reverentia under the Marthite Convention remain intact.
The Marthite Convention makes provision for a scenario wherein other
uses of Marthite can be catered to along with its traditional uses.24
Agnostica cannot claim that commercial significance is an unforeseen
condition and in any case, the scope and extent of Agnosticas
obligations remain exactly the same.
When it can be established that the treaty would have been concluded
even under the changed circumstances, there can be no case of invoking
the clause.25
The I.C.J in Fisheries,26 noted when Iceland claimed owing to changed
circumstances the Notes concerning fishery limits exchanged in 1961
are no longer applicable, not only has the jurisdictional obligation not
been radically transformed in its extent; it has remained precisely what
it was in 1961, akin to the present instance.
In Gabkovo,27 the Court did not accept that argument of Hungary that
individually or collectively, the effect of changed circumstances would
radically transform the extent of obligations to be performed. The
changes must be completely unforeseen and not expected by the parties.
In pertinence, the Court in Fisheries Case said that development of new
scientific advancements is not unforeseeable while dismissing the claim
of Iceland.28 Therefore, it can be inferred that discovery of new
properties of Marthite cannot be completely unforeseen and in any case,
do not transform Agnosticas obligations.
WHETHER AGNOSTICA BREACHED ITS OBLIGATIONS
UNDER THE MARTHITE CONVENTION
YES, Agnostica breached its obligations under the Marthite Convention.
C. Agnostica breached its obligations under the V.C.L.T.
against the object and purpose of the treaty and in clear breach of
Article 4 of the Marthite Convention.
ISSUE
4.
34 VCLT 31 (1); see also Competence of the General Assembly for the Admission of a State to
the United Nations, Advisory Opinion, 1950 I.C.J. 4, 8 (Mar. 3).
35 See e.g., OXFORD ENGLISH DICTIONARY, 27 (7th ed. 2013).
36 See e.g., OXFORD ENGLISH DICTIONARY, 27 (7th ed. 2013).
37 Compromis, Annex.
38 Id.
39 Clarifications, 5.
40 Compromis, Annex.
41 VCLT art. 60(1).
42 Gabkovo-Nagymaros, 106.
43 Compromis, 17-18.
44 ASR art. 49(1). See ICSID, Archer Daniels Midland Company and Tate & Lyle Ingredients
Americas, Inc. v. the United Mexican States, Case No. ARB(AF)/04/05, Award, 21 November 2007,
121 (taking articles 22 and 49 of the ASR as an authoritative statement of customary international
law on countermeasures).
45 ASR art. 52.
46 ASR art. 49(2),(3).
47 Compromis, 18.
48 C.f. Guyana v. Suriname, 47 I.L.M. 166 446 (Perm. Ct. Arb. 2007).