MOOT COURT COMPETITION

THE FEDERAL REPUBLIC OF AGNOSTICA

(APPLICANTS)

THE REPUBLIC OF REVERENTIA

(RESPONDENT)

MEMORIAL FOR RESPONDENT

GROUP 3
GIANNA CANTORIA
JORDAN FRESCO
KATE ESPINOSA
JESSELL B. ACOSTA
VANESSA GRACE Y. VALUIS
VIOLETA SANTOS
VITO CRUZ
ARA BEL JOY DL. ROMBAWA
RAMOSO
ERCE
 TABLE OF CONTENTS

A. STATEMENT OF RELEVANT FACTS .. 3

B. STATEMENT OF JURISDICTION .. 4

C. QUESTIONS PRESENTED ... 5

D. SUMMARY OF PLEADINGS ... 6

E. PLEADINGS

I. REVERENTIAS SUPPORT FOR THE REFERENDUM IN EAST AGNOSTICA

IS CONSISTENT WITH INTERNATIONAL LAW ... 11
II. EAST AGNOSTICAS SECESSION FROM AGNOSTICA AND
INTEGRATION INTO REVERENTIA ARE CONSISTENT WITH
INTERNATIONAL LAW, AND AN ORDER OF RETROCESSION IS
AGAINST THE EXPRESSED WILL OF ITS POPULATION ....... 21

III.THE MARTHITE CONVENTION WAS IN EFFECT UNTIL MARCH 1, 2013,

AND AGNOSTICA BREACHED THAT CONVENTION 31

IV. REVERENTIAS REMOVAL OF THE SOFTWARE WAS CONSISTENT WITH

INTERNATIONAL LAW . 35

STATEMENT OF RELEVANT FACTS

 Agnostica and Reverentia were both former colonies of Credera to which the original
distinction of colonial boundaries concentrated all natural resources in Agnostica who exported
its products to Reverentia for refining.
On August 1, 1925 Reverentia and Agnostica were granted independence and formed
separate states. Agnostica formed two provinces such as the East Agnostica the home of the
Agnorevs and the only area in the world that contain deposits of Marthite, a mineral salt and the
core ingredient in Reverentian traditional medicine, which was virtually unknown outside the
Thanatosian Plains and the West Agnostica.
In 1938, the Marthite Convention was entered into by Reverentia and Agnostica to ensure
reliable supply of Marthite to those for whom it holds cultural significance. Reverentia agreed to
construct mining facilities within the territory of East Agnostica by providing technology and
engineers which will maintain, equip and operate the facility and upon completion Agnostica will
purchased the physical facilities for 100 Swiss francs in return The Reverentian Marthite Trusts
(RMT), a Reverentian state-owned corporation will be given exclusive rights over the Marthite
mined from the facilities and was required to pay an annual royalty. The convention also required
RMT to distribute Marthite only to traditional practitioners subject to certain price restrictions
however that when supply of Marthite exceeded local demand by 25%, any Marthite mined in
excess of 125% if demand would be sold without restriction on price, identity or purchaser or
intended use.
When scientists discovered the Marthites potential to treat variety of early childhood
diseases the demand for its product significantly increased RMT began to sell 75% of its
Marthite to pharmaceutical companies at a prices higher than it charged to traditional
practitioners.
Following the increase of its marthites commercial value, the Agnostican Prime Minister
Moritz contacted President Nuvallus suggesting to end their convention on the ground of
fundamental change in science underlying treaty, however when its proposal was turned down
Agnostica unilaterally declared the termination of Marithite Convention on April 2, 2012 and
that Baxter enterprises would immediately take over the mining facilities.
As a form of countermeasure, President Nuvallus instructed to remove the Marthites
extraction software and for their engineers to return home, though this did not prevent but merely
slowed operations resulting to severely reduced level of Marthite extraction.

Agnostican Parliament passed a Marthite Control Act on October 1, 2012 which banned
both sale and transfer or possession of Marthite to Reverentia and any unauthorized purchase,
sale or possession in Agnostica subject to a mandatory prison term of between 18 months and
four years.
 Sugdy the agnorev miner who was convicted under the act and who ended up himself in
jail for not permitted to bring his dying grandfather such traditional medicine. Hes death sparked
peaceful protests which in the long run includes concerns on domination of judicial and military
post by ethnic Agnostican.
On December 26, 2012, police clashed with protesters killing sixty Agnorevs which calls
for a deep concern on the part of President Nuvallus on the safety of Reverentian residing in
Agnostica. As tension continued to escalate, there was a proposal to remove the police and
military presence in East Agnostic, however, it failed by a vote of 67-29-4 with twenty nine East
Agnostican members voting in favor. Concluding that the aims of the federal government rooted
from its Agnorev citizens the next proposal was the dissolution of nation, however this resolution
was again defeated. Reverentia again voiced its support of Agnorev independence.

East Agnostica scheduled a plebiscite on the question of secession. Prime Minister Moritz
warned that the government will not stand idly by ordering the National Police to prepare for a
block referendum. Worrying that the violence on the state affairs of East Agnostica would spill
beyond borders, President Nuvallus ordered its troops to Reverentias border with specific orders
not to leave its territory he even clarified that he had no territorial ambitions and such troops was
for the explicit purpose of offering aid to Agnorevs fleeing violence in East Agnostica.
On January 29, 2013, East Agnostica peacefully separated through a referendum, the
Agnorev Peoples Parliament was formed followed by negotiations for integration. East
Agnostica became a semi-autonomous province of Reverentia pursuant to an integration
agreement which took effect on March 1, 2013 and such new territorial borders created have
subsequently been recognized by 30 other states.

STATEMENT OF JURISDICTION
 The Federal Republic of Agnostica (Applicant) and the State of Reverentia (Respondent)
agreed to submit its present dispute Concerning the Seccession and Annexation of East
Agnostica to the International Court of Justice, pursuant to Article 40, paragraph 1 of the Statute
of this Court and by virtue of a Special Agreement (Compromis) signed in The Hague on
September 2, 2014. Both parties have expressly agreed to accept the Judgement of this Court as
final and binding.

QUESTIONS PRESENTED
The parties have placed before this Honorable Court, the following Questions for consideration:

I. Whether Reverentias encouragement and support to the East Agnostican referendum

are in accordance with International Law

II. Whether the Secession and annexation of East Agnostica are illegal and without effect
and the order of retrocession are against the expressed will of its population

III. Whether the Marthite Convention ceased to be in effect as of April 2, 2012 and in any
event Agnostica did not breach the Convention

IV. Whether the removal of the software at the Marthite extraction facilities a violation of
International Law

SUMMARY OF PLEADINGS
 Reverentias support for the referendum in East Agnostica is consistent with international
law. Also, President Nuvalluss various statements of support for the oppressed Agnorevs were
not acts of intervention. Public statements of encouragement are not a violation of the duty of
non-intervention if they are not followed by material support.

The Reverentian Parliaments resolution on support of East Agnostica was not act of
intervention. The resolution merely stated a number of diplomatic options that President
Nuvallus could pursue should East Agnostica secede.

Reverentia has not violated the prohibition on threat of force before, during or after East
Agnosticas referendum of independence. Military movement that does not cross into another
states territory is not considered a threat against that state. Because Reverentias acts remained
within its borders and had explicit peaceful intensions, they were not a threat or use of force
against Agnostica and thus consistent with international law.

Reverentia did not breach Agnosticas territorial integrity when Reverentian troops
entered East Agnostica because East Agnostica was an independent state at that time and thus no
longer part of Agnostica.

East Agnosticas secession from Agnostica is permitted under international law as an

exercise of their right to Self-determination. The right of people to exercise self-determination
has been repeatedly recognized by various international instruments and judicial opinions. A
denial of internal self-determination to a section of the population of the state, vests them with
the right of external self-determination, to freely determine their political status. The right to
secession can be afforded in case of gross violations of human rights of individuals belonging to
a specific group.

East Agnosticas integration into Reverentia is consistent with International Law. There is
an express intention and will of the East Agnostica to secede as indicated by their concluded
peaceful refendum and there is no violation of a pre emptory norm, jus cogens norm or
international law because this was done only after domestic remedies were exhausted.

East Agnosticas separation from Agnostica is anticipated under Agnosticas Constitution.

The constitution of Agnostica deprived East Agnostica of equal representation. In addition,
Retrocession of East Agnostica would be an inappropriate remedy in this case. According to the
Effectivity principle, international law may well adapt to recognize a political and/or factual
reality, regardless of the legality of the steps leading to its creation. Despite of whether the
Agnorevs had a right to secession from Agnostica, the fact is that they have already seceded and
joined the State of Reverentia. The right to self-determination is a common principle of
international law. Compelling the Agnorevs to rejoin Agnostica would violate their right to self-
determination because Agnorevs have expressed their desire to secede from Agnostica in a
referendum that uphold to international standards.

East Agnostica achieved statehood under to the Montevideo Convention on Rights and
Duties of States and the Constitutive Theory and Declaratory Theory of Recognition. Thirty
states have recognized the new Reverentian borders including the territory of East Agnostica.

The Marthite Convention was in effect until march 1, 2013, and Agnostica breached that
Convention. The Marthite Convention was concluded on April 14, 1938 recognizing the
significance of Marthite to the traditions of medical practice. The convention did not provide for
a termination without cause or by any other reason except for the termination upon expiration of
term. The right to opt out is mutual not unilateral. The leasing of the mining facilities to Baxter
without any attempt of dispute settlement to be made by Agnostica violates the UN charter.

Reverentia selling of Marthite to pharmaceutical companies does not constitute a material

breach justifying termination nor be considered a violation of Art 4 of the convention. The
Marthite Convention provides that 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. If one quarter of Marthite is sold to traditional practitioners and such satisfied
the demand then the additional 75% of the produced Marthite sold globally is exceeding the
125% threshold and the treaty does not provide what to do with excess Marthite.
 There was no fundamental change of circumstances justifying Agnosticas unilateral
termination of the Marthite Convention. The fundamental change in the science underlying the
treaty was being relied by Agnostica to avoid its obligation on the convention. There is nothing
to suggest that the discovery of the medicinal benefit of Marthite be considered as a fundamental
change nor cannot be regarded as a change in the whole body of circumstances since it does not
limit the ability to fulfil the obligations nor transform the scope of the obligations to be
performed under the convention.

Reverentias removal of the software was consistent with international law. As a response
to Agnostica's breach of its obligations, President Nuvallus ordered their engineers who are
engaged at the East Agnostican facilities to return to Reverentia. He also directed the employees
to remove any software installed by RMT at the Marthite mining facilities, until such time that
Agnostica agrees to respect its treaty obligations.

Title to the software did not transfer to Agnostica under the Convention. Under the
Marthite Convention, Reverentia undertakes at its own expense to construct the Marthite mining
and mining-support facilities within the territory of East Agnostica, and to provide technology
and government engineers to maintain, equip and operate such facilities. The payment tendered
by Agnostica to Reverentia in the amount of one hundred Swiss francs merely transferred the
ownership of the Marthite mining and mining-support facilities, to the exclusion of the Marthite
extraction software. Reverentia was entitled to retrieve the software upon Agnostica's breach of
its obligations. The temporary removal of the Marthite extraction software is a valid action on
the part of Reverentia because a material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for suspending the operation of the treaty in whole or
in part.

Assuming that the removal of the Marthite Extraction Software was done in violation of
the treaty obligations of Reverentia under the Marthite Convention, such act can be considered
just for the reason that it constitutes a valid countermeasure.
 As a general principle of international law, the principle of good faith and pacta sunt
servanda should be observed in the treaty concluded between Agnostica and Reverentia.
 PLEADINGS

I. REVERENTIAS SUPPORT FOR THE REFERENDUM IN EAST AGNOSTICA IS CONSISTENT

WITH INTERNATIONAL LAW.

A. Reverentias support did not violate the principle of non-intervention.

The non-intervention rule includes but is not limited to the prohibition of the threat or
use of force against the territorial integrity or political independence of any state. 1
This principle also signifies that a state should not otherwise intervene in a dictatorial
way in the internal affairs of the state. However, interference pure and simple is not of
an intervention.2

In the case of Nicaragua, the element of coercion which defines and indeed forms the
very essence of prohibited intervention was provided.3 Reverentia never extended nor
provided any military, logistical, economic, or financial support for East Agnosticas
referendum of independence and such action does not equate to intervention in
another states affair.

1. President Nuvallus various statements of support for the oppressed Agnorevs

were not acts of intervention.

1 Article 2 (4) of the UN Charter

2 Oppenheims International Law (9th Edition) Volume 1 Peace Edited by Sir Robert Jennings QC, Sir Arthur Watts KCMG QC,
p.432

3 ICJ Reports 1986, p.108, para. 205

 President Nuvallus statements of encouragement are not a violation of the duty of
non-intervention since they are not provided with a material support. Citing the
case of Nicaragua, President Reagans public statements expressing support for
the contras were found not to violate the duty of non-intervention. Instead, it was
the tangible and material support given to contras by the United States, namely
the provision of arms, intelligence, and logistics, which violated international
law.4 The International Court of Justice (ICJ) held that as to the content of the
principle in customary law, a prohibited intervention must be one bearing on
matters in which each State is permitted, by the principle of State sovereignty, to
decide freely the choice of a political, economic, social and cultural system, and
formulation of foreign policy. Intervention is wrongful when it uses, in regard to
such choices, methods of coercion, particularly force, either in the direct form of
military action or in the indirect form of support for subversive activities in
another State. With regard to the practice of States, the Court notes that there have
been in recent years a number of instances of foreign intervention in one State for
the benefit of forces opposed to the government of that State. It concludes that the
practice of States does not justify the view that any general right of intervention in
support of an opposition within another State exists in contemporary international
law. Therefore, President Nuvallus statements of support, much like President
Reagans, did not constitute intervention and were consistent with international
law.

2. The Reverentian Parliaments resolution on support of East Agnostica was not act
of intervention.

The statement of support from a parliament is not an act of intervention if it is

non-binding and purely conditional. Acts of parliament are not necessarily acts of
the state. The Reverentian Parliaments resolution was purely conditional, it was
not intended to be internationally binding. The resolution merely stated a number
of diplomatic options that President Nuvallus could pursue should East Agnostica
secede. While Agnostica may point to various clauses in the parliamentary

4 Nicaragua vs. Us
resolution that permit the president to do everything from extending diplomatic
recognition to protecting East Agnostican sovereignty, such a reading ignores that
the president is authorized rather than required to exercise any of the options
permitted.

Intervention is the interference by a State in the internal or foreign affairs of

another State. It is only prohibited when it occurs in fields of State affairs which
are solely the responsibility of inner State actors, takes place through forcible or
dictatorial means, and aims to impose a certain conduct of consequence on a
sovereign State. The doctrine of non-intervention in domestic affairs is the logical
corollary of the principle of sovereignty. In international relations, the doctrine of
non-intervention has been considered as the most significant means to cope with
the logic of anarchy that lies at the heart of international politics, and thus
becomes the main governing rule of state relations. Presently and at the universal
level, it is principally the United Nations (UN) documents (the Charter and
declaratory resolutions of the Assembly) that affirm and govern this preferred
pattern of conduct in international relations. The UN Charter does not explicitly
spell out the principle of non-intervention as a rule governing relations between
member states.

It is rather implied in the statement of Principles of the United Nations (Article 2).
Article 2 of said Charter provides the following principles.

The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles:

1. The Organization is based on the principle of the sovereign equality of all

its Members.
2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
 3. All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
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. All Members shall give the United Nations every assistance in any action
it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the
United Nations act in accordance with these Principles so far as may be
necessary for the maintenance of international peace and security.
7. Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter; but this principle shall not
prejudice the application of enforcement measures under Chapter Vll.

Thus, Agnostica cannot rely upon the Reverentian Parliaments resolution in

support of East Agnostica to claim intervention in its sovereignty. The statement
from the Reverentian legislature to its president did not even bind Reverentias
President, much less imposed the will of the Reverentian legislature upon an
entirely separate sovereign state.

B. Reverentia has not violated the prohibition on threat of force before, during or
after East Agnosticas referendum of independence.
 1. Reverentias internal troop movements did not constitute a threat of the use of
force.

The establishment of military troops of Reverentia in its borders cannot be considered

a threat against any state. The intention is not to persuade East Agnostica to separate
its territory from Agnostica but to show concern about the state of affairs in East
Agnostica. No act of aggression was demonstrated as it does not involve the use of
force or armed attack. In Nicaragua, the United States placed troops near the
Nicaraguan border and deployed vessels off the Nicaraguan coast during military
exercises. The ICJ did not find these actions as a threat or use of force.

In The Principle of Non-Intervention at the United Nations: The Charter Framework

and the Legal Debate (Kmacioglu, 2005)5 it was discussed that Article 2(4) of the UN
Charter requires that states refrain in their international relations, from the threat or
use of force. It represents the most explicit Charter provision against intervention
with the use of force. Consequently, its interpretation constitutes the basis for
discussion of unilateral military interventions. Article 2(4) reads as follows:

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
manner inconsistent with the Purposes of the United Nations.

As such, Article 2(4) stipulates a general prohibition of the use of force. More
precisely, it extends the prohibition of force beyond war to include other types of
unilateral use and threat of force. It therefore endows the prohibition of force as a
general and authoritative principle.6 The substantial majority of legal scholars
attribute the norm created in Article 2(4) a jus cogens character.7 To begin with, by
providing for a collective security system, the Charter limits the permissible basis for

5 The Principle of Non-Intervention at the United Nations: The Charter Framework and the Legal Debate by Muge Kmacioglu,
http://sam.gov.tr/wp-content/uploads/2012/01/Muge-Kinacioglu.pdf

6 Louis Henkin, Use of Force: Law and US Policy,in Right v. Might, International Law and the Use of Force, New York,
Council on Foreign Relations Press, 1991. P. 38.
 acts of self-help. Secondly, the Charter stipulates in Article 2(6) that the Organization
will ensure the observation of its principles by non-Members so far as may be
necessary for the maintenance of international peace and security, implying that the
UN may take measures against non-Members as well in response to their threat or use
of force. Thus, the prohibition of the threat or use of force binds all states, members
and no-members alike. Thirdly, in Article 35(2), non-Members are allowed to bring
to the attention of the Security Council or of the General Assembly any dispute to
which they are parties. Finally, Article 103 establishes the precedence of members
obligations under the UN Charter in the event of a conflict between the obligations of
the Members under the Charter and under other international agreements. Hence, the
Charter is instrumental in providing a framework for prohibiting force and elevating it
to a jus cogens status.8 Notwithstanding the consensus on the prominence of the norm
of the prohibition of the use of force and its customary international law status,
Article 2(4) raises questions of interpretation due to an absence of definition for the
various motions stipulated in the article.

The prohibition of force in Article 2(4) comprises both the threat and the use of force.
However, the language of Article 2(4) neither defines nor qualifies the term force.
The prevailing view is that the notion of force in Article 2(4) does not extend to all
kind of force, such as political and economic coercion, but signifies solely armed
force.9 The General Assembly Declaration on the Principles of International Law,
which is considered to be the key interpretation of the main principles of the UN
Charter, confirms this reading of force. In its interpretation of the principle of
refraining from the threat or use of force in international relations, the Declaration

7 See for example, Malcolm N. Shaw, International Law, Cambridge, Grotius Publications Limited, 1991, p. 686; Antonio
Cassese, International Law in a Divided World, New York, Oxford University Press, 1994, p. 141; Edip Celik, Milletlerarasi
Hukuk (International Law), Instanbul, Filiz Kitabevi, 1982, p. 440.

8 Belatchew Asrat, Prohibition of Force Under the UN Charter: A Study of Article 2(4), Uppsala, Sweden, Iustus Forlag, 1991,
pp. 51-52.

9 Ibid., p. 40; Bruno Simma, The Charter of the United Nations, A Commentary, Oxford, Oxford University Press, 1994, p. 112;
Oscar Schachter, International Law in Theory and Practice, Dordrecht, The Netherlands, Martimus Nijhoff Publishers, 1991, p.
11; Huseyin Pazari, Uluslararasi Hukuk Dersleri, IV. Kitap (Lectures in International Law, Volume IV), Ankara, Turhan
Kitabevi, 2000, p. 114.
 only refers to military force. It deals with other types of coercion in the context of the
general principle of non-intervention in matters within the domestic jurisdiction of a
state.10 Thus, it can be inferred that what General Assembly was implying by its use
of the term force in Article 2(4) was specifically limited to armed force. In addition,
the ICJ supports this narrow conception of force in the Nicaragua case, as it refers to
this resolution for determining the scope of the prohibition of force in customary
international law.11

Yet, the term provokes further questions with respect to the uses of indirect force.
Included in the notion of indirect force, are one states allowing its territory to be
used by troops of another country for fighting a third state and/or providing arms to
insurgents in another country.12 Although legal scholarship generally tends to consider
this problem within the framework of defining intervention, it is also relevant within
the scope of Article 2{4). In this respect, the Declaration on the Principles of
International Law provided specifications regarding the prohibition of the use of
indirect force in its section dealing with the prohibition of force more generally:

Every state has the duty to refrain from organizing or encouraging the
organization of irregular forces or armed bands, including mercenaries, for
incursion into the territory of another state. Every state has the duty to refrain
from organizing, instigating, assisting or participating in acts of civil strife or
terrorist acts in another state or acquiescing in organized activities within its
territory directed towards the commission of such acts, when the acts referred to
in the present paragraph involve a threat or use of force.

The ICJ in its Nicaragua judgment of 1986, reiterates the Declaration on Principles
of International Law, reaffirming that the above formulation of indirect force is

10 GA Res. 2625 (XXV), 24 October 1970.

11 ICJ Reports (1986), para. 191.

12 Simma, The Charter of the United Nations, p 113; Pazarci, Uluslararasi Hukuk Dersleri, p. 114.
 within the scope of Article 2(4). 13 As a result, the notion of indirect force is also
included in the prohibition of the use or threat of force.

Legal opinions have given far less consideration to what is meant by the threat of
force than to the use of actual force. Brownlie describes the threat of force as an
express or implied promise by a Government of a resort to force conditional on non-
acceptance of certain demands of that Government.14 Another author notes that the
relevant feature of a threat as a form of coercion is not so much the kind of force
applied, but rather the purpose and outcome of the threat: a genuine reduction in the
range of choices otherwise available to states.15

The Declaration on Principles of International Law acknowledges threat as an

instrument of coercion, by declaring that the territory of a State shall not be the
object of acquisition by another State resulting from the threat or use of force.
Therefore, Article 2(4) includes the threat of force, which may possibly result in
violation of a particular states territorial integrity and political independence.
However, since most threats of force have been generally been justified on the basis
of the right of self-defense, there seems to be a higher degree of tolerance towards the
threat than the actual use of force in state practice. 16 This tolerance results from the
general recognition of the difficulty to prove coercive intent in an international
system characterized by power disparities and the consequent dominant and
subordinate relationships between states. Notwithstanding, scholars agree that an
open and direct threat of force to compel another state to give up territory or yield
considerable political unlawful under Article 2(4).17

13 While describing the arming and training of the Contras by the United States as acts amounting to the threat or use of force,
the Court did not characterize the mere supply of funds to them as use of force. The Court, however, stated that supplying funds
constituted an act of intervention in the internal affairs. ICJ Reports (1986), para. 228.

14 Ian Brownlie, International Law and the Use of Force by States, London, Oxford University Press, 1963, p. 364.

15 Romano Sadurska, Threats of Force,American Journal of International Law, Vol. 82, No. 2 (1988), p. 242.

16 Simma, The Charter of the United Nations, p. 118.

 Reverentias actions in sending troops to its domestic borders are even less aggressive
than the United States actions in Nicaragua. While the United States actions were
part of military maneuvers, Reverentias actions were taken with the explicit purpose
of offering aid to any Agnorevs fleeing violence in East Agnostica. Reverentia
explicitly stated it had no territorial ambitions but was instead deeply concerned
about the state of affairs in East Agnostica, and . . . worried that violence [would] spill
over.18 President Nuvallus further supported his statement regarding Reverentias
intentions by both providing a diplomatic note to Agnostica and giving Reverentian
troops specific orders not to leave Reverentian territory. Because Reverentias acts
remained within its borders and had explicit peaceful intensions, they were not a
threat or use of force against Agnostica and thus consistent with international law.

2. Reverentia did not breach the Agnosticas territorial integrity because its troops
never entered Agnostica.

Reverentia did not breach Agnosticas territorial integrity when Reverentian Army
units were promptly moved into the region19 since at that time, it was already an
independent state Agnorev Peoples Parliament, thus, no longer part of the state of
Agnostica. In addition, the entry was made after the integration agreement was
signed.

The terms territorial integrity and political independence are commonly taken to
refer to the total of legal rights which a state has. 20 In practice, these terms are
generally emphasized with the addition of notions such as sovereignty and
inviolability. For example, Definition of Aggression, adopted by consensus in 1974,

17 Schachter, International Law, p. 111; Sadurska, Threats of Force, p. 239.

18 SPECIAL AGREEMENT between the FEDERAL REPUBLIC OF AGNOSTICA (Applicant) and the STATE OF
REVERENTIA (Respondent) to submit to the International Court of Justice the Differences between the States concerning the
Secession and Annexation of East Agnostica, para. 37.

19 SPECIAL AGREEMENT between the FEDERAL REPUBLIC OF AGNOSTICA (Applicant) and the STATE OF
REVERENTIA (Respondent) to submit to the International Court of Justice the Differences between the States concerning the
Secession and Annexation of East Agnostica, para. 41.

20 Brownlie, International Law, p. 268.

 refers specifically to sovereignty, territorial integrity or political independence. The
resolution puts forward a broad conception of prohibition of armed intervention and
aggression, which includes not only invasions, but also attacks or military
occupations; sending armed bands or mercenaries to carry out violent acts; shelling
another states territory; blocking its ports; and attacking the forces of another state. 21
Thus, it can be inferred that the prohibition of force in Article 2(4) does not only refer
to the use of force aimed at termination of a states territorial existence or the status of
its political independence. Rather, it extends protection to the fundamental rights of
states. In this sense, the prohibited force in Article 2(4) includes any kind of any
trans-border use of armed force, regardless of the intention of depriving that state of
part of its territory. Hence, in terms of its legal effect, scholars argue that the term
integrity in the provision signifies inviolability, prohibiting any kind of forcible
cross-frontier activity.22 Paragraph 7 of the Charters preamble further reinforces this
conclusion. It articulates the goal of the ensuring that armed force shall not be used,
save in the common interest. On the other hand, the judgment of the ICJ on the Corfu
Channel case, which denied the British line of reasoning according to which British
minesweeping operation in Albanian territorial waters did not violate Albanian
sovereignty as it neither threatened of its territorial integrity nor its political
independence (nor caused territorial loss or harmed the political independence of
Albania), suggest that the prohibition of force laid down in Article 2(4) is all-
embracing. It is therefore not restricted to the protection of territorial integrity or
political independence in its stricter sense.23

As discussed above, the prohibition of armed intervention and aggression, also

includes not only invasions, but also attacks or military occupations; sending armed
bands or mercenaries to carry out violent acts; shelling another states territory;
blocking its ports; and attacking the forces of another state. 24 Thus, it can be inferred
that the prohibition of force in Article 2(4) does not only refer to the use of force
21 GA Res. 3314 (XXIX), 14 December.

22 Simma, The Charter of the United Nations, p. 117.

23 ICJ Reports (10949), Corfa Channel Case, (Merits), p. 35

 aimed at termination of a states territorial existence or the status of its political
independence. Rather, it extends protection to the fundamental rights of states. As
President Nuvallus said, the Reverentian troops have been moved to the border to
offer aid to any Agnorevs fleeing the violence in East Agnostica. Reverentia have no
territorial ambitions. They are only deeply concerned about the state of affairs in East
Agnostica, and worried that violence will spill over into Reverentia. Reverentia only
extended protection to the fundamental rights of states.

II. EAST AGNOSTICAS SECESSION FROM AGNOSTICA AND INTEGRATION INTO

REVERENTIA ARE CONSISTENT WITH INTERNATIONAL LAW, AND AN ORDER OF

RETROCESSION IS AGAINST THE EXPRESSED WILL OF ITS POPULATION.

A. East Agnosticas secession from Agnostica is permitted under international law as an

exercise of their right to Self-determination.

1. East Agnostica is entitled to exercise the right to external self-determination

The integration of East Agnostica finds support under the UN Charter, the
International Convention on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights all of which state that All peoples have the right
of self-determination. By virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural development. 25 In addition, the
right to self-determination has been affirmed in Western Sahara Advisory Opinion,
Portugal vs. Australia,26 UN Covenants and Declarations, UN General Assembly
resolutions.27

24 GA Res. 3314 (XXIX), 14 December.

25 UN Charter, Art. 1, par 1; International Convention on Civil and Political Rights, Art. 1, par 1; International Covenant on
Economic, Social and Cultural Rights, Art. 1, par. 1.

26 1975 ICJ 12, par. 54 59; 1991 ICJ 84 par. 29;

 It is common to speak of the principle of self-determination as consisting of two
components. Under the principle of internal self-determination, all people have the right
to determine the political and social regime under which they live, to pursue economic
development and to solve all matters under their domestic jurisdiction. The principle of
external self-determination encompasses the right of a people to pursue their political,
cultural and economic wishes without the interference or coercion of outside States. In
theory, the right of external self-determination may be exercised through State
dissolution, State union or merger, or through secession. External self-determination is
the right of peoples to determine their own political status and to be free of alien
domination, including formation of their own independent state.28
The superiority of the principle of territorial integrity or political unity is restricted
when a state does not conduct themselves in compliance with the principle of equal
rights and self-determination of people and does not represent the whole people who
belong to the territory especially subjecting them to social discrimination.29

2. The situation in East Agnostica prompted the Agnorevs to exercise their right of
secession as a way of pursuing external self-determination.

The UNGA Resolution30 implies that actions which dismember the territorial
integrity or political unity of a State, such as secession, are authorized, when the
government of that State does not represent the whole of its people in compliance
with the principle of self-determination and equal rights. It was held that secession is
permitted as the ultimate remedy when a territory of a State is badly misgoverned
and there exists marked oppression. This principle has been affirmed by eminent
jurists31 and the international community in recognizing the secession of Bangladesh 32

27 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN G.A. Res. 1514 (XV), 14 Dec. 1960;
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, UN G. A. Res.
2625 (XXV), 24 Oct. 1970.

28 HANNUM, H., Legal Aspect of Self-determination, 2013 (Available at https://pesd.princeton.edu?q=node/254)

29 HANNA, R., Right to Self-Determination in In Re Secession of Quebec, 23 MD. J. INTL L 213 (1999).

30 Declaration on Friendly Relations, supra n.49, Principle 5, UN G. A. Res. 2625 (XXV), 24 Oct. 1970.
 and Kosovo as well as the dissolution of the Socialist Federal Republic of
Yugoslavia.33

Accordingly, a denial of internal self-determination to a section of the

population of the state, vests them with the right of external self-determination, to
34
freely determine their political status. This right of external self-determination
may be manifested through a unilateral secession and the integration with an
independent State by agreement.35

A remedial right of secession is available to the people as Agnostica did not

comply with the principle of equal representation in governing the people of East
Agnostica. Agnostica also perpetrated gross human rights violations in East
Agnostica. Further, the people of East Agnostica did not have any other realistic and
effective remedy apart from unilateral secession. The situation in Kosovo
demonstrated that the denial of self-determination is evidenced from the
governments encroachment on the legislative, executive and judicial autonomy of
provincial authorities.36 The constitutionally granted autonomy of the East Agnostican
provincial legislature in controlling cultural affairs, was encroached upon by the
Agnostican Parliament in enacting the Marthite Control Act [MCA]. The MCA also
encroached upon the discretion of judicial authorities in East Agnostica. With regard
to the principle of equal representation in the government, Aaland Islands and

31 H. Espiell, The Right of Self-Determination of Peoples: Implementation of United Nations Resolutions, p60, U.N. Doc.
E/CN.4/Sub.2/405/Rev.l (1980); SIMMA, supra n.1, at 56.

32 East Pakistan Study, supra n.39.

33 Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 31 I.L.M. 1497-99 (Jan. 11, 1992); S.C. Res. 724, U.N.
Doc. S/RES/724 (Dec. 15, 1991).

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

35 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, UN G. A. Res.
2625 (XXV), 24 Oct. 1970.

36 A. Buchanan, Justice, Legitimacy and Self-Determination 351-53 (2007).

 Quebec Secession37 establish the existence of a right of remedial secession when a
part of the population is effectively blocked from governing itself. The ability of a
province with numerical majority, in blocking and outvoting resolutions which
advance the interests of the other province with a numerical minority, is an evidence
of an unrepresentative government violating of equal rights.38 This was also
affirmed by the Security Council.39 In the Agnostican Federal Parliament, the
resolutions to de-escalate military presence in East Agnostica and to dissolve
Agnostica, which specifically advanced the interests of the people of East Agnostica,
were blocked by the West Agnostican representatives due to their overwhelming
numerical majority. Thus, Agnostica has not complied with the principle of self-
determination and equal rights in governing the East Agnostican people.

a. Violations of right to life

The qualified right to secession became available to Agnorevs in East

Agnostica during the boxing day massacre when the Agnostican Prime Minister
mobilized military troops to clash with non-violent protestors. As a result of
which, sixty innocent demonstrators were killed and several sustained serious
injuries at the hands of the Agnostican military. The right to secession can be
afforded in case of gross violations of human rights of individuals belonging to a
specific group.40 According to the International Covenant on Civil and Political
Rights41 which Agnostica ratified, Every human being has the inherent right to
life. This right shall be protected by law. No one shall be arbitrarily deprived of
his life. The right to life of Agnorevs was grossly violated by Agnostica when
Agnosticas troops killed sixty innocent protestors.

37 Secession of Quebec, (1998) 2 S.C.R. 217.

38 RAIC, D., Statehood and the Law of Self-Determination (Kluwer Law International, 2002)

39 S.C. Res. 1160, 5, U.N. Doc. S/RES/1160 (Mar. 31, 1998).

40 Christakis, Theodore. Le droit lautodtermination en dehors des situations de dcolonisation. Paris: La Documentation
Franaise, 1999

41 Art. 6, par. 1.
 b. Discrimination on ethnic grounds

The Agnosticas constitution, which remains in effect and unamended in

any relevant respect to this day, empowers the federal parliament, by a three-
quarters vote, to dissolve the union and create two independent states.42 However,
when Mr. Thomas Bien presented a resolution to the Agnostican Parliament
proposing the dissolution of the nation, the resolution was defeated with 67-29
with all 67 delegates from West Agnostica voting against it and 29 of the 33
delegates from East Agnostica voting in favour.43 The International Covenant on
Civil and Political Rights states that all persons are equal before the law and the
law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status persons are equal before the law. Further, that the
law should prohibit discrimination and guarantee to all persons equal and
effective protection against discrimination on the ground of race. 44 Three-quarters
of the 100 delegates are 75. The 67 delegates of Agnostica are twice as much as
East Agnosticans delegates. Thus, when the 67 delegates voted against the
creation of two independent states, there is an unequal representation on the part
of East Agnostica because the approval for the secession needs the vote of 75
delegates.

Furthermore, although the Quebecois were not oppressed,45 the Agnorevs

have been victims of racial discrimination under the International Convention on
the Elimination of All Forms of Racial Discrimination. Agnostica is a party to the
aforementioned convention. thus, Agnostica is compelled not to pass any law that

42 Compromis, par. 8

43 Compromis, par. 33

44 Art. 26

45 Id, p.17
 has the effect of perpetuating racial discrimination. 46 Agnostica has breached its
commitment to encourage multiracial organizations,47 by allowing Agnosticans to
dominate federal judicial posts and the military, and by disproportionately
48
allocating governmental scholarships to Agnostican students. Lastly, Agnostica
has breached its obligation to criminalize racial propaganda, 49 by allowing
unrelentingly negative characterization of Agnorevs in West Agnostican
primary-school textbooks and the national media, and the frequent
characterization of Agnorevs as wealthy villains in popular Agnostican cinema. 50
Therefore, while the Quebecois people enjoyed internal self-determination and
were free from oppression, the Agnorevs have no protection against political
domination by Agnosticans, and were victims of racial discrimination.51

c. Violations of right to cultural practices

The usage of natural resources essential to the cultural survival of a

community is a part of internal aspect of self-determination and the cultural life of
a community is protected under the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights. 52
Agnostica denied the Agnorevs access to the Marthite which is essential to their
cultural survival by enforcing the Marthite Control Act.53 Agnostica had penalized

46 Id.

47 Art. 2(1) (e), International Convention on the Elimination of All Forms of Racial Discrimination

48 Compromis, par. 28

49 Id, p.27

50 Id. p. 28

51 Id; Corrections, Clarifications, par. 3.

52 Art. 1; Art. 1 & 15.

53 Compromis, par. 9
 the mere possession of Marthite with no reasonable explanation on which the
Agnorevs had done nothing but to respect their ancient cultural practice. 54 Thus,
by violating the right of the Agnorevs to their cultural practices, Agnostica
justified the right of the Agnorevs to external self-determination through
secession.

B. East Agnosticas integration into Reverentia is consistent with International

Law

1. East Agnosticas secession and integration is based on the expressed will of

the Agnorev people.

In 1961, the Security Council reaffirmed the proposition that international law does
not explicitly recognize the right of unilateral secession, after it declared Katangas
secession from the Republic of Congo illegal. At the time, it was disputed whether this
attempt, conducted with the support of foreign mercenaries, actually represented the true
wishes of the majority of the Katangese people, especially in light of the Katangese tribal
and regional diversities. Similarly, the UN and the Organization of African Unity
categorically rejected the Biafran claim for independence in 1967, despite reports of
human rights violations committed against the seceding population. UN Secretary-
General U Thant affirmed that the United Nations has never accepted and does not
accept ... the principle of secession of a part of its Member State.55

It should be noted that in the wealth of the present examples of failed unilateral
secession as indicated above, none of the facts present therein are in anyway similar to
that of the case of East Agnostica. First, because there is never a doubt that it is the
express intention and will of the East Agnostica to secede as indicated by their concluded
peaceful referendum as noted by international NGOs and second, there is no violation of
a preemptory norm or jus cogens norm or international law in the exercise of East
Agnostica of the remedy of referendum because this was done only after domestic
remedies were exhausted. Assuming arguendo that Reverentia violated the principle of
54 Compromis, pars. 22, 23, 25

55 Secession and Statehood: The International Legal Status of Kosovo, Bridgette Martin, A dissertation submitted in partial
fulfilment of the degree of Bachelor of Laws, (Honours) at the University of Otago, Dunedin. October 2008
 non-intervention expressly or impliedly through its statements, there is no international
law decision that would support such intervention by another state would cause
retrocession of the seceding state. To be sure, East Agnostica never violated any jus
cogens norm or international law by virtue of their referendum.

2. East Agnosticas separation from Agnostica is anticipated under Agnosticas

Constitution.

As mentioned above, the 33 delegates representing East Agnostica cannot meet

the three-quarters of the federal parliament of 100, which means that 67 delegates of
Agnostica are twice as much as East Agnosticans delegates. There in an impossibility
to meet the three-quarters requirement in order to dissolve the Union and create two
independent States. The Agnostican majority could prevent dissolution of the union in
spite of practically every single ethnic Agnorev in parliament voting in favor. Thus,
when the 67 delegates voted against the creation of two independent states, there is an
unequal representation on the part of East Agnostica. The constitution of Agnostica
deprived East Agnostica of equal representation because the allocation of delegates
should not be based on any race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status persons are equal
before the law. Considering that the territory of Agnostica was divided into two which
are East and West Agnostica, such calls for an equal number of delegates of 50% for
East Agnostica and 50% for West Agnostica, accordingly.
The Agnostican majority could also dominate the Agnorevs even on matters of
their own security. While every single delegate of East Agnostica voted to de-escalate
the military and police presence that caused the Boxing Day Massacre, the
proposition was soundly defeated by the Agnostican majority.56 Thus, while the
Quebecois people enjoyed political rights allowing them to influence federal
Canadian politics,57 the Agnorevs political rights were violated at the federal level.

3. East Agnosticas secession and integration with Reverentia has been

recognized by the international community.
56 Compromis, par. 31.

57 Id, p. 17.
 East Agnostica achieved statehood according to the Montevideo Convention on
Rights and Duties of States.58 Regardless of the disputed status of the initial
referendum of independence, this Court should nevertheless find that East Agnostica
reached statehood prior to successful integration with Reverentia. The Montevideo
Convention, which Agnostica and Reverentia are both a party to, codifies the
declaratory theory of statehood. Under this theory, the four criteria for statehood are:
(1) a permanent population, (2) a defined territory, (3) government, and (4) the
capacity to enter into relations with other states.

As to permanent population, Agnorev constitute a separate and distinct population

within the Federal Republic of Agnostica because of their ethnic Reverentian roots.
Credera originally demarcated the territories of Reverentia and Agnostica based upon
the linguistic, cultural, and religious differences between their respective inhabitants.

As to defined territory, Agnorev people populate a defined territory, delimited by

what was formerly one of two provincial units of the Federal Republic of Agnostica.

As to government, an effective one consists of a centralized legislative and

administrative organ that has the power to enforce commands over its territory and
does not share this power with anybody else. The Agnorev Peoples Parliament (APP)
met both criteria for effectiveness. As it can command authority over its territory
upon ordering Mr. Bien to lead a delegation and negotiate integration with
Reverentia, Mr. Bien and the delegation being in command while the APP was
unrivalled in its authority as it faced no resistance from the local population, and
Agnostican forces withdrew from the territory of East Agnostica.

As to the capacity to enter into relations with other states, East Agnostica
demonstrated its ability to enter into relations with other states, namely with
Reverentia it also signed a bilateral treaty with Reverentia, the Integration Agreement
on February 23, 2013. The result of which is the new Reverentian borders as
recognized by thirty (30) states, including two Permanent Members of the United
Nations Security Council, the new Reverentian borders including the territory of East

58 Art. 1 & 3.
 Agnostica.59 Based on the Constitutive Theory of Recognition, 60 East Agnostica is an
independent state due to the abovementioned recognition by 30 states.
Reverentia only recognized the separation of East Agnostica and as a new State
after the Plebiscite which was observed by several international NGOs and declared
free of irregularities and the result is fair and accurate. It is also the will of the East
Agnostican people to secede from Agnostica and even voted unanimously to send
delegate to Reverentia with an aim of integration of territory, the swiftest possible. It
was a valid invitation from the people of East Agnostica.

Based on the foregoing, East Agnostica has achieved statehood both under the
Constitutive Theory and Declaratory Theory of Recognition. 61

C. The court should not order the retrocession of East Agnostica to Agnostica
against the express will of its population.

Retrocession of East Agnostica would be an inappropriate remedy in this case.

According to the Effectivity principle, international law may well adapt to recognize a
political and/or factual reality, regardless of the legality of the steps leading to its
creation.62 It should be noted that the existence of a positive legal entitlement is quite
different from a prediction that the law will respond after the fact to a then existing
political reality. These two concepts examine different points in time. 63 With regard to
secession, the question of whether a people contemplating secession has the right to
secede is distinct from how the law will react once a people have already seceded. In
Secession of Quebec Case, the Canadian Supreme Court dealt on whether a people
contemplating secession has the right to secede. Despite of whether the Agnorevs had a
right to secession from Agnostica, the fact is that they have already seceded and joined

59 Corrections, Clarifications, par.7

60 Therefore, it is the recognition by other States that creates a new State. KACZROWSKA, A., Public International Law,
(New York: Routledge, 2010), 227.

61 Id, p.40; Art. 3 & 6, Montevideo Convention; Art.12 of the OAS Charter, 119 UNTS 3;

62 Id., p. 11

63 Id.
 the State of Reverentia. Thirty states have already accepted this political reality 64 and it is
from this reality that this Court must proceed.

The statute of this Court requires it to decide disputes in accordance with

international law.65 Because of that, this Court has formerly declined to order provisional
measures that would result to be inconsistent with UNSC Resolutions. Wherefore, it must
also decline to order final remedies that would violate the Agnorevs right to self-
determination. The right to self-determination is a common principle of international law.
Compelling the Agnorevs to rejoin Agnostica would violate their right to self-
determination. The Agnorevs have expressed their desire to secede from Agnostica in a
referendum that upheld to international standards.66

III. THE MARTHITE CONVENTION WAS IN EFFECT UNTIL MARCH 1, 2013, AND

AGNOSTICA BREACHED THAT CONVENTION.

Pacta Sunt Servanda is considered as one of the established and undisputed

principle of international law which means agreements must be kept. It underlies the
entire system of treaty based relations between sovereign states and provides that every
treaty in force is binding upon the parties to it and must be complied and performed in
good faith67. Its normative application was applied by Medieval Canonists 68, traced back

64 Id., p. 23

65 ICJ Statute, art. 38, 1

66 Compromis, par. 38

67 (1964) YbILC I 232 par 3

68 Liber Extra decrees of Pope Gregory IX 1234 Pacta quantumcumque nuda servanda sunt meaning Pacts however naked
must be kept.
 during the Roman times69 and even on compliance mandated by various religions around
the world.

Because of its paramount importance in international relations it was emphasized

in the Preamble of the League of Nation and even introduced in 1928 Havana Convention
of Treaties which provides that No state can relieve itself of the obligations of a treaty or
modify its stipulation except by the agreement, secured through peaceful means 70. Later
it was included as a part of Law on treaties 71 and was adopted by the ILC in 1964 72 and
was codified in Vienna conference as Article 26. The Vienna Convention also codifies
two customary exceptions that allow states to derogate from the strictness of the rule:
Article 61 which concerned on the impossibility of performance as a ground for
terminating treaty obligations and Article 62 concerning fundamental change of
circumstances as a ground for terminating treaty obligations.

The Marthite Convention was concluded on April 14, 1938 recognizing the
significance of Marthite to the traditions of medical practice 73. The convention did not
provide for a termination without cause or by any other reason except for the termination
upon expiration of term. Thus a party cannot unilaterally renounce its treaty obligations 74
unless if there is a provision or express consent of the other parties concerned 75. The right
to opt out is mutual not unilateral.

Reverentia did not consent to any mutually binding settlement on the termination
or suspension of the treaty and such ground cannot begin to support the claim for

69 Cicero De Officiis 44 B.C. Pacta et promissa semperne servanda sint

70 Art. 10 The Havana Convention on Treaties 1928

71 Art. 55 Law on Treaties

72 (1964) YbILC I 232 par 3

73 The Marthite Convention, Compromis

74 Sir Humprey Waldock, Second Report Law of Treaties (1963)

75 Hackworth, Ibid
 unilateral termination of the convention without observing the procedural requirements
applicable when not all parties to the treaty consents under Article 65.76

The leasing of the mining facilities to Baxter without any attempt of dispute
settlement to be made by Agnostica violates Article 33 of the UN charter.77 This proves
that it fails to meet the requirements not only for fundamental change but also its failure
to follow the procedural obligations in good faith.78

A. Reverentia selling of Marthite to pharmaceutical companies does not constitute a

material breach justifying termination nor be considered a violation of Article 4 of
the convention

Material breach of treaty consists of violation of the provisions essential to the

accomplishment of the object and the purpose of the treaty. 79 The object and purpose of
the treaty is not defined in the Vienna Convention but the prominent used of such term
provides that the treaty be interpreted in the light of its object and purpose considering
not only the individual provisions of the texts but the treaty taken as whole.

The object and the purpose of Marthite convention is to provide for the supply of
Marthite for traditional users and to foster friendly relationship between the two state.

76 Art. 65 Procedure to be followed with respect to invalidity of termination, withdrawal from or suspension of the
operation of a treaty.1.A party which, under the provision of the present convention invokes either a defect in its
consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it
or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the reasons thereof.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months
after the receipt of the notification no party has raised any objection the party making the notification may carry out in
the manner provided in Article 67 the measure which it has proposed.

77 Article 33 of UN charter1.The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of
their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means

78 Gabkovo-Nagymaros Project (Hung. v. Slovk.), 1997

79 Art 60. VCLT

 The Marthite Convention provides that mined Marthite 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.80

The sale of Marthite on the pharmaceutical companies does not constitute material
breach since the very object and purpose of the convention still subsist as the mineral
Marthite is still used for traditional purpose and within the context of medicinal used. The
25% percent threshold although not met prior to the discovery 81 of Marthites
effectiveness as a cure for untreatable disorders, was compensated as upon its discovery
considerable interest from major pharmaceutical companies arise wishing to purchase
such mineral and in fact resulted to increase in production beyond the 125% of demand
from traditional practitioners, thus if one quarter of Marthite is sold to traditional
practitioners and such satisfied the demand then the additional 75% of the produced
Marthite sold globally is exceeding the 125% threshold and the treaty does not provide
what to do with excess Marthite moreover it was stated in the Convention that the
Marthite mined in excess of 125% of demand from traditional practioners may be offered
for sale by RMT without restriction on price, identity of purchaser or intended use. 82 It
was also certified by RMT accountants annually that the Marthite production varied
within 5% of demand from traditional practitioners from 1938 to 2011.83

B. There was no fundamental change of circumstances justifying Agnosticas

unilateral termination of the Marthite Convention

The Law on Treaties provides that Fundamental Change of Circumstances84 which

has occurred to those existing at the time of the conclusion of a treaty and which was not

80 Corrections no. 2

81 Compromis no. 11

82 Corrections no. 2

83 Correction par 10

84 Art 59, Law on Treaties

 foreseen by the parties, may not be invoked as a ground for terminating or withdrawing
from the treaty unless in the presence of exceptional circumstances85:
a. The existence of those circumstances constituted an essential basis of
the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the scope of
obligations still to be performed under the treaty.
A fundamental change in circumstances may not be invoked if:
a. As a ground for terminating or withdrawing from a treaty establishing
a boundary;
b. If the fundamental change is the result of a breach by the party
invoking it either of the treaty or of a different international
obligations owed to the other parties of the treaty.

The fundamental change in the science underlying the treaty was being relied by
Agnostica to avoid its obligation on the convention. Citing the case of Gabcikovo-
Nagymaros, Hungary denounced a treaty with Czechoslovakia agreeing to construct a
series of locks on the Danube River in order to produce hydroelectricity and to improve
the navigation on Danube. However such fundamental change of circumstances was
rejected by the court partly because the estimated profitability of the project and the prior
political and economic conditions were not so closely linked to the object and the purpose
of the treaty as being the essential basis of consent.

Jurisdiction provides that a party may invoke a fundamental change if

circumstances was unforeseen by the parties, such circumstances constituted an essential
basis of consent of the parties bound by the treaty and such change radically transformed
the performance of the obligation of the parties.86

Marthites limited commercial worth may be the essential basis of consent for
Agnostica but it was not for Reverentia as it ratified the convention to ensure access to
Marthite to those whom such mineral is of cultural significance. Marthite is the core
ingredient of Reverentians traditional medicine and the mineral value derived from its
cultural significance not its commercial value thus, its only the cultural value of Marthite

85 Gabkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 104 -Sept. 25

86 Fisheries case (Federal Republic of Germany vs. Iceland)

 that is linked to the object and purpose of the convention and such unforeseeable increase
in Marthites commercial value does not justifiy Agnosticas unilateral denunciation of
the convention.

There is nothing to suggest that the discovery of the medicinal benefit of Marthite
be considered as a fundamental change nor cannot be regarded as a change in the whole
body of circumstances since it does not limit the ability to fulfill the obligations nor
transform the scope of the obligations to be performed under the convention.

The exclusive ownership right given to RMT is a form of obligation the courts
jurisprudence applies a high standard of economic justification in order to disregard a
treaty obligation. In Gabcikovo-Nagymaros the court recognized the zero profit
investment might have altered Hungarys obligations to continue the project however the
forecasted decrease in dams profitability was found quantitatively insufficient to
transform the partys obligation. Considering the case Agnostica is not required to fund a
zero investment its loss is the difference between the royalties received and the profit
foregone by selling Marthite and such opportunity cost is not sufficient to establish a
fundamental change which requires an exceptional circumstances.

IV.REVERENTIAS REMOVAL OF THE SOFTWARE WAS CONSISTENT WITH

INTERNATIONAL LAW

On April 2, 2012, Prime Minister Moritz announced the unilateral termination of

the Marthite Convention and subsequently disclosed that it has agreed to lease all rights
to the existing East Agnostican Marthite facilities to Baxter Enterprises, Ltd. 87

As a response to Agnostica's breach of its obligations, President Nuvallus ordered

their engineers who are engaged at the East Agnostican facilities to return to Reverentia.

87 Compromis, par. 16.

 He also directed the employees to remove any software installed by RMT at the Marthite
mining facilities, until such time that Agnostica agrees to respect its treaty obligations. 88

A. Title to the software did not transfer to Agnostica under the Convention.

A treaty shall be interpreted in good faith in accordance with the ordinary

meaning to be given to the terms of the treaty in their context and in the light of their
object and purpose.89

Under the Marthite Convention, Reverentia undertakes at its own expense to

construct the Marthite mining and mining-support facilities within the territory of East
Agnostica, and to provide technology and government engineers to maintain, equip and
operate such facilities.90 Furthermore, it provides that such facilities shall be owned by
the Government of Agnostica upon payment to Reverentia of the sum of one hundred
Swiss francs.91

In applying the textual approach in interpreting the treaty, the ordinary meaning of
the terms to be interpreted should be ascertained in a way that the meaning would be
compatible with the text of the relevant treaty.92 Hence, in line with the wordings used in
the Marthite Convention, the payment tendered by Agnostica to Reverentia in the amount
of one hundred Swiss francs merely transferred the ownership of the Marthite mining and
mining-support facilities, to the exclusion of the Marthite extraction software. For this
reason, Reverentia was entitled to retrieve the software upon Agnostica's breach of its
obligations which was constituted by the latter's unilateral termination of the treaty for
the furtherance of its own economic interests and in the absence of material breach on the
part of Reverentia.

88 Compromis, par. 17.

89 Vienna Convention on the Law of Treaties, Article 31 (1).

90 Compromis, Annex, Article 1.

91 Compromis, Annex, Article 2.

92 KACZOROWSKA, A., Public International Law, Routledge, New York, 2010.

 The temporary removal of the Marthite extraction software is a valid action on the
part of Reverentia because a material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for suspending the operation of the
treaty in whole or in part.93 Based on the given antecedents, the removal of the software
was of temporary nature until such time that Agnostica agrees to respect its treaty
obligations94 by acknowledging the subsistence of the Marthite Convention until the
expiration of the term stipulated in their treaty, which is to end on April 13, 2037. 95 As a
consequence of the suspension of the treaty operations, the parties are released from the
obligation to perform the treaty in its mutual relations during the period of the
suspension96. Hence, being consistent with the international law, Reverentia's action of
removing the Marthite extraction software was justified and did not constitute breach of
their treaty obligations.

B. Removal of the software constitutes a valid countermeasure in response to

Agnostica's violations of the Marthite Convention.

Assuming that the removal of the Marthite Extraction Software was done in
violation of the treaty obligations of Reverentia under the Marthite Convention, such act
can be considered just for the reason that it constitutes a valid countermeasure. As a rule,
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.97 Such countermeasures should be limited to the non-performance for the
time being of international obligations of the State taking the measures towards the

93 Vienna Convention on the Law of Treaties, Article 60 (1).

94 Compromis, par. 17.

95 Compromis, Annex.

96 Vienna Convention on the Law of Treaties, Article 72 (1)(a).

97 Responsibility of States for Internationally Wrongful Acts, Article 49 (1).

 responsible State and it should be taken in such a way as to permit the resumption of
performance of the obligations in question.98

The countermeasure instituted by Reverentia was done in compliance with the

provision of the Responsibility of States for Internationally Wrongful Acts because the
order regarding the removal of the software was issued after Agnostica's unilateral
termination of the Marthite Convention despite the persistent objections of Reverentia. It
is also worthy to note that Agnostica did not adhere to any procedural requirements
necessitated by the VCLT as provided for in Articles 65 and 66.

The second and third requirements for the use of countermeasures were also
satisfied by Reverentia in the sense that the removal of the software and personnel was
merely temporary and its effects are reversible as it can be restored at any time. 99 Besides,
Agnostica claimed that they can easily replace the experts that Reverentia has
withdrawn.100

The unilateral termination of the Marthite Convention and Agnosticas immediate

deal with Baxter clearly threatened Reverentias interests in the mining and use of
Marthite. On such circumstance, Reverentias action was justified in taking a serious
measure in order to ensure compliance by Agnostica. The removal of the software as a
countermeasure was preceded by a demand from Reverentia that Agnostica comply with
its treaty obligations and it was also accompanied by an offer to negotiate. Reverentias
software approval prevented Agnostica from profiting from its breach on its obligations.
Such action was merely intended to be enforced until such time that Agnostica respects
its treaty obligations.

As a general principle of international law, the principle of good faith and pacta
sunt servanda should be observed in the treaty concluded between Agnostica and
Reverentia.111 Hence, a party's noncompliance with any of its treaty obligation results to a
violation of international law.
98 Responsibility of States for Internationally Wrongful Acts, Article 49 (2) and (3).

99 Compromis, par. 18

100 Compromis, par. 19