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455A

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE

NETHERLANDS

THE 56TH PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION, 2015

CASE CONCERNING THE SECESSION AND ANNEXATION OF EAST AGNOSTICA

THE FEDERAL REPUBLIC OF AGNOSTICA

APPLICANT

v.

THE STATE OF REVERENTIA

RESPONDENT

MEMORIAL for the APPLICANT


TABLE OF CONTENTS

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

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

QUESTIONS PRESENTED ........................................................................................................... XVIII

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

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

PLEADINGS...................................................................................................................................... 1

A. Reverentias encouragement of the East Agnostican referendum violated Agnosticas

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

generally. ..................................................................................................................................... 1

I. Reverentia violated the prohibition on threat of force under the UN Charter.................. 1

II. Reverentias acts violate the principle of non-intervention in the internal affairs of a

State. ...2

a. Reverentias encouragement of the East Agnostican referendum violated the

principle of non-intervention. ............................................................................................. 3

b. Reverentias premature recognition of East Agnostica was an unlawful

intervention. ........................................................................................................................ 4

III. Reverentias acts cannot be justified as an exercise of humanitarian intervention

arising from the alleged right of self-determination of Agnorevs. ......................................... 5

a. Reverentia does not have a right of unilateral intervention in international law to

promote the realization of self-determination. .................................................................... 5


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b. In any case, the conditions prerequisite to the exercise of such a possible right have

not been fulfilled. ................................................................................................................ 7

c. Reverentia cannot justify its intervention as aimed at protecting its nationals

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

without effect ........................................................................................................................ 10

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

law.. ....................................................................................................... 10

b. It is illegal as it was organized through Reverentian assistance. ............................ 11

c. It is based on an illegal and invalid referendum and integration agreement. ......... 13

d. In any case, it is without effect as it has not been recognized by a substantial part of

the international community. ............................................................................................ 15

II. The purported secession of East Agnostica cannot be justified on the basis of self-

determination or a remedial right of secession................................................................... 16

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

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a. Agnosticas sovereign title over East Agnostica prevails over the Reverentias

possession and the purported will of the people. ........................................................... 21

b. The legal status quo ante must be restored. ............................................................ 21

C. The Marthite Convention ceased to be in effect as of 2nd April 2012 and, in any event,

Agnostica did not breach the Marthite Convention. ................................................................. 23

I. The Marthtie Convention ceased to be in effect as of 2nd April 2012. ........................... 23

a. Agnostica was released from its obligations under the Marthtie Convention due to a

fundamental change in circumstances. ............................................................................. 23

b. Alternatively, Reverentias material breach of the Marthtie Convention released

Agnostica from its obligations. ......................................................................................... 26

c. Agnosticas termination of the Marthite Convention was permitted in international

law. ..27

d. The termination of the Marthtie Convention does not amount to an illegal taking

under international law ..................................................................................................... 29

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

Agnostican Marthite facilities did not breach the Marthtie Convention........................... 30

b. The mining of Marthite by Baxter in East Agnostica is not in violation of Article 3

of the Marthtie Convention. .............................................................................................. 31

c. The enactment of MCA does not violate Article 6 of the Marthtie Convention. ... 32

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D. Reverentias removal of the software at the Marthite extraction facilities violated

international law........................................................................................................................ 33

I. Reverentias removal of the software violated international law as Agnostica owned

the software. .......................................................................................................................... 33

a. Agnostica owned the software as per the Marthtie Convention........................... 33

b. Agnosticas ownership of the software continued after the termination of the

Marthtie Convention . ................................................................................................... 35

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

PRAYER FOR RELIEF .................................................................................................................... 40

v
INDEX OF AUTHORITIES

ARTICLES

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 (1999)

................................................................................................................................................. 7, 8

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 (1992) ........................................... 16

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.

Y.B. INT'L L. 68 (1925) ............................................................................................................. 27

C. Haverland, Secession, in 10 ENCYCLOPEDIA PUB. INTL. L. 384 (1987) .................................. 21

Chamizal (Mex. v. USA), 5 AM. J. INTL. L., 782 (1911)............................................................. 21

E. Arechaga, International Law in the Past Third of a Century, 159 RECEUIL DES COURS 1

(1978). ................................................................................................................................. 1, 2, 5

E. Borchard, Recognition and Non-Recognition, 36 AM J. INTL L. 108 (1942). ........................... 4

G. Schwarzenberger, Clausula Rebus Sic Stantibus, in 1 ENCYCLOPEDIA PUB. INT'L. L. 611

(1992) ........................................................................................................................................ 23

H. Lahmann, Biafra Conflict, I M.P. ENCYCLOPEDIA PUB. INTL. L. 920 ...................................... 4

H. Lauterpacht, Recognition of States in International Law, 53(3) YALE L. J. 385 (1944) ........... 4

J. Crawford, Counter-measures as Interim Measures, 5 EUR. J. INTL L. 65 (1994).................... 39

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

R. Sadurska, Threat of Force, 82 AM. J. INTL L. 239 (1988). ....................................................... 2


vi
T. Franck & N. Rodley, After Bangladesh: The Law of Humanitarian Intervention by Military

Force, 67 AM. J. INT'L L. 275 (1973) .......................................................................................... 6

Thomas Franck, Lessons of Kosovo, 93(4) AM. J. INTL L. 857 (1999).......................................... 6

INTERNATIONAL DECISIONS AND ARBITRAL AWARDS

Accordance with International Law of the Unilateral Declaration of Independence in Respect of

Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22) ............................................................. 11

Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19) ................................... 33

Air Services Agreement, (Fr. V. U.S.), 18 R.I.A.A. 443 (1979) .................................................. 36

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

(July 10) .................................................................................................................................... 28

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

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9) ............................................................... 6, 34

Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicar.) 2009 I.C.J. 213 (July

13) ................................................................................................................................. 31, 33, 35

East Timor (Port. v. Aus.) I.C.J. 1995 (June 30) .............................................................. 14, 15, 22

Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 63 (July 25) ...................................................... 23

Free Zones of Upper Savoy and District of Gex (Fr. Switz.), 1932 P.C.I.J. (Ser. A/B) No. 22

(Aug. 19) ................................................................................................................................... 23

Frontier Dispute (Burkina Faso/Mali), 1986 I.C.J. 567 (Dec. 2213, 21


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Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (May 2) .......................................

..23, 36, 37, 38

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

Opinion, 1950 I.C.J. 229 (July 18) ........................................................................................... 32

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory

Opinion, 1980 I.C.J. 96 (May 20). ............................................................................................ 28

Ivan Kitok v. Sweden, Communication No. 197/1985, 4.1, U.N. Doc. CCPR/C/33/D/197/1985,

(July 27, 1988) .......................................................................................................................... 19

James v. U.K., 8 ECHR 123 (1986) .............................................................................................. 30

Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.), 1992 I.C.J. 351 (Sept. 11) ........ 26

Lansman v. Finland, Communication No. 511/1992, U.N. Doc. CCPR/C/52/D/511/1992 (Oct.

26, 1994). .................................................................................................................................. 19

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

May 2009) ..................................................................................................................... 17, 18, 20

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986

I.C.J. 14 (June 27) ....................................................................................................... 1, 3, 11, 36

Minquiers and Ecrehos Case (Fr. v. U. K.), 1953 I.C.J. 142 (Nov. 17)........................................ 21

Naulilaa Arbitration (Port. v. Germ.), 2 R.I.A.A. 1026 (1928) .................................................... 37

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North Sea Continental Shelf Cases (Germ. v. Den./Neth.), 1969 I.C.J. 3 (Feb. 20) ...................... 6

Nottebohm Case (Liech v. Guat.), 1955 I.C.J. 4, 24 (Apr. 6) ......................................................... 9

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

Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1965 (1941). ............................................... 36

Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16) ...................................................... 14

INTERNATIONAL LAW COMSSISSION REPORTS

G. Amador, Fifth Report on the Law of State Responsibility, 2 YB.I.L.C., U.N. DOC.

A/CN.4/SER.A/1960/ADD. 1 (1960) ....................................................................................... 36

G. Amador, Fourth Report on the Law of State Responsibility, 2 YB.I.L.C., U.N. Doc.

A/CN.4/SER.A/1959/ADD. 1 (Feb. 26, 1959). ........................................................................ 29

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

G. Fitzmaurice, Second Report on the Law of Treaties, 2 YB.I.L.C., U.N. Doc.

A/CN.4/SER.A/1957/Add.l (Sep., 1957). ................................................................................. 35

H. Waldock, Second Report on the Law of Treaties, 2 YB.I.L.C., U.N. Doc.

A/CN.4/SER.A/1963/ADD.1 (1963) ........................................................................................ 24

International Law Commission, Report on the Work of its Fifty-third Session, U.N. Doc. A/56/10

(2001) .................................................................................................................................. 37, 38

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J. Crawford, Fourth Report on State Responsibility, YB.I.L.C, U.N. Doc. A/CN.4/517 and Add.1,

(June 17, 1992).......................................................................................................................... 38

Report of the International Law Commission on its 47th Session, 2 YB.I.L.C., U.N. Doc.

A/CN.4/SER.A/1995/Add.l (Part 2) (May-July, 1995). ........................................................... 38

Report of the International Law Commission to the General Assembly, 2 YB.I.L.C. U.N. DOC.

A/CN.4/SER. A/1966/ADD. 1 (1966) ........................................................................................ 26

MUNICIPAL CASES

Attorney-General of Court of Appeal (Brussels) v. Litner Aron (Belgium), Annual Digest 47

(I930)......................................................................................................................................... 28

Bremen v. Prussia, A.D. 1925-6, No. 266 (Germany) .................................................................. 27

Francis v. The Queen, 3 Dominion L. Rep. (2d.) 641 (1956) ....................................................... 27

Kohlhaas v. Alaska, 147 P.3d 714 (2006) .................................................................................... 13

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

The Blonde, 1 A.C. 313 (1922) (Privy Council)........................................................................... 28

Thurgau v. St. Gallen, A.D. 1927-8, No. 289 (Swiss Federal Court) ........................................... 23

Ware v. Hylton, 3 Dallas 199, 261 (1796) .................................................................................... 28

TREATIES AND CONVENTIONS

Charter of the United Nations, 1 U.N.T.S. XVI (1945)..2, 3

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

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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

TREATISES AND BOOKS

A. CASSESE, SELF-DETERMINATION OF PEOPLES (1995) ......................................................... 16, 17

A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW: THE DOCTRINE OF REBUS

SIC STANTIBUS AND DESUETUDE (1985) ............................................................................... 25, 28

B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND

TRIBUNALS (1953)..................................................................................................................... 36

B. Simma & C. Tams, Reacting Against Treaty Breaches, in THE OXFORD GUIDE TO TREATIES

(D.B. Hollis ed., 2012) .............................................................................................................. 28

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 &

Pierre Klein eds., 2011). ........................................................................................................... 26

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

CIVIL WAR (R. Falk ed., 2010). ................................................................................................ 12

E. VATTEL, 1 THE LAW OF NATIONS (1916) .................................................................................. 20

H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT

(1958) ........................................................................................................................................ 34

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H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT

OF JUSTICE (1958) ..................................................................................................................... 28

I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963) ............................ 8

I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (8th ed., 2012) .................................. 35

J. BRIERLY, THE LAW OF NATIONS (H. Waldock ed., 6th ed. 1963). ............................................... 4

J. CRAWFORD, STATE RESPONSIBILITY (2013) ........................................................................ 38, 39

J. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW (1979) ...................... 10, 13, 15

J. CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES ON STATE RESPONSIBILITY

(2012) ........................................................................................................................................ 37

L. OPPENHEIM, 1 OPPENHEIMS INTERNATIONAL LAW (H. Lauterpacht ed., 7th ed. 1948)........ 8, 36

LORD MCNAIR, THE LAW OF TREATIES (1961) ............................................................................. 28

M. Fitzmaurice, Exceptional Circumstances and Treaty Commitments, in THE OXFORD GUIDE TO

TREATIES (D.B. Hollis ed., 2012). ............................................................................................ 28

M. Shaw, Re: Order in Council P.C. 1996-1497 of 30 September 1996, in SELF DETERMINATION

IN INTERNATIONAL LAW (A. Bayefsky ed., 2000). ................................................................... 15

M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES

(2009) .................................................................................................................................. 23, 35

M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES (1985) ..................................... 26

N. STORCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW (2007) ....................................... 2

O. DORR & K. SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES (2012) .......... 26

R. HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF

THE UNITED NATIONS (1963) ...................................................................................................... 3

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S.L. BURG, CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA, POLITICAL DECISION MAKING

SINCE 1966 (1983) .............................................................................................................. 17, 19

YUGOSLAVIA THROUGH DOCUMENTS: FROM ITS CREATION TO ITS DISSOLUTION (S. Trifunovska

ed., 1994) .................................................................................................................................. 20

U.N. RESOLUTIONS AND OTHER DOCUMENTS

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) ................................................. 18

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) ............................................................................ 5, 12, 17

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)............................................................................................. 3

Draft Declaration on Rights and Duties of States, G.A. Res. 375 (IV), U.N. Doc. A/RES/375

(Dec. 6, 1996) ............................................................................................................................. 3

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. 31/53, U.N. Doc. A/RES/31/53 (Dec. 1, 1976)............................................................ 14

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. 36/103, U.N. Doc. A/RES/36/103 (Dec. 9, 1981)........................................................ 14


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G.A. Res. 375 (IV), U.N. Doc. No. A/RES/4/375 (Dec. 6, 1949) ................................................ 11

G.A. Res. 38/7, U.N. Doc. A/Res/38/7 (Nov. 3, 1983). ................................................................. 8

G.A. Res. 44/240, U.N. Doc. A/RES/44/240 (Dec. 29, 1989)........................................................ 8

G.A. Res. 49/43, Preamble, U.N. Doc. A/RES/49/43 (Dec. 9, 1994) .................................... 19, 21

G.A. Res. 68/262, U.N. Doc. A/RES/68/262 (Apr. 1, 2014) ........................................................ 14

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.

A/CN.4/SER.A/1995/Add.l (Part 2) (May-July, 1995) ............................................................ 34

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. 307, UN Doc. S/RES/307 (Dec. 21, 1971) ..................................................................... 6

S.C. Res. 550, U.N. Doc. S/RES/550 (May 11, 1984) ................................................................. 11

S.C. Res. 709, U.N. Doc. S/RES/709 (Sept. 12, 1991)................................................................. 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.

27, 2014). .................................................................................................................................... 4

U.N. Repertory of Practice I, Suppl. 1, GA (X), 530th mtg. .......................................................... 3

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

U.N. Secretary-General, Study on the Continued Validity of the Undertaking Concerning

Minorities, U.N. Doc. E/CN.4/367 (Apr. 7, 1950) ................................................................... 25

UNCTAD, Expropriation, U.N. Doc. UNCTAD/DIAE/IA/2011/7 (July, 2012)......................... 30

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

Competence of the International Labour Organization to Regulate, Incidentally, the Personal

Work of the Employer, P.C.I.J. ser. B, No. 13, (1926) ............................................................. 34

Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 92 I.L.R. 167 (Jan. 11,

1992) ......................................................................................................................................... 13

Declaration on Yugoslavia, Informal Meeting of Ministers of Foreign Affairs, Haarzuilens (Oct.

5, 1991) ..................................................................................................................................... 17

East Pakistan Staff Study, 8 INTL COMMN JURISTS REV. 23 (1972)........................................... 18


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European Commission for Democracy through Law, Opinion No. 762/2014 (Mar. 21-22, 2014)

................................................................................................................................................... 20

European Parliament, Resolution on the Situation in Abkhazia, Preamble G and operative

(Nov. 14, 1996) ......................................................................................................................... 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

Crimea Region, (Mar. 27, 2014) ......................................................................................... 13, 14

International Law Association, Helsinki Conference, Report of the Sixty Seventh Conference,

(Aug. 12-17, 1996).................................................................................................................... 11

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

to Protect, (Dec., 2001),.............................................................................................................. 7

The Group of 77, Ministerial Declaration, Twenty-third Annual Meeting of the Ministers for

Foreign Affairs of the Group of 77 (Sep. 24, 1999) ................................................................... 7

Venice Commission, Code of Good Practice on Referendums, 70th plen.mtg., Doc. CDL-

AD(2007)008 3.2 (Mar. 19, 2007) ............................................................................................ 13

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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

secession and annexation of East Agnostica and other issues.

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

decision of this Court.

xvii
QUESTIONS PRESENTED

I. WHETHER REVERENTIAS ENCOURAGEMENT OF THE EAST AGNOSTICAN REFERENDUM

VIOLATED AGNOSTICAS TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-

INTERVENTION, AND THE UNITED NATIONS CHARTER GENERALLY?

II. WHETHER THE PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF EAST

AGNOSTICA IS ILLEGAL AND WITHOUT EFFECT IN INTERNATIONAL LAW AND WHETHER

EAST AGNOSTICA REMAINS PART OF THE TERRITORY OF THE FEDERAL REPUBLIC OF

AGNOSTICA?

III. WHETHER THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2ND APRIL 2012

AND, DID IN ANY EVENT, AGNOSTICA BREACH THE CONVENTION?

IV. WHETHER REVERENTIAS REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION

FACILITIES VIOLATED INTERNATIONAL LAW?

xviii
STATEMENT OF FACTS

The Federal Republic of Agnostica [Agnostica], the Applicant in these proceedings,

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

opportunities Agnostica provided.

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

ethnic Agnostican family in the same area.

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].

In response, Nuvallus ordered Reverentian engineers to return to Reverentia and remove

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-

scale casualties. Sixty demonstrators were killed and some injured.

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

in East Agnostica to promote the recognition of a decision to secede as well as of an

independent state in East Agnostica, and take necessary steps for ensuring the security and

integrity of East Agnostica. Moritz denounced the same as an unlawful interference in

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.

On 29 January 2013, a plebiscite was conducted in East Agnostica, which resulted in

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

as a threat to international peace and stability.

Nuvallus announced on 22 February 2013 that Bien and he had signed an Integration

Agreement, which made East Agnostica a semi-autonomous province of Reverentia. Reverentian

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

to the Agnostican government, continued to be a part of Agnostica. Moritz denounced the

annexation by Reverentia, which was purported to be effective from 1 March 2013, according to

the Integration Agreement.

xxii
At the request of the Security Council, the parties negotiated and concluded a Special

Agreement to submit the dispute to this Court.

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

Article 2(4) of the UN Charter. By agreeing to extend diplomatic recognition to an independent

State in East Agnostica, during the subsistence of the conflict, Reverentias acts amounted to a

premature recognition, prohibited by the rule of non-interference in domestic affairs.

Reverentia cannot justify its actions as a humanitarian intervention, to support an alleged

right of self-determination of the Agnorevs, since the latter do not constitute a people to whom

this right applies. Moreover, invocations of a right of humanitarian intervention by States on

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

order for Reverentia to invoke this justification.

-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

international community did not recognize them.

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

a remedial right of secession.

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

quo ante must be restored.

-III-

There was a fundamental change in circumstances with the discovery by the ILSA

scientists regarding the effectiveness of Marthite in treating previously untreatable diseases as it

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

Agnostica offered to pay appropriate compensation to Reverentia.

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,

Agnosticas ownership continues despite the termination of the treaty.

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

operation; and it was not reversible.

xxvi
PLEADINGS

A. REVERENTIAS ENCOURAGEMENT OF THE EAST AGNOSTICAN REFERENDUM VIOLATED

AGNOSTICAS TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-INTERVENTION, AND THE

UNITED NATIONS CHARTER GENERALLY.

Reverentias encouragement of the East Agnostican referendum violated the prohibition on

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

of self-determination of East Agnostican citizens [III].

I. REVERENTIA VIOLATED THE PROHIBITION ON THREAT OF FORCE UNDER THE UN

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

while determining the existence of a threat.4

, 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

considered as threat to use force against Portugal.7

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.

II. REVERENTIAS ACTS VIOLATE THE PRINCIPLE OF NON-INTERVENTION IN THE

INTERNAL AFFAIRS OF A STATE.

Reverentias encouragement of the referendum [a] and its premature recognition of East

Agnostica [b] violated the principle of non-intervention.

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

VIOLATED THE PRINCIPLE OF NON-INTERVENTION.

The principle of non-intervention in the domestic affairs of a State, as a norm of customary

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

towards pressurizing or disrupting the internal governance of a State would qualify as

intervention.16 In practice, States have considered invocations of a right of self-determination by

a minority people as matters of their domestic jurisdiction.17 If at all self-determination is a

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

interfering in the domestic affairs of Ukraine, in dealing with claims of self-determination by a

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 in Agnosticas internal affairs.

b. REVERENTIAS PREMATURE RECOGNITION OF EAST AGNOSTICA WAS AN

UNLAWFUL INTERVENTION.

International law prohibits a State from recognizing a claim of secession/statehood of an entity,

if such recognition is premature.21 Recognition is considered premature if it is granted when

there is no proof of legitimacy or success of the entitys claim to secession/statehood,22 during

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

premature and an interference in Nigerias internal affairs.25

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

Agnosticas independence at a time when it was undoubtedly a part of Agnostica, constitutes an

unlawful interference in the latters internal affairs.

III. REVERENTIAS ACTS CANNOT BE JUSTIFIED AS AN EXERCISE OF HUMANITARIAN

INTERVENTION ARISING FROM THE ALLEGED RIGHT OF SELF-DETERMINATION OF

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

under the protection of nationals abroad doctrine [c].

a. REVERENTIA DOES NOT HAVE A RIGHT OF UNILATERAL INTERVENTION IN

INTERNATIONAL LAW TO PROMOTE THE REALIZATION OF SELF-DETERMINATION.

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

NATOs intervention in Kosovo33 in order to secure their right of self-determination, was

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

basis of an alleged right of humanitarian intervention.

b. IN ANY CASE, THE CONDITIONS PREREQUISITE TO THE EXERCISE OF SUCH A

POSSIBLE RIGHT HAVE NOT BEEN FULFILLED.

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

high threshold to justify an intervention by a third State.44

c. REVERENTIA CANNOT JUSTIFY ITS INTERVENTION AS AIMED AT PROTECTING ITS

NATIONALS ABROAD.

i. There is no right in international law to protect nationals abroad by

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

community.46 For instance, Israels intervention in Uganda47 and U.S.A. intervention in

Grenada,48 on the premise of protecting its nationals were widely condemned by other States as

violating independence, sovereignty and territorial integrity.

ii. In any case, the Agnorevs are not nationals of Reverentia.

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

TERRITORY OF THE FEDERAL REPUBLIC OF AGNOSTICA.

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

secession [II]. Therefore, East Agnostica remains part of Agnostica [III].

I. THE PURPORTED SECESSION AND SUBSEQUENT ANNEXATION OF EAST AGNOSTICA ARE

ILLEGAL AND WITHOUT EFFECT.

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].

a. A SECESSION WHICH IS OPPOSED BY THE PARENT STATE IS NOT PERMITTED IN

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.

b. IT IS ILLEGAL AS IT WAS ORGANIZED THROUGH REVERENTIAN ASSISTANCE.

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

activities.65 The Reverentian Parliament resolution unconditionally facilitated the secessionist

claims,66 and Reverentia stationed its army units on the border.67 Thus, East Agnosticas

purported secession was with external interference, and hence, illegal.

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.

i. The referendum was illegal.

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

Arbitration Commission condemned referenda conducted by a section of the population of

Yugoslavia despite resulting in substantial majorities.71 Thus, in CIL, there is no unilateral right

to secede based only on a majority vote of the population of a given territory.72

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-

compliance with customary requirements.

ii. The integration agreement between East Agnostica and Reverentia was

illegal and without effect.

A State does not possess any right to integrate the territory of another State pursuant to a

referendum by a section of the population, as it amounts to an infringement of the sovereignty of

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.

d. IN ANY CASE, IT IS WITHOUT EFFECT AS IT HAS NOT BEEN RECOGNIZED BY A

SUBSTANTIAL PART OF THE INTERNATIONAL COMMUNITY.

The legality and legitimacy of an unconstitutional declaration of secession is dependent on

recognition by the international community.84

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

in territory has no consequence in international law.87

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

Agnosticas purported secession is without effect.

II. THE PURPORTED SECESSION OF EAST AGNOSTICA CANNOT BE JUSTIFIED ON THE BASIS

OF SELF-DETERMINATION OR A REMEDIAL RIGHT OF SECESSION.

The denial of the internal self-determination is a condition sine qua non for a lawful exercise of

external self-determination for a remedial secession.90 In CIL,91 a unilateral secession is illegal

when, there are participatory rights available to a community [a], there is absence of gross and

systematic violation of its human rights [b] or when other remedies have not been exhausted [c].

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

suspension/de-recognition of the provincial government,93 a right of secession cannot arise.94 For

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

approximately one-third of the Federal Parliament.98 Effective participation in the decision

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

resolutions in the Agnostican Parliament.99

b. THERE IS NO GROSS AND SYSTEMATIC VIOLATION OF HUMAN RIGHTS IN EAST

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

systematic violation of human rights, sufficient for a right of secession to arise.

i. Death of sixty demonstrators:

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.

ii. Restrictions on unauthorized transactions of Marthite:

In CIL, cultural rights of a community are not absolute and may be restricted on account of a

reasonable countervailing interest, such as judicious use of natural resources and protection of

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.

iii. Allegations of discrimination in public life:

Mere allegations of discrimination of a community in public life and government positions do

not give a right of secession.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

which would give rise to a right of secession.

c. THERE ARE OTHER REMEDIES AVAILABLE TO THE PEOPLE OF EAST AGNOSTICA.

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.

a. AGNOSTICAS SOVEREIGN TITLE OVER EAST AGNOSTICA PREVAILS OVER THE

REVERENTIAS POSSESSION AND THE PURPORTED WILL OF THE PEOPLE.

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

b. THE LEGAL STATUS QUO ANTE MUST BE RESTORED.

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

East Agnostica remains part of the territory of Agnostica.

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

EVENT, AGNOSTICA DID NOT BREACH THE CONVENTION.

I. THE MC CEASED TO BE IN EFFECT AS OF 2ND APRIL 2012.

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].

a. AGNOSTICA WAS RELEASED FROM ITS OBLIGATIONS UNDER THE MC DUE TO A

FUNDAMENTAL CHANGE IN CIRCUMSTANCES.

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

of the conclusion of the treaty.123

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].

i. The fundamental change in circumstances was unforeseen by the parties.

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

international pharmaceutical companies was a change unforeseen by the parties.

ii. The traditional significance and the negligible commercial value of

Marthite were circumstances which constituted the essential basis for

the consent of the parties.

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

of Marthite only to traditional practitioners in the light of Marthites insignificant commercial

value.131 This constituted the essential basis of Agnosticas consent to be bound by the MC,132

which disappeared with the huge international demand for Marthite.

iii. The change radically transformed the performance of the obligations

under the MC.

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.

b. ALTERNATIVELY, REVERENTIAS MATERIAL BREACH OF THE MC RELEASED

AGNOSTICA FROM ITS OBLIGATIONS.

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

provisions142 and preamble of the treaty. 143

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

practitioners by more than 25%.

In 2011, it was certified by RMT accountants that Marthite production merely varied within 5%

of the demand from the traditional practitioners.144 Accordingly, RMTs sale of 75% of the

mined Marthite to international pharmaceutical companies in 2011145 is in material breach the

MC.

c. AGNOSTICAS TERMINATION OF THE MARTHITE MC WAS PERMITTED IN

INTERNATIONAL LAW.

Under CIL, unilateral termination of treaties is permitted for a fundamental change in

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

a Cooperation Agreement with the former Yugoslavia, due to a change in circumstances.

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

terminating a treaty, have not achieved the status of CIL. 155

Agnostica fulfilled the good-faith obligation by offering a beneficial compensation to Reverentia

for mutually terminating the MC,156 which was rejected by Reverentia. Accordingly, Agnosticas

unilateral termination the MC was valid.

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

UNDER INTERNATIONAL LAW

The unilateral termination does not amount to a taking under international law [i] and

alternatively, it is not illegal [ii].

i. The termination did not constitute a taking.

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

appropriate compensation to Reverentia.

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.

II. IN ANY EVENT, AGNOSTICA DID NOT BREACH THE MC.

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

the enactment of MCA did not violate Article 3, MC [c].

a. AGNOSTICAS AGREEMENT WITH BAXTER TO LEASE ALL RIGHTS TO THE EXISTING

EAST AGNOSTICAN MARTHITE FACILITIES DID NOT BREACH THE MC.

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.

b. THE MINING OF MARTHITE BY BAXTER IN EAST AGNOSTICA IS NOT IN VIOLATION

OF ARTICLE 3 OF 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

of the said Marthite.168

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

VIOLATED INTERNATIONAL LAW.

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].

I. REVERENTIAS REMOVAL OF THE SOFTWARE VIOLATED INTERNATIONAL LAW AS

AGNOSTICA OWNED THE SOFTWARE.

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].

a. AGNOSTICA OWNED THE SOFTWARE AS PER THE MC.

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.

ii. The term technology is included within the facilities owned by

Agnostica under Article 2 of the MC

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

interpretation enabling the treaty to have appropriate effect has to be adopted.184

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.

b. AGNOSTICAS OWNERSHIP OF THE SOFTWARE CONTINUED AFTER THE

TERMINATION OF THE MC.

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

Agnosticas ownership was in violation of international law.

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

WAS AN ABUSE OF RIGHTS.

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

of its rights, being in violation of international law.

III. IN ANY CASE, REVERENTIAS REMOVAL OF SOFTWARE IS NOT A VALID

COUNTERMEASURE.

An internationally wrongful act can be justified as a countermeasure if it fulfills following

customary requirements:196 it must be taken in response to a previous wrongful act of another

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

must be reversible [iv].

i. There is no previous wrongful act of Agnostica.

For a countermeasure to be valid, it must be taken in response to a previous wrongful act of

another State and must be directed against that State.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

Agnostica of its intention to take countermeasures. Even if it was an urgent countermeasure,

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

taken by Reverentia is illegal.

iii. The measure is not proportionate.

For a countermeasure to be legal, it must be proportional to the injury.204 In case of a legal

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

software was disproportionate and hence unlawful.

iv. The measure is not reversible.

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

violation of international law.

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

Agnostica respectfully requests this Court to adjudge and declare that:

A. Reverentias encouragement of the East Agnostican referendum violated Agnosticas

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

generally;

B. The purported secession and subsequent annexation of East Agnostica are illegal and

without effect, and therefore East Agnostica remains part of the territory of the Federal

Republic of Agnostica;

C. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,

Agnostica did not breach the Convention; and

D. Reverentias removal of the software at the Marthite extraction facilities violated

international law.

Respectfully submitted,

AGENTS FOR APPLICANT

40