Agnostica vs. Reverentia Memorial

TEAM CODE: 3
IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE
NETHERLANDS
THE 56TH PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION, 2015
CASE CONCERNING THE SECESSION AND ANNEXATION OF EAST AGNOSTICA
THE FEDERAL REPUBLIC OF AGNOSTICA
APPLICANT
v.
THE STATE OF REVERENTIA
RESPONDENT
MEMORIAL for the APPLICANT

TABLE OF CONTENTS
INDEX OF AUTHORITIES …………………………………………..……………………………
STATEMENT OF JURISDICTION …………………………………………..………………………
QUESTIONS PRESENTED ………………………………………………………………….……
STATEMENT OF FACTS ………………………………………………………………….………
SUMMARY OF PLEADINGS ………………………………………………………….…………
PLEADINGS …………………………………………………………………………………….
A. Reverentia’s encouragement of the East Agnostica referendum violated Agnostica’s territorial
integrity, the principle of non-intervention, and the United Nations Generally ……………..
I. Violation on the use of threat of force ………………………………………………
II. Violation of the principle of non-intervention in the internal affairs of the state …………
III. Reverentia cannot assert that its acts were justified as humanitarian intervention arising from
an alleged right …………………………………………………………………
B. The purported secession and subsequent annexation of East Agnostica are illegal and without effect
therefore, East Agnostica remains to be a territory of Agnostica as state ……………….
I. The purported secession and subsequent annexation are illegal and without effect ……
a. A secession which is opposed by the parent State is not permitted in international
law………………………………………………………………………………….
b. The secession and subsequent annexation were organized through the aid of Reverentia’s
participation and assistance; therefore, illegal. ……………………
c. The illegal and invalid referendum and integration agreement were the basis of secession
………………………………………………………………………….
i. The referendum was illegal per se and in character …………………….
ii. The integration agreement between East Agnostica and Reverentia was illegal
and without effect ……………………………………………….

d. In any case, it is without effect given that it has not been recognized by a substantial part
of international community …………………………………………………
II. The purported secession of East Agnostica cannot be justified on the basis of self-
determination or a “remedial right of secession” …………………………………….
a. The Agnorevs have not been denied their right of representation ………………
b. No gross and systematic violation of human rights in East Agnostica ………….
i. Death of sixty demonstrators: A right of secession arises when there is a violation
of human rights that must be ‘gross and systematic’ ………..
ii. Restrictions on unauthorized transactions of Marthite ………….…….….
iii. Allegations of discrimination in public life ……………………………….
c. There are other remedies available to the people of East Agnostica ……………...
III. East Agnostica remains part of the territory of the Federal Republic of Agnostica ……
a. Sovereign title of Agnostica exercised over East Agnostica is stronger and looms larger
than Reverentia’s possession of East Agnostica and the purported secession anchored on
will of the people ……………………………………………………
b. The legal status quo ante must be restored ……………………………………….
C. The Marithe Convention ceased to be in effect as of 2 april 2012 and, in any event, agnostica did not
breach the convention ……………………………………………………………………….
I. Agnostica’s contention regarding fundamental change of circumstance is a valid ground for
termination of treaty ………………………………………………………………
II. Alternatively, Reverentia’s material breach of the marthite convention released Agnostica
from its obligations ………………………………………………………..
D. Reverentia’s removal of the software at the Marthite extraction facilities violated international
law………………………………………………………………………………………………
I. Reverentia deprived Agnostica of its property …………………………………..

a. Agnostica is the exclusive owner of the facilities under the Marthite
Convention ………………………………………………………………
b. The title to the software has been lawfully transferred to Agnostica as well ………
c. Agnostica’s ownership of the software continued after the termination of the
convention ……………………………………………………………….
II. Reverentia has no right to take countermeasures because the Marthite Convention was not in
effect after April 2012 …………………………………………………..
III. Countermeasures are not applicable since the requirements of it were not
met ………………………………………………………………………….
a. The countermeasure must be proportionate …………………………………..
b. The injured State must have called upon the State committing the wrongful act to
discontinue its wrongful conduct or to make reparation ……………………….
c. It must be reversible ……………………………………………………….
PRAYER FOR RELIEF …………………………………………………………………………………

INDEX OF AUTHORITIES
ARTICLES
G. Schwarzenberger, Clausula Rebus Sic Stantibus, in 1 ENCYCLOPEDIA PUB. INT’L L. 611 (R.
Benhart ed., 1992); M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON
THE LAW OF TREATIES 766 (2009) [VILLIGER”] …………………………………………………
Responsibility of States for Internationally Wrongful Acts, 2001 …………………………………………
INTERNATIONAL DECISIONS AND ARBITAL AWARDS
Nicaragua vs, USA ………………………………………………………………………………
Nicaragua vs US supra n.12 at 155 …………………………………………
Barcelona Traction, Light and Power Company, Limited (Belg vs. Spain), 1970 LCJ 3 (Feb. 5) ……
Corfu Channel ( UK v. alb) …………………………………………………………………………
Nicaragua, supra n.2, at ¶202 ………………………………………………………………………
Kohlhaas v. Alaska, 147 P.3d 714 (2006) ……………………………………………………
Reference Re Secession of Quebec [1998] 2 SCR 217] [“Quebec Secession ……………
Western Sahara, Advisory Opinion, ICJ. 12, at 12 (Oct. 16, 1975……………………………
Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. at 185 (Apr. 11,
1949) ………………………………………………………………………………
East Timor, supra n.80, at 116 (dissenting Opinion of Judge Skubiszewski) ……
Mgwanga Gunme v. Cameroon, (2003) …………………………………………
Mgwanga v. Cameroon, id pp.94, ¶111, 201 …………………………………………

Lansman v. Fin., Comm. 671/1995, UN Doc. A/52/40: U.N. Doc. CCPR/C/52/D/511/1992, (Oct. 26,
1994); Ivan Kitok v. Sweden, Communication No. 197/1985, s. 4.1 ……………………………
Mgwanga v. Cameroon, id at 94, s.143, 202 …………………………………………
Frontier Disputes (Burkina Faso/ Mali), 1986 I.C.J. 554 (Dec. 22). 116 Chamizal (Mex. v. USA), 5 AM.
J. INT’L. L., at 782 (1911); Minquiers and Ecrehos Case (Fr. v. U. K.) 1953 I.C.J. 142-4 (Nov. 17). 117
Id ………………………………………………………………………………………………
Chamizal (Mex. v. USA), 5 AM. J. INT’L. L., at 782 (1911); Minquiers and Ecrehos Case (Fr. v. U. K.)
1953 I.C.J. 142-4 (Nov. 17) ………………………………………………………………………
Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 63 (July 25) …………………………………………
Nuclear Tests Case (Australia & New Zealand v. France), 1974 …………………………………
Barkhuizen v. Napier ………………………………………………………………………………
Tippetts, Abbet, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, Iran-US Claims
Tribunal, 22 June 1984 ……………………………………………………………………………………………………………………
Middle East Cement Shipping and Handling Co. S. A. v. Arab Republic of Egypt, Award, 12 April
2002………………………………………………………………………………………………………………………………………………………
Legal Consequences For States Of The Continued Presence Of' South Africa In Namibia (South West
Africa), 1971 I.C.J. 49 (June 21) ………………………………………………………………………………
Territorial and Maritime Dispute (Nicar. v. Colum.), 2012 I.C.J. 832,861 (Nov. 19) ………………………
Eng St Albans City and District Council v International Computers Ltd [1996] ………………………
Wegman v. Dairlea Cooperative ………………………………………………………………………………
Gabcikovo Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 …………………………………

INTERNATIONAL LAW COMMISSION REPORTS
International Law Association, Helsinki Conference, Report of the 67th Conference, at 14 (Aug. 12-17,
1996) ………………………………………………………………………………
Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 92 I.L.R. 167, 168-69.A (Jan. 11,
1992) [“Badinter Committee Opinion 2”] …………………………………………
Venice Commission, Code of Good Practice on Referendums, 70th plen.mtg., at 11, Doc. CDL-
AD(2007)008 3.2 (Mar. 19, 2007) …………………………………………
Larnaude Report, supra n.53, at 5-6 …………………………………………
Quebec Secession, supra n.69, at 595 …………………………………………
Aaland Islands Question: Report of the Committee of Jurists, L.N.O.J. Spec. Supp. No.3 (1920) ……
Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens (Oct. 5,
1991) ………………………………………………………………………………
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 15 (Dec. 28, 1992) ……
East Pakistan Staff Study, 8 INTERNATIONAL COMMISSION JURISTS REVIEW at 23, 44
(1972) ………………………………………………………………………………
European Commission for Democracy through Law, Opinion No. 762/2014 (Mar. 21-22 2014) ……
International Law Commission, Report on the Work of its Fifty-third Session, art. 49(1), U.N. Doc.
A/56/10 (2001) [“A.S.R”] ………………………………………………………………………………
Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., 66, U.N. Doc.
A/CN.4/SER.A/1995/Add.l (Part 2) (May-July, 1995) …………………………………………

MUNICIPAL CASES
European Parliament, Resolution on the Situation in Abkhazia, Preamble ¶G and operative ¶¶3,4 (Nov.
14, 1996) ………………………………………………………………………………
IC, supra n.68, at 385 ………………………………………………………………………………
TREATIES AND CONVENTIONS
Article 2(4) UN charter ………………………………………………………………………………
Compromis ¶ 35 ……………………………………………………………………………………………………………………
UN Charter Art 2(4) - UN CHARTER ………………………………………………………………………………
Compromis ¶ 44 ……………………………………………………………………………………………………………………
UN charter 2(7); convention on rights and duties - UN CHARTER …………………………………………
Compromis ¶30, 34-35 ……………………………………………………………………………………………………………………
Compromis ¶35 ……………………………………………………………………………………………………………………
Montevideo Convention on the Rights and Duties of States, Art. 8 ………………………
Montevideo Convention on the Rights and Duties of States Art. 8 …………………………
Montevideo Convention on the Rights and Duties of States, Art. 2 …………………………
UN Charter, Art. 2(3) & 4 ……………………………………………………………………
Montevideo Convention on the Rights and Duties of States, Art. 11 ………………………
Montevideo Convention on Rights and Duties, Art. 4 ……………………………………
Montevideo Convention on Rights and Duties, Art. 4 …………………………………………
International Covenant on Civil and Political Rights art.1 …………………………………………
International Covenant on Economic, Social and Cultural Rights art.1(1) ………………………
UN Charter, Chapter I: Purposes and Principles …………………………………………

UN Charter, Chapter VII ………………………………………………………………………
Montevideo Convention on Rights and Duties, Art. 10 ………………………………………
UN Charter, Chapter VI: Art. 33-38 …………………………………………
UN Charter, Chapter VII: Art. 39-49 …………………………………………
Article 62 of VCLT ………………………………………………………………………………
Article 60 of VCLT ………………………………………………………………………………
Article 60 of Vienna Convention Law of Treaties …………………………………………
Article 62 of Vienna Convention Law of Treaties …………………………………………
Vienna Convention on the Law of Treaties, entered into force 27th January 1980 ……
The Marthite Convention signed at Thanatos, Agnostica 14th April 1938 ……………………………
TREATIES AND BOOKS
J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 390 (1979)
D.W. McNemar, The Post-independence War in the Congo, in THE INTERNATIONAL LAW OF CIVIL
WAR 244 (R. Falk, 2010) ………………………………………………………………………………
Rainer Hoffman, Annex, 1 MAX PLANCK ENCYCLOPAEDIA OF INT’L. L. 411 (2012) ……
D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 290-93 (2002) [“RAIC”].
CRAWFORD, supra n.53, at 417 ………………………………………………………………
Crawford, supra n.53, at 333 ……………………………………………………………………
M. Shaw, Re: Order in Council P.C. 1996-1497 of 30 September 1996, in SELF DETERMINATION IN
INTERNATIONAL LAW 218 (A. Bayefsky ed., 2000) …………………………………………
Oppenheim's International Law, p 428 …………………………………………………………

RAIC, supra n.68, at 306 ………………………………………………………………………………
A. Pellet & A. Ellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-
Determination of Peoples, 3 EUR. J. INT’L L. 178; A. CASSESE, SELF-DETERMINATION OF
PEOPLES 119 (1995) [“CASSESE”] …………………………………………
S.L. BURG, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION
MAKING SINCE 1966 113 (1983) [“BURG”] …………………………………………
BURG, id pp. 95, at 113 ………………………………………………………………………………
YUGOSLAVIA THROUGH DOCUMENTS; FROM ITS CREATION TO ITS DISSOLUTION 310 (S.
Trifunovska ed., 1994) ………………………………………………………………………………
C. Haverland, Secession, in 10 ENCYCLOPEDIA PUB. INT’L. L. 384 (1987) …………
E. VATTEL, 1 THE LAW OF NATIONS ¶54 (1916); C. Haverland, Secession, in 10 ENCYCLOPEDIA
PUB. INT’L. L. 384 (1987) …………………………………………………………………
A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW: THE DOCTRINE
OF REBUS SIC STANTIBUS AND DESUETUDE 102 (1985) [“VAMVOUKOS”] ……………
B. Simma & C. Tams, Termination and Suspension of the Operation of Treaties, Art.60 1969 Vienna
Convention, in THE VIENNA CONVENTION ON THE LAW OF TREATIES 1360 (O. Corten & P.
Klein eds., 2011) ……………………………………………………………………………………………………………………
Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351 (Sept. 11).
O. DORR & K. SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES at 543
(2012) ……………………………………………………………………………………………………………………
Report of the International Law Commission to the General Assembly, 255 [1966] 2 YB.I.L.C. U.N.
DOC. A/CN.4/SER. A/1966/ADD. 1 [“ILC Report to the General Assembly”] ………………………
Brownlie, Principles Of Public International Law 213 (8th Ed., 2012) …………………………………
Zilber, Norman A., International Law: Sovereign Immunity: Seizure of Property under Restrictive
Immunity Doctrine, Vol. 54, No. 7 (May, 1956), pp. 1008-1011 …………………………
Schwenzer, In., Hachem, P., Kee, Ch., Global Sales And Contract Law, Part X Transfer Of Title, 39
(2012) ……………………………………………………………………………………………………………………
Ulrich M. Drobnig, Commercial transaction economics: Elements of the law of commercial transactions,
Encyclopedia Britannica, 1923 ………………………………………………………………………………
Emily Crawford, Proportionality, Oxford Public International Law, May 2011, Page2, Para 1 ……
U.N. RESOLUTIONS AND OTHER DOCUMENTS
Resolutions 2139 (Syrian civil war, access for humanitarian aid.), 2268 (calling for a cessation of
hostilities and a grant for access to humanitarian workers in Syria), 2328 Demanding Immediate,
Unhindered Access for Observation of Monitoring Civilian Evacuations from Aleppo, Syria ……
UN Outreach Programme in Rwanda Genocide - UN PROGRAM …………………………
UNSC Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961); UNSC Res. 216, U.N. Doc. S/RES/216 (Nov.
12, 1965) ………………………………………………………………………………
G.A. Res. 3203 (XXIX), U.N. GAOR, 29th Sess., (Sept. 17, 1974); UNSC Res. 709, U.N. Doc ……
G.A. Res. 375 (IV), U.N. Doc. No. A/RES/4/375 (Dec. 6, 1949) …………………………………
Resolution 2625, supra n.28 …………………………………………………………………
UNSC Res. 169, ¶¶ 1,8, U.N. Doc. S/RES/169 (Nov. 24, 1961) …………………………………………
G.A. Res. 68/262, U.N. Doc. A/RES/68/262 (Apr. 1, 2014) [“Resolution 68/262”]. …………….
Resolution 68/262, supra n.70 ……………………………………………………………………
G.A. Res. 1514 (XV), U.N. Doc. A/4684 (Dec. 14, 1960); G.A. Res. 36/103, U.N. Doc. A/RES/36/103
(Dec. 9, 1981) ………………………………………………………………………………
Principle VII, G.A. Res.1541 (XV), U.N. Doc. A/RES/1541 (XV) (De. 15, 1960) ……
General Assembly Res. 32/34, U.N. Doc. A/RES/32/34 (11-28-77); G.A. Res. 31/53, U.N. Doc.
A/RES/31/53 (Dec. 1, 1976) ……………………………………………………………………………

Federal Republic of Yugoslavia (Kosovo), S.C. Res. 1244, U.N. Doc. 10 June 1999 U.N.
Doc.S/RES/1244; Iraq, S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991) ………………
Resolution 2625, supra n.28 …………………………………………
Resolution 2625, supra n.28 …………………………………………
S.C. Res. 815, ¶5, U.N. Doc. S/RES/815 (Mar. 30, 1993) …………………………………………
U.N. Doc. S/1994/674/Add.2 (V) (Dec. 28, 1994) …………………………………………
UNSC Res. 815, s. 5, U.N. Doc. S/RES/815 (03-30-93) …………………………………………
Brioni Declaration, Europe Documents, No. 1725, at 16-19 (July 16, 1991) ………………
UNSC Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961) …………………………………………
UNSC Res. 1096, ¶3, U.N. Doc. S/RES/1096 (Jan. 30, 1997) …………………………………………
G.A. Res. 49/43, Preamble, ¶4, U.N. Doc. A/RES/49/43 (Dec. 9, 1994) …………………………
G.A. Res. 49/43, Preamble, ¶4, (Dec. 9, 1994).S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25,
1999) ………………………………………………………………………………
East Timor, supra n.80, at 102–4 ………………………………………………………………
G. Fitzmaurice, Second Report On The Law Of Treaties, 2 YB.I.L.C. 94, U.N. Doc.
A/CN.4/SER.A/1957/Add.L (Sep., 1957). ………………………………………………………………………………
Dr. Aymen Masadeh, “Classification of Software Contract”, (2005), Mountbatten Journal of Legal
Studies………………………………………………………………………………
International Leases as a Legal Instrument of conflict resolution, Michael J. Strauss and Noemi Gal-or……
Tortious Interference with Contract under Section 301, Andrew J. Kahn ………………………………
Contractual Claims in International Law, Edwin M. Borchard …………………………………………
J. Crawford, Fourth Report on State Responsibility, YB.I.L.C, 16, U.N. Doc. A/CN.4/517 and Add.1,
(June 17, 1992). ……………………………………………………………………………………………………………………
J. Crawford, Counter-measures as Interim Measures, 5 EUR. J. INT’L L. 65,68 (1994). ………………

STATEMENT OF JURISDICTION
The Parties, the Federal Republic of Agnostica and the State of Reverentia submit to this court the dispute
concerning the Secession and Annexation of East Agnostica, as provided in the Joint Notification
addressed to the Registrar the Court on 2 September 2014. The parties will accept the judgement of the
Court as final and binding as it is provided in Article 3 of the compromise that the Court is hereby
requested to adjudge the dispute.
QUESTIONS PRESENTED
Whether or not Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s
territorial integrity, the principle of nonintervention, and the United Nations Charter generally.
Whether or not 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.
Whether or not the Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,
Agnostica did not breach the Convention.
Whether or not Reverentia’s removal of the software at the Marthite extraction facilities violated
international law.
STATEMENT OF FACTS
Agnostica and Reverentia are states that branched out from the Kingdom of Credera. The former
occupied the western half while the latter occupied the eastern half and functioned as a manufacturing and
urban trading centre. A large number of Reverentians, also known as Agnorevs, migrated to East
Agnostica. The Federal Republic of Agnostica and the State of Reverentia were established on 1 August
1925.
Marthite, a naturally occurring mineral salt which possesses mildly restorative properties is found
within the territory of East Agnostica. This mineral is a core ingredient in Reverentian traditional
medicine. Agnostica and Reverentia concluded a bilateral treaty called the Marthite Convention where the
facilities in East Agnostica produced 200-250 tonnes of Marthite annually and the Reverentian Martian
Thrust (RMT) sold the entire output to traditional medicine practitioners in Reverentia and East
Agnostica. In late 2011, it was found that high doses of Marthite were over 90% effective in treating a
great range of untreatable infant and early-childhood autoimmune disorders which led RMT to focus on
the international market, selling 75% of Marthite to pharmaceutical companies for ten times its maximum
permitted sale price under the Convention.
This moved Agnostican Prime Minister Maxine Moritz proposing to the President of Reverentia,
Antonis Nuvallus, proposing to terminate the Marthite Convention by mutual consent. The latter did not
agree to terminate the treaty which led to Agnostica declaring the said convention to be terminated and
without effect. Prime Minister Moritz declared that Agnostica had agreed to lease all rights to Baxter
Enterprises, Ltd., once it was no longer subject to the Convention. As a result, the Reverentian Engineers
were asked to retreat from the facility.
In October 2012, the Marthite Control Act was passed which states that an Agnostican citizen
possessing Marthite without a Government license would be subject to a mandatory prison term of 18
months to four years. Gohandas Sugdy, an Agnorev Miner, was found to be in possession of such and was
prosecuted under the MCA. As per Sugdy, he was in possession of Marthite for his ill grandfather and
later on committed suicide in prison cell as a result of his failure to attend to his grandfather.
This led the East Agnostican newspaper to denounce the Marthite ban as denying Reverentians in
Agnostica the fruits of their own labor, own lands, and the lifeblood of ancient traditions. And as the year
went by, demonstrations in East Agnostica increased in number, frequency, and intensity.
The clashes between the authorities and protesters kept on going until Mr. Bien, the Agnorev
head in East Agnostica, proposed a resolution calling upon the Prime Minister to de-escalate the police
and military presence in East Agnostica and eventually proposed the dissolution of the nations which was
defeated.
Reverentia adopted a resolution “On the Crisis in East Agnostica” which dealt with the secession
of East Agnostica for the Federal Republic. A plebiscite was held where 73 percent of the voters cast their
ballots in favor of secession. The following day, the members of “Agnorev People’s Parliament” ratified
the secession and voted unanimously to send a delegation headed by Mr. Bien to enter into talks with
Reverentia.
The President of the Security Council expressed concern over the continued territorial integrity of
Agnostica and that the recent events might constitute an unjustifiable and illegal interference in the
Republic’s affairs. The five largest pharmaceutical manufacturers of Marthite announced that they
suspended purchases of Marthite until the legal status of East Agnostica is resolved.
President Nuvallus announced that he and Mr. Bien had signed an integration agreement that
would make East Agnostica a semi-autonomous province of Reverentia as a provinicial legislature but
Prime Minister Moritz denounced the annexation.

Agnostica and Reverentia sent their Foreign Ministers to New York. The latter expressed
willingness to submit the dispute over East Agnostica to the International Court of Justice’s jurisdiction
but the former’s Foreign Minsiter insisted that it would agree only if the Court were seized also for the
inextricably related disputes over the Marthite Convention.
SUMMARY OF PLEADINGS
Reverentia’s encouragement of the east Agnostica Referendum violated Agnostica’s territorial
integrity, the principle of non-intervention and the united nations generally through the use of threat or
force. It is through the act of Reverentia promising to ensure freedom of the east Agnostica and pledged
to take all necessary measures to secure their independence. However, Revenrentia cannot assert that the
acts were justified as humanitarian intervention arising from an alleged right.
The purported secession and subsequent annexation of East Agnostica are illicit in nature, in
character and ulltimatelly in legal contemplation as the same was organized through unlawful interference
schemes resorted to by Reverentia tantamount to a travesty of the international law and its inherent
precepts and principles. Reverentia's political interest should have been quelled to inhibit the former State
in making further jurisdictional claims over East Agnostica in the very first attempt of its illegal assertion
of jurisdiction over the recognized State of Agnostica, the foregoing are devoid of legal grounds as it is a
disrespect to State's equal sovereignty and infringement of multiple precepts, customary rules, covenants,
treaties recognized in international law. Thus, East Agnostica remains part of Agnostica as its territory as
Federal State for the very reason that Agnostica's title of sovereignty remains undisturbed despite the
manifests unlawful assertion of jurisdiction of Reveretia and prevails over the East Agnostica way beyond
Reverentia's baseless exercise of sovereignty in East Agnostica.

C
The termination of Marthite Convention made by Agnostica is valid due to fundamental change
of circumstance and material breach. There was a fundamental change of circumstance, when ILSA
scientist discovered the effectiveness of Marthite in treating diseases, Reverentia sold it to other major
pharmaceutical companies unless the supply exceeds to the demands, in which the essence of the treaty
that it should be limited to the parties was violated. Moreover, Reverentia committed material breach,
when Reverentia sells 75% of the Marthite at ten times higher than the resale price, which caused
shortages to Agnostica
Reverentia’s removal of software at the Marthite extraction facilities is a clear violation of
international law. The Marthite Convention itself states the right of Agnostica over the facilities and
Reverentia also breaches its obligations post termination of the treaty under the Vienna Convention.
Reverentia deprived Agnostica of its property. Reverentia’s unreasonable interference with the use,
enjoyment or disposal of property thereby making Agnostica unable to use, enjoy, or dispose of the
facilities. The act claimed as counter measure by Reverentia is not tenable as it does not arise in response
to an unlawful act by Agnostica and does not commensurate the rule of proportionality in law of counter
measures.
PLEADINGS
A. REVERENTIA’S ENCOURAGEMENT OF THE EAST AGNOSTICA REFERENDUM
VIOLATED AGNOSTICA’S TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-
INTERVENTION, AND THE UNITED NATIONS GENERALLY
The encouragement of referendum violated the use of threat of force (I) and the principle of non-
intervention (II). Reverentia cannot assert that the acts were justified as humanitarian intervention arising
from an alleged right (III).
I. Violation on the use of threat of force
UN Charter prohibits the use of threat of force regardless of the purpose because it has been
acknowledged by the International Courts of Justice as a jus cogens norm.1 Therefore, no state can
derogate from such prohibition. The International Courts of Justice affirmed that the use of threat may
either be expressed or implied and the level of intensity of the danger is immaterial to the determination
of the existence of a threat.2
Reverentia promised to ensure the freedom of east Agnostica and through a resolution, it pledged
that it would take all necessary measures to secure the independence of the East Agnostican State. 3 The
act of Reverentia clearly aimed at disrupting the territorial integrity and political independence of East
Agnostica and it is tantamount to an unlawful threat to use force against East agnostica.4
1
Article 2(4) UN Charter
2
Nicaragua vs, USA
3
Compromis ¶ 35
4
UN Charter, Art. 2(4)
II. Violation of the principle of non-intervention in the internal affairs of the state
Agnostica and Reverentia were both parties of the Montevideo Convention and UN Charter5 in
which the principle of non-intervention in the domestic affairs of the State is considered as a customary
international law6. This principle provides that every state has a right to exercise its sovereignty and
conduct its affairs without outside interference.7 Reverentia’s acts in openly declaring its support and
offering its assistance to East Agnosticans in order to secure a referendum for their secession, thus
constitutes an unlawful intervention in Agnostica’s internal affairs.8
As to the premature recognition, it is prohibited to be practiced among the states because being
such, there is no proof of legitimacy or success of the entity’s claim to secession or statehood and it
constitutes an unlawful interference to the domestic affairs of the parent state just like what happened
when Reverentia extended its diplomatic recognition to an independent state of East Agnostica and
supported it prior the referendum.9
III. Reverentia cannot assert that its acts were justified as humanitarian intervention
arising from an alleged right.
Reverentia's mockery of International Customary Law which prohibits the intervention of a third
State cannot be justified by an unwarranted claim of humanitarian intervention. Humanitarian
Intervention came into existence in order to avoid gross and systematic human rights violation that would
be tantamount to genocide.10 The response of Reverentia to the alleged humanitarian cause is baseless as
5
Compromis ¶ 44
6
UN Charter 2(7); Montevideo Convention on Rights and Duties
7
Nicaragua vs US supra n.12 at 155
8
Compromis ¶30, 34-35
9
Compromis ¶35
10
UN Outreach Programme in Rwanda Genocide
it disturbs the sovereignty of Agnostica. States even ask for permission from the United Nations in
situations wherein it desires to give humanitarian aid before it render such.11 However, contrary to the
said settled rule, Reverentia deliberately ignored the United Nations and sent its troops to the borders as
admitted by itself in the compromis.12
Even though self-determination is recognized in many human rights treaties, the ICJ has
confirmed that such does confer to States the capacity to protect the victims of such rights, irrespective of
nationality.13 and if it is allowed humanitarian intervention, it would lead to abuse of powerful states.14
11
Resolutions 2139 (Syrian civil war, access for humanitarian aid.), 2268 (calling for a cessation of hostilities and a
grant for access to humanitarian workers in Syria), 2328 Demanding Immediate, Unhindered Access for
Observation of Monitoring Civilian Evacuations from Aleppo, Syria
12
Compromis, 29
13
Barcelona Traction, Light and Power Company, Limited (Belg vs. Spain), 1970 LCJ 3 (Feb. 5)
14
Corfu Channel (UK vs. Albania)
B. THE PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF EAST
AGNOSTICA ARE ILLEGAL AND WITHOUT EFFECT THEREFORE, EAST
AGNOSTICA REMAINS TO BE A TERRITORY OF AGNOSTICA AS STATE.
I. The purported secession and subsequent annexation are illegal and without effect
The purported secession and annexation of East Agnostica are illegal and therefore without effect
due to the following grounds: a) the secession and subsequent annexation are illegal per se as unilateral
secession b) the secession was aided by Reverentian assistance and participation c) the secession was
premised on illegal and invalid referendum and integration agreement d) East Agnostica is not recognized
as substantive part of international community
a. A secession which is opposed by the parent State is not permitted in
international law.
Recognized practice of secession provides legitimate schemes for a portion of State to secede
from its parent State15 and East Agnostica’s method of secession from Agnostica by virtue of Rereventian
assistance is clearly not one of them.16 Adherence from the parent State has always been the essential
requisite for a valid secession among other requisites as upheld by UNSC and UNGA. Similarly, the
unilateral secession attempts in Katanga and Rhodesia was denounced by the UNSC due to absence of
consent due to the parent State.17
Agnostica has always denounced the secession in several manifestations as it encouraged the
international community not to recognize the purported secession thus, a clear act of opposition in non-
15
J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 390 (1979)
16
Compromis, 34 & 35
17
UNSC Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961); UNSC Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965)
permission of secession from Agnostica.18 Though, secession may brought considerable loss in population
and territory the State’s identity and continuity from where it secedes remain unaffected.19 Identically,
Baltic States and Bangladesh’s secession without the necessary consent from Soviet Union and Pakistan
was declared illegal though considering the potential great loss in territory. 20 Conclusively, the purported
secession of East Agnostica is illegal and without effect.
b. The secession and subsequent annexation were organized through the aid of
Reverentia’s participation and assistance; therefore, illegal.
The customary norm of non-intervention has attained its jus cogens status21 in effect, a violation
of non-intervention principle would equate the act of unlawful intervention to absolute invalidity as in the
instant case secession.
In addition, self-determination principle complements the people’s right to freely determine their
political status and decide independently of their political fate disenchanted from any external
meddlesome22 Further, when Reverentia intervened in the internal matters inside Agnostica23, it violated
its international commitments in the international law accorded to every State’s obligation not to
intervene in the internal and external affairs of another State.24
18
Compromis, 36, 38
19
International Law Association, Helsinki Conference, Report of the 67th Conference, at 14 (Aug. 12-17, 1996).
20
G.A. Res. 3203 (XXIX), U.N. GAOR, 29th Sess., (Sept. 17, 1974); UNSC Res. 709, U.N. Doc.
21
Nicaragua, supra n.2, at ¶202; G.A. Res. 375 (IV), U.N. Doc. No. A/RES/4/375 (Dec. 6, 1949)
22
Resolution 2625, supra n.28
23
Compromis, 30, 34 &35
24
Montevideo Convention on the Rights and Duties of States, Art. 8
The secession activities in Katanga in deference to external force were deemed unlawful. 25 In
addition, States have an obligation to observe its international commitments not to intervene with internal
and external affairs of another State26 as States were deemed as sovereign equals that stand on equal
footing.27 Further State’s sovereign equality is fortified by its international obligation that States are
juridically equal as they enjoy the same rights28 therefore, Reverentia cannot assert any jurisdiction over
East Agnostica no matter how good its intentions are otherwise it would violate its commitments in the
international community.29
When Reverentia made an offering of assistance to Mr. Bien30, by which the latter deemed as
propagated secessionist activities.31 The resolution issued by Reverentian Parliament made the
unconditional facilitation in secessionist claims32, and Reverentia’s act in placing its army units in station
on the border.33 Therefore, the purported secession of East Agnostica was intertwined with external
interference coming from Reverentia, lucidly illegal as contemplated in international law. Thus,
regardless of purported secession East Agnostica remains an original and substantial part of Agnostica
viewed as one whole entity.34
Member States of UN are obliged to ‘settle their international dispute by peaceful means’ and ‘to
refrain in their international relations from the threat or use of force against the territorial integrity or
political independence of any State’35. Thus, not only war, but also the use of force in any forms is
25
UNSC Res. 169, ¶¶ 1,8, U.N. Doc. S/RES/169 (Nov. 24, 1961); D.W. McNemar, The Post-independence War in
the Congo, in THE INTERNATIONAL LAW OF CIVIL WAR 244 (R. Falk, 2010).
26
Montevideo Convention on the Rights and Duties of States Art. 8
27
United Nations Charter, Art. 2
28
29
Compromis, 30, 34 & 35
30
Compromis.¶¶30,34.
31
Compromis.¶31.
32
Compromis.¶35.
33
Compromis.¶37.
34
35
UN Charter, Art. 2(3) & 4;Rainer Hoffman, Annex, 1 MAX PLANCK ENCYCLOPAEDIA OF INT’L. L. 411
(2012)
regarded as an internationally wrongful act from which no rights may be derived; consequently,
annexations are illegal. Further, any differences arising between two States must be resolved by any
recognized pacific methods to conserve peace as their primary interest.36 Applicably, Reverentia’s
deliberate assertion of jurisdiction over a lawful territory of Agnostica is clearly not one recognized
pacific methods accorded by its international obligation in effect, a violation of the latter’s international
commitment in international law.37
c. The illegal and invalid referendum and integration agreement were the basis of
secession.
i. The referendum was illegal per se and in character.
Non-permission for secession has always been prohibited in international law,38 except when such
secession is expressly permitted under the State’s domestic laws.39 In the same vein, the Crimean
referendum deemed to acquire its legitimacy has been opposed by international community for being
violative of Ukraine’s Constitution.40
Similar opposition against the conduct of referenda by considerable section of population
amounting over majority result in Yugoslavia has been interposed by UNSC. 41 Under the CIL, unilateral
right with respect to secession does not solely regard on the majority vote of certain territory.42
36
37
Compromis, 34 & 35
38
D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 290-93 (2002) [“RAIC”].
39
Reference Re Secession of Quebec [1998] 2 SCR 217] [“Quebec Secession”]; Kohlhaas v. Alaska, 147 P.3d 714
(2006)
40
G.A. Res. 68/262, U.N. Doc. A/RES/68/262 (Apr. 1, 2014) [“Resolution 68/262”].
41
Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 92 I.L.R. 167, 168-69.A (Jan. 11, 1992)
[“Badinter Committee Opinion 2”]
42
CRAWFORD, supra n.53, at 417.
Additionally, it is indispensable for a legal referendum to have democratic deliberation and
opinion forming before the same to be upheld in the eyes of international law.43 The interval period in a
span of 16 days only between conducting and scheduling the referendum44 manifests noncompliance with
customary requirements.
ii. The integration agreement between East Agnostica and Reverentia was
illegal and without effect.
The integration of territory of another State from one State to another thru referendum conducted
by a section of population is not a right of a State to be exercised otherwise the act is tantamount to
infringement of the parent State’s sovereignty over its lawful territory.45 Thus, UNGA Resolution with
100 votes from State Members manifests identical situation when it resolved declaring as invalid and
devoid of premise for any changes of Crimea’s political status the referendum decreed in the Autonomous
Republic of Crimea integrating its territory into Russia.46 Therefore, the scheduled plebiscite concerning
secession by East Agnostican Parliament47 despite failed result in dissolution proposal due to lack of votes
from delegates48 though succeeded in taking its place was invalid.
In any event, an informed and democratic process49 must always be observed in achieving a free
determination of people’s political status.50 In one occasion, a request to Indonesia to form an integral part
of the former State from a considerable population in East Timor was reflected in the enactment of law
issued by Indonesia incorporation the latter State as its integral part or part of its territory. 51 However, the
43
Venice Commission, Code of Good Practice on Referendums, 70th plen.mtg., at 11, Doc. CDL-AD(2007)008 3.2
(Mar. 19, 2007)
44
Compromis.¶¶37,38
45
Larnaude Report, supra n.53, at 5-6.
46
Resolution 68/262, supra n.70.
47
Compromis, 37
48
Compromis, 33
49
Western Sahara, Advisory Opinion, ICJ. 12, at 12 (Oct. 16, 1975); G.A. Res. 1514 (XV), U.N. Doc. A/4684
(Dec. 14, 1960); G.A. Res. 36/103, U.N. Doc. A/RES/36/103 (Dec. 9, 1981).
50
Principle VII, G.A. Res.1541 (XV), U.N. Doc. A/RES/1541 (XV) (De. 15, 1960).
51
East Timor (Portugal v. Australia.), 1995 ICJ 91 (June 30, 1995)
claim that East Timor had been incorporated into Indonesia was rejected by the UNGA because the
people of the territory had been unable to exercise freely their right to self-determination.52 The foregoing
basis implies that an integration agreement a product of indirect mechanism cannot change the legal status
of a territory.53 Accordingly, the integration agreement dated on February 22, 2013 did not alter the legal
status of East Agnostica in legal contemplation54 patently because it was made through indirect
mechanism as in this case an integration agreement.
iii. In any case, it is without effect given that it has not been recognized by
a substantial part of international community.
The unconstitutional declaration’s legality and legitimacy of secession depends upon the
recognition of international community is indispensable as it is dependent upon the recognizing States. 55
Further, even State’s political existence accrues independently of recognition by other States the parent
State has the right to defend its integrity and independence even before such recognition.56 This is the
clear intention of Agnostica when it defended its lawful territory against unlawful interference and
denouncing the acts in excess of jurisdiction of Reverentia57.
In repatriation case where, at the time, there were 50 out of 60 UN members more than majority
representing international community had then the power to bring into being or a State an entity having
possessed not just mere personality recognized by them alone but objective international personality. 58 In
the instant case, 30 States out of 193 UN Members merely recognized the change in status of East
52
General Assembly Res. 32/34, U.N. Doc. A/RES/32/34 (11-28-77); G.A. Res. 31/53, U.N. Doc. A/RES/31/53
(Dec. 1, 1976)
53
Crawford, supra n.53, at 333.
54
Compromis.¶41.
55
M. Shaw, Re: Order in Council P.C. 1996-1497 of 30 September 1996, in SELF DETERMINATION IN
INTERNATIONAL LAW 218 (A. Bayefsky ed., 2000); Quebec Secession, supra n.69, at 595
56
Montevideo Convention on Rights and Duties, Art. 4
57
Compromis, 34,35 & 36
58
Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. at 185 (Apr. 11, 1949).
Agnostica.59 Such recognition granted by few States to a change in territorial status has no ramification in
international law.60
Moreover, the preservation of territorial integrity of the parent State is stringent in situation where
there is looming threat to peace brought by secessionist activities61 as it is an international obligation
granted to every State to fulfill its international obligations62 and necessary corollary exercise of its
sovereignty.63 The issued communiqués from transnational bodies regarding the annexation of East
Agnostica are describing the situation as “a threat to international peace and stability”. 64 Accordingly,
whatever change in the legal status of East Agnostica attendant to the purported secession has not been
recognized by the international community. East Agnostica’s purported secession is without effect.
II. The purported secession of East Agnostica cannot be justified on the basis of self-
determination or a “remedial right of secession”.
Whenever there is a lawful exercise of external self-determination for a remedial secession a
consequent and indispensable condition of denial of the internal self-determination deemed as sine qua
non in its exercise.65 Under CIL, a unilateral secession is illegal when, there are participatory rights
available to a community [a] there is absence of gross and systematic violation of its human rights [b] or
when other remedies have not been exhausted [c] there are other remedies available to the people of East
Agnostica.66
59
Clarification.7.
60
East Timor, supra n.80, at 116 (dissenting Opinion of Judge Skubiszewski).
61
Federal Republic of Yugoslavia (Kosovo), S.C. Res. 1244, U.N. Doc. 10 June 1999 U.N. Doc.S/RES/1244; Iraq,
S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991);
62
63
Oppenheim's International Law, p 428
64
Compromis.¶40.
65
RAIC, supra n.68, at 306.
66
A. Pellet & A. Ellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-
Determination of Peoples, 3 EUR. J. INT’L L. 178; A. CASSESE, SELF-DETERMINATION OF PEOPLES 119
a. The Agnorevs have not been denied their right of representation.
States as representative of its territorial population on the basis of equality are mandated to
comply with the principle of self-determination in deference of its people.67
Accordingly, in the absence of denial of basic right of secession such as de-recognition of
provincial government/formal suspension,68 the right of secession cannot arise.69 Equally, the
international community in not considering the determination of legality of secession of Serbia Krajina
from Croatia anchored on factum of minority in central parliament although with participatory rights70,
such event was devoid of justified secession.71 Notably, at the time of conflict, the provincial legislature
of East Agnostica was not derecognized and in fact, carried out the powers and functions accorded by the
Constitution.72 Approximately one-third of Federal Parliament is the whole constitution of representative
of East Agnostica.73 The presentation of two resolutions in Agnostican Parliament by Mr. Bien is an
evidence of active and effective participation in decision making process in the Parliament.74
(1995) [“CASSESE”]; Aaland Islands Question: Report of the Committee of Jurists, L.N.O.J. Spec. Supp. No.3
(1920); Resolution 2625, supra n.28;
67
International Covenant on Civil and Political Rights art.1, 12-16-1966, 999 U.N.T.S. 171; International Covenant
on Economic, Social and Cultural Rights art.1(1), Dec. 16, 1966, 993 U.N.T.S. 3; Resolution 2625, supra n.28.
68
Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens (Oct. 5, 1991).
69
Mgwanga Gunme v. Cameroon, (2003)
70
S.L. BURG, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION
MAKING SINCE 1966 113 (1983) [“BURG”].
71
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 15 (Dec. 28, 1992); S.C. Res. 815, ¶5, U.N.
Doc. S/RES/815 (Mar. 30, 1993).
72
Compromis.¶8.
73
Compromis.¶31,33.
74
Compromis.¶31,33 & 37
b. No gross and systematic violation of human rights in East Agnostica.
The sixty demonstrators’ death [i], the restrictions on unauthorized transactions of Marthite [ii], and
the allegations of discrimination in public life [iii], do not constitute ‘gross and systematic’ violation of
human rights, sufficient for a right of secession to arise.
i. Death of sixty demonstrators: A right of secession arises when there is a
violation of human rights that must be ‘gross and systematic’; as
characterized in the genocide in Bangladesh75 and ‘ethnic cleansing’ rising to
10,000 deaths in Croatia.76 Comparatively, few deaths in Cameroon were
held not to give rise to a right of secession.77 Accordingly, sixty deaths and
limited injuries in East Agnostica do not give rise to a right of secession.
ii. Restrictions on unauthorized transactions of Marthite: In CIL, cultural
rights of a community are not absolute and may be restricted on account of a
reasonable countervailing interest, such as judicious use of natural resources
and protection of others’ human rights.78 The restrictions in the MCA, of
banning unauthorized purchase, sale, or possession of Marthite within
Agnostica, were due to the extreme shortage of Marthite in Agnostica,79 and
for saving the suffering children of the world.80 Therefore, MCA’s
restrictions on the unauthorized transactions of Marthite did not constitute a
gross and systematic violation of human rights.
75
East Pakistan Staff Study, 8 INTERNATIONAL COMMISSION JURISTS REVIEW at 23, 44 (1972).
76
U.N. Doc. S/1994/674/Add.2 (V) (Dec. 28, 1994).
77
Mgwanga v. Cameroon, id pp.94, ¶111, 201.
78
Lansman v. Fin., Comm. 671/1995, UN Doc. A/52/40: U.N. Doc. CCPR/C/52/D/511/1992, (Oct. 26, 1994); Ivan
Kitok v. Sweden, Communication No. 197/1985, s. 4.1;
79
Compromis.¶21.
80
Compromis.¶22.
iii. Allegations of discrimination in public life: Mere allegations of
discrimination of a community in public life and government positions do not
give a right of secession.81 For instance, the purported secession of Serbian
Krajina from Croatia was based on claims inter alia that Serbs were
disproportionately represented in the civil service, and in the army. 82
However, the international community noted that these claims ipso facto did
not demonstrate systematic discrimination justifying the secession of the
Serbian Krajina.83
Similarly, the claims of the East Agnostican citizens regarding discrimination in judicial posts,
armed services and education,84 does not show a gross or systematic violation of human rights which
would give rise to a right of secession.
c. There are other remedies available to the people of East Agnostica.
Reverentia and Agnostica are under obligation to fulfill its international commitments as member
of international community85 otherwise a State would defeat the purpose of its international obligation
enshrined in several Conventions86. As provided, Conventions accorded a State to follow methods in
resolving a dispute to maintain harmonious relationships among State members, preserve international
peace and prevention of war87 In settling and resolving a dispute arising from differences between
81
Mgwanga v. Cameroon, id at 94, s.143, 202.
82
BURG, id pp. 95, at 113.
83
UNSC Res. 815, s. 5, U.N. Doc. S/RES/815 (03-30-93).
84
Compromis.¶28.
85
Compromis.¶44.
86
Principle of good faith
87
UN Charter, Chapter I: Purposes and Principles
States88, threats to peace89and among others precepts vested to State are available such as resorting to
recognized pacific methods90 pacific settlement of disputes91, UNSC’s assistance in cases of threats to the
peace, breaches of peace and acts of aggression92 Contrariwise, Reverentia’s behavior towards the
situation does not evince any legal modes of resorts available as accorded to it in its own international
commitments93
Customary international law deemed the secession as only last resort remedy as a rule
international law frowns upon secession and is allowed only when a seceding portion of territory does not
have any other recourse under its domestic laws.94 It is only when a right to secede can fructify and accrue
upon exhaustion of all political remedies of the seceding territory, in which by practice swivels around the
deemed exhaustion of negotiations.95 At one occasion, the purported secessions of Katanga from Congo 96
and Abkhazia from Georgia97occurred in the absence of negotiation in good faith an essential requisite for
valid secession resultantly, these purported secessions were condemned by the international community
and it cannot be considered as ultimum remedium. Thus, the purported secession of East Agnostica is
illegal and without effect as it was without negotiations in good-faith regarding the future political
solutions with the Agnostican Parliament and government, for the settlement of the conflict. Therefore,
without good faith negotiations with regard to the future political remedies for conflict settlements with
88
89
UN Charter, Chapter VII
90
91
UN Charter, Chapter VI: Art. 33-38
92
UN Charter, Chapter VII: Art. 39-49
93
Compromis, 30, 34, 35, 41
94
E. VATTEL, 1 THE LAW OF NATIONS ¶54 (1916); YUGOSLAVIA THROUGH DOCUMENTS; FROM ITS
CREATION TO ITS DISSOLUTION 310 (S. Trifunovska ed., 1994); Brioni Declaration, Europe Documents, No.
1725, at 16-19 (July 16, 1991).
95
European Commission for Democracy through Law, Opinion No. 762/2014 (Mar. 21-22 2014).
96
UNSC Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961).
97
UNSC Res. 1096, ¶3, U.N. Doc. S/RES/1096 (Jan. 30, 1997); European Parliament, Resolution on the Situation in
Abkhazia, Preamble ¶G and operative ¶¶3,4 (Nov. 14, 1996).
Agnostican Parliament and Agnostican government as a whole the purported secession of East Agnostica
is illegal and therefore, without effect.98
III. East Agnostica remains part of the territory of the Federal Republic of Agnostica
a. Sovereign title of Agnostica exercised over East Agnostica is stronger and looms
larger than Reverentia’s possession of East Agnostica and the purported
secession anchored on will of the people.
In on occasion the ICJ noted the principle of uti possidetis juris in frontier disputes makes the
frontiers inherited from colonization and accords legality in title as compared to any other competing
effecting possession being the basis for sovereignty. 99 Thus, Agnostica’s sovereign title over East
Agnostica prevails over the Reverentian occupation.100 Moreover, the withdrawal of State’s military units
from the subject territory in conflict does not signify diminution of a State’s exercise of sovereignty over
the disputed territory and in fact, such does not affect the sovereign title of a State.101
Furthermore, Agnostica is composed of two federal states the West populated by ethnic
Agnosticans and East Agnostica home of nearly all Agnorevs they only constitute one single juridical
entity or person as enshrined in this wise;102 The federal state shall constitute a sole person in the eyes of
international law.103 Thus, East Agnostican provincial parliament's initiative to secede from becoming
part of Agnostica as a whole though succeeded is without effect in the eyes of international as it
98
IC, supra n.68, at 385.
99
Frontier Disputes (Burkina Faso/ Mali), 1986 I.C.J. 554 (Dec. 22). 116 Chamizal (Mex. v. USA), 5 AM. J. INT’L.
L., at 782 (1911); Minquiers and Ecrehos Case (Fr. v. U. K.) 1953 I.C.J. 142-4 (Nov. 17). 117 Id. 118 C. Haverland,
Secession, in 10 ENCYCLOPEDIA PUB. INT’L. L. 384 (1987). 119 G.A. Res. 49/43, Preamble, ¶4, U.N. Doc.
A/RES/49/43 (Dec. 9, 1994).
100
Chamizal (Mex. v. USA), 5 AM. J. INT’L. L., at 782 (1911); Minquiers and Ecrehos Case (Fr. v. U. K.) 1953
I.C.J. 142-4 (Nov. 17).
101
Id
102
Compromis, 8
103
contemplates only sole person with respect to federal state such as West and East Agnostica as its
composition in the international community.104
b. The legal status quo ante must be restored.
An illegal occupation of a territory by asserting State legally and politically owned by another
State cannot, in any way, ripen into valid title over the disputed territory applying the repatriation and
restitution principles and restoration of legal ex ante status quo.105 The UNGA put an emphasis to
reintegration of Croatia’s part of territory back into Croatia caused by Serbia verily, because the latter
State illegally occupied the former’s territory.106 Moreover, the obligation to restore the illegal annexation
to its former State has been also noted by UNSC as common practice in international law including
withdrawal of troops from the annexed territory.107 With all the foregoing bases, East Agnostica remains
territorial part of Agnostica as a State.
104
Compromis, 37 & 38
105
C. Haverland, Secession, in 10 ENCYCLOPEDIA PUB. INT’L. L. 384 (1987).
106
G.A. Res. 49/43, Preamble, ¶4, (Dec. 9, 1994).
107
S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999); East Timor, supra n.80, at 102–4.
C. THE MARITHE CONVENTION CEASED TO BE IN EFFECT AS OF 2 APRIL 2012 AND,
IN ANY EVENT, AGNOSTICA DID NOT BREACH THE CONVENTION
The Marthite Convention ceased to be in effect as of 2 April 2012 due to (a) the fundamental
change of circumstance and (b) Reverentia’s material breach of the treaty.
I. Agnostica’s contention regarding fundamental change of circumstance is a valid
ground for termination of treaty.
The Vienna Convention on the Law of Treaties specifically prohibited fundamental change of
circumstance as a valid ground for termination of a treaty. However, there are some exceptions to the
general rule. As stated in Article 62 of Vienna Convention Law of Treaties, (a) The existence of those
circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and (b)
The effect of the change is radically to transform the extent of obligations still to be performed under the
treaty. 108
The concluded treaty between Agnostica and Reverentia showed that the Marthite particularly its
use should be limited only to the two parties’ region as a traditional medicine.109 However, when a team
of researchers conducted an interview regarding the Marthite, Reverentia sold it to other major
pharmaceutical companies selling the 75% quantity of marthite for an amount ten times its maximum
selling price as stated in the Marthite Convention.110
As shown, there is a fundamental change of circumstance4 when Reverentia violated the Marthite
Convention and when RMT contracted and subsequently sold its entire output to other major international
108
Article 62 of VCLT
109
Compromis, sec. 11
110
Compromis, sec. 13
pharmaceutical companies.111 Consent is the essential basis for Agnostica to be bound by the treaty.
Therefore, it is the Reverentia who committed a material breach of treaty.
Upon Reverentia’s commission of material breach, it gives way to Agnostica to decide
unanimously whether to terminate the treaty or suspend its operation in whole or in part. Therefore, it is
immaterial if Reverentia agreed or not to the proposal of Agnostica to terminate the treaty.112
Rebus sic stantibus means that a party may release itself from its obligation, if there is a
“fundamental change” in circumstances that prevailed at the time of the conclusion of the treaty.113 In the
case of Fisheries Jurisdiction, the ICJ gave some scenarios wherein fundamental change can be a ground
for terminating a treaty. First, if the change in the circumstances was unforeseen by the parties. Second,
circumstances constituted an essential basis of consent of the parties, to be bound by the treaty. And
lastly, the change radically transformed the performance of the obligations of the parties.114
As to the first ground, it denotes that, during the finalization of the treaty, the parties lacked in
predicting the possible occurrence of the new conditions. The parties did not envision the sale of the
Marthite outside their jurisdiction.115 That the expected demand will only come from the community of
Reverentia. Due to the discovery of the Marthite, the rise and development of the Marthite was
unforeseen by the parties.116
111
Id
112
Article 60 of VCLT
113
G. Schwarzenberger, Clausula Rebus Sic Stantibus, in 1 ENCYCLOPEDIA PUB. INT’L L. 611 (R.
Benhart ed., 1992); M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW
OF TREATIES 766 (2009) [VILLIGER”].
114
Fisheries Jurisdiction, supra n.122, ¶36
115
H. Waldock, Second Report on the Law of Treaties, [1963] 2 YB.I.L.C. 79, U.N. Doc.
A/CN.4/SER.A/1963/ADD.1 [“Waldock, Second Report”].
116
Compromis.¶11
The second ground speaks of circumstance’s existence established the consent of the parties.
Applying to the Marthite Convention, the purpose of this treaty is to secure the supply of Marthite to both
parties. This shows the basis of the Agnostica’s consent to be bound by the said treaty, which due to the
popular demand results to the disappearance.117
And lastly, it shows that the parties raising rebus sic stantibus must have an undue burden in
furthering the obligations of treaty. For example, U.S.A terminated the “International Line Load
Convention” in 1941 because of the World War II stating that the purpose of this convention was for
peace-time commerce and war rendered the performance of the original obligations.118 The same is to
applied in this case, the obligation of Agnostica was to allow Reverentia to mine Marthite for supplying it
to the traditional practitioners. 119
II. Alternatively, Reverentia’s material breach of the marthite convention released
Agnostica from its obligations.
The preamble to the MC recognizes that Marthite is without commercial value outside the
Thanatosian Plains. In furtherance of this, Articles 4(a) and 4(d) prohibit the sale of Marthite outside the
Thanatosian Plains, unless the supply exceeds the demand from traditional practitioners by more than
25%. In 2011, it was certified by RMT accountants that Marthite production merely varied within 5% of
the demand from the traditional practitioners.120
117
Compromis.¶14.
118
A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW: THE DOCTRINE OF
REBUS SIC STANTIBUS AND DESUETUDE 102 (1985) [“VAMVOUKOS”]
119
Compromis, 14
120
Clarification.10.
Accordingly, RMT’s sale of 75% of the mined Marthite to international pharmaceutical
companies in 2011 is in material breach the MC.121
‘Material breach’ of a treaty consists of a violation of provisions which are essential to the
accomplishment of the objects or purposes of the treaty. 122 A ‘material breach’ justifies the termination of
the treaty by the injured party.123 However, for a provision to be essential, it need not necessarily regulate
the central purpose of the treaty.124 In fact, the ILC changed the adjective from ‘fundamental’ to
‘material’ to allow breach of ancillary provisions ‘considered essential to the effective execution of the
treaty’.125 Thus, the object and purpose of a treaty may also be deciphered from substantive provisions 126
and preamble of treaty.127
121
Compromis.¶13. 139 V.C.L.T., supra n.128, art. 60.
122
V.C.L.T., supra n.128, art.60.
123
Id
124
B. Simma & C. Tams, Termination and Suspension of the Operation of Treaties, Art.60 1969 Vienna
Convention, in THE VIENNA CONVENTION ON THE LAW OF TREATIES 1360 (O. Corten & P. Klein eds.,
2011).
125
Report of the International Law Commission to the General Assembly, 255 [1966] 2 YB.I.L.C. U.N. DOC.
A/CN.4/SER. A/1966/ADD. 1 [“ILC Report to the General Assembly”].
126
O. DORR & K. SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES at 543 (2012).
127
Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351 (Sept. 11).
D. REVERENTIA’S REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION
FACILITIES VIOLATED INTERNATIONAL LAW.
As provided in Article 31 of the VCLT, the general rule of interpretation is that a treaty shall be
interpreted in full accordance of its ordinary meaning to be given on its context and in the light of its
object and purpose.128 As per the Marthite Convention, the software installed were owend by Agnostica.
According to the Compromis, Reverentia undertakes at its own expense to construct the Marthite mining
and mining-support facilities within territory of East Agnostica.129 Therefore, the said software within the
territory of East Agnostica shall be owned by the Government of Agnostica. The software are considered
inseparable part of the facilities in Agnostica, thus, the same shall be owned by such. Absence of the
software, the facilities would then be rendered useless as it cannot function in accordance with its
purpose. Following such, the propriety rights of the facilities is owned by Agnostica.130
A treaty is an international agreement concluded between States in written form and governed by
international law131. It is perfected by giving its consent through ratification via signature.132 As provided
in Article 31 of the Vienna Convention on Law on Treaties, in the interpretation of a treaty, it must be in
accordance with its ordinary meaning that must be given to its terms pursuant to its context, object and
purpose.133 Unarguably, the Presidents of both Agnostica and Reverentia consented to the Treaty by
affixing their signature as a sign of its ratification.134 Further, there is no question as to the validity and
entry into force of the Treaty because all the essential elements are present.
128
Vienna convention on the law of treaties, Art. 31
129
Compromis, par. 20
130
Marthite Convention, Art. 2
131
Vienna Convention on Law on Treaties
132
Ibid
133
Article 31, Ibid
134
The Marthite Convention
Under the doctrine of pacta sunt servanda, international agreements must be performed in good
faith.135Pacta sunt servanda is a profoundly moral principle, on which the coherence of any society
relies.136 The obligation brought about by the concurrence of both parties on the treaty, imposed upon
them a responsibility to abide by what has been agreed upon on the Marthite Convention. However, such
obligation was not kept
The conduct of removal of the software on the part of Reverentia is in violation with the
international law and thus, it entails international responsibility. It has violated treaty obligations and the
rules arising from customary international law. It has caused a large 〝sabotage〞on Agnostica by
removing the software in the facilities.137 In order to break down the production line of Marthite,
Reverentia kept the facilities without function to the Government Agnostica.138 Reverentia violated the
Article 26 of the VCLT.
I. Reverentia deprived Agnostica of its property
The act of taking or deprivation takes place when there is unreasonable interference with the use,
enjoyment or disposal of property. The interference is completed when the owner is not able to use, enjoy,
or dispose of the property within a reasonable period of time after the inception of such interference. 139
The Iran-US claims Tribunal held that the deprivation of property exists where the use and enjoyment of
benefits related to the property is interfered even the legal ownership is not affected.140 In Middle East
135
Nuclear Tests Case
136
Barkhuizen VS. Napier
137
Compromis, par. 17
138
Compromis, par. 18
139
Article 10(3) (a) of Draft Convention on the International Responsibility of States or Injuries to Aliens 1961.
140
Tippetts, Abbet, McCarthy, Stratton v. TAMS-AFFA Consulting Engineers of Iran, Iran-US Claims Tribunal, 22
June 1984, 6 Iran-US CTR 219.
Cement v Egypt141, Egypt’s revocation of a free zone license through the prohibition of import cement
constituted a deprivation to Middle East Cement’s right to enjoy the use and benefits of its investment.
Further, it has been established that a sovereign property enjoys immunity and that no other
foreign State can take action that would affect its sovereign immunity.142
a. Agnostica is the exclusive owner of the facilities under the Marthite Convention
International agreements between states can serve as a valid ground for transfer of property. It is a
general principle of law that treaty termination operates ex nunc therefore even if it ceases to be in effect,
the transfer of property remains valid.143 It has been already established that as per the Marthite
Convention, Agnostica owns the Marthite mining and mining-support facilities within the territory of East
Agnostica. Following this, it results into a valid transfer of title to property, although there is no transfer
of direct possession.144
Furthermore, According to the General rule of interpretation in Article 31 in VCLT, a treaty shall
be interpreted in accordance with the ordinary meaning to be given to terms of the treaty in their context
and in light of its object and purpose.145
According to Article 1 of the Marthite Convention, Reverentia undertakes at its own expense to
construct the Marthite mining and mining-support facilities within territory of East Agnostica.146 Further,
the facilities describes above shall be owned by the Government of Agnostica. The software is the
141
Middle East Cement Shipping and Handling Co. S. A. v Arab Republic of Egypt,Award, 12 April 2002, 7 ICSID
Reports 178.
142
Zilber, Norman A., International Law: Sovereign Immunity: Seizure of Property under Restrictive Immunity
Doctrine, Vol. 54, No. 7 (May, 1956), pp. 1008-1011
143
DÖRR, 167, 735
144
Schwenzer, In., Hachem, P., Kee, Ch., Global Sales And Contract Law, Part X Transfer Of Title, 39 (2012).
145
VCLT, Article 31
146
inseparable part of facilities which should be owned by Agnostica. Without software, the facilities can’t
even properly work. Agnostica owned the proprietary right of the facilities under the Marthite
Convention.147 The software is included in its ownership under the term “technology” and is part of the
“facilities” under Article 1 and 2 respectively, of the Marthite Convention.148
When any right is created by a treaty, it achieves a permanence which is not affected by the
duration of the treaty.149 This principle forms a part of CIL150 and was, codified under Article 70 of the
VCLT.151 With that said, even after treaty has ceased to be in effect due to an act of termination, the rights
it has created will remain unaffected. One illustration is the Territorial and Maritime Disputes,152 the ICJ
held that despite the termination of the 1928 Treaty, Columbia’s ownership of the San-Andres islands will
not be affected.153 Therefore, Agnostica’s ownership and propriety rights over the software remain even
after the cessation of effectivity of the Marthite Convention. Thus, the removal of the software by
Reverentia is violative of the international law.
The conduct of removal of the software on the part of Reverentia is in violation with the
international law and thus, it entails international responsibility. It has violated treaty obligations and the
rules arising from customary international law. It has caused a large 〝sabotage〞on Agnostica by
removing the software in the facilities.154 In order to break down the production line of Marthite,
147
148
Marthite Convention, Arts. 1 and 2
149
Brownlie, Principles Of Public International Law 213 (8th Ed., 2012); Navigational Rights, Supra N.167, At 34,
¶67.
150
VILLIGER, Supra N.123, At 875
151
G. Fitzmaurice, Second Report On The Law Of Treaties, 2 YB.I.L.C. 94, U.N. Doc. A/CN.4/SER.A/1957/Add.L
(Sep., 1957).
152
Legal Consequences For States Of The Continued Presence Of' South Africa In Namibia (South West Africa),
1971 I.C.J. 49 (June 21) (Separate Opinion By Sir Mcnair).
153
Territorial and Maritime Dispute (Nicar. v. Colum.), 2012 I.C.J. 832,861 (Nov. 19)
154
Compromis, par. 17
Reverentia kept the facilities without function to the Government Agnostica.155 Reverentia violated the
Article 26 of the VCLT.
b. The title to the software has been lawfully transferred to Agnostica as well.
Software may be embedded in machines for the sake of their functionality.156 The software
installed in Agnostica is inseparable that its facilities cannot function properly without such and the same
is used without being separated therefrom.157 All the rights that had been possessed by Reverentia at first
as an author had been transferred completely to Agnostica during the sale of facilities which included the
software.158
The termination of the treaty on 2 April 2012, does not affect the right, obligation or legal
situation executed by the parties prior to termination.159 It has been previously stated that when any right
is created by a treaty, it achieves a permanence which is not affected by the duration of the treaty. 160 This
principle forms a part of CIL161 and was, codified under Article 70 of the VCLT.162 Accordingly, the
155
Compromis, par. 18
156
Dr. Aymen Masadeh, “Classification of Software Contract”, (2005), Mountbatten Journal of Legal Studies, page
46, 47.
157
Dr. Aymen Masadeh, “Classification of Software Contract”, (2005), Mountbatten Journal of Legal Studies, page
46, 47.
158
Ulrich M. Drobnig, Commercial transaction economics: Elements of the law of commercial transactions,
Encyclopedia Britannica, 1923, p.2.
159
Article 70(b) of Vienna Convention on Law of Treaties 1969
160
¶67.
161
162
(Sep., 1957).
software of the facilities remains Agnostican property.163 Thus, removal of the software by Reverentia has
deliberately deprived Agnostica’s ownership over the software.
The software used for the Marthite extraction is considered part of the facilities, as it is used
withoit being separated from its facilities. This is grounded in the principle that when software is “pre-
loaded”, it is transferred along with the installation of which it forms part. If the transfer of property over
the hardware is valid, it is sufficient to justify the right to use the software as well.164 As Agnostica is the
owner of the facilities, the software that carries with it and which has been created for its purpose. Thus,
the act or removal done by Reverentia over the software is a violation of the propriety rights of Agnostica,
which is the owner of the facilities and the software that attaches to it.
c. Agnostica’s ownership of the software continued after the termination of the
convention
Again, established is the principle that when any right is created by a treaty, it achieves a
permanence which is not affected by the duration of the treaty.165 This principle forms a part of CIL166 and
was, codified under Article 70 of the VCLT.167 Therefore, even after cessation or termination of a treaty,
the rights it has created will remain unaffected. Consequently, Agnostica’s ownership over the software
remains even the MArthite Convention has already been terminated. Thus, the removal of the software is
in great disregard of Agnostica’s ownership over the same and is a clear violation of the international law.
163
164
Eng St Albans City and District Council v International Computers Ltd [1996] 4
165
¶67.
166
167
(Sep., 1957).
II. Reverentia has no right to take countermeasures because the Marthite Convention
was not in effect after April 2012
Under international law countermeasures cannot be taken against a breach of obligations arising
under a treaty which is not in force. As argued above, the Marthite Convention was not in effect after
April 2012. The removal of the software occurred after this date, therefore it cannot be considered a
lawful countermeasure against Agnostica`s actions.
On the following day after the declaration of Agnostica with regards to the termination of the
1938 Marthite Convention, and once it was no longer subject to Convention, Agnostica agreed and
announced to lease all the rights to the existing East Agnostican Marthite facilities to Baxter Enterprises,
Ltd.168 Leasing allows the exercise of specific rights over a property or territory, which Agnostica has
freely given to Baxter upon entry to force of the lease agreement.169 Lease and related concepts of
servitudes derives from private law concepts involving property ownership and rights associated with
it.170
Pursuant to what is provided in the international law, a countermeasure cannot be taken against a
breach of an obligation under a treaty which by then was not in force. It must be noted that by April 2012,
rhe Marthite Convention was no longer in effect. The act of the removal of the software which has
occurred after such date cannot be taken as a lawful countermeasure against Agnostica`s actions.
Contrariwise, the president of Reverentia ordered the Reverentian Engineers engaged at the East
Agnostican facilities to return to Reverentia and to remove any software installed by RMT at the Marthite
mining facilities.171 The Reverentia committed a material breach in violating a provision essential to the
168
Compromis – Paragraph 16
169
International Leases as a Legal Instrument of conflict resolution, Michael J. Strauss and Noemi Gal-or
170
Id
171
accomplishment of the object or purpose of the treaty172 which result to an injury for both Agnostica and
Baxter. Baxter engineers stated that the removal of the personnel and software has crippled the Marthite
operations.173 Needless to say, Reverentia interfered in the contract between Baxter and Agnostica when it
removed the software at the Marthite mining facilities. “Tortious interference requires actual knowledge
of the contract and intentional actions by the tortfeasor which he actually knows are "substantially
certain" to interfere with the contract.”174 There are four elements to prove the existence of a tortious
interference of contract; (1) existence of a valid contract; (2) defendant’s knowledge of the contract; (3)
defendant’s intentional causing of breach; and (4) damages.175
Upon proof of actual interference, such gestures can give rise to actions in court for breach of
contract.176
III. Countermeasures are not applicable since the requirements of it were not met
The removal of software is an “internationally wrongful act” and does not constitute a valid
countermeasure. There is an internationally wrongful act of a State when conduct consisting of an action
or omission is attributable to the State under international law and constitutes a breach of an international
obligation of the State.177 Lawful countermeasures must be taken in response to a previous international
wrongful act of another State, must be directed against that State and taken in light of refusal to remedy
it.178 In the absence of an internationally wrongful act by Agnostica, Reverentia’s action of removal of
172
Vienna Convention on Law on Treaties
173
174
Tortious Interference with Contract under Section 301, Andrew J. Kahn
175
Wegman VS Dairlea Cooperative
176
Contractual Claims in International Law
177
Responsibility of States for Internationally Wrongful Acts, 2001, art. 2.
178
Gabčĭkovo-Nagymaros Project (Hung. v. Slov.), 1997 I.C.J. 82.
software does not constitute a circumstance precluding wrongfulness and in any case, the claim
‘countermeasure’ is invalid as it does not meet the requisites provided in Article 49.179
Firstly, 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.180
Secondly, countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.181
Lastly, countermeasures shall, as far as possible, be taken in such a way as to permit the
resumption of performance of the obligations in question.182
On the part of Agnostica, there has been no previous wrongful act performed by it. It must be
noted that for a countermeasure to be considered as valid, it must be done accordingly as a response to a
previously performed wrongful act by another State and which must be directed against such State.183 The
termination of the Marthite Convention done by Agnostica resulted from a fundamental change in the
circumstances and by the material breach on the part of Reverentia. Under the international law, such
unilateral termination is a valid act. Thus, no previous wrongful act was done by Agnostica.
179
Responsibility of States for Internationall Wrongful Acts, 2001 art. 49.
180
Id., art. 49(1).
181
Id., art. 49(2).
182
Id., art. 49(3).
183
International Law Commission, Report on the Work of its Fifty-third Session, art. 49(1), U.N. Doc. A/56/10
(2001) [“A.S.R”]; Gabcikovo, supra n.122, ¶83. [“A.S.R”]; Gabcikovo, supra n.122, ¶83.
a. The countermeasure must be proportionate
A legal countermeasure is justified when it is performed to be proportional to the injury it has
acquired.184 By proportionality, it speaks of the acts of the State which must be a reasonable and rational
exercise of means towards achieving a permissible goal without unduly encroaching on protected rights of
either the individual or another State.185 The same is to be taken of as an essential limit in taking of
countermeasures by an injured State and the same is used in determining what countermeasures may be
applied and their degree of intensity.186
In case of a ‘legal’ injury, as opposed to a ‘material’ injury,187 States are required to take the
‘least stringent measures’ necessary to ensure compliance.188 The removal of the software resulted to the
crippling of the Marthite operations and the same sabotaged all the mining systems that were dependent
on the software.189 This could not be restored in a short duration,190 and affected the extraction of Marthite
as only about 100 kilograms could be extracted per day, leading to massive shortages. 191 In comparison to
the ‘legal’ injury suffered by Reverentia caused by the unilateral termination of the Marthite Convention,
the act of software removal was disproportionate and hence, unlawful.
184
A.S.R., supra n.197, art.51; Gabcikovo, supra n.122, ¶85
185
51 Emily Crawford, Proportionality, Oxford Public International Law, May 2011, Page2, Para 1,
186
Article 51 of the Draft Articles on Responsibility of States for Internationally
Wrongful Act with commentaries YB Int’l LC (2001) vol.2, at 134, para 1, U.N
DOC.A/56/49.
187
Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., 66, U.N. Doc.
A/CN.4/SER.A/1995/Add.l (Part 2) (May-July, 1995)
188
J. Crawford, Fourth Report on State Responsibility, YB.I.L.C, 16, U.N. Doc. A/CN.4/517 and Add.1, (June 17,
1992).
189
Compromis.¶18.
190
Compromis.¶21.
191
Ibid.
As provided in the case of Gabcikovo Nagymaros Project192, the effects of countermeasure must
be commensurate with the injury suffered and must consider of the rights at hand. The act of Reverentia’s
removal and unilateral control of the software has caused the deprivation of the rights of Agnostica
towards its ownership upon the said facilities. In addition, the withdrawal of personnel and software had
resulted to cripple the Marthite operations where the extraction of Marthite needed to rely heavily on
manual labor.193 Thus, the removal of the software carried out by Reverentia as a countermeasure is
disproportionate.
Based on the abovementioned statements, Reverentia does not fulfill the conditions relating to
resort to countermeasure and its action to remove the software is a violation of international law.
b. The injured State must have called upon the State committing the wrongful act to
discontinue its wrongful conduct or to make reparation
There is no previous wrongful act of Agnostica. For a countermeasure to be valid, it must be
taken in response to a previous wrongful act of another State and must be directed against that State. 194
Agnostica’s termination of the MC was a result of a fundamental change in circumstances and
Reverentia’s material breach. Since this unilateral termination is a valid act under international law, there
was no previous wrongful act by Agnostica.
192
Gabcikovo Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, p. 56, paras.85 and 87.
193
54 Compromis. 18 and 20.
194
International Law Commission, Report on the Work of its Fifty-third Session, art. 49(1), U.N. Doc. A/56/10
(2001) [“A.S.R”]; Gabcikovo, supra n.122, ¶83.
c. It must be reversible
The effect of a countermeasure must be reversible,195 and must not create a situation which
cannot be rectified by the responsible State.196 The removal of software by Reverentia greatly sabotaged
the whole mining system, reducing the Marthite production by 400 kilograms per-day, over a prolonged
period.197 This resulted in severe shortages for traditional practitioners. The effect of the measure was thus
irreversible inasmuch as the severe shortages could not have been rectified even if the software was
reinstated, as Marthite production has never varied by more than 5%.198
195
J. Crawford, Counter-measures as Interim Measures, 5 EUR. J. INT’L L. 65,68 (1994).
196
CRAWFORD, STATE RESPONSIBILITY, supra n.203, at 286.
197
Compromis.¶¶11,21.
198
Clarification.10.
PRAYER FOR RELIEF
At this juncture, the federal republic of Agnostica seeks the adjudication and declaration of the following:
A. Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s territorial
integrity, the principle of non-intervention, and the United Nations Charter generally;
B. 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;
C. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event, Agnostica did not
breach the Convention; and
D. Reverentia’s removal of the software at the Marthite extraction facilities violated international law.
Respectfully submitted,
AGENTS FOR APPLICANT

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TEAM CODE: 3

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

CASE CONCERNING THE SECESSION AND ANNEXATION OF EAST AGNOSTICA

THE FEDERAL REPUBLIC OF AGNOSTICA

THE STATE OF REVERENTIA

MEMORIAL for the APPLICANT

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

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

QUESTIONS PRESENTED ………………………………………………………………….……

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

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

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

I. Violation on the use of threat of force ………………………………………………

an alleged right …………………………………………………………………

therefore, East Agnostica remains to be a territory of Agnostica as state ……………….

a. A secession which is opposed by the parent State is not permitted in international

participation and assistance; therefore, illegal. ……………………

i. The referendum was illegal per se and in character …………………….

and without effect ……………………………………………….

of international community …………………………………………………

determination or a “remedial right of secession” …………………………………….

b. No gross and systematic violation of human rights in East Agnostica ………….

i. Death of sixty demonstrators: A right of secession arises when there is a violation

of human rights that must be ‘gross and systematic’ ………..

ii. Restrictions on unauthorized transactions of Marthite ………….…….….

iii. Allegations of discrimination in public life ……………………………….

will of the people ……………………………………………………

b. The legal status quo ante must be restored ……………………………………….

breach the convention ……………………………………………………………………….

I. Agnostica’s contention regarding fundamental change of circumstance is a valid ground for

termination of treaty ………………………………………………………………

from its obligations ………………………………………………………..

I. Reverentia deprived Agnostica of its property …………………………………..

c. Agnostica’s ownership of the software continued after the termination of the

effect after April 2012 …………………………………………………..

a. The countermeasure must be proportionate …………………………………..

discontinue its wrongful conduct or to make reparation ……………………….

c. It must be reversible ……………………………………………………….

PRAYER FOR RELIEF …………………………………………………………………………………

Benhart ed., 1992); M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON

THE LAW OF TREATIES 766 (2009) [VILLIGER”] …………………………………………………

Responsibility of States for Internationally Wrongful Acts, 2001 …………………………………………

INTERNATIONAL DECISIONS AND ARBITAL AWARDS

Nicaragua vs, USA ………………………………………………………………………………

Nicaragua vs US supra n.12 at 155 …………………………………………

Corfu Channel ( UK v. alb) …………………………………………………………………………

Nicaragua, supra n.2, at ¶202 ………………………………………………………………………

Kohlhaas v. Alaska, 147 P.3d 714 (2006) ……………………………………………………

Reference Re Secession of Quebec [1998] 2 SCR 217] [“Quebec Secession ……………

Western Sahara, Advisory Opinion, ICJ. 12, at 12 (Oct. 16, 1975……………………………

East Timor, supra n.80, at 116 (dissenting Opinion of Judge Skubiszewski) ……

Mgwanga Gunme v. Cameroon, (2003) …………………………………………

Mgwanga v. Cameroon, id pp.94, ¶111, 201 …………………………………………

1994); Ivan Kitok v. Sweden, Communication No. 197/1985, s. 4.1 ……………………………

Mgwanga v. Cameroon, id at 94, s.143, 202 …………………………………………

1953 I.C.J. 142-4 (Nov. 17) ………………………………………………………………………

Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 63 (July 25) …………………………………………

Barkhuizen v. Napier ………………………………………………………………………………

Tribunal, 22 June 1984 ……………………………………………………………………………………………………………………

Africa), 1971 I.C.J. 49 (June 21) ………………………………………………………………………………

Wegman v. Dairlea Cooperative ………………………………………………………………………………

Gabcikovo Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 …………………………………