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THE CASE CONCERNING THE SECESSION AND ANNEXATION OF EAST AGNOSTICA

THE FEDERAL REPUBLIC OF AGNOSTICA

APPLICANT

v.

THE REPUBLIC OF REVERENTIA

RESPONDENT

MEMORIAL FOR THE APPLICANT

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TABLE OF CONTENTS

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

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

QUESTIONS PRESENTED ....................................................................................................

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

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

PLEADINGS ....................................................................................................

PRAYER FOR RELIEF ....................................................................................................

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INDEX OF AUTHORITIES

iii
STATEMENT OF JURISDICTION

The Federal Republic of Agnostica (“Agnostica/Applicant”) and the State of Reverentia


(“Reverentia/Respondent”) hereby submit the present dispute concerning the secession and annexation
of East Agnostica to the International Court of Justice by virtue of a Special Agreement (Compromis) signed
in The Hague, The Netherlands, on September 2, 2014, pursuant to Article 40 paragraph 1 of the Statute
of the Court. To this effect, the Parties agree to accept the Judgment of this court in accordance with
Article 36 paragraph 1, as final and binding. The Judgment of this Court shall be executed in its entirety
and in good faith.

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QUESTIONS PRESENTED

I. Whether Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s


territorial integrity, the principle of non-intervention, and the United Nations Charter generally;

II. Whether the purported secession and subsequent annexation of East Agnostica are illegal and
without effect, and whether East Agnostica remains part of the territory of the Federal Republic
of Agnostica;

III. Whether the Marthite Convention ceased to be in effect as of 2 April 2012 and, whether
Agnostica, breach the Convention;

IV. Whether Reverentia’s removal of the software at the Marthite extraction facilities violated
International law.

v
STATEMENT OF FACTS

BACKGROUND
The Reverentians and the Agnosticans were two ethnic groups located in the Southern
hemisphere of the Thanatosian Plains. In 18th century, the Kingdom of Credera, conquered the
Thanatosian Plains and demarcated the two territories based on linguistic, cultural, and religious
differences. Reverentia functioned as a manufacturing and urban trading centre, while Agnostica focused
on the harvest, extraction, and exportation of its natural resources. In 1925, Credera granted
independence to its colonies. The Federal Republic of Agnostica and the State of Reverentia were
established according to the colonial boundaries established by Credera.
DEMOGRAPHICS
Approximately 70 percent of the permanent population of Agnostica was ethnic Agnostican, while
30 percent was ethnic Reverentian. Reverentian government made attempts to encourage ethnic
Reverentians in Agnostica to return however, over 85% of Agnorevs resident in Agnostica elected to
remain there, participating actively in the politics and economy of the federal Agnostican state.
THE MARTHITE CONVENTION
Marthite, is a mineral salt known to possess restorative properties. It is a core ingredient in
Reverentian traditional medicine and can solely be found within the territory of East Agnostica. On 14
April 1938, Agnostica and Reverentia concluded a bilateral treaty, “the Marthite Convention”. Its prime
purpose is to ensure reliable supply of Marthite to traditional practitioners of Reverentia. It recognizes
that Marthite does not have significant commercial value outside its traditional uses. The parties agreed
that Reverentia will undertake the construction of mining and support facilities within the territory of East
Agnostica, including technology and government engineers for the operation and maintenance of such
facilities. Agnostica will gain ownership over the facilities upon payment to Reverentia. The distribution
and ownership of Marthite is given to Reverentian Marthite Trust (RMT), a state-owned Reverentian
corporation. Reverentia undertakes that RMT will distribute Marthite to traditional medicine practitioners
in Reverentia and East Agnostica on a fixed price. RMT will not permit Marthite mined to be sold outside
Reverentia and Agnostica in any given calendar year unless the supply of Marthite in such year exceeds
demand from traditional practitioners by 25%. If supply shall exceed 125% of demand from traditional
practitioners, RMT may sell without restriction on price, identity of purchaser, or intended use.

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Until 2011, the Marthite Convention arrangement continued without controversy. There was no
demand outside Reverentia and East Agnostica, apart from the souvenir collectors and small communities
of Ethnic Reverentians in Europe and North America.
Institut Luzembourgeois des Sciences Appliquees Report on Marthite
Later, in 2011, a team of scientists from the Institut Luxembourgeois des Sciences Appliquées
(ILSA), reported that high doses of Marthite were over 90% effective in treating a broad range of
previously untreatable infant and early-childhood auto immune disorders, some of which afflicted tens of
thousands of children worldwide.
Weeks after the publication of the article, RMT shifted its focus to the international market, selling
some 75% of mined Marthite to pharmaceutical companies for as much as ten times its maximum
permitted sale price under the Marthite Convention. This caused serious concerns among traditional users
that shortages and price increases were inevitable.
Proposal to Terminate Marthite Convention
On 1 February 2012, Agnostican Prime Minister Maxine Moritz, proposed to terminate the
Marthite Convention, due to the “fundamental change in the science underlying the treaty,” and offered
to reimburse and compensate for any loss of supply during the remaining term of the Convention,
Reverentia rejected.
On 2 April 2012, Agnostica declared termination of the Convention and leased the facilities to
Baxter Enterprises.

Course of Action of Reverentia

President Nuvallus categorically rejected Agnostica’s position, and ordered the Reverentian
engineers engaged at the East Agnostican facilities to return to Reverentia. The President, also directed
removal of any software installed by RMT at the Marthite mining facilities.

Marthite Control Act

Baxter had not yet been able to restore the software and the extraction produced roughly 100
kilograms Marthite per day. As the software restoration was expected to take years, on 1 October 2012,
the Agnostican Parliament passed the Marthite Control Act (MCA), a law banning the sale or transfer of
Marthite into Reverentia, as well as the unauthorized sale and possession of Marthite within Agnostica to
ensure that “Marthite will be provided to the suffering children of the world”.

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In Mid – November, Gohandas Sugdy, a 19-year-old Agnorev miner, was found to be in possession
of Marthite, and was arrested and charged under the MCA. Mr Sugdy explained that his grandfather was
severely ill, and will die, if he would not receive the daily dose of the traditional medicine. Agnostican
court refused to allow Sugdy to go home to be with his grandfather for his final days. On the evening of
November 24, 2012, Sugdy committed suicide. His grandfather died afterwards. The death of Sugdy
caused the Agnorevs to gather outside the jail in which Sugdy had been held.

THE REFERENDUM

On 29 January 2013, the plebiscite was held, and 73 percent of voters cast their ballots in favour
of secession. Observers from several international NGOs noted that over 80 percent of eligible citizens
had voted, and declared the referendum largely free of irregularities and the result fair and accurate.
Prime Minister of Agnostica did not recognize the outcome of the referendum. East Agnostica, now sitting
as a self-styled “Agnorev People’s Parliament” (APP), ratified the secession of East Agnostica and voted
unanimously to send a delegation headed by Mr. Bien to enter into talks with Reverentia “aimed at the
swiftest possible integration of the territory of the Agnorev people into the State of Reverentia.”

On 6 February 2013, the President of the Security Council expressed concern over what he termed
the “question of the continued territorial integrity of Agnostica,” and the possibility that recent events
might constitute “an unjustifiable and illegal interference in Agnostican domestic affairs.”

ANNEXATION

On 22 February 2013, an agreement that would make East Agnostica a semi-autonomous


province of Reverentia, with APP as its provincial legislature was signed. The Reverentian Parliament,
accepted and ratified the agreement on February 24.

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SUMMARY OF PLEADINGS

I. Reverentia’s support for the Referendum violated the territorial integrity of Agnostica. The
Reverentian Parliament adopted a resolution entitled “On the Crisis in East Agnostica” authorizing
the President, on behalf of the Government and the people of Reverentia, to recognize the
referendum as lawful and valid and to “take all measures necessary to ensure the security and
integrity of East Agnostica. Such support constitutes a breach of its international obligation to
respect the territorial integrity of every State under the UN Charter and to protect the territorial
composition of States, in general. Both the adoption of the resolution "On the Crisis of East
Agnostica” and the amassment of military troops near Agnostica`s border constituted a threat of
force and infringed the territorial integrity of Agnostica and violated the UN Charter in general.

Reverentia’s support for the Referendum violated the principle of non-intervention. The principle
of non-intervention is recognized as a part of customary international law. No state has the right
to intervene in the internal and external affairs of another. The treaty obligations of Agnostica
and Reverentia under the Montevideo Convention include the observance of the inviolable right
of political integrity. Reverentia’s readiness to extend diplomatic recognition and to take
measures necessary to ensure the integrity of East Agnostica constitute an interference in the
domestic affairs of Agnostica.

II. The purported secession and subsequent annexation of East Agnostica are illegal and without
effect. Such unilateral secession is not permitted in international law by virtue of the parent State,
Agnostica, opposing it, and it being conducted through Reverentian assistance.

In any case, the purported secession of East Agnostica cannot be justified on the basis of
humanitarian intervention since such intervention is restricted to the most extreme cases of
violation of human rights by the parent State. The violation of human rights must be in large scale
in order to justify military intervention.

Any intervention by Reverentia in the domestic affairs of Agnostica would only be justified if the
latter were to be responsible for mass violation of human rights of the Agnorevs. However, there
have been no such human rights violations of the Agnorevs. Additionally, East Agnostica remains

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part of Agnostica since the secession and annexation of East Agnostica have been brought about
by the threat or use of force which is prohibited under Art. 2(4) of the U.N. Charter. As a rule, an
illegality cannot become a source of legal right to the wrongdoer.

III. The Marthite Convention has been lawfully terminated, as two possible grounds for its
termination under customary international law are present in the case at hand. Firstly, Reverentia
actions against the Marthite Convention regulations constitute a material breach. Secondly, the
recently discovered Marthite qualities constitutes a fundamental change of circumstances which
changes the extent of parties obligations and forms an essential basis of the parties consent to be
bound by the treaty.

IV. The removal of the software by Reverentia constitutes deprivation of Agnostican sovereign
property. Under the Marthite Convention, Agnostica gained property rights over the software and
its removal is considered unlawful. Reverentia also breached its obligations post termination of
the treaty under the Vienna Convention. The act claimed to be a countermeasure by Reverentia
is invalid as it does not arise in response to an unlawful act by Agnostica.

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PLEADINGS

I. REVERENTIA’S ENCOURAGEMENT OF THE EAST AGNOSTICAN REFERENDUM VIOLATED


AGNOSTICA’S TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-INTERVENTION, AND THE UNITED
NATIONS CHARTER GENERALLY.

[A]. Reverentia’s support for the Referendum violated the territorial integrity of Agnostica

[B]. Reverentia’s support for the Referendum violated the principle of non-intervention.

[C]. Reverentia’s support for the Referendum violated the UN Charter in general.

Reverentia’s support for the Referendum stands in breach of its treaty obligations under the UN
Charter and customary international law obligations with respect to the territorial integrity of Agnostica
and the principle of non-intervention.

A. Reverentia’s support for the Referendum violated the territorial integrity of Agnostica

An internationally wrongful act of a State entails international responsibility of that State.1 There
is an internationally wrongful act of a State when a conduct consists of an action or omission (1)
attributable to the State under international law; and (2) constitutes a breach of an international
obligation of a State.2

Agnostica and Reverentia have both been members of the United Nations (UN) since 1959, and
both ratified the 1933 Montevideo Convention on the Rights and Duties of States in 1961.3 Membership
to the UN is based on the principle of sovereign equality of all its Members.4 All Members shall refrain in
their international relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.5

1 International Law Commission, Responsibility of States for Internationally Wrongful Acts. art.1
2 Id. art. 2.
3 Compromis, ¶44.
4 United Nations Charter. art. 2(1).
5 Id. (4).

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The purpose of the UN is to maintain international peace and security.6 As member states of the UN, both
Agnostica and Reverentia have the duty to respect each other’s territorial integrity and shall refrain from
taking measures encouraging partial or total territorial separation that would, in any manner, endanger
international peace and security.

1. The adoption of the resolution “On the Crisis in East Agnostica” and the acceptance and ratification
of the Integration Agreement violate the territorial integrity of Agnostica

The Reverentian Parliament adopted a resolution entitled “On the Crisis in East Agnostica”
authorizing the President, on behalf of the Government and the people of Reverentia, to recognize the
referendum as lawful and valid and to “take all measures necessary to ensure the security and integrity
of East Agnostica”7 and the acceptance and the ratification of the Integration Agreement annexing East
Agnostica8 are legislations that manifest the intention of Reverentia to disrupt the territorial integrity of
Agnostica. The evident support by the Reverentian Parliament for the referendum constitutes a wrongful
act that is attributable to Reverentia. Such support also constitutes a breach of its international obligation
to respect the territorial integrity of every State under the UN Charter and to protect the territorial
composition of States, in general.

2. The movement of Reverentian Army into East Agnostica constitutes a threat of force and therefore
infringes the territorial integrity of Agnostica

In Nicaragua vs. US, the Court emphasized that territorial integrity relates to the “complete and
exclusive sovereignty of State over its territory.”9 It entitled the State to choose and implement their own
political, economic and social systems without outside interference and in particular free from threats or
use of force by other States. The territory of a state is inviolable and may not be the object of military
occupation nor of other measures of force imposed by another state directly or indirectly or for any
motive whatever even temporarily.10 In Nicaragua11 and Kosovo12, the Court has found that the

6 Id. 1(1).
7 Compromis, ¶35.
8 Id. ¶41.
9 Nicaragua vs. US. I.C.J. 14 (1986).
10 Montevideo Convention on the Rights and Duties of States. art 11.
11 Nicaragua vs. US. I.C.J. 14 (1986).
12 International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion. ICJ 80
(2010)

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inviolability of the territorial integrity and political independence of States reflect customary international
law.

As established in Nuclear weapons, “if the envisaged use of force is itself unlawful, the stated
readiness to use it would be a threat prohibited under the Charter.”13 The movement of Turkish troopships
in the vicinity of Cyprus in 1964 was accepted as a credible threat.14 The subsequent movement of
Reverentian troops into the Agnostican territory15 should be regarded as an inseparable part of the
Referendum’s support and is a violation of Article 2(4) of the UN Charter prohibiting threat or use of force
against the territorial integrity of any State.16

The threat or use of force is permissible only in a limited number of cases – in situations of self-
defence17 or with the authorization of the Security Council.18 The movement of the Reverentian troops
could not be justified on the said grounds, and therefore constitutes a prohibited threat against the
territorial integrity of Agnostica.

B. Reverentia’s support for the Referendum violated the principle of non-intervention

The principle of non-intervention is recognized as a part of customary international law.19 No state


has the right to intervene in the internal and external affairs of another.20 Any forms of intervention – be
it economic, political, or other, directly or indirectly manifested, is prohibited. 21

Intervention is permissible only upon the invitation of the government of the State, while
intervention in support of the opposition and secessionist movements threatens not only the sanctity of
the principle of the non-intervention but the international legal order at large.22

The treaty obligations of Agnostica and Reverentia under the Montevideo Convention include the
observance of the inviolable right of political integrity. The intervention of a State against the political

13 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion. ICJ 47 (1996)
14 Repertoire of the Practice of the Security Council 1964-1965, XVI, 238 S., 202.
15 Compromis, ¶41.
16 United Nations Charter. art. 2(4).
17 Id. 50
18 Id. 51
19 Friendly Relations Declaration
20 Montevideo Convention on the Rights and Duties of States. art. 8.
21 Friendly Relations Declaration
22 Nicaragua vs. US. I.C.J. 14 (1986).

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integrity of another State is prohibited when it is executed by “methods of coercion in regard to such
choices, which must remain free ones.”23 Reverentia’s readiness to extend diplomatic recognition and to
take measures necessary to ensure the integrity of East Agnostica24 constitute an interference in the
domestic affairs of Agnostica.

C. Reverentia’s support for the Referendum violated the UN Charter in general

The principles of territorial integrity and political independence of a State flow from the sovereign
equality of States.25 Violations committed by Reverentia against the principles of territorial integrity, non-
intervention, sovereign equality of states as well as the prohibition of threat or use of force constitute a
violation of the UN Charter in general.

Reverentia’s actions were also inconsistent with the purpose and objective of the United Nations
as enshrined in Article 1, namely to maintain international peace and security through “peaceful means,”
“friendly relations among nations” and “co-operation” in solving international problems.

23
Id.
24
Compromis.
25
United Nations Charter. A Commentary 80 (2002).

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II. THE PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF EAST AGNOSTICA ARE ILLEGAL
AND WITHOUT EFFECT, AND THEREFORE EAST AGNOSTICA REMAINS PART OF THE TERRITORY OF
THE FEDERAL REPUBLIC OF AGNOSTICA.

[A]. The purported secession and subsequent annexation of East Agnostica are illegal and without
effect.

[B]. The subsequent annexation of East Agnostica cannot be justified on the basis of humanitarian
intervention.

[C]. East Agnostica remains part of the Federal Republic of Agnostica.

Any intervention by Reverentia in the domestic affairs of Agnostica would only be justified if the
latter were to be responsible for mass violation of human rights of the Agnorevs. As a rule, an illegality
cannot become a source of legal right to the wrongdoer

A. The purported secession and subsequent annexation of east agnostica are illegal and without effect.

East Agnostica’s purported secession are illegal because it is a unilateral secession, and was not
achieved legally as there was no consent of the parent State [a] and the subsequent annexation by
Reverentia of East Agnostica are acts contrary to international law as it was done through threat or use
of force [b].

a. East Agnostica’s purported secession are illegal because it is a unilateral secession, and was
not achieved legally as there was no consent of the parent State

The UNGA and the Security Council [“UNSC”] have repeatedly reinforced the requirement of the
assent of the parent State in matters of secession.26

26 S.C. Res. 853, U.N. Doc. S/RES/853 (Jul. 29, 1993); S.C. Res. 550, U.N. Doc. S/RES/550 (May 11, 1984); G.A. Res.
31/6A, U.N. Doc. A/RES/31/6A (Oct. 26, 1976).

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Neither the United Nations nor the European Commission have proclaimed their support for the
independence on the basis of secession of the entity without the consent of the parent State.27

In the context of the United States, secession primarily refers to the withdrawal of one or more
States from the Union that constitutes the United States; but may loosely refer to leaving a State or
territory to form a separate territory or new State, or to the severing of an area from a city or county
within a State.

In Texas v. White28, the United States Supreme Court ruled unilateral secession unconstitutional,
while commenting that revolution or consent of the States could lead to a successful secession.

For instance, the consent of the Soviet Union and Pakistan was considered necessary in
legitimizing the secession of the Baltic States and Bangladesh 29

United Nations Secretary- General. Thant in 1970 asserted that the UN has never accepted the
principle of secession saying that "The United Nations has always strenuously opposed any attempt at
partial or total disruption of the national unity and territorial integrity of a State. The United Nations
Secretary-General has emphasized that "as an international organization, the United Nations has never
accepted and does not accept and do not believe it will ever accept the principle of secession of a part of
a member State". As one leading author has written, "[s]ince 1945 the international community has
been extremely reluctant to accept unilateral secession of parts of independent states if the secession is
opposed by the government of that state. In such cases the principle of territorial integrity has been a
significant limitation. Since 1945 no state which has been created by unilateral secession has been
admitted to the United Nations against the declared wishes of the predecessor state" 30

27 Crawford, see note 11, 416; for a similar approach on the former Soviet republics see T. Franck, Fairness in
International Law and Institutions, (1995).
28 74 U.S. 700 (1868)
29 G.A. Res. 3203 (XXIX), U.N. GAOR, 29th Sess., 2233rd plen. mtg. (Sept. 17, 1974); S.C. Res. 709, U.N. Doc.
S/RES/709 (Sept. 12, 1991); Report of the Committee on Admission of New Members, S/23021 (Sept. 11, 1991).
30 UN Secretary-General U. Thant, Secretary-General's Press Conferences held in Dakar,Senegal, U.N. MONTHLY
CHRON. 34-38 (1970); UN Committee on the Elimination of Racial Discrimination, General Recommendation No.
21, Right to Self-determination, 1996, U.N. Doc. A/51/18, annex VIII, 125, ¶ 6 (1996) (The Committee noted that
international law has not recognised a general right of peoples to declare secession from a
State unilaterally

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Agnostica has not give its consent and consistently opposed the purported secession and
annexation of East Agnostica 31 ; therefore, East Agnostica’s purported secession is illegal and without
effect.

b. The subsequent annexation by Reverentia of East Agnostica are acts contrary to international
law as it was done through threat or use of force.

Article 2(3) and (4) of the UN Charter 32 oblige Member States to ‘settle their international
disputes by peaceful means in such a manner that international peace and security, and justice, are not
endangered’ and ‘to refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations’.

The 1969 Vienna Convention on the Law of Treaties notes in its preamble that both the threat
and the use of force are prohibited. Moreover, in Article 52, it establishes the principle that if threats of
using force are made during diplomatic negotiations, then any resulting treaty is invalid, stating "A
treaty is void if its conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of the United Nations".

Threat of force in public international law is a situation between states described by British
lawyer Ian Brownlie as:

"A threat of force consists 'in an express or implied promise by a government of a resort to force
conditional on non-acceptance of certain demands of that government" 33

The ICJ has affirmed that such a threat may be either express or implied. 34 A sudden
concentration of troops on the border in an existing territorial dispute is threat to use force 35. For
instance, in 1980 when the Soviet Union sent its troops near the border with Poland, while there were
already hostilities between the two States, it was considered a threat by the Soviet Union to use force 36

31 Clarification.1
32United Nations Charter. art. 2 (3) & (4).
33 Ian Brownlie, International Law and the Use of Force by States 364 (1963).
34 Nicaragua vs. US. I.C.J. 14 (1986).
35 Arechaga, supra n.1, at 88, International Law in the Past Third of a Century
36 R. Sadurska, Threat of Force, 82 AM. J. INT’L L. 239,258 (1988).

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On 9 January 2013, Reverentia President Nuvallus delivered a speech promising that Reverentia
will do everything in its power to ensure the freedom of East Agnostica and passed a resolution
affirming that it would take all measures necessary to ensure the security of an independent East
Agnostican State37. Followed by the Reverentian President ordering several hundred soldiers to
the border with East Agnostica on the day of the referendum38. Clearly, it is an unlawful interference in
Agnostica's internal affairs and an implied threat of force.

B. The subsequent annexation of East Agnostica cannot be justified on the basis of humanitarian
intervention.

Reverentia cannot seek to justify its intervention or threat of using force on the basis of an
alleged right of humanitarian intervention to aid Agnorevs fleeing the violence in East Agnostica. 39

Even if States have a right to intervene, this must be restricted to the most extreme cases of
violation of human rights by the parent State. The violation of human rights must be in large scale in
order to justify military intervention. 40

Military intervention for human protection purposes is an exceptional and extraordinary


measure. To be warranted, there must be serious and irreparable harm occurring to human beings, or
imminently likely to occur, of the following kind:

A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the
product either of deliberate state action, or state neglect or inability to act, or a failed state
situation; or

B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced
expulsion, acts of terror or rape. 41

Thus, any intervention by Reverentia in the domestic affairs of Agnostica would only be justified
if the latter were to be responsible for mass violation of human rights of the Agnorevs. However, there

37 Compromis 34 & 35.


38 Id. 37.
39 Id.
40 Report of the International Commission on the Intervention and State Sovereignty, Responsibility to Protect.
41 Id. Principles for Military Intervention (1)

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have been no such human rights violations of the Agnorevs. The civilian casualties caused due to a police
confrontation 42 is not a form of large scale loss of life or ethnic cleansing to justify an intervention by a
third State.

C. East Agnostica remains part of the Federal Republic of Agnostica.

The secession and annexation of East Agnostica have been brought about by the threat 43 or use
of force44 which is prohibited under Art. 2(4) of the U.N.C. (UN Charter Art. 2 (4)) and is therefore illegal
and an act contrary to international law.

The principle of "ex injuria jus non oritur" is one of the fundamental principles in international
law. The phrase implies that "unjust acts cannot create law". An illegality cannot, as a rule, become a
source of legal right to the wrongdoer. This does not mean that it cannot produce any legal results at all.
For it gives rise to a legal liability of the law-breaker 45

When a State illegally occupies the territory of another State, it does not have valid title over the
territory. Therefore, East Agnostica remains part of the territory of the Federal Republic of Agnostica.

42 Compromis 29
43 Id. 34 & 35.
44 Id. 37.
45 Lauterpacht, Recognition in International Law 420 (1947)

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III. THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2 APRIL 2012 AND, IN ANY EVENT,
AGNOSTICA DID NOT BREACH THE CONVENTION.

[A]. Agnostica was entitled to terminate the Convention on the basis of a material breach

[B]. Agnostica was entitled to terminate the Convention on the basis of a fundamentally changed
circumstances.

Article 2(1) of the VCLT defines treaty as : an international agreement concluded between
States in written form and governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation46

Applicability of Vienna Convention on the Law of Treaties

The Vienna Convention on the Law of Treaties of 1969 (VCLT) is the main instrument that
regulates treaties.47 Both parties are signatories to VCLT. The VCLT relates only to treaties concluded
between States who are parties to the VCLT, and for treaties that entered into force after VCLT took
effect.

In 1933, parties entered in to a treaty, Marthite Convention. Article 4 of VCLT provides that VCLT
shall not be applied retroactively. However, this does not prevent a provision of the VCLT that reflects
customary international law from applying to a treaty. In the Kasikili/Sedudu Island Case, the ICJ held that
Article 31 of the VCLT on treaty interpretations reflected customary international law and that therefore
applied despite the fact that both Botswana and Namibia were not parties to the VCLT and the treaty in
question entered into force in 1890.48

Marthite Convention ceased to be in effect as of 2 April 2012

As a rule, parties are bound by the agreements they entered into. However, this is without an
exception. The International Court of Justice observed in the Fisheries Jurisdiction Cases that Article 62

46 https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
47 Id.
48 Id.

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‘may in many respects be considered as a codification of existing customary law’49 Also, Art. 60 provides
that a treaty may ceased to be in effect as a consequence of a material breach50

For the doctrine to be fulfilled, there needs to be a fundamental change of the circumstances
existing when the treaty was formed, and the change must not have been foreseen by the parties. The
existence of those circumstances must have ‘constituted an essential basis of the consent of the parties
to be bound by the treaty’ and the change of circumstances must have radically transformed ‘the extent
of obligations still to be performed under the treaty’.51

A. Agnostica was entitled to terminate the Convention on the basis of a material breach

Art. 60 (3)(b) of VCLT provides that there is material breach of a treaty, when it consists the
violation of a provision essential to the accomplishment of the object or purpose of the treaty.52

Marthite Convention was established to ensure reliable supply of Marthite to traditional


Reverentian Medical practitioners, recognizing that Marthite is without significant commercial value
53
outside its traditional uses. To this effect, Article 4 , Annex provides that Reverentia undertakes that
RMT will distribute Marthite only to traditional medicine practitioners in Reverentia and East Agnostica.
Except (D) when the supply of Marthite in such year exceeds demand from traditional practitioners by
54
25% or more. Marthite mined in excess of 125% of demand from traditional practitioners may be
offered for sale by RMT without restriction on price, identity of purchaser, or intended use.”55

After the ILSA report was published, 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. The Reverentian press even
noted that this new arrangement was causing serious concerns among traditional users that shortages
and price increases were inevitable.56 This is contrary to the purpose on which the treaty was made.

49 http://www.essay.uk.com/essays/law/essay-international-law-problem-question/
50 VCLT. art 60.
51 Id. 1.
52 VCLT. art 60(3).
53 Compromis. Annex.
54 Id.
55 Corrections And Clarifications To The Compromis.
56 Compromis ¶13.

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B. Agnostica was entitled to terminate the Convention on the basis of a fundamentally changed
circumstances

As established in Fisheries Jurisdiction Case United Kingdom V. Iceland, in order that a change of
circumstances may give rise to the premise calling for the termination of a treaty, it is necessary that it
has resulted in a radical transformation of the extent of the obligations still to be performed57. Even more,
Article 62 of VCLT provides that “a fundamental change of circumstances which has occurred with regard
to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) The existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty;

At the time of the conclusion of the Convention, Marthite is not known to the outside world. This
fact was even recognized as a basis for which the Convention was created; and

(b) The effect of the change is radically to transform the extent of obligations still to be performed
under the treaty58.”

In Gabcíkovo - Nagymaros Project (Hungary/Slovakia), the Court observes that what is required in
the present case by the rule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of
1969 on the Law of Treaties, is that Parties find an agreed solution within the co-operative context of the
Treaty. Article 26 combines two elements which are of equal importance. It provides that "Every treaty in
force is binding upon the parties to it and must be performed by them in good faith". This latter element,
in the Court's view, implies that, in this case, it is the purpose of the Treaty, and the intentions of the
parties in concluding it, which should prevail over its literal application. The principle of good faith obliges
the Parties to apply it in a reasonable way and in such a manner that its purpose can be realized.59

In late 2011, ILSA reported that high doses of Marthite were over 90% effective in treating a broad
range of previously untreatable infant and early-childhood autoimmune disorders, some of which afflicted

57 http://www.icj-cij.org/docket/index.php?sum=302&p1=3&p2=3&case=55&p3=5
58 VCLT. Art. 62.
59 http://www.icj-cij.org/docket/index.php?sum=483&p1=3&p2=3&case=92&p3=5

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tens of thousands of children worldwide.60 Weeks thereafter, demands aside from traditional Reverentian
Medical Practioners, radically shifted from small diaspora communities outside Agnostica to
pharmaceutical firms around the globe. This caused 75% of the supply being sold outside the community.
From preservation of culture, a demand to make Marthite available to the global community causes
radical change in the circumstance present upon conclusion of the treaty.

In light of these circumstances, Agnostica had rightfully terminated the treaty.

60 Compromis ¶12.

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IV. REVERENTIA’S REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION FACILITIES VIOLATED
INTERNATIONAL LAW.

[A]. Reverentia has breached its obligations under VCLT and the principle of State Sovereignty

[B]. Reverentia has breached Customary International Law (CIL) relating to permanent sovereignty
over natural resources.

[C]. Reverentia has breached the International Law Commission (ILC) Articles on State Responsibility.

Reverentia has violated international law particularly the VCLT, CIL Obligations, and the ILC
Articles on State Responsibility, when it removed the software at the Marthite extraction facilities.

A. Reverentia has breached its obligations under VCLT and the principle of State Sovereignty

Article 2 of the Marthite Convention states that upon payment by Agnostica to Reverentia, the
sum of 100 Swiss francs, the facilities shall be owned by the Government of Agnostica.

International Accounting Standard (IAS) 38 paragraph 4 states that when the software is an
integral part of the related hardware, computer software is treated as part of the property where it is
installed. Thus, the removal of the software from the property will cause material damage to the latter,
just like what happened in the Marthite operations. Therefore, the software installed already formed part
of the facilities owned by Agnostica.

Article 70 (b) of the VCLT states that the termination of a treaty does not affect any right,
obligation or legal situation of the parties created through the execution of the treaty prior to its
termination. When Reverentia removed the software, it has breached the Marthite Convention as it failed
to respect Agnostica’s ownership over its properties. Therefore, international laws pertaining to the VCLT
and State sovereignty concerning Agnostica’s properties were violated.

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B. Reverentia has breached Customary International Law (CIL) relating to permanent sovereignty over
natural resources .

In the Case Concerning the Armed Activities on the Territory of Congo, permanent sovereignty
over natural resources was acknowledged as customary international law61. Therefore, Agnostica has the
sovereign right over its natural resources and Reverentia’s action is a breach of its duty to observe its
obligations under the Marthite Convention.

C. Reverentia has breached the International Law Commission (ILC) Articles on State Responsibility.

Article 22 of the ILC Articles on State Responsibility states that the wrongfulness of an act of a
State not in conformity with an international obligation towards another State is precluded if and to the
extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter
II of Part Three.

ILC Articles on State Responsibility, chapter II of Part Three, Article 49, enumerates the objects
and limits of countermeasures. First, an injured State may only take countermeasures against a State
which is responsible for an internationally wrongful act in order to induce that State to comply with its
obligations. Second, countermeasures are limited to the non-performance for the time being of
international obligations of the State taking the measures towards the responsible State. Third,
countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of
performance of the obligations in question.

Reverentia’s acts were outside the context of the aforementioned Articles on State Responsibility.
Agnostica did not commit any international wrongful act, since it the material breach of the Marthite
Convention was caused by Reverentia. Thus, the latter has no right to take countermeasures. Moreover,
Reverentia’s actions were not limited to a mere non-performance, for its actions caused grave damage to
the mining operations, and made the resumption of operations highly improbable. Therefore, Reverentia
has violated the ILC Articles on State Responsibility.

61 Democratic republic of the Congo v. Uganda, ICJ. 168 (2005).

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PRAYER FOR RELIEF

The Federal Republic of Agnostica respectfully requests the Court to adjudge and declare that:

I. Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s territorial


integrity, the principle of nonintervention, and the United Nations Charter generally;
II. The purported secession and subsequent annexation of East Agnostica are illegal and without
effect, and therefore East Agnostica remains part of the territory of the Federal Republic of
Agnostica;
III. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event, Agnostica did
not breach the Convention; and
IV. Reverentia’s removal of the software at the Marthite extraction facilities violated international
law.

All of which is respectfully submitted.

_____________________

Agents for the Applicant

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