Professional Documents
Culture Documents
IN THE
THE HAGUE
NETHERLANDS
THE 56TH PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION, 2015
APPLICANT
v.
RESPONDENT
PLEADINGS...................................................................................................................................... 1
territorial integrity, the principle of non-intervention, and the United Nations Charter
generally. ..................................................................................................................................... 1
II. Reverentias acts violate the principle of non-intervention in the internal affairs of a
State. ...2
intervention. ........................................................................................................................ 4
abroad. ................................................................................................................................. 8
B. The purported secession and subsequent annexation of East Agnostica are illegal and
without effect, and therefore East Agnostica remains part of the territory of the Federal
Republic of Agnostica............................................................................................................... 10
I. The purported secession and subsequent annexation of East Agnostica are illegal and
law.. ....................................................................................................... 10
d. In any case, it is without effect as it has not been recognized by a substantial part of
II. The purported secession of East Agnostica cannot be justified on the basis of self-
a. The Agnorevs have not been denied their right of representation. ......................... 17
b. There is no gross and systematic violation of human rights in East Agnostica. ..... 18
c. There are other remedies available to the people of East Agnostica. ..................... 20
III. East Agnostica remains part of the territory of the Federal Republic of Agnostica. .. 21
iii
a. Agnosticas sovereign title over East Agnostica prevails over the Reverentias
C. The Marthite Convention ceased to be in effect as of 2nd April 2012 and, in any event,
a. Agnostica was released from its obligations under the Marthtie Convention due to a
law. ..27
d. The termination of the Marthtie Convention does not amount to an illegal taking
II. In any event, Agnostica did not breach the Marhtite Convention. ............................. 30
a. Agnosticas agreement with Baxter to lease all rights to the existing east
c. The enactment of MCA does not violate Article 6 of the Marthtie Convention. ... 32
iv
D. Reverentias removal of the software at the Marthite extraction facilities violated
international law........................................................................................................................ 33
II. Alternatively, Reverentias removal of the software from the facilities was an abuse
of rights. ............................................................................................................................... 36
III. In any case, Reverentias removal of software is not a valid countermeasure. .......... 36
v
INDEX OF AUTHORITIES
ARTICLES
A. Cassese, Ex iniuria ius oritur: Are we Moving towards International Legitimation of Forcible
................................................................................................................................................. 7, 8
A. Pellet & A. Ellet, The Opinions of the Badinter Arbitration Committee: A Second Breath for
B. Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INTL L. 1 (1999) ..... 6
P.J. Baker, The Obligatory Jurisdiction of the Permanent Court of International Justice, 6 BRIT.
E. Arechaga, International Law in the Past Third of a Century, 159 RECEUIL DES COURS 1
(1978). ................................................................................................................................. 1, 2, 5
(1992) ........................................................................................................................................ 23
H. Lauterpacht, Recognition of States in International Law, 53(3) YALE L. J. 385 (1944) ........... 4
L. Henkin, General Course on Public International Law, 216 RECEUIL DES COURS 151 (1989) . 5
O. Schachter, The Right of States to Use Armed Force, 82(5) MICH. L. REV. 1620 (1984) ........... 6
Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19) ................................... 33
Application of the Interim Accord of 13 September 1995 (FYROM v. Greece), 2011 I.C.J. 163
(Dec. 5) ..................................................................................................................................... 32
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 44
Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5)
.................................................................................................................................................... .6
Case C-162/96, Racke GmbH & Co. v. Hauptzollamt Mainz, [1998] EI-3700 ..................... 27, 28
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.) 2009 I.C.J. 213 (July
East Timor (Port. v. Aus.) I.C.J. 1995 (June 30) .............................................................. 14, 15, 22
Free Zones of Upper Savoy and District of Gex (Fr. Switz.), 1932 P.C.I.J. (Ser. A/B) No. 22
Glamis Gold, Ltd v United States of America, Award of 8 June 2009, [2009] 48 ILM 1039
(ICSID). .................................................................................................................................... 29
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Ivan Kitok v. Sweden, Communication No. 197/1985, 4.1, U.N. Doc. CCPR/C/33/D/197/1985,
Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351 (Sept. 11) ........ 26
Legal Consequences for States of the Continued Presence of' South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 49 (June
21) ............................................................................................................................................. 35
Mgwanga Gunme v. Cameroon, Comm. No. 266/2003, 26th ACHPR AAR Annex (Dec. 2008
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986
Minquiers and Ecrehos Case (Fr. v. U. K.), 1953 I.C.J. 142 (Nov. 17)........................................ 21
viii
North Sea Continental Shelf Cases (Germ. v. Den./Neth.), 1969 I.C.J. 3 (Feb. 20) ...................... 6
Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 185 (Apr. 11,
1949) ......................................................................................................................................... 15
S.D. Myers Inc. v. Canada, UNCITRAL, Partial Award (Nov. 13, 2000) ................................... 29
Territorial and Maritime Dispute (Nicar. v. Colombia), 2012 I.C.J. 832 (Nov. 19)..................... 35
Tippetts v. TAMS-AFFA Consulting Engineers of Iran, 6 Cl. Trib. 219 (1984) ......................... 29
G. Amador, Fifth Report on the Law of State Responsibility, 2 YB.I.L.C., U.N. DOC.
G. Amador, Fourth Report on the Law of State Responsibility, 2 YB.I.L.C., U.N. Doc.
G. Fitzmaurice, Second Report on the Law of Treaties, [1957] 2 YB.I.L.C., U.N. Doc.
A/CN.4/SER.A/1957/Add.l ...................................................................................................... 24
International Law Commission, Report on the Work of its Fifty-third Session, U.N. Doc. A/56/10
ix
J. Crawford, Fourth Report on State Responsibility, YB.I.L.C, U.N. Doc. A/CN.4/517 and Add.1,
Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., U.N. Doc.
Report of the International Law Commission to the General Assembly, 2 YB.I.L.C. U.N. DOC.
MUNICIPAL CASES
(I930)......................................................................................................................................... 28
Metropolitan Water Board v. Dick, Kerr & Co [1918] A.C. 119 ................................................. 23
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 (Can.) ..................................... 13, 15, 16
Security for Costs (Switzerland) case, Annual Digest 308 (1950) ............................................... 27
Thurgau v. St. Gallen, A.D. 1927-8, No. 289 (Swiss Federal Court) ........................................... 23
Convention on Rights and Duties of States, Dec. 26, 1933, 165 L.N.T.S. 19. ............................... 3
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 ............ 17
x
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3..17
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331..24, 26, 28
TRIBUNALS (1953)..................................................................................................................... 36
B. Simma & C. Tams, Reacting Against Treaty Breaches, in THE OXFORD GUIDE TO TREATIES
B. Simma & C. Tams, Termination and Suspension of the Operation of Treaties, Art.60 1969
Vienna Convention, in THE VIENNA CONVENTION ON THE LAW OF TREATIES (Olivier Corten &
B. SIMMA, 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY (2d ed. 2002) .................. 3
C. GRAY, INTERNATIONAL LAW AND THE USE OF FORCE (3d ed. 2008).......................................... 6
D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION (2002) ............................ 12, 16, 20
D.W. McNemar, The Post-independence War in the Congo, in THE INTERNATIONAL LAW OF
(1958) ........................................................................................................................................ 34
xi
H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT
I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963) ............................ 8
J. BRIERLY, THE LAW OF NATIONS (H. Waldock ed., 6th ed. 1963). ............................................... 4
J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW (1979) ...................... 10, 13, 15
(2012) ........................................................................................................................................ 37
L. OPPENHEIM, 1 OPPENHEIMS INTERNATIONAL LAW (H. Lauterpacht ed., 7th ed. 1948)........ 8, 36
M. Shaw, Re: Order in Council P.C. 1996-1497 of 30 September 1996, in SELF DETERMINATION
O. DORR & K. SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES (2012) .......... 26
xii
S.L. BURG, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION MAKING
YUGOSLAVIA THROUGH DOCUMENTS: FROM ITS CREATION TO ITS DISSOLUTION (S. Trifunovska
C. Bassiouni & P. M. Manikas, Final Report of the United Nations Commission of Experts
established pursuant to Security Council Resolution 780 (1992), Ann. IV, The Policy of Ethnic
Among States in Accordance with the Charter of the United Nations, G.A. Res. 25/2625, U.N.
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Independence and Sovereignty, G.A. Res. 2131 (XX), U.N. Doc.
Draft Declaration on Rights and Duties of States, G.A. Res. 375 (IV), U.N. Doc. A/RES/375
G.A. Res. 1514 (XV), U.N. Doc. A/4684 (Dec. 14, 1960) ........................................................... 14
G.A. Res. 1803 (XVII), U.N. Doc. A/5217 (Dec. 14, 1962) ........................................................ 29
G.A. Res. 31/6A, U.N. Doc. A/RES/31/6A (Oct. 26, 1976) ........................................................ 11
G.A. Res. 32/34, U.N. Doc. A/RES/32/34 (Nov. 28, 1977) ......................................................... 14
G.A. Res. 3203 (XXIX), U.N. GAOR, 29th Sess., 2233rd plen. mtg. (Sept. 17, 1974) ................ 11
G.A. Res. 49/43, Preamble, U.N. Doc. A/RES/49/43 (Dec. 9, 1994) .................................... 19, 21
G.A. Res.1541 (XV), U.N. Doc. A/RES/1541 (XV) (De. 15, 1960) ............................................ 14
Iraq, S.C. Res. 688, U.N. Doc. S/RES/688 (5 April 1991) ........................................................... 16
J. Crawford, Second Report on State Responsibility, U.N. Doc. A/CN.4/498/Add.2 (Apr. 30,
1999) ......................................................................................................................................... 32
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 15 (Dec. 28, 1992) ........ 17
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 15 (Dec. 28, 1992) ........ 19
Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., U.N. Doc.
S.C. Res. 1096, U.N. Doc. S/RES/1096 (Jan. 30, 1997) .............................................................. 20
S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999) .............................................................. 22
S.C. Res. 1287, U.N. Doc. S/Res/1287 (Jan. 31, 2000) ................................................................ 13
S.C. Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961) ................................................................. 12
S.C. Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961) ........................................................... 11, 20
S.C. Res. 216, U.N. Doc. S/RES/216 (Nov. 12, 1965) ................................................................. 11
S.C. Res. 550, U.N. Doc. S/RES/550 (May 11, 1984) ................................................................. 11
S.C. Res. 752, U.N. Doc. S/RES/752 (May 15, 1992) ................................................................... 6
xiv
S.C. Res. 815, U.N. Doc. S/RES/815 (Mar. 30, 1993) ........................................................... 17, 19
S.C. Res. 853, U.N. Doc. S/RES/853 (Jul. 29, 1993) ................................................................... 11
U.N. GOAR, 68th Sess., 80th plen.mtg. U.N. Doc. A/68/PV.80, Draft Resolution A/68/L.39 (Mar.
U.N. SCOR, 31st Sess., 1940th plen.mtg., U.N. Doc. Sp/PV.1941 (1976) .................................... 8
U.N. SCOR, 4072nd mtg., U.N. Doc. S/PV.4072 (Nov. 29, 1999) ................................................. 3
U.N. SCOR, 59th Sess., 5016th mtg., U.N. Doc. S/PV.5016 (Dec. 8, 1961) ................................... 2
Yugoslavia (Kosovo), S.C. Res. 1244, U.N. Doc. S/RES/1244 (10 June 1999) .......................... 16
MISCELLANEOUS
Aaland Islands Question: Report of the Committee of Jurists, L.N.O.J. Spec. Supp. No.3 (1920)
................................................................................................................................................... 16
Brioni Declaration, Europe Documents, No. 1725, (July 16, 1991) ............................................. 20
Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 92 I.L.R. 167 (Jan. 11,
1992) ......................................................................................................................................... 13
5, 1991) ..................................................................................................................................... 17
................................................................................................................................................... 20
European Union, International Fact Finding Mission for the Conflict in Georgia, II, (Sep. 2009)
..................................................................................................................................................... 1
General Assembly Adopts Resolution Calling upon States not to Recognize Changes in Status of
International Law Association, Helsinki Conference, Report of the Sixty Seventh Conference,
Report of the Commission of Jurists (Larnaude et al.), L.N.O.J. Sp. Supp. No. 3 (Oct., 1920)
......................................................................................................................................... 10, 14
Report of the Committee on Admission of New Members, S/23021 (Sept. 11, 1991) ................ 11
Report of the International Commission on the Intervention and State Sovereignty, Responsibility
The Group of 77, Ministerial Declaration, Twenty-third Annual Meeting of the Ministers for
Venice Commission, Code of Good Practice on Referendums, 70th plen.mtg., Doc. CDL-
xvi
STATEMENT OF JURISDICTION
Pursuant to the Joint Notification and Compromis concluded on 2 September 2014, including the
Corrections and Clarifications agreed to therein, between the Federal Republic of Agnostica and
the State of Reverentia [the Parties], and in accordance with Article 40(1) of the Statute of the
International Court of Justice, the Parties hereby submit to this Court their dispute concerning the
In accordance with Article 3 of the Special Agreement, notified to the Court on 2 September
2014, the International Court of Justice is hereby requested to adjudge the dispute in accordance
with the rules and principles of international law, including any applicable treaties.
The Federal Republic of Agnostica and the State of Reverentia have agreed to respect the
xvii
QUESTIONS PRESENTED
AGNOSTICA?
III. WHETHER THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2ND APRIL 2012
xviii
STATEMENT OF FACTS
and the State of Reverentia [Reverentia], the Respondent, were colonies of the Kingdom of
Credera, which had conquered the Thanatosian Plains to form its empire. Reverentia was located
in the eastern half and Agnostica on the western, surrounded by the Tuklu Range on three sides.
Reverentia underwent rapid industrialization while Agnostica focused its economic development
on the extraction and exportation of its abundant natural resources. Over time, a large number of
ethnic Reverentians [Agnorevs] started migrating to Agnostica to benefit from the economic
In 1925, these colonies became independent with Reverentia established as a unitary state
and Agnostica as a federal state with two provinces: East Agnostica, populated by 75%
Agnorevs as of 2009, and West Agnostica. The Reverentian governments consistent attempts to
encourage the Agnorevs to return to Reverentia failed, with over 85% of the Agnorevs electing
to remain in Agnostica, participating actively in the politics and economy of the federal
Agnostican state. The average Agnorev household earned 157% of the income of the average
East Agnostica is the only area in the world that contains Marthite deposits, a naturally-
occurring mineral salt, having mild restorative properties and significant traditional importance
to Reverentia. It has always been a core ingredient in Reverentian traditional medicine but was
unknown to the outside world. On 14 April 1938, the two States entered into and ratified a treaty,
the Marthite Convention [MC]. Till 2011, 200-250 tonnes of Marthite were produced per year
from the Marthite facilities and the Reverentian Marthite Trust [RMT] sold the entire output to
xix
the traditional practitioners in Reverentia and East Agnostica. The only other demand for
Marthite was from the small communities of ethnic Reverentians in North America and Europe.
In late 2011, scientists from ILSA reported 90% effectiveness of Marthite in treating
previously untreatable disorders, suffered by children around the world, and hence gained a huge
international market. Consequently, RMT shifted its focus and began selling 75% of the Marthite
mined to international pharmaceutical companies at ten times its permitted sale price under the
MC. Subsequently, in light of fundamental change in circumstances and the windfall gains made
by Reverentia through the exploitation of Agnosticas resources, the Agnostican Prime Minister,
Moritz, offered to terminate the MC by mutual consent. For this, Agnostica offered a mutually-
beneficial settlement to Reverentia, which was rejected by the Reverentian President, Nuvallus.
As a result, Agnostica terminated the MC on 2 April 2012. After the termination, Agnostica
leased all rights to the Marthite facilities to a multinational company, Baxter Enterprises Ltd.
[Baxter].
the software installed by RMT at the facilities. This crippled the entire Marthite operations as the
mining systems depended on the software to function. The facilities resumed operations by the
end of May, relying on manual labour by local Agnorevs. However, Baxter was able to extract
only 100 kilograms per day and sold 2-3 kilograms to traditional practitioners, as the computers
systems still couldnt be restored, leading to huge shortages. Consequently, due to the sabotage,
Agnostica enacted the Marthite Control Act [MCA], in October 2012, banning sale or transfer
of Marthite into Reverentia and the unauthorized sale, purchase or possession of Marthite in
Agnostica. The breach of the MCA subjected the person to a mandatory prison term. Moritz
xx
further announced that the Act was passed in view of the fact that it was Agnosticas moral
obligation to ensure that the suffering children of the world received this life-saving ingredient.
Under the MCA, 18 persons were prosecuted, including one Agnorev miner, Gohandas
Sugdy, who was arrested and charged under the MCA. He was found dead the next day. Within
hours of Sugdys suicide, Agnorevs gathered outside the jail where he had been held, in order to
protest against his death, the unavailability of Marthite for traditional medicines and the
perceived mistreatment of Mr. Sugdy. Moritz stationed military troops in the area to maintain
law and order. On 26 December, the police clashed with the protestors but there were no large-
Nuvallus offered assistance for the safety and security of the Agnorevs to Tomas Bien,
the Agnorev head of the East Agnostican provincial legislature. However, he thanked Nuvallus
and did not request any assistance from him. On 2 January 2013, Bien proposed a resolution in
the Agnostican Parliament to decrease the military presence in East Agnostica but it failed. He
was noted saying that the Agnorevs must be permitted to decide on continuing the federal state in
Agnostica. The next day, he proposed another resolution for the dissolution of the nation which
also failed, with 71 delegates voting against it. Nuvallus then delivered a speech expressing
Reverentias will to do everything in its power for the freedom of the Agnorevs.
On 10 January 2013, the Reverentian Parliament adopted a resolution titled On the Crisis
independent state in East Agnostica, and take necessary steps for ensuring the security and
Agnosticas internal affairs. On 18 January 2013, Nuvallus ordered Reverentian troops to the
xxi
border with East Agnostica, allegedly in order to assist East Agnosticans who might want to flee
the violence in Agnostica. After 27 January 2013, there were no reports of any violence in East
Agnostica.
favour of secession. Agnostica did not recognize the outcome of the referendum, since it was
illegally conducted on its territory. The next day, the Agnorev Peoples Parliament [APP] was
formed which ratified the secession and voted for sending a delegation to Bien, aiming at the
integration of East Agnostica with Reverentia. Meanwhile, Agnostica sought help from the
United Nations in order to protect its own territorial integrity. The Security Council President
expressed concerns of a possible unlawful interference in Agnosticas domestic matters and over
its territorial integrity. The European Union, ASEAN and other bodies described such annexation
Nuvallus announced on 22 February 2013 that Bien and he had signed an Integration
Army units were then moved into East Agnostica. The Agreement was accepted and ratified by
the Reverentian Parliament two days later, on 24 February 2013. Concerned for the safety of its
personnel, Agnostica moved the military units stationed in East Agnostica back to their bases in
West Agnostica. Local and national police units in East Agnostica were also disbanded during
that time. This was done without prejudice to the legal status of East Agnostica which, according
annexation by Reverentia, which was purported to be effective from 1 March 2013, according to
xxii
At the request of the Security Council, the parties negotiated and concluded a Special
xxiii
SUMMARY OF PLEADINGS
-I-
Reverentias act in sending its troops to the border with East Agnostica was an implied
threat to use force against Agnostica aimed at disrupting its territorial integrity, in violation of
State in East Agnostica, during the subsistence of the conflict, Reverentias acts amounted to a
right of self-determination of the Agnorevs, since the latter do not constitute a people to whom
previous occasions have met with widespread protests from the international community. In any
case, if such a right exists, it would be limited to cases of widespread human rights violations
tantamount to genocide. The death of sixty protestors would not meet such a high threshold in
-II-
The purported secession and subsequent annexation of East Agnostica are illegal and
without effect. Such unilateral secession is not permitted in international law by virtue of the
parent State, Agnostica, opposing it, and it being conducted through Reverentian assistance.
Violation of the jus cogens norm of non-intervention renders such secession illegal. Moreover,
the referendum and integration agreement were illegal and invalid. Further, the purported
xxiv
secession and subsequent annexation were without effect since a substantial part of the
In any case, the purported secession of East Agnostica cannot be justified on the basis of
self-determination since such right cannot be interpreted to authorize the impairment of the
territorial integrity of Agnostica. Alternatively, the situation in East Agnostica did not legitimize
Additionally, East Agnostica remains part of Agnostica since the latters sovereign title
over East Agnostica prevails over Reverentian occupation. Reverentia does not have valid title
over East Agnostica since the principles of reparation and restitution apply, and the legal status
-III-
There was a fundamental change in circumstances with the discovery by the ILSA
led to an international market for Marthite. Further, Reverentia committed a material breach of
the MC by selling 75% of the Marthite to the international market at ten times the resale price,
permitted under the Convention. For these grounds, Agnostica validly terminated the Marthite
Convention in accordance with customary norm. Furthermore, the unilateral termination of the
MC does not amount to a taking under international law as ownership is necessary for a
taking which Reverentia does not have over the Marthite. Alternatively, the taking as
xxv
In any event, the mining of Marthite by Baxter did not breach the MC as Reverentia did
not fulfil the requirements under Article 3, of paying 10% royalty to Agnostica and mining
Marthite with the help of the technology and the government engineers. Lastly, the MCA did not
breach Article 6 of the MC since by the application of the principle of inadimplenti non est
adimplendum, Agnostica was exempted from performing its obligations under the Convention.
-IV-
Reverentia violated international law in removing the software from the Marthite
facilities as Agnostica owned the software under the Convention. This is so, since Agnostica
owns the technology mentioned in Article 1, within the meaning of facilities under Article 2
of the Convention. Further, software falls within the meaning of technology by the application
of evolutionary interpretation. Accordingly, as per judicial decisions and Article 70 of the VCLT,
In any case, the removal of the software is not precluded from wrongfulness as it did not
fulfil the four requirements necessary for a countermeasure to be justifiable: the countermeasure
was not taken in response to a previous wrongful act as Agnostica validly terminated the
Convention; Reverentia did not fulfil the procedural requirements before undertaking the
countermeasure; the countermeasure was not proportional as it led crippled the entire Marthite
xxvi
PLEADINGS
threat of force under the United Nations Charter [I] and the principle of non-intervention [II].
Reverentias acts cannot be justified as a humanitarian intervention arising from an alleged right
CHARTER.
Article 2(4) of the UN Charter prohibits the threat or use of force, irrespective of the motivation
behind it.1 This prohibition has been considered by the ICJ to have attained the status of a jus
cogens norm.2 The ICJ has affirmed that such a threat may be either express or implied.3 In fact,
the level of certainty or intensity of the danger that force will actually be used is immaterial
, at 91; L. Henkin, General Course on Public International Law, 216 RECEUIL DES COURS 151
(1989).1 E. Arechaga, International Law in the Past Third of a Century, 159 RECUEIL DES COURS
1, 9 (1978) [Arechaga].
2
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.A), Merits, 1986
ICJ 14. [Nicaragua].
3
Nicaragua, supra n.2, 227.
4
European Union, International Fact Finding Mission for the Conflict in Georgia, II, 232. (Sept.
2009), http://rt.com/files/politics/georgia-started-ossetian-war/iiffmcg-volume-ii.pdf.
1
A sudden concentration of troops on the border in an existing territorial dispute is threat to use
force.5 For instance, in 1980 when the Soviet Union sent its troops near the border with Poland,
while there were already hostilities between the two States, it was considered a threat by the
Soviet Union to use force.6 Again, the sending of several troops by India near Goa was
Reverentia vowed to do everything in its power to ensure the freedom of East Agnostica and
passed a resolution affirming that it would take all measures necessary to ensure the security of
an independent East Agnostican State.8 In fact, this was followed by the Reverentian President
ordering several hundred soldiers to the border with East Agnostica on the day of the
referendum.9 Inasmuch that such acts were directed at securing the secession of East Agnostica,
they were clearly aimed at disrupting the territorial integrity and political independence10 of
Agnostica. Thus, Reverentias acts amount to an unlawful threat to use force against Agnostica.
Reverentias encouragement of the referendum [a] and its premature recognition of East
5
Arechaga, supra n.1, at 88.
6
R. Sadurska, Threat of Force, 82 AM. J. INTL L. 239,258 (1988).
7
U.N. SCOR, 59th Sess., 5016th mtg., U.N. Doc. S/PV.5016 (Dec. 8, 1961); N. STORCHLER, THE
THREAT OF FORCE IN INTERNATIONAL LAW 181 (2007).
8
Compromis.34,35.
9
Compromis.37.
10
U.N. CHARTER, art.2(4).
2
a. REVERENTIAS ENCOURAGEMENT OF THE EAST AGNOSTICAN REFERENDUM
international law [CIL],11 emanates from the UN Charter12 and the Montevideo Convention,13
to which both Agnostica and Reverentia are parties.14 This principle involves the right of every
sovereign State to conduct its affairs without outside interference.15 Thus, any attempt made
matter of international concern, the state practice shows that this is only with respect to colonial
peoples and not claims of secession, which are considered as falling within a States exclusive
domestic jurisdiction.18
11
U.N. SCOR, 4072nd mtg., U.N. Doc. S/PV.4072 (Nov. 29, 1999); Draft Declaration on Rights
and Duties of States, G.A. Res. 375 (IV), U.N. Doc. A/RES/375 (Dec. 6, 1996); Declaration on
the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their
Independence and Sovereignty, G.A. Res. 2131 (XX), U.N. Doc. A/RES/2131 (XX) (Dec. 21,
1965).
12
U.N. CHARTER, art.2(7); B. SIMMA, 1 THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY 151 (2d ed. 2002) [SIMMA].
13
Convention on Rights and Duties of States art.8, Dec. 26, 1933, 165 L.N.T.S. 19.
14
Compromis.44.
15
Nicaragua, supra n.2, 205.
16
SIMMA, supra n.12, at 155.
17
U.N. Repertory of Practice I, Suppl. 1, 160, GA (X), 530th mtg., 111,112.
18
R. HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF
THE UNITED NATIONS 97 (1963) [Higgins].
3
For instance, most States considered the Russian intervention in Crimea to be unlawful and
minority people.19 Reverentias acts, in openly declaring its support and offering its assistance to
the East Agnosticans in order to secure a referendum for their secession,20 thus constitutes an
UNLAWFUL INTERVENTION.
the subsistence of the conflict.23 Such recognition is an unlawful interference in the domestic
affairs of the parent State.24 Thus, when Biafra claimed a right of unilateral secession, its
recognition by a few States during the subsistence of the conflict, was considered to be
19
U.N. GOAR, 68th Sess., 80th plen.mtg. U.N. Doc. A/68/PV.80, Draft Resolution A/68/L.39
(Mar. 27, 2014).
20
Compromis.30, 34-5.
21
E. Borchard, Recognition and Non-Recognition, 36 AM J. INTL L. 108, 110 (1942).
22
H. Lauterpacht, Recognition of States in International Law, 53(3) YALE L. J. 385, 395 (1944)
[Lauterpacht-Recognition].
23
J. BRIERLY, THE LAW OF NATIONS 138 (H. Waldock ed., 6th ed. 1963).
24
Lauterpacht-Recognition, supra n.22, at 392.
25
H. Lahmann, Biafra Conflict, I M.P. ENCYCLOPEDIA PUB. INTL. L. 920, 28.
4
Reverentia extended its diplomatic recognition to an independent State of East Agnostica and
declared its full support for East Agnosticas secession even prior to the referendum,26 at a time
when the conflict in Agnostica was still continuing. Such premature recognition of East
AGNOREVS.
CIL does not permit unilateral intervention on part of third States to promote claims of self-
determination of a secessionist entity [a]. In any event, the conditions under which such a
possible right may be exercised have not been met [b]. Reverentia can also not justify its actions
A right of self-determination asserted by a people within a State does not authorize third States to
intervene, with or without arms.27 In fact, the General Assembly [UNGA] has clarified that no
State has the right to intervene in the affairs of another State, for any reason whatsoever.28 While
the right of self-determination is codified in various human rights instruments, the ICJ has noted
26
Compromis.35.
27
Arechaga, supra n.
28
Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation Among States in Accordance with the Charter of the United Nations, G.A. Res.
25/2625, U.N. Doc. A/RES/25/2625 (Oct. 24, 1970) [Resolution 2625].
5
that these instruments do not confer on States the capacity to protect the victims of infringement
of such rights, irrespective of nationality;29 and if a norm allowing intervention in certain cases is
to be permitted, it would lead to wanton abuse by the powerful States.30 In practice, unilateral
intervention in the affairs of another State to promote an alleged right of self-determination, has
been consistently considered as illegal.31 Thus, Indias intervention in East Pakistan,32 and
considered illegal.
In addition, for the requirement of opinio juris to be satisfied, States must have acted under a
legal belief that their course of action was in conformity with international law.34 However, in
most cases of intervention, States have sought to justify their acts as self-defense measures.35
Rarely has a right of humanitarian intervention been invoked by States.36 Thus, States do not
believe that such a right of humanitarian intervention exists.37 This is also evidenced from
29
Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3 (Feb.
5).
30
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 35 (Apr. 9) [Corfu Channel].
31
S.C. Res. 752, U.N. Doc. S/RES/752 (May 15, 1992).
32
S.C. Res. 307, UN Doc. S/RES/307 (Dec. 21, 1971).
33
B. Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUR. J. INTL L. 1, 6
(1999); Thomas Franck, Lessons of Kosovo, 93(4) AM. J. INTL L. 857, 859 (1999).
34
North Sea Continental Shelf Cases (Germ. v. Den./Neth.), 1969 I.C.J. 3 (Feb. 20).
35
C. GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 33-35 (3d ed. 2008).
36
O. Schachter, The Right of States to Use Armed Force, 82(5) MICH. L. REV. 1620, 1628-33
(1984).
37
T. Franck & N. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military
Force, 67 AM. J. INT'L L. 275, 299 (1973).
6
consistent opposition by a large group of States to the existence of such a right in international
law.38 Hence, Reverentia cannot seek to justify its intervention or threat of using force on the
Even if States have a right to intervene, this must be restricted to the most extreme cases of
violation of human rights by the parent State.39 The violation of human rights must be systemic,
widespread and the loss of lives must be equivalent to that of genocide.40 For instance, NATOs
intervention in Kosovo, if at all a legal act, was justified on the basis of the fact that there was
large-scale ethnic cleansing of the Albanians.41 Thus, any intervention by Reverentia in the
domestic affairs of Agnostica would only be justified if the latter were to be responsible for mass
violation of human rights of the Agnorevs, in consistent ignorance of the world communitys
protests.42 However, there have been no such human rights violations of the Agnorevs. The
38
The Group of 77, Ministerial Declaration, Twenty-third Annual Meeting of the Ministers for
Foreign Affairs of the Group of 77 (Sep. 24, 1999), www.g77.org/Docs/decl1999.html.
39
Report of the International Commission on the Intervention and State Sovereignty,
Responsibility to Protect, 4.13 (Dec., 2001), http://responsibilitytoprotect.org/ICISS%20
Report.pdf [ICISS Report].
40
Id. at 4.19.
41
A. Cassese, Ex iniuria ius oritur: Are we Moving towards International Legitimation of
Forcible Humanitarian Countermeasures in the World Community, 10 EUR. J. INTL L. 23, 28
(1999) [Cassese-Intervention].
42
ICISS Report, supra n.39, at 4.25.
7
civilian casualties caused due to a police confrontation,43 by itself, do not meet the extremely
NATIONALS ABROAD.
intervention.
The right of a State to intervene in order to protect its nationals in another State is not recognized
as a norm of international law.45 States that have sought to justify their actions by using the
protection of nationals abroad doctrine, have met with strong protests from the world
Grenada,48 on the premise of protecting its nationals were widely condemned by other States as
Reverentia cannot invoke this doctrine to justify its actions, since it only applies to the protection
of nationals abroad, and not merely people of the same ethnic origin.49 For a State to claim a
43
Compromis.29.
44
Cassese-Intervention, supra n.41, at 26.
45
I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 301 (1963).
46
G.A. Res. 44/240, U.N. Doc. A/RES/44/240 (Dec. 29, 1989).
47
U.N. SCOR, 31st Sess., 1940th plen.mtg. at 14, U.N. Doc. Sp/PV.1941 (1976).
48
G.A. Res. 38/7, 19-20, U.N. Doc. A/Res/38/7 (Nov. 3, 1983).
49
L. OPPENHEIM, 1 OPPENHEIMS INTERNATIONAL LAW 276 (H. Lauterpacht ed., 7th ed. 1948).
8
person as its national, there must be a real and effective link of nationality between the State and
the person concerned.50 This would require habitual residence, participation in public life and the
reciprocal exchange of rights and duties between the State and the particular individual.51 The
Agnorevs have been living in East Agnostica from before 1925. They have consistently refused
invitations to go back to Reverentia and have actively participated in public life in Agnostica.52
Thus, Reverentia had lost all effective ties with the Agnorevs. Since the Agnorevs were not its
nationals, Reverentia cannot invoke this doctrine to justify their intervention in East Agnostica.
50
Nottebohm Case (Liech v. Guat.), 1955 I.C.J. 4, 24 (Apr. 6).
51
Id. at 22.
52
Compromis.6.
9
B. THE PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF EAST AGNOSTICA ARE
ILLEGAL AND WITHOUT EFFECT, AND THEREFORE EAST AGNOSTICA REMAINS PART OF THE
The purported secession and subsequent annexation of East Agnostica are illegal and without
effect [I] and cannot be justified on the basis of self-determination or a remedial right of
East Agnosticas purported secession and annexation are illegal as a unilateral secession,
opposed by the parent state is not permitted in international law [a] and because it was organized
through Reverentian assistance [b]. Moreover, it is based on an illegal and invalid referendum
and integration agreement [c]. Further, the purported secession and subsequent annexation is
without effect since it has not been recognized by a substantial part of the international
community [d].
INTERNATIONAL LAW.
The post-Charter practice does not recognize the right of a portion of the population of a State to
secede or determine its own political fate, in opposition to the parent State.53 The UNGA and the
Security Council [UNSC] have repeatedly reinforced the requirement of the assent of the
53
J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 390 (1979) [CRAWFORD];
Report of the Commission of Jurists (Larnaude et al.), L.N.O.J. Sp. Supp. No. 3 (Oct., 1920)
[Larnaude Report].
10
parent State in matters of secession.54 For instance, the UNSC condemned the attempts at
unilateral secession in Katanga and Rhodesia as they were without the consent of the parent
State. 55
The loss of considerable territory and population, does not affect the identity and continuity of a
State,56 and it may therefore effectively oppose the secession of a part of its territory. For
instance, the consent of the Soviet Union and Pakistan was considered necessary in legitimizing
the secession of the Baltic States and Bangladesh,57 even though they had lost a considerable part
of their territory. Agnostica has consistently opposed the purported secession and annexation of
East Agnostica;58 therefore, East Agnosticas purported secession is illegal and without effect.
Secession is considered illegal when there is a violation of a jus cogens norm.59 The customary
norm of non-intervention60 has a jus cogens status.61 This was confirmed in Friendly Relations
54
S.C. Res. 853, U.N. Doc. S/RES/853 (Jul. 29, 1993); S.C. Res. 550, U.N. Doc. S/RES/550
(May 11, 1984); G.A. Res. 31/6A, U.N. Doc. A/RES/31/6A (Oct. 26, 1976).
55
S.C. Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961); S.C. Res. 216, U.N. Doc. S/RES/216
(Nov. 12, 1965).
56
International Law Association, Helsinki Conference, Report of the Sixty Seventh Conference,
at 14 (Aug. 12-17, 1996).
57
G.A. Res. 3203 (XXIX), U.N. GAOR, 29th Sess., 2233rd plen. mtg. (Sept. 17, 1974); S.C. Res.
709, U.N. Doc. S/RES/709 (Sept. 12, 1991); Report of the Committee on Admission of New
Members, S/23021 (Sept. 11, 1991).
58
Clarification.1.
59
Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22) [Kosovo Advisory Opinion].
60
Applicant-Memorial, Heading-A.II.a.
11
Declaration, which states that the principle of self-determination grants the right to peoples to
freely determine their political status albeit without external interference.62 Accordingly,
secession through external interference is considered illegal in international law. For instance,
the UNSC condemned the secessionist activities in Katanga owing to external interference as
illegal.63
Reverentia offered its assistance to Mr. Bien,64 pursuant to which he propagated secessionist
claims,66 and Reverentia stationed its army units on the border.67 Thus, East Agnosticas
61
Nicaragua, supra n.2, at 202; G.A. Res. 375 (IV), U.N. Doc. No. A/RES/4/375 (Dec. 6,
1949).
62
Resolution 2625, supra n.28.
63
S.C. Res. 169, 1,8, U.N. Doc. S/RES/169 (Nov. 24, 1961); D.W. McNemar, The Post-
independence War in the Congo, in THE INTERNATIONAL LAW OF CIVIL WAR 244 (R. Falk ed.,
2010).
64
Compromis.30,34.
65
Compromis.31.
66
Compromis.35.
67
Compromis.37.
12
c. IT IS BASED ON AN ILLEGAL AND INVALID REFERENDUM AND INTEGRATION
AGREEMENT.
A referendum for secession is not permitted in international law, 68 unless it is permitted in the
domestic Constitution.69 For instance, States have opposed the legality of the Crimean
referendum as it was in violation of Ukraines Constitution.70 Similarly, the UNSC and the EU
Yugoslavia despite resulting in substantial majorities.71 Thus, in CIL, there is no unilateral right
Further, for a referendum to be legal in international law, there must be a democratic deliberation
and opinion forming.73 The Venice Commission has condemned the Crimean referendum as
68
D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 290-93 (2002) [RAIC].
69
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at 594-95 (Can.) [Quebec
Secession]; Kohlhaas v. Alaska, 147 P.3d 714 (2006); Frontier Dispute (Burkina Faso/Mali),
1986 I.C.J. 567 (Dec. 22).
70
General Assembly Adopts Resolution Calling upon States not to Recognize Changes in Status
of Crimea Region, (Mar. 27, 2014), http://www.un.org/News/Press/docs/2014/ga11493.doc.htm.;
G.A. Res. 68/262, U.N. Doc. A/RES/68/262 (Apr. 1, 2014) [Resolution 68/262].
71
S.C. Res. 1287, 4-5, U.N. Doc. S/Res/1287 (Jan. 31, 2000); Conference on Yugoslavia
Arbitration Commission, Opinion No. 2, 92 I.L.R. 167, 168-69.A (Jan. 11, 1992) [Badinter
Committee Opinion 2]; CRAWFORD, supra n.53, at 417.
72
CRAWFORD, supra n.53, at 417.
73
Venice Commission, Code of Good Practice on Referendums, 70th plen.mtg., at 11, Doc.
CDL-AD(2007)008 3.2 (Mar. 19, 2007).
13
there was a period of only 13 days between calling the referendum and the referendum itself.74
The period of 16 days between scheduling and conducting the referendum75 demonstrates non-
ii. The integration agreement between East Agnostica and Reverentia was
A State does not possess any right to integrate the territory of another State pursuant to a
the parent State.76 For instance, 100 States voted in favor of the UNGA Resolution declaring the
referendum held in the Autonomous Republic of Crimea to integrate into Russia invalid and
not forming the basis for any alteration of the status of Crimea.77
In any case, the free determination of a peoples political status78 must be achieved through an
informed and democratic process.79 For instance, the people of East Timor had requested
Indonesia to accept East Timor as an integral part of Indonesia, and Indonesia enacted a law
incorporating the territory as part of its national territory.80 However, the UNGA rejected the
74
Venice Commission, Opinion no. 762/2014, 21-22, Doc. CDL-AD(2014)002) (Mar. 21,
2014).
75
Compromis.37,38.
76
Larnaude Report, supra n.53, at 5-6.
77
Resolution 68/262, supra n.70.
78
G.A. Res. 1514 (XV), U.N. Doc. A/4684 (Dec. 14, 1960); Western Sahara, Advisory Opinion,
1975 I.C.J. 12, at 12 (Oct. 16); G.A. Res. 36/103, U.N. Doc. A/RES/36/103 (Dec. 9, 1981).
79
Principle VII, G.A. Res.1541 (XV), U.N. Doc. A/RES/1541 (XV) (De. 15, 1960).
80
East Timor (Port. v. Aus.) 1995 I.C.J. 90 (June 30) [East Timor].
14
claim that East Timor had been incorporated into Indonesia, inasmuch as the people of the
territory had not been able to freely exercise the right to self-determination.81
This implies that the legal status of a territory cannot change through an indirect mechanism such
as an integration agreement.82 Accordingly, the legal status of East Agnostica was not altered by
the integration agreement of 22 February 2013,83 because it was through an indirect mechanism.
In the Reparations case, the ICJ noted that fifty States out of a total of approximately sixty UN
members, at the time, represented the vast majority of the members of the international
community; thus they had had the power to bring into being an entity possessing objective
international personality, and not merely personality recognized by them alone.85 In the present
case, the supposed recognition of the changed status of East Agnostica was merely by 30 States
81
G.A. Res. 31/53, U.N. Doc. A/RES/31/53 (Dec. 1, 1976); G.A. Res. 32/34, U.N. Doc.
A/RES/32/34 (Nov. 28, 1977).
82
Crawford, supra n.53, at 333.
83
Compromis.41.
84
Quebec Secession, supra n.69, at 595; M. Shaw, Re: Order in Council P.C. 1996-1497 of 30
September 1996, in SELF DETERMINATION IN INTERNATIONAL LAW 218 (A. Bayefsky ed., 2000).
85
Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. at 185 (Apr.
11, 1949).
15
out of a total of 193 UN Members.86 Such recognition granted by few States to an illegal change
Moreover, when a situation constitutes a threat to peace as a result of secessionist activities, the
UNSC has consistently upheld the preservation of territorial integrity of the parent State.88
Several transnational bodies have issued communiqus describing the purported annexation of
East Agnostica as a threat to international peace and stability.89 Accordingly, any change in the
legal status of East Agnostica has not been recognized by the international community. East
II. THE PURPORTED SECESSION OF EAST AGNOSTICA CANNOT BE JUSTIFIED ON THE BASIS
The denial of the internal self-determination is a condition sine qua non for a lawful exercise of
when, there are participatory rights available to a community [a], there is absence of gross and
systematic violation of its human rights [b] or when other remedies have not been exhausted [c].
86
Clarification.7.
87
East Timor, supra n.80, at 116 (dissenting Opinion of Judge Skubiszewski).
88
Iraq, S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991); Yugoslavia (Kosovo), S.C. Res.
1244, U.N. Doc. S/RES/1244 (10 June 1999).
89
Compromis.40.
90
RAIC, supra n.68, at 306.
91
Resolution 2625, supra n.28; A. Pellet & A. Ellet, The Opinions of the Badinter Arbitration
Committee: A Second Breath for the Self-Determination of Peoples, 3 EUR. J. INTL L. 178; A.
CASSESE, SELF-DETERMINATION OF PEOPLES 119 (1995) [CASSESE]; Quebec Secession, supra
n.69, 134; Aaland Islands Question: Report of the Committee of Jurists, L.N.O.J. Spec. Supp.
No.3 (1920).
16
a. THE AGNOREVS HAVE NOT BEEN DENIED THEIR RIGHT OF REPRESENTATION.
States whose governments represent the whole population of its territory on the basis of equality
are deemed to comply with the principle of self-determination in respect of its entire people.92
Accordingly, when there is no denial of the basic right of representation, i.e. a formal
instance, in determining the legality of the secession of Serbian Krajina from Croatia, which
was based on the factum of minority representation in the central parliament albeit with
participatory rights,95 the international community did not consider it as a situation which
justified secession.96
During the conflict, the East Agnostican provincial legislature was not derecognized and carried
out functions as per the Constitution.97 Further, East Agnostican representatives constitute
92
International Covenant on Civil and Political Rights art.1, Dec. 16, 1966, 999 U.N.T.S. 171;
International Covenant on Economic, Social and Cultural Rights art.1(1), Dec. 16, 1966, 993
U.N.T.S. 3; Resolution 2625, supra n.28.
93
Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens
(Oct. 5, 1991).
94
Mgwanga Gunme v. Cameroon, Comm. No. 266/2003, 26th ACHPR AAR Annex 6 (Dec.
2008 May 2009) [Mgwanga v. Cameroon]; CASSESE, supra n.91, at 119-120.
95
S.L. BURG, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION
MAKING SINCE 1966 113 (1983) [BURG].
96
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add. 15 (Dec. 28, 1992); S.C.
Res. 815, 5, U.N. Doc. S/RES/815 (Mar. 30, 1993).
97
Compromis.8.
98
Compromis.31,33.
17
making process in the Parliament is evidenced from the fact that Mr. Bien presented two
AGNOSTICA.
The deaths of sixty demonstrators [i], the restrictions on unauthorized transactions of Marthite
[ii], and the allegations of discrimination in public life [iii], do not constitute gross and
For a right of secession to arise, the violation of human rights must be gross and systematic; as
was characterized in the genocide in Bangladesh100 and ethnic cleansing leading to the 10,000
deaths in Croatia.101 In comparison, few deaths in Cameroon were held not to give rise to a right
of secession.102 Accordingly, sixty deaths and limited injuries in East Agnostica do not give rise
to a right of secession.
In CIL, cultural rights of a community are not absolute and may be restricted on account of a
reasonable countervailing interest, such as judicious use of natural resources and protection of
99
Compromis.31,33.
100
East Pakistan Staff Study, 8 INTL COMMN JURISTS REV. 23, 44 (1972).
101
C. Bassiouni & P. M. Manikas, Final Report of the United Nations Commission of Experts
established pursuant to Security Council Resolution 780 (1992), Ann. IV, The Policy of Ethnic
Cleansing, U.N. Doc. S/1994/674/Add.2 (V) (Dec. 28, 1994).
102
Mgwanga v. Cameroon, supra n.94, 111,201.
18
others human rights.103 The restrictions in the MCA, of banning unauthorized purchase, sale, or
possession of Marthite within Agnostica, were due to the extreme shortage of Marthite in
Agnostica,104 and for saving the suffering children of the world.105 Therefore, MCAs restrictions
on the unauthorized transactions of Marthite did not constitute a gross and systematic violation
of human rights.
not give a right of secession.106 For instance, the purported secession of Serbian Krajina from
Croatia was based on claims inter alia that Serbs were disproportionately represented in the civil
service, and in the army.107 However, the international community noted that these claims ipso-
facto did not demonstrate systematic discrimination justifying the secession of the Serbian-
Krajina. 108
103
Ivan Kitok v. Sweden, Communication No. 197/1985, 4.1, U.N. Doc.
CCPR/C/33/D/197/1985, (July 27, 1988); Lansman v. Finland, Communication No. 511/1992,
U.N. Doc. CCPR/C/52/D/511/1992, (Oct. 26, 1994).
104
Compromis.21.
105
Compromis.22.
106
Mgwanga v. Cameroon, supra n.94, 143,202.
107
BURG, supra n.95, at 113.
108
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add.15, (Dec. 28, 1992);
G.A. Res. 49/43, Preamble, 4, U.N. Doc. A/RES/49/43 (Dec. 9, 1994); S.C. Res. 815, 5, U.N.
Doc. S/RES/815 (Mar. 30, 1993).
19
Similarly, the claims of the East Agnostican citizens regarding discrimination in judicial posts,
armed services and education,109 does not show a gross or systematic violation of human rights
In CIL, secession is a remedy of last resort and it permitted only when it is evident that a
community does not have any other remedies under domestic or international law.110 A right of
secession can fructify only when all political mechanisms are exhausted, which in practice
revolves around the exhaustion of negotiations.111 For instance, the international community
has condemned of the purported secessions of Katanga from Congo112 and Abkhazia from
Georgia113 as the they were without any good faith negotiations, and thus could not be
considered as ultimum remedium. Therefore, the purported secession of East Agnostica is illegal
and without effect as it was without negotiations in good-faith regarding the future political
solutions with the Agnostican Parliament and government, for the settlement of the conflict.114
109
Compromis.28.
110
E. VATTEL, 1 THE LAW OF NATIONS 54 (1916); CASSESE, supra n.91, at 118; YUGOSLAVIA
THROUGH DOCUMENTS; FROM ITS CREATION TO ITS DISSOLUTION 310 (S. Trifunovska ed., 1994);
Brioni Declaration, Europe Documents, No. 1725, at 16-19 (July 16, 1991).
111
Mgangwa v. Cameroon, supra n.94, 203; European Commission for Democracy through
Law, Opinion No. 762/2014 (Mar. 21-22 2014).
112
S.C. Res. 169, U.N. Doc. S/RES/169 (Nov. 24, 1961).
113
S.C. Res. 1096, 3, U.N. Doc. S/RES/1096 (Jan. 30, 1997); European Parliament, Resolution
on the Situation in Abkhazia, Preamble G and operative 3,4 (Nov. 14, 1996).
114
RAIC, supra n.68, at 385.
20
III. EAST AGNOSTICA REMAINS PART OF THE TERRITORY OF THE FEDERAL REPUBLIC
OF AGNOSTICA.
In the Frontier Disputes case, the ICJ noted that the CIL principle of uti possidetis iuris makes
the frontiers inherited from colonization, intangible, and accords preeminence to such a legal title
over any competing effective possession as a basis for sovereignty.115 Thus, Agnosticas
sovereign title over East Agnostica prevails over the Reverentian occupation.116 Moreover, the
Chamizal arbitration demonstrates that merely because a State withdraws its military units from
the disputed territory does not itself affect its sovereign title over that territory.117
When a State illegally occupies the territory of another State, it does not have valid title over the
territory, the principle of reparation and restitution apply and the legal status quo ante must be
restored.118 The UNGA, seized of the matter in Croatia, emphasized that the illegally occupied
territory by Serbia must be reintegrated into Croatia.119 Moreover, the UNSC noted in the East
Timor situation that in case of an illegal annexation, there is a duty of restoration under
115
Frontier Disputes (Burkina Faso/ Mali), 1986 I.C.J. 554 (Dec. 22).
116
Chamizal (Mex. v. USA), 5 AM. J. INTL. L., at 782 (1911); Minquiers and Ecrehos Case (Fr.
v. U. K.) 1953 I.C.J. 142-4 (Nov. 17).
117
Id.
118
C. Haverland, Secession, in 10 ENCYCLOPEDIA PUB. INTL. L. 384 (1987).
119
G.A. Res. 49/43, Preamble, 4, U.N. Doc. A/RES/49/43 (Dec. 9, 1994).
21
international law which involves withdrawing troops from the annexed territory.120 Therefore
120
S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999); East Timor, supra n.80, at 1024.
22
C. THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2ND APRIL 2012 AND, IN ANY
The MC ceased to be in effect as of 2nd April 2012 due to a fundamental change in circumstances
[a] and alternatively, due to Reverentias material breach [b]. Thus, Agnosticas unilateral
termination is valid under international law [c] and it does not amount to an illegal taking [d].
According to the customary principle of rebus sic stantibus,121 codified under Article 62 of the
Vienna Convention on the Law of Treaties [VCLT],122 a party to a treaty may release itself
from its obligations, if there is a fundamental change in circumstances that prevailed at the time
In Fisheries Jurisdiction,124 the ICJ expounded that a party may invoke a fundamental change in
circumstance if the change in the circumstances was unforeseen by the parties [i], those
121
Thurgau v. St. Gallen, A.D. 1927-8, No. 289 (Swiss Federal Court); Metropolitan Water
Board v. Dick, Kerr & Co [1918] A.C. 119, 139; Free Zones of Upper Savoy and District of Gex
(Fr. Switz.), 1932 P.C.I.J. (Ser. A/B) No. 22, at 156-58 (Aug. 19).
122
Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 63, 36 (July 25) [Fisheries Jurisdiction];
Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 65 (May 2) [Gabcikovo].
123
G. Schwarzenberger, Clausula Rebus Sic Stantibus, in 1 ENCYCLOPEDIA PUB. INTL L. 611 (R.
Benhart ed., 1992); M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW
OF TREATIES 766 (2009) [VILLIGER].
124
Fisheries Jurisdiction, supra n.122, 36.
23
circumstances constituted an essential basis of consent of the parties, to be bound by the treaty
[ii] and the change radically transformed the performance of the obligations of the parties [iii].
This condition denotes that, while concluding the treaty, the parties did not envisage the
emergence of the new conditions.125 At the time of the conclusion of the MC, the parties did not
expect any significant sale of Marthite outside the Thanatosian Plains. This is evident from the
preamble to the MC, which stipulates that Marthite was without significant commercial value
outside the Thanatosian plains;126 and the only demand which the parties expected outside the
Thanatosian plains was from the small diaspora communities of ethnic Reverentians.127 Thus, the
ILSAs discovery of new properties of Marthite and the subsequent rise in demand by
Under this condition it must be established that the existence of the circumstances prevailing at
the time of the conclusion of the treaty constituted an essential basis for the consent of the
parties.128 This is determined by the object and purpose of the treaty.129 For instance, the UN
125
H. Waldock, Second Report on the Law of Treaties, [1963] 2 YB.I.L.C. 79, U.N. Doc.
A/CN.4/SER.A/1963/ADD.1 [Waldock, Second Report].
126
Compromis.Annex.
127
Compromis.11.
128
Vienna Convention on the Law of Treaties art.62(1), May 23, 1969, 1155 U.N.T.S. 331
[V.C.L.T.].
129
G. Fitzmaurice, Second Report on the Law of Treaties, [1957] 2 YB.I.L.C. 32, U.N. Doc.
A/CN.4/SER.A/1957/Add.l [Fitzmaurice, Second Report].
24
Secretary-General in 1950, in an opinion on the Legal Validity of Minorities Treaties due to the
Outbreak of World War, after observing the object of those treaties, considered them to be
terminated due to rebus sic stantibus, since the basis of concluding the treaties was peace.130
The object and purpose of the MC, as observed from the preamble, was to ensure reliable supply
value.131 This constituted the essential basis of Agnosticas consent to be bound by the MC,132
Under this condition, it must be established that the State invoking rebus sic stantibus has an
undue burden in furthering the obligations of the treaty.133 For instance, U.S.A. validly
terminated the International Line Load Convention in 1941 due the outbreak of World War II,
since the Convention was for peace-time commerce and the war rendered the performance of the
original obligations pertaining to the normal flow of commerce difficult.134 Agnosticas original
obligation under the MC was to allow Reverentia to mine Marthite for supplying it to the
traditional practitioners.135 Due to the huge international demand for Marthite, Reverentia started
130
U.N. Secretary-General, Study on the Continued Validity of the Undertaking Concerning
Minorities, 36, U.N. Doc. E/CN.4/367 (Apr. 7, 1950).
131
Compromis.Annex.
132
Compromis.14.
133
Id.
134
A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW: THE DOCTRINE OF
REBUS SIC STANTIBUS AND DESUETUDE 102 (1985) [VAMVOUKOS].
135
Compromis.Annex.
25
selling 75% of the mined Marthite to the international market,136 and allowing this radically
transformed Agnosticas, as its own resources were being exploited for purposes unforeseen by
the parties.
A material breach justifies the termination of the treaty by the injured party.137 This principle is
a part of CIL codified under Article 60 of the VCLT. 138 Material breach of a treaty consists of
a violation of provisions which are essential to the accomplishment of the objects or purposes of
the treaty.139 However, for a provision to be essential, it need not necessarily regulate the central
purpose of the treaty.140 In fact, the ILC changed the adjective from fundamental to material
to allow breach of ancillary provisions considered essential to the effective execution of the
treaty.141 Thus, the object and purpose of a treaty may also be deciphered from substantive
136
Compromis.9.
137
V.C.L.T., supra n.128, art.60.
138
M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES 365 (1985); Gabcikovo,
supra n.122, 46.
139
V.C.L.T., supra n.128, art.60.
140
B. Simma & C. Tams, Termination and Suspension of the Operation of Treaties, Art.60 1969
Vienna Convention, in THE VIENNA CONVENTION ON THE LAW OF TREATIES 1360 (O. Corten &
P. Klein eds., 2011).
141
Report of the International Law Commission to the General Assembly, 255 [1966] 2 YB.I.L.C.
U.N. DOC. A/CN.4/SER. A/1966/ADD. 1 [ILC Report to the General Assembly].
142
O. DORR & K. SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES at 543
(2012).
26
The preamble to the MC recognizes that Marthite is without commercial value outside the
Thanatosian Plains. In furtherance of this, Articles 4(a) and 4(d) prohibit the sale of Marthite
outside the Thanatosian Plains, unless the supply exceeds the demand from traditional
In 2011, it was certified by RMT accountants that Marthite production merely varied within 5%
of the demand from the traditional practitioners.144 Accordingly, RMTs sale of 75% of the
MC.
INTERNATIONAL LAW.
circumstance.146 This is supported by extensive State practice.147 For instance, in Racke,148 the
European Court of Justice allowed unilateral termination by the European Economic Council, of
143
Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351 (Sept. 11).
144
Clarification.10.
145
Compromis.13.
146
P.J. Baker, The Obligatory Jurisdiction of the Permanent Court of International Justice, 6
BRIT. Y.B. INT'L L. 68, 100 (1925); L. OPPENHEIM, 2 OPPENHEIMS INTERNATIONAL LAW 947-48
(H. Lauterpacht ed., 8th ed. 1958) [OPPENHEIM].
147
Francis v. The Queen, 3 Dominion L. Rep. (2d.) 641 (1956); Security for Costs (Switzerland),
Annual Digest 308 (1950); Bremen v. Prussia, A.D. 1925-6, No. 266 (Germany).
148
Case C-162/96, Racke GmbH & Co. v. Hauptzollamt Mainz, [1998] EI-3700 58 [Racke
case].
27
Similarly, widespread State practice149 and eminent publicists,150 demonstrate that an injured
State has complete discretion to unilaterally terminate treaties due to material breach.151
Further, the VCLT does not apply retroactively,152 and CIL does not provide for any procedure
for termination of treaties153 and States are only guided by the principle of good-faith.154 Judicial
decisions confirm that Articles 65-68 of the VCLT, which provide for procedures while
for mutually terminating the MC,156 which was rejected by Reverentia. Accordingly, Agnosticas
149
Ware v. Hylton, 3 Dallas 199, 261 (1796); The Blonde, 1 A.C. 313, 329 (1922) (Privy
Council); Attorney-General (Brussels) v. Litner Aron (Belgium), Annual Digest 47 (I930).
150
LORD MCNAIR, THE LAW OF TREATIES 553 (1961) [MCNAIR]; H. LAUTERPACHT, THE
DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT OF JUSTICE 159 (1958).
151
MCNAIR, supra n.150, at 571; B. Simma & C. Tams, Reacting Against Treaty Breaches, in
THE OXFORD GUIDE TO TREATIES 593 (D.B. Hollis ed., 2012) [Simma & Tams].
152
V.C.L.T., supra n.128, art.4.
153
VAMVOUKOS, supra n.134, at 206-14; M. Fitzmaurice, Exceptional Circumstances and Treaty
Commitments, in THE OXFORD GUIDE TO TREATIES 624 (D.B. Hollis ed., 2012).
154
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, 1980 I.C.J. 96 (May 20).
155
Racke case, supra n.148, 52-59; Armed Activities on the Territory of the Congo (Dem.
Rep. Congo v. Rwanda), 2006 I.C.J. 44 (July 10).
156
Compromis.14.
28
d. THE TERMINATION OF THE MC DOES NOT AMOUNT TO AN ILLEGAL TAKING
The unilateral termination does not amount to a taking under international law [i] and
While a taking under CIL does not require an actual physical taking of property,157 the injured
party must still be deprived of its ownership rights,158 whether tangible or intangible. This has
also been emphasized in the UNGA Resolution 1803.159 Thus, even for indirect expropriation,
the interference with interests where no ownership of property exists, cannot give rise to a claim
of expropriation.160 Under Article 3 of MC, Reverentia could only own the Marthite once it had
paid royalty to Agnostica; since, Agnostica did not accept any royalty in 2012-13,161 Reverentia
did not own any Marthite. Thus, Reverentia did not have any ownership rights were affected
due to the termination of the MC and hence, there is no taking in the present case.
157
Glamis Gold, Ltd v United States of America, Award of 8 June 2009, [2009] 48 I.L.M.
1039.355 (ICSID).
158
Tippetts v. TAMS-AFFA Consulting Engineers of Iran, 6 Cl. Trib. 219 (1984); S.D. Myers
Inc. v. Canada, UNCITRAL, Partial Award (Nov. 13, 2000).
159
G.A. Res. 1803 (XVII), 4, U.N. Doc. A/5217 (Dec. 14, 1962) [Resolution 1803].
160
G. Amador, Fourth Report on the Law of State Responsibility, 2 YB.I.L.C., 12, U.N. Doc.
A/CN.4/SER.A/1959/ADD. 1 (Feb. 26, 1959).
161
Clarification.12.
29
ii. Alternatively, the taking is not illegal as Agnostica offered to pay
CIL requires the payment of appropriate compensation,162 equivalent to the market value of
the expropriated investment.163 At the time of the termination of the MC, Agnostica offered to
compensate Reverentia not only for the costs of construction and staffing the mining facilities,
but also for any loss of its Marthite supply during the remaining term of the MC.164 This was
equivalent to the market value of Reverentias rights of selling the mined Marthite. Thus,
Agnostica fulfilled its obligation by offering to pay appropriate compensation which was
rejected by to Reverentia.
Agnosticas agreement with Baxter to lease all rights to the facilities did not breach the MC [a],
the subsequent mining and selling of Marthite by Baxter did not violate Article 3, MC [b] and
On a combined reading of Articles 1 and 2 of the MC, it is evident that the Marthite mining and
mining-support facilities within the territory of East Agnostica are owned by Agnostica.165 On
162
Resolution 1803, supra n.159, 4; G.A. Res. 3281(XXIX), art. 2, U.N. Doc. A/9361 (Dec. 12,
1974).
163
UNCTAD, Expropriation, 40, U.N. Doc. UNCTAD/DIAE/IA/2011/7 (July, 2012); James v.
U.K., 8 ECHR 123 (1986) [James case].
164
Compromis.14.
165
Compromis.Annex.
30
2-3 April 2012, Agnostica agreed to lease all rights to the existing East Agnostican Marthite
facilities to Baxter.166 Since, Agnostica owned the mining facilities under the MC, a mere lease
of the same did not breach the MC a fortiori as there was no prohibition for such leasing under
the MC.
A treaty must be read as a whole, taking into account all interrelated provisions.167 On a
combined reading of Articles 1 and 3 of the MC, it is clear that RMT is obligated to provide
technology and government engineers to equip and operate the facilities, and pay annual royalty
on the Marthite mined from the facilities and only thereupon does RMT get exclusive ownership
Since Agnostica did not accept the proffered royalty payments in 2012-13,169 Reverentia did not
pay the royalty; thus, it is not the exclusive owner of the Marthite under Article 3. In any case,
Reverentia did not provide technology or engineers in mining the Marthite in 2012-13, as Baxter
mined the Marthite by relying on local Agnorev workers.170 Thus RMT could not have become
the exclusive owner of the Marthite mined by Baxter; and Article 3 was not violated.
166
Compromis.16.
167
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.) 2009 I.C.J. 213,
77-79 (July 13) [Navigational Rights].
168
Compromis.Annex.
169
Clarification.12.
170
Compromis.20.
31
c. THE ENACTMENT OF MCA DOES NOT VIOLATE ARTICLE 6 OF THE MC.
According to the principle of inadimplenti non est adimplendum, which is a general principle of
law,171 a breach of a treaty provision by one party exempts the other from performing its
subsequent obligations under the treaty,172 which are directly connected to the breach.173
Reverentias acts of selling Marthite to the international market at ten-times the permitted
price,174 and subsequent removal of software from the Agnostican mining facilities175 caused a
massive disruption in the mining operations and a grave shortage in Marthite.176 Accordingly,
Agnostica was exempted from performing its obligation under Article 6 of the MC. Thus, the
enactment of the MCA, which banned sale or transfer of Marthite into Reverentia, was
justified.177
171
Application of the Interim Accord of 13 September 1995 (FYROM v. Greece), 2011 I.C.J.
163 (Dec. 5) (separate opinion of Judge Simma).
172
Id.; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase,
Advisory Opinion, 1950 I.C.J. 229 (July 18).
173
J. Crawford, Second Report on State Responsibility, 47, U.N. Doc. A/CN.4/498/Add.2 (Apr.
30, 1999).
174
Compromis.13.
175
Compromis.17.
176
Compromis.18-21.
177
Compromis.22.
32
D. REVERENTIAS REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION FACILITIES
Agnostica owned the software as per the MC. Thus, Reverentias removal of the software
violated international law [I]. Alternatively, Reverentias removal the software was an abuse of
rights [II]. In any case, Reverentias removal of the software cannot be justified as a valid
countermeasure [III].
Reverentias removal of the software violated international law as Agnostica owned the software
as per the MC [a] and Agnosticas ownership continues even after the termination of the MC [b].
The software is included within the meaning of technology under Article 1of the MC [i] and
this technology is a part of the facilities owned by Agnostica under Article 2 of the MC [ii].
i. Under Article 1 of the MC, the term technology includes the software.
When a generic term is used in a treaty of a very long duration, it is presumed that the parties
intended to ascribe an evolving meaning to the term.178 In such cases, the original intention of the
drafters is not relied upon to define the term, where the meaning of the term is no longer the
same.179 For instance, in Navigational Rights,180 the ICJ gave an evolutionary interpretation to
178
Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19).
179
Navigational Rights, supra n.167, at 33.
180
Id.
33
the generic term commerce used in an 1858 Treaty, since the treaty was signed for a very long
duration. Accordingly, the generic terms used in the 1938 MC must be ascribed an evolutionary
interpretation.
As per the customary rules of treaty interpretation, a treaty must be construed effectively.181 The
ICJ has noted that a provision which is devoid of effect is incompatible with the generally
accepted rules of interpretation.182 Accordingly, the practical effect of the treaty has to be taken
into consideration while interpreting it.183 Therefore when two interpretations are possible, the
Under Article 2, MC, all the facilities described under Article 1 are owned by Agnostica.185
These facilities are functional only when used with the software, as is evidenced from the fact
that mining operations came to a standstill due to the removal of the software. Thus, if the
ownership of the software were to remain with Reverentia, the mere transfer of facilities to
Agnostica would be redundant since after a period of 99 years when the treaty would come to an
end, Agnostica would only be left with a dysfunctional mining system. Therefore, construing
181
H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL
COURT 269 (1958).
182
Corfu Channel, supra n.30, 24.
183
Competence of the International Labour Organization to Regulate, Incidentally, the Personal
Work of the Employer, P.C.I.J. ser. B, No. 13, at 19 (1926).
184
ILC Report to the General Assembly, supra n.141, at 219.
185
Compromis.Annex.
34
Article 2 to solely include mere buildings,186 without the software, renders it meaningless.
Accordingly, under Article 2 the ownership of both, the facilities and the technology has been
transferred to Agnostica.
When any right is created by a treaty, it achieves a permanence which is not affected by the
duration of the treaty.187 This principle forms a part of CIL188 and was, codified under Article 70
of the VCLT.189 Thus, even if the treaty ceases to be in effect due to termination, the rights
created remain unaffected.190 For instance, in Territorial and Maritime Disputes,191 the ICJ held
that despite the termination of the 1928 Treaty, Columbias ownership of the San-Andres islands
will not be affected. Consequently, Agnosticas ownership over the software persists even after
the termination of the MC. Therefore, Reverentias removal of the software, in disregard of
186
Clarification.5.
187
I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 213 (8th ed., 2012); Navigational
Rights, supra n.167, at 34, 67.
188
VILLIGER, supra n.123, at 875.
189
G. Fitzmaurice, Second Report on the Law of Treaties, 2 YB.I.L.C. 94, U.N. Doc.
A/CN.4/SER.A/1957/Add.l (Sep., 1957).
190
Legal Consequences for States of the Continued Presence of' South Africa in Namibia (South
West Africa), 1971 I.C.J. 49 (June 21) (separate opinion by Sir McNair).
191
Territorial and Maritime Dispute (Nicar. v. Colum.), 2012 I.C.J. 832,861 (Nov. 19).
35
II. ALTERNATIVELY, REVERENTIAS REMOVAL OF THE SOFTWARE FROM THE FACILITIES
The principle of abuse of rights a part of CIL.192 Abuse of rights occurs when a State exercises
its right in a manner injurious to another State.193 For instance, in Trail Smelter,194 Canada was
held liable for causing injury by fumes to the properties in U.S.A., while exercising the right to
use its territory.195 Similarly, in the present case, in exercising its right of removing the software
from the facilities, Reverentia sabotaged all the mining systems at Agnosticas facilities which
could not be restored for months, leading to extreme shortages of Marthite for Agnostican
traditional practitioners. Thus, Reverentias removal of software from the facilities was an abuse
COUNTERMEASURE.
State [i]; the injured State must have called upon the State committing the wrongful act to
192
Gabcikovo, supra n.122 , at 22 [Separate Opinion of Vice-President Weeramantry]; G.
Amador, Fifth Report on the Law of State Responsibility, 2 YB.I.L.C., 69, U.N. DOC.
A/CN.4/SER.A/1960/ADD. 1 (1960) [Amador, Fifth Report].
193
OPPENHEIM, supra n.146, at 345; B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS 136 (1953).
194
Amador, Fifth Report, supra n.192, at 59.
195
Trail Smelter Arbitration (U.S. v. Can.), 3 RIAA 1965 (1941).
196
Nicaragua, supra n.2, 249; Air Services Agreement, (Fr. V. U.S.), 18 R.I.A.A. 443 (1979).
36
discontinue its wrongful conduct or to make reparation [ii]; it has to be proportionate [iii] and it
another State and must be directed against that State.197 Agnosticas termination of the MC was a
result of a fundamental change in circumstances and Reverentias material breach.198 Since this
unilateral termination is a valid act under international law, there was no previous wrongful act
by Agnostica.
ii. In any case, Reverentia did not meet the procedural requirements before
resorting to countermeasures
Under CIL, an injured state can resort to countermeasures only after making demands to the
responsible State to comply with its obligations,199 and intimating its intention to undertake
countermeasures.200 For instance, in Naulilaa, the arbitral commission held the German reprisal
against Portugal as illegal, as it was not preceded by demands seeking compliance.201 An injured
State may take urgent countermeasures before giving any notification regarding the
197
International Law Commission, Report on the Work of its Fifty-third Session, art. 49(1), U.N.
Doc. A/56/10 (2001) [A.S.R]; Gabcikovo, supra n.122, 83.
198
Applicant-Memorial, Heading- C.I.b.
199
A.S.R., supra n.197, art.52(1)(a).
200
A.S.R., supra n.197, art.52(1)(b); J. CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS
ARTICLES ON STATE RESPONSIBILITY 297-8 (2012) [CRAWFORD-ASR].
201
Naulilaa Arbitration (Port. v. Germ.), 2 R.I.A.A. 1026 (1928) [Naulilaa].
37
countermeasures, if it is necessary to preserve its rights.202 However, this does not override the
injured States primary obligation to call upon the responsible State to rectify its wrongful act.203
Reverentia failed to make any demand seeking Agnosticas compliance with the MC and notify
Reverentia had to fulfill its primary obligation to call upon Agnostica to rectify its wrongful act
before removing the software. Having failed to fulfill these obligations, the countermeasure
injury, as opposed to a material injury,205 States are required to take the least stringent
measures necessary to ensure compliance.206 The removal of the software crippled the Marthite
operations and sabotaged all the mining systems that were dependent on the software.207 This
could not be restored in a short duration,208 and affected the extraction of Marthite as only about
100 kilograms could be extracted per day, leading to massive shortages.209 Compared to the
202
CRAWFORD-ASR, supra n.200, at 298.
203
J. CRAWFORD, STATE RESPONSIBILITY 701 (2013) [CRAWFORD, STATE RESPONSIBILITY].
204
A.S.R., supra n.197, art.51; Gabcikovo, supra n.122, 85.
205
Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., 66, U.N. Doc.
A/CN.4/SER.A/1995/Add.l (Part 2) (May-July, 1995).
206
J. Crawford, Fourth Report on State Responsibility, YB.I.L.C, 16, U.N. Doc. A/CN.4/517 and
Add.1, (June 17, 1992).
207
Compromis.18.
208
Compromis.21.
209
Id.
38
legal injury suffered by Reverentia, due to the termination of the MC, the removal of the
The effect of a countermeasure must be reversible,210 and must not create a situation which
cannot be rectified by the responsible State.211 The removal of software by Reverentia greatly
sabotaged the whole mining system, reducing the Marthite production by 400 kilograms per-day,
over a prolonged period.212 This resulted in severe shortages for traditional practitioners. The
effect of the measure was thus irreversible inasmuch as the severe shortages could not have been
rectified even if the software was reinstated, as Marthite production has never varied by more
than 5%.213
Therefore, the removal of software by Reverentia is not a valid countermeasure and thus is in
210
J. Crawford, Counter-measures as Interim Measures, 5 EUR. J. INTL L. 65,68 (1994).
211
CRAWFORD, STATE RESPONSIBILITY, supra n.203, at 286.
212
Compromis.11,21.
213
Clarification.10.
39
PRAYER FOR RELIEF
territorial integrity, the principle of non-intervention, and the United Nations Charter
generally;
B. The purported secession and subsequent annexation of East Agnostica are illegal and
without effect, and therefore East Agnostica remains part of the territory of the Federal
Republic of Agnostica;
C. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,
international law.
Respectfully submitted,
40