Beruflich Dokumente
Kultur Dokumente
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
E. PLEADINGS
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 Marthite’s 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. He’s 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.
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:
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
Reverentia’s support for the referendum in East Agnostica is consistent with international
law. Also, President Nuvallus’s 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 Parliament’s 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
Agnostica’s referendum of independence. Military movement that does not cross into another
state’s territory is not considered a threat against that state. Because Reverentia’s 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 Agnostica’s 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 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’s 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
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 Agnostica’s
referendum of independence and such action does not equate to intervention in
another state’s affair.
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:
B. Reverentia has not violated the prohibition on threat of force before, during or
after East Agnostica’s referendum of independence.
1. Reverentia’s internal troop movements did not constitute a threat of the use of
force.
“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
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.
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
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 state’s 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
within the scope of Article 2(4).13 As a result, the notion of “indirect force” is also
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.
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
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
Reverentia’s 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, Reverentia’s 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
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.
17
Schachter, International Law, p. 111; Sadurska, “Threats of Force,” p. 239.
about the state of affairs in East Agnostica, and . . . worried that violence [would]
spill over.”18 President Nuvallus further supported his statement regarding
Reverentia’s intentions by both providing a diplomatic note to Agnostica and giving
Reverentian troops “specific orders not to leave Reverentian territory.” Because
Reverentia’s 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 Agnostica’s territorial integrity because its troops
never entered Agnostica.
Reverentia did not breach Agnostica’s territorial integrity when ‘Reverentian Army
units were promptly moved into the region19 since at that time, it was already an
independent state ‘Agnorev People’s 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,
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 state’s territory; blocking its ports; and attacking the forces of another state. 21
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.
21
GA Res. 3314 (XXIX), 14 December.
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 state’s 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 Charter’s 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
22
Simma, The Charter of the United Nations, p. 117.
23
ICJ Reports (10949), Corfa Channel Case, (Merits), p. 35
24
GA Res. 3314 (XXIX), 14 December.
extended protection to the fundamental rights of states.
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
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 Bangladesh32
and Kosovo as well as the dissolution of the Socialist Federal Republic of
Yugoslavia.33
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. INT’L L 213 (1999).
30
Declaration on Friendly Relations, supra n.49, Principle 5, UN G. A. Res. 2625 (XXV), 24 Oct. 1970.
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.
may be manifested through a ‘unilateral’ secession and the integration with an
independent State by agreement.35
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).
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).
a. Violations of right to life
40
Christakis, Theodore. Le droit à l’autodétermination en dehors des situations de décolonisation. Paris: La Documentation
Française, 1999
41
Art. 6, par. 1.
42
Compromis, par. 8
43
Compromis, par. 33
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 Agnostican’s 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.
44
Art. 26
45
Id, p.17
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.
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
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.
In 1961, the Security Council reaffirmed the proposition that international law does
not explicitly recognize the right of unilateral secession, after it declared Katanga’s
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-
52
Art. 1; Art. 1 & 15.
53
Compromis, par. 9
54
Compromis, pars. 22, 23, 25
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 NGO’s 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
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.
56
Compromis, par. 31.
57
Id, p. 17.
58
Art. 1 & 3.
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 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
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 NGO’s 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
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;
C. The court should not order the retrocession of East Agnostica to Agnostica
against the express will of its population.
62
Id., p. 11
63
Id.
64
Id., p. 23
65
ICJ Statute, art. 38, ¶1
66
Compromis, par. 38
III. THE MARTHITE CONVENTION WAS IN EFFECT UNTIL MARCH 1, 2013, AND
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
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.
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
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
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
74
Sir Humprey Waldock, Second Report Law of Treaties (1963)
75
Hackworth, Ibid
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 charter
1. 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
Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997
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.
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
79
Art 60. VCLT
80
Corrections no. 2
81
Compromis no. 11
82
Corrections no. 2
83
Correction par 10
B. There was no fundamental change of circumstances justifying Agnostica’s
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. 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.
84
Art 59, Law on Treaties
85
Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, ¶104 -Sept. 25
basis of consent of the parties bound by the treaty and such change radically transformed
the performance of the obligation of the parties.86
Marthite’s 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, it’s only the cultural value of Marthite
that is linked to the object and purpose of the convention and such unforeseeable increase
in Marthite’s commercial value does not justifiy Agnostica’s 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 Hungary’s obligations to continue the project however the
forecasted decrease in dam’s profitability was found quantitatively insufficient to
transform the party’s 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.
INTERNATIONAL LAW
86
Fisheries case (Federal Republic of Germany vs. Iceland)
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
A. Title to the software did not transfer to Agnostica under the Convention.
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
87
Compromis, par. 16.
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.
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.
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.
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
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).
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
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 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
97
Responsibility of States for Internationally Wrongful Acts, Article 49 (1).
98
Responsibility of States for Internationally Wrongful Acts, Article 49 (2) and (3).
99
Compromis, par. 18
100
Compromis, par. 19
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.