142A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE SECESSION AND ANNEXATION

OF EAST AGNOSTICA

THE FEDERAL REPUBLIC OF AGNOSTICA

APPLICANT

v.

THE REPUBLIC OF REVERENTIA

RESPONDENT

MEMORIAL FOR THE APPLICANT

THE 2015 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

i
 TABLE OF CONTENTS

COMPETITION .......................................................................................................................... i
INDEX OF AUTHORITIES ...................................................................................................... v
STATEMENT OF JURISDICTION ....................................................................................... xvi
QUESTIONS PRESENTED .................................................................................................. xvii
STATEMENT OF FACTS .................................................................................................... xviii
SUMMARY OF PLEADINGS ............................................................................................. xxiii
PLEADINGS .............................................................................................................................. 1
I. Reverentia’s encouragement of the East Agnostican referendum violated Agnostica’s
territorial integrity, the principle of non-intervention, and the United Nations Charter
generally ................................................................................................................................. 1
A. Reverentia`s support for the referendum violated the principle of territorial integrity .. 1
1. The adoption of the Crisis Resolution by Reverentia imperils the territorial integrity
of Agnostica ................................................................................................................... 2
2. Reverentia`s amassment of troops near Agnostica`s border constitutes a threat of
force and therefore infringes the territorial integrity of Agnostica ................................ 3
3. The right to self-determination could not justify the encouragement of the
referendum...................................................................................................................... 5
B. Reverentia`s encouragement of the referendum violates the principle of non-
intervention ......................................................................................................................... 5
1. The support of the secession movement in East Agnostica violates the principle of
non-intervention ............................................................................................................. 6
2. Reverentia intervened in the domestic affairs of another State ................................. 7
C. Reverentia`s encouragement of the referendum violates the Charter in general ........... 8
1. The violation of the abovementioned principles entails the violation of the Charter 8
2. Reverentia’s actions contravene the purpose and the object of the Charter ............... 9
II. The purported secession and subsequent annexation of East Agnostica are illegal and
without effect; and therefore, East Agnostica remains part of the territory of Agnostica ...... 9
A. The secession of East Agnostica is illegal under international law ............................... 9
1. The principle of self-determination cannot justify the secession of East Agnostica .. 9
i) The Agnorevs in Agnostica do not fall under the definition of a “people” .......... 10
ii) The Agnorevs may exercise internal self-determination ..................................... 12
iii) In any event, the Agnorevs do not have a right of external self-determination.. 13
2. The secession was conducted with the help of Reverentia ..................................... 14
3. Remedial secession cannot justify the conducted unilateral secession .................... 15
i) The doctrine of remedial secession is not part of customary international law .... 15

ii
 ii) Alternatively, the requirements for remedial secession are not met .................... 17
B. Reverentia’s annexation of East Agnostica violates international law ........................ 18
1. Annexation is illegal under international law........................................................... 18
2. Resulting from the illegality of the secession, the annexation is also illegal ........... 18
3. The decision of the so-called Agnorev’s Parliament has no legal force .................. 19
4. In any event, the uti possidetis principle renders East Agnostica’s secession and
annexation illegal ......................................................................................................... 19
III. The Marthite Convention ceased to be in effect as of 2 April 2012 and, in any event,
Agnostica did not breach the Convention ............................................................................. 20
A. Agnostica has lawfully terminated the Marthite Convention based on the general rules
for termination................................................................................................................... 21
1. Agnostica was entitled to terminate the Convention on the basis of a material breach
...................................................................................................................................... 21
2. Alternatively, Agnostica terminated the treaty in the light of fundamentally changed
circumstances ............................................................................................................... 23
i) it must affect circumstances existing at the time of the conclusion of the treaty
which have not been foreseen by the parties at the moment of conclusion; ............ 24
ii) The change must be ‘fundamental’ and the effect of the change must radically
transform the extent of the obligations to be performed .......................................... 24
iii) the circumstances’ existence must have constituted “an essential basis of the
parties consent to be bound by the treaty” ............................................................... 25
B. Alternatively, the Marthite Convention ceased to be in effect by 2 April 2012 since
Reverentia’s consent is invalidated on the ground of error .............................................. 26
C. Agnotica lawfully declared the Marthite Convention to be out of effect ..................... 28
D. In any event, Agnostica did not breach that Convention ............................................. 29
IV. Reverentia’s removal of the software at the Marthite extraction facilities violated
international law ................................................................................................................... 32
A. Reverentia deprived Agnostica of its property. ............................................................ 32
1. Agnostica is the exclusive owner of the facilities under the Marthite Convention . 32
2. The title to the software has been lawfully transferred to Agnostica as well ........... 33
B. Reverentia has no right to take countermeasures because the Marthite Convention was
not in effect after April 2012............................................................................................. 34
C. Countermeasures are not applicable since the conduct of Agnostica falls under the
regime of Treaty Law, not the Law of State responsibility .............................................. 34
D. Alternatively, even if Reverentia can rely on countermeasures, its conditions are not
satisfied ............................................................................................................................. 35
1. The procedural requirements were not observed ..................................................... 36
2. The countermeasure was not proportionate.............................................................. 36

iii
PRAYER FOR RELIEF ........................................................................................................... 39

INDEX OF AUTHORITIES

iv
TREATIES AND CONVENTIONS

Articles on Responsibility of States for Internationally Wrongful Acts, 14, 30, 34, 35,
Y.B.I.L.C., vol. II (Part Two) (2001) 36, 37, 38

Charter of the United Nations, 1 U.N.T.S. XVI (1945) 1, 4, 5, 8, 9, 10

Convention on Rights and Duties of States, Montevideo, 165 L.N.T.S. 19 8

(1933)

International Covenant on Civil and Political Rights, 16 December 1966,

999 U.N.T.S. 171 10

Statute of the International Court of Justice, 1055, 33 U.N.T.S. 993 (1945) 21

The Final Act of the Conference on Security and Cooperation in Europe, 14 1, 6

I.L.M. 1292 (1975)

20, 21, 22, 24,

Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 33 (1969) 27, 28, 35

UNITED NATIONS DOCUMENTS

Commentary ILC Draft ASR, Y.B.I.L.C., II, (1975) 30, 35

Convention on the Jurisdictional Immunities of States and Their Property, 32

U.N. Doc. A/RES/59/38 , (2004)

Declaration on Principles of International Law concerning Friendly

Relations and Co-operation among States in accordance with the Charter of 1, 2, 5, 6, 7, 9,
the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (1970) 10

Declaration on the Granting of Independence to Colonial Countries and 5, 14

Peoples, G.A. Res. 1514 (XV), U.N. Doc. A/4684, 66 (1960)

Declaration on the Inadmissibility of Intervention and Interference in the

Internal Affairs of States, G.A. Res. 36/103, U.N. Doc. A/RES/36/103, 6
Annex, (II)(a) (1981)

Declaration on the Inadmissibility of Intervention in the Domestic Affairs of

6, 11
States and the Protection of Their Independence and Sovereignty, G.A. Res.
2131 (XX), U.N. Doc. A/RES/20/2131, (1965)

29

v
G.A. Res 1803, U.N. Doc. A/RES/1803 (1962) 12

G.A. Res. 1723 (XVI), U.N. Doc. A/Res/1723/16 (1961) 29

G.A. Res. 3201 (S-VI), U.N. Doc. A/RES/S-6/3201 (1974) 2

G.A. Res. 3236, U.N. Doc. A/RES/3236 (XXIX) (1974) 29

G.A. Res. 3281, U.N. Doc. A/RES/29/3281 (1974) 5

G.A. Res. 37/42, U.N. Doc. A/Res/37/42 (1982) 5

G.A. Res. 38/16, U.N. Doc. A/38/47 (1983) 12

G.A. Res. 441 (V), U.N. Doc. A/Res/441/5 (1950) 7

G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997) 7

G.A. Res. 58/189, U.N. Doc. S/RES/58/189 (2003) 5

G.A. Res. 61/150, U.N. Doc. A/Res/61/150 (2006) 5

G.A. Res. 62/144, U.N. Doc. A/Res/62/144 (2007) 2

G.A. Res. 31/61, U.N. Doc. A/RES/31/61 (1976) 2

G.A. Res. 34/44, U.N. Doc. A/RES/34/44 (1979) 5

G.A. Res. 63/163,U.N. Doc. A/Res/63/163 (2009) 12

General Recommendation 21, The right to self-determination, U.N. Doc.

A/51/18, (1996).
20
ILC Law of the Treaties Final Draft with Commenataries, Commentary to
Art 45; Y.B.I. L.C., vol. II, U.N. Doc. A/CN.4/SER.A/Add.l (1966) 37

ILC Report on the work of its fifty-third session (23 April–1 June and 2
July–10 August 2001), U.N. Doc. A/56/10, Y.B.I.L.C, Volume II (Part Two)
(2001) 36

ILC Report on the work of its thirty-first session 14 May-3 August 1979,
Y.B.I.L.C. vol.II (Part Two) (1979)
23
ILC, Guide to Practice on Reservations to Treaties (2011), Y.B.I.L.C.,
2011, vol. II, Part Two. Draft Guideline 3.1.5.1.

Implementation of the Declaration on the Granting of Independence to 2

Colonial Countries and Peoples, G.A. Res. U.N. Doc. A/RES/2105 (XX)
37
(1965)

Materials on the responsibility of states for internationally wrongful acts, U.

N. L.S., ST/LEG/SER B/25, (2012). 6

vi
Peaceful and Neighbourly Relations among States, G.A. Res. 1236 (XII),
U.N. Doc. A/RES/12/1236 (1957)
4
Repertoire of the Practice of the Security Council, Suppl. 1964-1965, XVI,
238 S. (Sales No. 1968. VII. 1). Doc. ST/PSCA/l/Add. 4., 202 (1968)

Reports of the International Law Commission on the second part of its 20

seventeenth session and on its eighteenth session, Document A/6309/Rev.l
15
S.C. Res. 1023, U.N. Doc. S/Res/1023, preamble (1995)
7
S.C. Res. 1271, U.N. Doc. S/RES/1271 (1999)
16
S.C. Res. 1808, U.N. Doc. S/RES/1808 (2008)
15
S.C. Res. 216, U.N. Doc. S/RES/216 (1965)
15
S.C. Res. 217, U.N. Doc. S/RES/217 (1965)
4
S.C. Res. 661, U.N. Doc. S/RES/661 (1990)
18
S.C. Res. 662, U.N. Doc. S/RES/662 (1990)
12
S.C. Res. 724, U.N. Doc. S/Res/724 (1991)
15
S.C. Res. 787, U.N. Doc. S/RES/787 (1992)
15
S.C. Res. 815, U.N. Doc. S/Res/815, (1993)
2
S.C. Res. 906, U.N. Doc. S/RES/906 (1994)
2
S.C. Res. 934, U.N. Doc. S/RES/934 (1994)
2
S.C. Res. 937, U.N. Doc. S/RES/937 (1994)
3
S.C. Res. 949, U.N. Doc. S/RES/949 (1994)
17
S.C. Res. 1244, U.N. Doc. S/RES/1244 (1999)
2
S.C. Res. 896, U.N. Doc. S/RES/896 (1994)
35
Special Rapporteur James Crawford, Third report on State responsibility
A/CN.4/SER.A/2000/Add.1 (Part 1)

Special Rapporteur Sir Humphrey Waldock, Second Report on Law of 21, 25

Treaties, Y.B.I.L.C., vol.II (Part One) (1963)
5
Thürer, D & T. Burri, Self-determination, Oxford Publ. I`tnl L., MPEPIL,
(2008).

U.N. S.C.O.R., 49th Sess., 3438th Meeting, U.N. Doc. S/PV.3438, (1994) 4

13

vii
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2, (2000)

OTHER INTERNATIONAL INSTRUMENTS 15

Declaration on the “Guidelines on the Recognition of New States in Eastern

Europe and in the Soviet Union”, European Community, 31 I.L.M. 1485
(1992) 12

Declaration on the Situation in Yugoslavia, Extraordinary European Political

Cooperation Ministerial Meeting, EC Press Release 61/91 (1991)
1
European Commission for Democracy, CDL-AD (2014) 004, Opinion no.
763/2014, 98th Plenary Session 35

Mexico – Tax Measures on Soft Drinks and Other Beverages, Report of the
Panel, WTO Doc. WT/DS308/R, (2005)
12
Report of the Independent International Fact-Finding Mission on the
Conflict in Georgia, 2008/901/CFSP, Vol. II, 147 (2009)

Report of the Secretary-General on the Situation in the Federal Islamic 2

Republic of the Comoros, Decisions and Resolutions of 68th Ordinary
18
Session, O.A.U. CM/Dec.405, Doc. CM/2062 (LXVIII) (1998)

Statement on the reported holding of local elections in Crimea, EU Doc. No.

140915/01 5, 11
The Arbitration Commission of the European on the former Yugoslavia,
Opinion No. 2, 31 I.L.M. 1497 (1992)
34
The Hong Kong Law Reform Commission Report, Contracts For The
Supply Of Goods, LC Paper No. CB(2)222/09-10 (2009) 10
Third Periodic Reports of States Parties due in 1991, Addendum, Report
Submitted by Shri Lanka, 17 July 1944, CCRP/C/70/Add.6, (1944).
12
Vienna Declaration of the CSCE Parliamentary Assemble, PA(94)7, (1994).

1, 11,14, 13,
I.C.J. & P.C.I.J. CASES 15, 16, 19
Accordance with international law of the unilateral declaration of
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J.
17
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, 2007 I.C.J.
3, 7
Armed Activities on the Territory of the Congo (Demovratic Republic of the
Congo v. Uganda), Judgment, 2005 I.C.J. 23, 28, 29

Armed Activities on the Territory of the Congo (New Application: 2002)

viii
(Democratic Republic of the Congo v.Rwanda), Jurisdiction and
Admissibility, I.C.J.
16, 28
Asylum (Colombia/Peru), Judgment, 1950 I.C.J.
22
Avena and other Mexican nationals (Mexico v. United States of America),
Judgment, 2009 I.C.J.

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. 22

France), Judgment, 2008 I.C.J.
16
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J.
4
Corfu Channel (Great Britain v. Albania), Merits, Judgment, 1949, I.C.J.
10
East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. 90
24
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, 1974 I.C.J.
24
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
1974 I.C.J.

Free Zones of Upper Savoy and the District of Gex, Merits, 1932, P.C.I.J., 25
Series A/B, No. 46
20
Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J.
20
Frontier Dispute (Burkina Faso/Niger), Judgment, 2013 I.C.J.
20
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 I.C.J.
21, 22, 23, 24,
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1997 26, 28, 30, 31,
I.C.J. 35, 36, 37, 38

Jurisdictional Immunities of the State (Germany v. Italy: Greece 16, 32

intervining), Judgment, 2012 I.C.J.
22
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J.
22
LaGrand (Germany v. United States of America) 2001, I.C.J.
19
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), Judgment, 1992 I.C.J.

Legal Consequences for States of the Continued Presence of South Africa in 10, 13, 14,
Namibia (South West Africa) Notwithstanding Security Council Resolution 21,22
276, Advisory Opinion, 1971 I.C.J.

Legal Consequences of the Construction of a Wall in the Occupied

10, 18
Palestinian Territory, Advisory Opinion, 2004 I.C.J.
4, 16, 22, 28
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996

ix
I.C.J. 27

Mavrommatis Jerusalem Concessions, 1925, P.C.I.J., Series A -No 5

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. 1, 3, 4, 6, 7, 8,

U.S.), Merits, 1986 I.C.J. 16, 20, 35

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. 28

U.S.), Preliminary Objections, 1984 I.C.J.
2, 7
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923
P.C.I.J., Ser. B, No. 4

North Sea Continental Shelf cases (Federal Republic of Germany v. 16

Denmark), Judgment, 1969 I.C.J.
28
Nuclear Tests (Australia v. France), Judgment, 1974, I.C.J.
28
Nuclear Tests (New Zealand v. France), Judgment, 1974, I.C.J.
21
Diversion of Water from the Meuse, P.C.I.J. Ser A/B No 70, 50 (1937)
22, 28
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010
I.C.J

Request for interpretation of the Judgment of 11 June 1998 in the case 28

concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria), Preliminary Objections 1998, I.C.J.

Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. 23

Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. 1962 27

Territorial and Maritime Dispute between Nicaragua and Honduras in the 20

Caribbean Sea (Nicaragua v. Honduras), Judgment, 2007 I.C.J.
10, 13, 14, 19
Western Sahara, Advisory Opinion, 1975 I.C.J.

OTHER INTERNATIONAL CASES

33
Advent Systems Ltd v Unisys Corp, 925 F. 2d 670 at II; and St Albans DC v
International Computers [1997] F.S.R. 251

Archer Daniels Midland Company and Tate & Lyle Ingredients Americas,
Inc. v. the United Mexican States, Judgment, ICSID Tribunal, Case No. 37
ARB(AF)/04/05, (2007).

Case concerning the Air Service Agreement of 27 March 1946 between the
United States of America and France, United Nations, R.I.A.A., vol. XVIII, 35, 36
(1978)

x
Case Concerning the Arbitral Award of 31 July 1989, (Guinea-Bissau v.
Senegal) 1991
22
Cyprus v. Turkey, Judgment, E.Ct.H.R., 25781/94, (2001)
18
Eng St Albans City and District Council v International Computers Ltd
[1996] 4 All ER 481 (QB)

Guyana v Suriname Arbitration, Award, 47 I.L.M. 33

Katangese Peoples’ Congress v. Zaire, A.C.H.P.R., Comm. No. 75/92, 256 3

(1995).
13
Naulilaa (Responsibility of Germany for damage caused in the Portuguese
colonies in the south of Africa), UNRIAA, vol. II, 1011 (1928)

Racke GmbH & Co. v. Hauptzollamt Mainz, E.C.R., I-3655, Case C-162/96 37
(1998)
28, 29
Rainbow Warrior case (New Zealand, France), Award of 30 April 1990,
U.N.R.I.A.A. vol. XX 217 (1990).

Report on the Situation of a Segment of the Nicaraguan Population of 36

Miskito Origin, I.A.C.H.R., OAS, OEA/Ser.L/V.II.62, Doc. 10, Eev. 3,
(1983).
11
Southwark LBC v IBM UK Ltd (2011) E.W.H.C., 549, (TCC)
33
United States—Definitive Safeguard Measures on Imports of Circular
Welded Carbon Quality Line Pipe from Korea, WTO Appellate Body
Report, WT/DS202/AB/R, (2002)
37
United States—Subsidies on Upland Cotton, Recourse to Arbitration by the
United States under Article 22.6 of the DSU and Article 4.11 of the SCM
Agreement, WTO, Case No. WT/DS267/ARB/1, (2009)
37
United States—Transitional Safeguard Measure on Combed Cotton Yarn
from Pakistan, WTO Appellate Body, WT/DS192/AB/R, (2001).

NATIONAL CASES 37

Federal Court of Justice/Bundesgerichtshof, Germany, (8 ZR 306/95) (1996)

Princen Automatisering Oss B.V. v. Internationale Container Transport 33

GmbH, [1996] Court of Appeal, (770/95/HE), 72(The Netherlands);
34
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217
12
South Central Bell Telephone Co v Sidney J Barthelemy, Supreme Court of
Louisiana , 643 So. 2d 1240 at 1246 (La. 10/17/94)

xi
Tartastan Sovereignty case, [1992] Constitutional Court of the Russian 33
Federation, P-R3-1, (1992).
13
NATIONAL LEGISLATION

Austrian Civil Code

33
Czech Republic Civil Code
33
German Civil Code
33
Greek Civil Code
33
Netherlands Civil Code
33
Turkey Civil code
33
BOOKS AND TREATISES

BENJAMIN’S SALE OF GOODS, FIRST SUPPLEMENT TO THE 8TH EDITION,

BRIDGE M., 14 (2012) 33

BROWNLIE, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 447 (7TH ED.

2008); SHAW, M., INTERNATIONAL LAW, 1148 (6TH ED. 2008)
6
BUCHANAN, A., JUSTICE, LEGITIMACY, AND SELF-DETERMINATION, 355
(2007) 18

COPPIETERS, B. & RICHARD SAKWA, CONTEXTUALIZING SECESSION:

NORMATIVE STUDIES IN COMPARATIVE PERSPECTIVE, (2003)
18
nd
CRAWFORD, J., THE CREATION OF STATES IN INTERNATIONAL LAW, 415 (2
Ed. 2006) 11, 12, 15, 16,
35
DÖRR, O., SCHMALENBACH, K., VIENNA CONVENTION ON THE LAW OF
TREATIES, A COMMENTARY (2012) 21

ELAGAB O. Y.THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN

INTERNATIONAL LAW (1988)
35
EVANS M. INTERNATIONAL LAW 197 (2010)
35
GOODE R. M., COMMERCIAL LAW 197 (3RD ED. 2004)
34
HACHEM, P., KEE, CH., GLOBAL SALES AND CONTRACT LAW, (2012)
33
HIGGINS, R., PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE
USE IT, 124 (1994)
11
JENNINGS AND WATTS (EDS), OPPENHEIM’S INTERNATIONAL LAW, VOL. 1,
535 (9TH ED.) (2008)

xii
 6, 19, 21, 22

MUSGRAVE, T., SELF-DETERMINATION AND NATIONAL MINORITIES, 247

(2000)
5
RAIČ, D., STATEHOOD AND THE LAW OF SELF-DETERMINATION, (2002)
17
rd
SIMMA, B. (ED) THE CARTER OF THE UNITED NATIONS: A COMMENTARY, (3
ed. 2012) 1, 7, 9

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

VERHOEVEN J., THE LAW OF RESPONSIBILITY AND THE LAW OF TREATIES IN 3

JAMES CRAWFORD ET AL. (2010)
34
VILLIGER, M., COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE
LAW OF THE TREATIES 545 (2009) 21, 27

ARTICLES

Anderson G, Secession in International Law and Relations: What Are We

Talking About?, Loy. L.A. Int'l & Comp. L. Rev. (2013)
17
Aust, A., Treaties, Termination, M.P.E.P.I.L. , (2006).
22
Comment, The Use of Nonviolent Coercion: A Study in Legality under
Article 2(4) of the Charter of the United Nations, 122 U. PA.L. Rev., 983,
986 (1974)
8
Crawford, J., Olleson, S., The Exception of Non-Performance: Links
between the Law of Treaties and the Law of State Responsibility (2001)
A.Y.I.L. 35
de Luca, A., Soviet- American Politics and the Turkish Straits, 92 Political
Sci. Q., Vol. 92, (1977)
4
Green S., Saidov D., Software as Goods, J. Bus. L. 161-181 (2007)
34
Hilpold, P., The Kosovo Case and International Law: Looking for
Applicable Theories, CHINESE J. INT`L L.,Vol. 8, 46, 55 (2009) 12, 13
Quane, H., The United Nations and the Evolving Right to Self-
determination, 47 Int'L & Comp. L.Q. (1998)
13
Roscini, M., Threats of Armed Force and Contemporary International Law,
54 Neth. Int’L L. Rev. (2007) 3

Scharf, M., Earned Sovereignty: Juridical Underpinnings, DENV. J. INT’L 18

L. & POL’Y (2003)

Vidmar, J., South Sudan and the International Legal Framework Governing
the Emergence and Delimitation of New States, TEXAS J. INT’L L., Vol. 18

xiii
47, No. 3, (2012)

Wilmshurt, E., The Chantam House Principles of International Law on the 3

Use of Force by States in Self-Defense, Int'l & Comp. L.Q., Vol. 55, No. 4,
(2006)

MISCELLANEOUS

Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 27

I.C.J.,Declaration of Judge Higgins

Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J., Judge

Fleischhauer Dissenting Оpinion 27

Åaland Island, Report by the Commission of Rapporteurs, League of 11

Nations Council Document B7 21/68/106, 318 (1921)

The position of States as Indonesia, India, Pakistan, Sri Lanka and Thailand,
ratifying the ICCPR available at 11
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg
_no=iv-4&lang=en

United States—Import Measures on Certain Products From the European

Communities, WTO Panel Report, WT/DS165/R, (2000) 37
Accordance with international law of the unilateral declaration of 3
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Serbia.

Accordance with international law of the unilateral declaration of 10

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J.,
Statement by the Permanent Representative of the Republic of Azerbaijan to
the United Nations, Oral Proceedings.

Accordance with international law of the unilateral declaration of

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written 17
Statement, Argentina

Accordance with international law of the unilateral declaration of

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written 17
Statement, United Kingdom

Accordance with international law of the unilateral declaration of

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written 17
Statement, Republic of Azerbaijan

Accordance with international law of the unilateral declaration of

17
independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written
Statement, Republic of Cyprus

Accordance with international law of the unilateral declaration of 17

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Written

xiv
Statement, State of Bolivia

Accordance with international law of the unilateral declaration of 11

independence in respect of Kosovo, Advisory Opinion, 2010 I.C.J., Separate
Opinion of Judge Yusuf

North Sea Continental Shelf (Federal Republic of Germany v. Netherlands), 29

Judge Jessup Separate Opinion 1969, I.C.J.

xv
 STATEMENT OF JURISDICTION

The Federal Republic of Agnostica [“Agnostica/Applicant”] and the State of Reverentia

[“Reverentia/Respondent”] hereby submit the present dispute concerning the secession and

annexation of East Agnostica to the International Court of Justice [“The Court”] by a Special

Agreement, signed in the Hague on the second day of September in the year two thousand and

fourteen, pursuant to Article 40(1) of the Statute of the International Court of Justice. The

parties have accepted the jurisdiction of the Court in accordance with Article 36(1) of the

Statute of the Court. Each party shall accept the judgment of the Court as final and binding

and shall execute it in good faith.

xvi
 QUESTIONS PRESENTED

I. Whether Reverentia’s encouragement of East Agnostica’s referendum violated

Agnostica’s territorial integrity, the principle of non-intervention, and the United

Nations Charter generally;

II. Whether the purported secession and subsequent annexation of East Agnostica are

illegal and without effect, 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 2 April 2012 and,

whether Agnostica breached the Convention;

IV. Whether Reverentia’s removal of the software from the Marthite extraction facilities

violated international law.

xvii
 STATEMENT OF FACTS

BACKGROUND

The Reverentians and the Agnosticans were two ethnic groups. In 18th century, their

lands are administered into two colonies, based on the linguistic, cultural and religious

differences. In 1925 those colonies gained independence and formed the Federal Republic of

Agnostica and the State of Reverentia. Reverentia is a unitary state, while Agnostica has two

provinces, which have sovereignty over cultural affairs and education. Agnostica`s

Constitution allows dissolutionby a three-quarters vote of the federal parliament.

Nearly 30% of Agnostica’s are ethnic Reverentians, called Agnorevs. Despite the

continuous attempts of the Reverentia to encouragethem to return over 85 % of them decided

to remain citizens of Agnostica.

According to official statistics, the average Agnorevs household in Agnostica earned

157% of the income of the average ethnic Agnostican family.

THE MARTHITE CONVENTION

Marthite is a mineral salt, located in East Agnostica, which is essential for the

Reverentian traditional medicine. In 1938 the two States conclude the Marthite Convention.

Its main purpose, as enshrined in the Preamble is to ensure reliable supply of Marthite to the

traditional practitioners. It recognizes that Marthite is without significant commercial value

outside its traditional uses. Under the Convention Reverentia is to construct mining-support

facilities and to provide engineers and technology for its maintenance. Agnostica gains

ownership over the facilities upon payment. The distribution of Marthite is assigned to RMT,

a state-owned Reverentian undertaking. RMT is to sell only to traditional practitioners located

in the territory of the State Parties at fixed price. RMT may not sold production outside

Agnostica and Reverentia unless the yearly supply exceeds demand from traditional

xviii
practitioners by 25%. If the demand is exceeded by 125% the salt may be sold without

restriction on price, purchaser, or intended use.

Until 2011, RMT complied with the restrictions while the production varied within 5%

between supply and demand.

The mineral has been almost unknown outside Agnostica and Reverentia, until the

ILSA scientific report in 2011 which reported that high doses of Marthite were over 90%

effective in treating previously untreatable infant and early-childhood diseases, afflicting tens

of thousands of children worldwide.

Shortly thereafter RMT started selling some 75% of the total quantity of mined

Marthite to pharmaceutical companies, for price, ten times higher than the permitted. The

conduct of RMT causes serious doubts that shortages and price increases were inevitable.

On 1 February 2012, Agnostica proposed Reverentia to terminate the Marthite

Convention, due to the “fundamental change in the science,” offering reimbursement and

compensation. Reverentia rejected.

On 2 April 2012in light of Reverentia’s refusal to accept a mutually-beneficial settlement

Agnostica declared the Convention terminated and leased all rights to the existing facilities to

Baxter Enterprises.

THE SOFTWARE REMOVAL AND MARTHITE RESTRICTIONS

After the declaration for termination the Reverentian President ordered the return of

Reverentian engineers and removal of the software installed at the facilities.

However RMT continued to tender the agreed annual royalties until March 2013. Agnostica

declined to accept them.

According to Baxter engineers, the withdrawal of personnel and software had crippled

the mining operations. They reported that it may take months to restore extraction on any

meaningful scale. Agnostica decided to resume operation, albeit relying on the manual labour.

xix
 As of 31 August 2012, Baxter had not yet been able to restore the software and the

extraction produced roughly 100 kilograms Marthite per day. Most of it was sold to

pharmaceutical companies and the rest was sold to traditional users, at higher prices than

those before 1 April 2012.

As the software restoration was expected to take years, on 1 October 2012, the

Agnostican Parliament passed the Marthite Control Act (MCA), a law banning the sale or

transfer of Marthite into Reverentia, as well as the unauthorized sale and possession of

Marthite within Agnostica. The main reason was providing this life-saving product to

suffering children of the world.

In mid-November, an Agnorev worker at the Marthite facilities, Gohandas Sugdy, was

and was arrested and charge for d possessing Marthite. He explained that according to a local

folk-medicine practitioner, his ill grandfather needed daily doses of the remedy. On 24

November 2012, Sugdy committed suicide in his cell. Shortly after, his grandfather died of

heart failure.

THE PROTEST

After the Sugdy`s dead, a peaceful gathering was held by the Agnorevs in East

Agnostica. Within weeks the crowd increased in its size.

With the passing time the demonstrators increased dramatically in number, frequency

and intensity. They protested against the unavailability of Marthite and the perceived

mistreatment of Gohandas Sugdy. As a result, the Prime Minister of Agnostica sent military

troops to maintain order.

REVERENTIA SUPPORT OF PROTEST

In the light of these events, the President of Reverentia expressed “deep concern for

the safety of our Reverentian brethren abroad,” and offered “any assistance that Reverentia

xx
might provide to protect them”. He also contacted Mr. Bien, an Agnorev politician and MP to

propose assistance.

On 2 January 2013, with clashes between the authorities and protesters continuing, Mr.

Bien proposed a resolution before the Agnostican Parliament, calling upon de-escalation of

the military presence in East Agnostica. The resolution failed by a slight majority.

THE RESOLUTION FOR DISSOLUTION

On 5 January 2013, Mr. Bien presented a resolution to the Agnostican Parliament

proposing dissolution. The resolution was defeated. Four of 33 Agnorev delegates voted

against.

On 9 January 2013, the Reverentian President publicly stated that he commits himself

to the cause of ‘our Reverentians who live in Agnostica’. He added that the Agnostican

Parliament’s wrongful decision cannot defeat the inevitable progress of history. If Agnorevs

wish to be free, Reverentia will do everything to ensure that.

THE RESOLUTION “ON THE CRISIS IN EAST AGNOSTICA”

On 10 January 2013, the Reverentian Parliament adopted a resolution proclaiming that

the referendum reflects the will of the Agnorevs to separate from Agnostica. By a later

resolution the President is authorized by the Government to recognize such referendum at any

means at his disposal in order to support the independency of East Agnostica and to enter into

negotiations to ensure Reventian interests and to take all measures necessary to ensure the

security and integrity of East Agnostica. The resolution was denounced by Agnostica as

unlawful interference in Agnostica’s internal affairs and an act of aggression against its

territorial integrity.

THE REFERENDUM

On 16 January 2013 a plebiscite on the question of secession was voted. On 18

January 2013, Reverentia ordered several hundred soldiers to the border with East Agnostica.

xxi
 On 29 January 2013 , the plebiscite was held, and 73 % of voters in favour of

secession. Agnostican Prime Minister denied the legality of the referendum.

East Agnostica’s secession was ratified by “Agnorev People’s Parliament” (APP). At

the same time Agnostica pleaded for help from the international community against the

occupation.

The President of the Security Council expressed concern stating that recent events

might constitute “an unjustifiable and illegal interference in Agnostican domestic affairs.”

Agnostica received support from EU, ASEAN, and several other regional, proclaiming

it as “a threat to international peace and stability.”

ANNEXATION

On 22 February 2013 an Agreement that would make East Agnostica a province of

Reverentia, was ratified. Reverentian Army promptly moved into the region.

Prime Minister Moritz denounced the annexation, but did not send troops into East

Agnostica.

xxii
 SUMMARY OF PLEADINGS

Reverentia`s conducts with respect to East Agnostica violated treaty and customary

international law. Firstly, Reverentia`s support for the referendum transgress against the

principle of territorial integrity. Both the adoption of the resolution „On the Crisis of East

Agnostica” and the amassment of military troops near Agnostica`s border constituted a threat

of force and infringed the territorial integrity of Agnostica.

Secondly, Reverentia`s actions in support of the plebiscite imperils the principle of

non-intervention. Reverentia supported the secession movement in East Agnostica and

intervened in the domestic affairs of Agnostica. Moreover, by the contravening the purpose

and the object of the United Nations Charter ,in particular sustaining of the peace and security,

Reverentia violated also the United Nations Charter in general.

East Agnostica remains part of the territory of Agnostica since its secession is illegal

under international law. In this vain, the principle of self-determination cannot justify the act

of secession since the Agnorevs in Agnostica do not fall under the definition of a „people”.

Even if the Court qualify them as a „people” the Agnorevs have only the right of internal self-

determination. In any event, the Agnorevs do not have the right of external self-determination

since the principle is applicable only to peoples under colonial and alien domination.

Furthermore, the purported attempt is to be proclaimed illegal because of the actions of

Reverentia encouraging the secession as between state relations there is an obligation not to

recognize situations created by a breach of international law.

Even if Respondent argues the notion of remedial secession justify the conducted

unilateral secession the latter doctrine is not part of customary international law since the state

practice is far from consistent. Alternatively, if the Court finds that remedial secession has

emerged as customary norm, the prerequisite requirements of the rule are not met in the

present dispute.

xxiii
 Under international law annexation with regard of the territory of another sovereign

State is illegal. Thus, Reverentia’s conduct with respect to East Agnostica is not in conformity

with the international legal order. What is more, it is a general principle of law that an illegal

act cannot give birth to a right in law. Hence, resulting from the unlawful secession, the

annexation of East Agnostica violates international law. Further, the decision of the so-called

Agnorev’s Parliament has no legal force since this is not an organ having the capacity to adopt

such an effect and measures. In any event, the uti possidetis principle renders East

Agnostica’s secession and annexation prohibited under international law. Conclusively, the

secession attempt and subsequent annexation of East Agnostica by Reverentia are illegal and

without effect.

The Marthite Convention has been lawfully terminated, as two possible grounds for its

termination under customary international law are at present in the case at hand. Firstly,

Reverentia actions against the Marthite Convention regulations constitute a material breach.

Secondly, the recently discovered Marthite qualities constitutes a fundamental change of

circumstances which changes the extend of parties obligations and forms an essential basis of

the parties consent to be bound by the treaty. Moreover, Agnostica has grounds for invoking

invalidity of its consent to be bound by the treaty, based on error concerning the Marthite

medical use. Agnostica fulfills all of the customary international law requirements for

invoking the Convention out of effect after April 2012. Therefore, the convention is

considered out of effect.

Even if the Marthite Convention was still in effect after that date, it has not been

breached by Agnostica. The ban on the free movement of Marthite has been put under the

conditions of necessity, which precludes its wrongfulness under customary law.

xxiv
 The removal of the software by Reverentia constitutes deprivation of Agnostican

sovereign property. Under the Marthite Convention Agnostica gained property rights over the

software and the software removal contradicts them.

Moreover, the wrongfulness of the removal is not precluded. There are no

opportunities for the preclusion of the acts` wrongfulness, because the law of state

responsibility is not applicable in the case at hand. In the alternative, Reverentia`s actions do

not meet the requirements for countermeasures under customary international law. The

actions of Reverentia are neither proportionate, nor they comply with the procedural

requirements for invoking countermeasures.

xxv
 PLEADINGS

I. REVERENTIA’S ENCOURAGEMENT OF THE EAST AGNOSTICAN REFERENDUM VIOLATED

AGNOSTICA’S TERRITORIAL INTEGRITY, THE PRINCIPLE OF NON-INTERVENTION, AND THE

UNITED NATIONS CHARTER GENERALLY

A. Reverentia`s support for the referendum violated the principle of territorial integrity

The principle of territorial integrity is an essentially important part of the international

legal order. It is enshrined in Article 2(4) of the UN Charter.1 This basic rule is further

reiterated in numerous international instruments2 and especially in the Friendly Relations

Declaration which underlines the inviolability of the territorial integrity and political

independence of States.3 In Kosovo4 and Nicaragua5 the Court has found that the latter

resolution reflects customary international law. In this vein, Reverentia`s encouragement of

the referendum (1) by the adoption of the Resolution “On the Crisis in East Agnostica” (Crisis

1
Charter of the United Nations, 1 U.N.T.S. XVI (1945); Randelzhofer, A. and O. Dörr,
Article 2(4) in SIMMA, B. (ED) THE CARTER OF THE UNITED NATIONS: A COMMENTARY, 200,
223 (3rd ed. 2012) [‘SIMMA’].

2
The Final Act of the Conference on Security and Cooperation in Europe, 14 I.L.M. 1292
(1975) [‘Helsinki Final Act’]; European Commission for Democracy, CDL-AD (2014) 004,
Opinion no. 763/2014, 98th Plenary Session, ¶15.

3
Article 6(2)(d) 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. 2625 (XXV), U.N. Doc. A/8028 (1970) [‘Friendly Relations Declaration’].

4
Accordance with international law of the unilateral declaration of independence in respect
of Kosovo, Advisory Opinion, 2010 I.C.J.¶80 [‘Kosovo’].

5
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits,
1986 I.C.J. 14, ¶191-193 [‘Nicaragua’].

1
Resolution); and (2) by the deployment of military troops near the border, breached the

principle of territorial integrity.

1. The adoption of the Crisis Resolution by Reverentia imperils the territorial integrity

of Agnostica

The right of national liberation movements to seek outside support has been

recognized only in the context of colonial and alien domination.6 In all other cases States are

required to strictly observe the territorial integrity of the parent State.7 Hence, in situations in

which third States support or encourage the actions of secessionist movements, this would

amount to a violation of the territorial integrity of the parent State as affirmed by multiple

Security Council Resolutions8 and other documents.9 The Crisis Resolution recognizes the

conducted referendum “as lawful and valid” and expresses Reverentia’s readiness “to take all

measures necessary to ensure the security and the integrity of East Agnostica.”10 Therefore,

by giving its support for the referendum, Reverentia violated its duty to respect the

6
Implementation of the Declaration on the Granting of Independence to Colonial Countries
and Peoples, G.A. Res. U.N. Doc. A/RES/2105 (XX) (1965); G.A. Res. 3236, U.N. Doc.
A/RES/3236 (XXIX) (1974); G.A. Res. 31/61, U.N. Doc. A/RES/31/61 (1976); G.A.
Res. 34/44, U.N. Doc. A/RES/34/44 (1979).

7
Friendly Relations Declaration.

8
S.C. Res. 937, U.N. Doc. S/RES/937 (1994); S.C. Res. 934, U.N. Doc. S/RES/934 (1994);
S.C. Res. 906, U.N. Doc. S/RES/906 (1994); S.C. Res. 896, U.N. Doc. S/RES/896 (1994).

9
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 P.C.I.J., Ser. B,
No. 4, 27-28 [‘Nationality Decrees’]; Report of the Secretary-General on the Situation in the
Federal Islamic Republic of the Comoros, Decisions and Resolutions of 68th Ordinary
Session, O.A.U. CM/Dec.405, Doc. CM/2062 (LXVIII) (1998).

10
Compromis, ¶35.

2
inviolability of every State and to positively protect the territorial composition of States, 11 in

particular the territorial integrity of Agnostica.

2. Reverentia`s amassment of troops near Agnostica`s border constitutes a threat of

force and therefore infringes the territorial integrity of Agnostica

As emphasized in the consistent practice of this Court, territorial integrity relates to

the “complete and exclusive sovereignty of a State over its territory.”12 Furthermore, this

principle, understood together with the principles of non-intervention and political

independence, entitles States to choose and implement their own political, economic and

social systems without outside interference and in particular free from threats or use of force

by other States.13

On the day of the referendum, Reverentia sent several hundred soldiers near

Agnostica`s border.14 These actions should be regarded as an inseparable part of the

referendum`s support and comprise a threat to use force against the territorial integrity of

Agnostica.15 For instance, the USSR’s amassment of troops near the Turkish border in 1946

11
Kosovo, Written Statements, Serbia, ¶423-424.

12
Nicaragua, ¶209; Armed Activities on the Territory of the Congo (Demovratic Republic of
the Congo v. Uganda), Judgment, 2005 I.C.J., ¶164 [‘Congo v. Uganda’].

13
Nicaragua, ¶¶258, 212.

14
Compromis, ¶37.

15
S.C. Res. 949, U.N. Doc. S/RES/949 (1994); STÜRCHLER, N., THE THREAT OF FORCE IN

INTERNATIONAL LAW, 209, 216 (2007); Guyana v Suriname Arbitration, Award, 47 I.L.M.
166 ¶¶439, 445; Wilmshurt, E., The Chantam House Principles of International Law on the
Use of Force by States in Self-Defense, Int'l & Comp. L.Q., Vol. 55, No. 4, 963 (2006);
Roscini, M., Threats of Armed Force and Contemporary International Law, 54 Neth. Int’L L.
Rev. 229, 242 (2007).

3
was accepted as e credible threat16 as well as the movements of Turkish troopships in the

vicinity of Cyprus in 196417 and also Iraq’s troop build-up near the border with Kuwait in

1994.18 Moreover, in Nicaragua the Court recognized that military manoeuvres near a State

border may amount to a threat of force.19 Likewise, as the Court held in Corfu Channel “a

demonstration of force for the purpose of exercising political pressure” violates Article 2(4) of

the Charter.20

As stated in Nuclear weapons, “if the envisaged use of force is itself unlawful, the

stated readiness to use it would be a threat prohibited under the Charter.”21 In the present case,

the manoeuvres in question are intended to serve Reverentia’s policy objectives such as “to

secure territory from another State, or to cause it to follow or not follow certain political or

economic paths”22 materialized in the unlawful support of East Agnostica’s referendum. The

threat or use of force is permissible only in a limited number of cases - in situations of self-

16
de Luca, A., Soviet- American Politics and the Turkish Straits, 92 Political Sci. Q., Vol. 92,
503, 516–20 (1977).

17
Repertoire of the Practice of the Security Council, Suppl. 1964-1965, XVI, 238 S. (Sales
No. 1968. VII. 1). Doc. ST/PSCA/l/Add. 4., 202 (1968).

18
S.C. Res. 661, U.N. Doc. S/RES/661 (1990); U.N. S.C.O.R., 49th Sess., 3438th Meeting,
U.N. Doc. S/PV.3438, 4-5, 8-11, 13 - statements of Argentina, Djibouti, Kuwait, New
Zealand, Pakistan, Spain, UK, US (1994).

19
Nicaragua, ¶227.

20
Corfu Channel (Great Britain v. Albania), Merits, Judgment, 1949, I.C.J. 4, 35.

21
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J., ¶47
[‘Nuclear weapons’].

22
Ibid.

4
defense23 or with the authorization of the Security Council.24 Since the deployment of patrols

near Agnostica’s borders could not be justified on the abovementioned grounds, it constitutes

a prohibited threat against the territorial integrity of Agnostica.

3. The right to self-determination could not justify the encouragement of the referendum

Respondent may rely on the erga omnes character of self-determination in order to

justify its support for the referendum. However, the context of this principle is only limited to

situations of colonial and alien domination.25 In any event, under the Friendly Relations

Declaration and other GA Resolutions26 the right of self-determination can only be exercised

within the confines prescribed by the other principles, including territorial integrity.27 Hence,

self-determination does not prevail over the principle of territorial integrity of States and

cannot justify Reverentia’s actions.

B. Reverentia`s encouragement of the referendum violates the principle of non-

intervention

23
Art. 51, Charter.

24
Art. 50, Charter.

25
Art. 2 Declaration on the Granting of Independence to Colonial Countries and Peoples,
G.A. Res. 1514 (XV), U.N. Doc. A/4684, 66 (1960) [Declaration on the Granting of
Independence]; Thürer, D & T. Burri, Self-determination, Oxford Publ. I`tnl L., MPEPIL, ¶¶6,
15 (2008).

26
G.A. Res. 37/42, U.N. Doc. A/Res/37/42 (1982); G.A. Res. 38/16, U.N. Doc. A/38/47
(1983); G.A. Res. 61/150, U.N. Doc. A/Res/61/150 (2006); G.A. Res. 62/144, U.N. Doc.
A/Res/62/144 (2007); G.A. Res.,U.N. Doc. A/Res/63/163 (2009).

27
The Arbitration Commission of the European on the former Yugoslavia, Opinion No. 2, 31
I.L.M. 1497 (1992) [‘Badinter Commission’]; MUSGRAVE, T., SELF-DETERMINATION AND

NATIONAL MINORITIES, 247 (2000).

5
 The principle of non-intervention is generally accepted as one of the fundaments of

international law.28 It is recognized as a part of customary international law.29

Notably, the Friendly Relations Declaration prohibits intervention in any forms – be it

economic, political or other, directly or indirectly manifested.30 This Court has emphasized

the importance of the non-intervention principle in Nicaragua finding that intervention is

permissible only upon the invitation of the government of the State, while intervention in

support of the opposition and secessionist movements threatens not only the sanctity of the

principle of non-intervention but the international legal order at large.31

1. The support of the secession movement in East Agnostica violates the principle of non-

intervention

Indirect interference in civil strife in another State, including actions that incite or

tolerate subversive actions has been widely condemned.32 Similarly, in Congo v. Uganda the

28
JENNINGS AND WATTS (EDS), OPPENHEIM’S INTERNATIONAL LAW, VOL. 1, 535 (9TH ED.)

(2008) [‘OPPENHEIM’S’]; BROWNLIE, I., PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 447 (7TH
ED. 2008); SHAW, M., INTERNATIONAL LAW, 1148 (6TH ED. 2008) [SHAW].

29
Friendly Relations Declaration; 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/20/2131, ¶1 (1965) [Declaration on the Inadmissibility];
Helsinki Final Act, VI; Declaration on the Inadmissibility of Intervention and Interference in
the Internal Affairs of States, G.A. Res. 36/103, U.N. Doc. A/RES/36/103, Annex, ¶ 2 (II)(a)
(1981); Peaceful and Neighbourly Relations among States, G.A. Res. 1236 (XII), U.N. Doc.
A/RES/12/1236 (1957); Nicaragua, ¶205.

30
Friendly Relations Declaration.

31
Nicaragua, ¶246.

32
Friendly Relations Declaration; Declaration on the Inadmissibility, ¶2; Helsinki Final Act,
VI.

6
Court expressly concluded that the prohibition on intervention encompasses also subtle forms

of interference such as to “foment… incite or tolerate” subversive activities in another State.33

The Agnostican Parliament expressly rejected the dissolution proposal. On the other

hand, Reverentia by the actions of its officials including President Nuvallus’ speech and the

Parliament`s Crisis Resolution expressed its full support for the secession movement in East

Agnostica.34 Reverentia’s actions, which are a matter of public knowledge, constitute indirect

interference in civil strife in Agnostica.35

2. Reverentia intervened in the domestic affairs of another State

The principle of non-intervention is a fundamental right of every State to choose and

implement its sovereign policy.36 As observed by the Court, this rule “forbids all States or

groups of States to intervene directly or indirectly in internal or external affairs of other

States.”37 In particular, direct or indirect support for subversive groups in another State are

prohibited.38

33
Congo v. Uganda, ¶¶¶162, 300-301; Nicaragua, ¶191.

34
Compromis ¶¶34; 35.

35
Ibid.

36
Nicaragua ¶¶202,258; Nationality Decrees, 23-24; Friendly Relations Declaration; S.C.
Res. 1271, U.N. Doc. S/RES/1271 (1999); G.A. Res. 58/189, U.N. Doc. S/RES/58/189
(2003); G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997); SIMMA, 790.

37
Nicaragua, ¶205; Congo v. Uganda, ¶164.

38
Ibid.

7
 Additionally, the inviolable right of political integrity is enshrined in the Montevideo

Convention39 which applies in the present case as treaty law.40 Hence, the intervention of a

State against the political integrity of another State is prohibited when it is executed by

“methods of coercion in regard to such choices, which must remain free ones”.41

The organization and execution of the referendum are exclusively regulated by the

sovereign State of Agnostica through its governmental authorities. Reverentia`s readiness to

recognize and extend diplomatic recognition as well as the given insurance to take all

measures necessary to ensure the integrity of East Agnostica constitute an interference in the

domestic affairs of Agnostica.42

C. Reverentia`s encouragement of the referendum violates the Charter in general

1. The violation of the abovementioned principles entails the violation of the Charter

As was proven supra, Reverentia has violated the principles of territorial integrity,

non-intervention, as well as the prohibition of threat to use of force. Article 2(4) of the Charter

prohibits the threat or use of force against the territorial integrity of States.43 This rule is

considered as the “crucial normative foundation” of the Charter.44 Similarly, Article 2(7) of

the Charter emphasizes the importance of the non-intervention principle.

39
Article 8, Convention on Rights and Duties of States, Montevideo, 165 L.N.T.S. 19 (1933).

40
Compromis, ¶44.

41
Nicaragua, ¶205.

42
Compromis, ¶35.

43
Article 2(4), Charter.

44
Comment, The Use of Nonviolent Coercion: A Study in Legality under Article 2(4) of the
Charter of the United Nations, 122 U. PA.L. Rev., 983, 986 (1974).

8
 If the Court accepts that Reverentia has violated the abovementioned principles, then it

should consider that Respondent has violated the Charter in general.

2. Reverentia’s actions contravene the purpose and the object of the Charter

The purpose of the Charter is enshrined in Article 1, namely to maintain international

peace and security.45 This effect is to be achieved through “peaceful means,” “friendly

relations among nations” and “co-operation” in solving international problems.46

By encouraging the referendum, Reverentia raised the pressure in the region of East

Agnostica. Respondent did not make any effort to co-operate or to initiate negotiations with

Agnostica in order to solve the issue by peaceful means. The European Union, ASEAN, and

other regional bodies qualified the possible annexation of East Agnostica as “a threat to

international peace and stability.”47

With its actions, Reverentia infringes the main object of the Charter, in particular to

sustain peace and security. Therefore, Respondent violated the very purpose of the Charter.

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

ILLEGAL AND WITHOUT EFFECT; AND THEREFORE, EAST AGNOSTICA REMAINS PART OF THE

TERRITORY OF AGNOSTICA

A. The secession of East Agnostica is illegal under international law

1. The principle of self-determination cannot justify the secession of East Agnostica

45
Wolfrum, R, Ch.I Purposes and Principles, Article 1, in SIMMA, 93, ¶7.

46
Ibid., 216, ¶38.

47
Compromis, ¶40.

9
 Applicant submits that (1) the Agnorevs cannot be qualified as “peoples” for the

purposes of self-determination; and that (2) their right to self-determination is limited to its

internal aspect and (3) in any event, they do not have the right to external self-determination.

i) The Agnorevs in Agnostica do not fall under the definition of a “people”

The Charter,48 the Friendly Relation Declaration and the International Covenant on

Civil and Political Rights49 provide for a right to self-determination of “peoples”. This term is

not defined in the abovementioned instruments, but there is wide consensus that “people”

encompasses the whole population of a given State or non-self-governing territory and does

not, in particular, include ethnic groups or minorities.50 Thus, this Court has described the

right to self-determination as one embracing “all peoples and territories which have not yet

attained independence,”51 thereby referring to the whole population, not to its constituent

48
Article 1(2) Charter.

49
Article 1, International Covenant on Civil and Political Rights, 16 December 1966, 999
U.N.T.S. 171 [ICCPR].

50
Kosovo, Statement by the Permanent Representative of the Republic of Azerbaijan to the
United Nations, Oral Proceedings, 3 December 2009, ¶36, available at
<http://www.icjcij.org/docket/files/141/15716.pdf>; ICCPR, Third Periodic Reports of States
Parties due in 1991, Addendum, Report Submitted by Shri Lanka, 17 July 1944,
CCRP/C/70/Add.6, (1944).

51
Western Sahara, Advisory Opinion, 1975 I.C.J. 1, ¶162 [‘Western Sahara’]; Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16,
¶52-53 [‘Namibia’]; East Timor (Portugal v. Australia), Judgment, 1995 I.C.J. 90 ¶29; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, ¶88 [‘Wall’].

10
ethnic groups. In its Declaration on Inadmissibility, the GA used the terms “nations” and

“peoples” as synonyms.52

Similarly, in the Åaland Island was noted that international law does not permit

“separation of a minority from the State of which it forms part.”53 This is supported both by

the position of eminent scholars54 of international law and vast state practice.55 Moreover, the

Inter-American Commission on Human Rights declared self-determination to be the right of

a people to choose their form of political organization and to pursue their economic, social

and cultural development, but “this does not mean, however, that it recognizes the right to

self-determination of any ethnic group as such.”56 In Kosovo, the most recent occasion on this

question before the Court, many States submitted in their oral or written pleadings that

“people” does not include minority or ethnic groups on the territory of an existing State.57

52
Declaration on the Inadmissibility, ¶6.

53
Åaland Island, Report by the Commission of Rapporteurs, League of Nations Council
Document B7 21/68/106, 318 (1921).

54
CRAWFORD, J., THE CREATION OF STATES IN INTERNATIONAL LAW, 415 (2nd Ed. 2006)
[‘CRAWFORD’]; HIGGINS, R., PROBLEMS AND PROCESS, INTERNATIONAL LAW AND HOW WE
USE IT, 124 (1994); Kosovo, ¶10 (Separate Opinion of Judge Yusuf).

55
The position of States as Indonesia, India, Pakistan, Sri Lanka and Thailand, ratifying the
ICCPR available at
https://treaties.un.org/pages/viewdetails.aspx?chapter=4&src=treaty&mtdsg_no=iv-
4&lang=en; Badinter Commission, Opinion No 2.

56
Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin,
I.A.C.H.R., OAS, OEA/Ser.L/V.II.62, Doc. 10, Eev. 3, ¶9 (1983).

57
Kosovo, Written statement of Argentina, ¶59.

11
 In the present case, the Agnorevs share the same history, culture and ethnical identity,

as well as common economic background.58 Hence, they form an ethnic group.

ii) The Agnorevs may exercise internal self-determination

Outside the colonial context, self-determination only applies in its internal aspect and

provides for the people’s right to be equally represented within the sovereign State. 59 This is

evidences by a line of UN resolutions60 and consistent State practice.61

In Quebec case the Canadian Supreme Court took the position that “[s]elf-

determination of a people is normally fulfilled through internal self-determination”.62

Similarly, the African Commission on Human Rights’ observations in the case of Katangese

Peoples’ Congress v. Zaire lend support to the proposition that ethnic subgroups are entitled

58
Compromis, ¶¶¶ 4,5,6.

59
Report of the Independent International Fact-Finding Mission on the Conflict in Georgia,
2008/901/CFSP, Vol. II, 147 (2009); CRAWFORD, 415; SHAW, 293; Hilpold, P., The Kosovo
Case and International Law: Looking for Applicable Theories, CHINESE J. INT`L L.,Vol. 8,
46, 55 (2009) [Hilpold].

60
S.C. Res. 724, U.N. Doc. S/Res/724 ¶7 (1991); G.A. Res. 441 (V), U.N. Doc. A/Res/441/5
(1950); G.A. Res. 1723 (XVI), U.N. Doc. A/Res/1723/16 (1961); General Recommendation
21, The right to self-determination, U.N. Doc. A/51/18, annex VIII, 125 (1996).

61
Declaration on the Situation in Yugoslavia, Extraordinary European Political Cooperation
Ministerial Meeting, EC Press Release 61/91 (1991); Resolution 233, Council of Europe, 22
April 1997; Vienna Declaration of the CSCE Parliamentary Assemble, PA(94)7, ¶21 (1994).

62
Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, ¶138.

12
to internal self-determination63 as well as the Tartastan decision issued by the Constitutional

Court of the Russian Federation.64

The Agnorevs are granted with the full capacity of their right of internal self-

determination as they can pursue their own economic, social, and cultural development.65

Agnorev’s rights pertaining to their ethnic origin are well preserved from violations by the

widely developed human rights system of Agnostica.66 They are represented by almost half of

the members at the Agnostican Parliament67 and have the highest life standard in Agnostica.68

Hence, their right of internal self-determination is preserved.

iii) In any event, the Agnorevs do not have a right of external self-determination

The right to external self-determination consisting in the right to form an independent

State is related exclusively to peoples under colonial and alien domination.69 Likewise, in

Namibia, this Court observed that the principle of self-determination embraces all peoples and

63
Katangese Peoples’ Congress v. Zaire, A.C.H.P.R., Comm. No. 75/92, 256 (1995).

64
Tartastan Sovereignty case, [1992] Constitutional Court of the Russian Federation, P-R3-1,
(1992).

65
Compromis, ¶6.

66
Clarification ¶4.

67
Compromis, ¶¶31,33.

68
Compromis, ¶7.

69
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2, ¶4 (2000); Western
Sahara, ¶56; Kosovo, ¶82. Quane, H., The United Nations and the Evolving Right to Self-
determination, 47 Int'L & Comp. L.Q. 537, 558 (1998); Hilpold, 55.

13
territories which have not yet attained independence, in particular territories under colonial

regime.70

Consequently, even if the Agnorevs qualify as a “people”, the principle of self-

determination does not automatically entail their right to secession.71

In the present case, both Agnostica and Reverentia have already gained there

independence from Credera in.72 Moreover, despite the Reverentia encouragement to return

over 85% of Agnorevs resident in Agnostica elected to remain Agnostican citizens.73

Therefore, the principle of external self-determination is not applicable to the present dispute

and.East Agnostican does not have the right to secede.

2. The secession was conducted with the help of Reverentia

Admittedly, in the Kosovo, the Court has held that international law does not regulate

and hence does not prohibit unilateral declarations of independence. 74 This finding of the

Court must be read strictly within the context of the relations between a State and a seceding

entity on its territory – the latter not being a subject of international law. However, in State-to-

State relations there is an obligation not to recognize situations created by a breach of

international law.75

70
Namibia, ¶52; Western Sahara, ¶56.

71
Declaration on the Granting of Independence.

72
Compromis, ¶5.

73
Ibid., ¶6.
74
Kosovo, ¶84.

75
Article 41, Articles on Responsibility of States for Internationally Wrongful Acts,
Y.B.I.L.C., vol. II (Part Two) (2001) [‘ARSIWA’]; Namibia, ¶119.

14
 As noted supra, by its actions Reverentia threatened to use force which laid further

encouragement to the Agnorev’s claims and facilitated their attempted secession. The Court

has recognized that in such situations the secession is unlawful.76 There are many other

examples of entities which made attempts to secede by violating general international law.

Those attempts were proclaimed illegal because of the actions of third States encouraging the

secession.77

Similarly, Reverentia encouraged the secession movement in East Agnostica.78

Moreover, it sent military patrols along Agnostica’s borders79 and promoted the recognition of

East Agnostica.80 With those actions the Respondent indirectly initiated and safeguard the

secession of East Agnostica by violating principles of general international law. Hence, the

secession should be condemned as inconsistent with international law.

3. Remedial secession cannot justify the conducted unilateral secession

i) The doctrine of remedial secession is not part of customary international law

Respondent may try to argue that remedial secession has become part of customary

law. This argument cannot be accepted since in order for a customary rule to emerge, there

76
Kosovo, ¶81; S.C. Res. 216, U.N. Doc. S/RES/216 (1965); S.C. Res. 217, U.N. Doc.
S/RES/217 (1965); S.C. Res. 787, U.N. Doc. S/RES/787 (1992).

77
S.C. Res. 1023, U.N. Doc. S/Res/1023, preamble (1995); S.C. Res. 815, U.N. Doc.
S/Res/815, ¶5 (1993); CRAWFORD, 408; Declaration on the “Guidelines on the Recognition of
New States in Eastern Europe and in the Soviet Union”, European Community, 31 I.L.M.
1485 (1992).

78
Compromis, ¶35.

79
Compromis, ¶37.

80
Compromis, ¶¶ 35,41.

15
should be constant State practice81 and opinio juris.82 In particular, where the practice is

fraught with “uncertainty and contradiction… fluctuation and discrepancy”83 the formation of

a customary rule is obstructed.

There is no State practice in respect of remedial secession. Crawford identifies only

the case of Bangladesh as a possible example of remedial secession,84 but no State recognized

Bangladesh and it was denied admission into the UN until Pakistan granted its consent. In the

case of Chechnya – despite the fact that grave violations of human rights law were perpetrated

–its claim to independence was not recognized and the SC has issued resolutions affirming the

territorial integrity of the Russian Federation.85 Similarly, in the case of Abkhazia the SC

again affirmed the territorial integrity of Georgia86. Thus, there is no State practice and opinio

juris on the question of remedial secession.

More recently, in Kosovo, the Court emphasized in relation to the concept of remedial

secession that States hold “radically different views”.87 For instance, in their written

statements many States explicitly rejected this doctrine.88

81
North Sea Continental Shelf cases (Federal Republic of Germany/Denmark, Judgment,
1969 I.C.J. 3, 44, ¶ 77 [‘North Sea’]; Asylum (Colombia/Peru), Judgment, 1950 I.C.J. 266,
276-277 [‘Asylum’].

82
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J. 13, ¶27.);
Nicaragua, ¶183; Jurisdictional Immunities of the State (Germany v. Italy: Greece
intervining), Judgment, 2012 I.C.J. ¶55 [‘Germany v. Italy’]; Nuclear weapons, ¶64.

83
Asylum, 277; North Sea, ¶74.

84
CRAWFORD, 393.

85
Ibid, 408.

86
S.C. Res. 1808, U.N. Doc. S/RES/1808 (2008).

87
Kosovo, ¶82.

16
 In view of the fact that the elements for the existence of custom are not met, remedial

secession does not form part of lex lata. Therefore, the Respondent could not justify the

legality of East Agnostica’s secession upon the theory of remedial secession.

ii) Alternatively, the requirements for remedial secession are not met

Even if the Court recognizes the right of remedial secession as part of customary

international law, the threshold for its application is not met in the present case. Scholars

addressing remedial secession have observed that it is only permitted in the case of gross

violations of individual human rights89 such as “ethic cleaning, mass killings and genocide.”90

For instance, in the cases of Bangladesh and Bosnia and Herzegovina the

circumstances involved acts of repression and genocide.91 Notably, in the case of Kosovo

there were mass killings and the Kosovar Albanians have been systematically repressed.

Nevertheless, in Resolution 1244 the SC again reaffirmed the territorial integrity of Serbia92

showing that the threshold regarding remedial secession is exceptionally high.

88
Kosovo, Written Statements, Argentina, Republic of Azerbaijan, Republic of Cyprus, State
of Bolivia, United Kingdom.

89
RAIČ, D., STATEHOOD AND THE LAW OF SELF-DETERMINATION, 415-416 (2002).

90
Anderson G, Secession in International Law and Relations: What Are We Talking About?,
Loy. L.A. Int'l & Comp. L. Rev. 343, 351-352 (2013).

91
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 128, ¶ 190;
Vidmar, J., South Sudan and the International Legal Framework Governing the Emergence
and Delimitation of New States, TEXAS J. INT’L L., Vol. 47, No. 3, 541, 545 (2012).

92
S.C. Res. 1244, U.N. Doc. S/RES/1244 (1999).

17
 In addition, remedial secession may be exercised only as a last resort, when no other

alternatives are available.93

There is no indication in the present case of such a grave and massive violation of the

internal right of self-determination or the human rights of the Agnorevs. On the contrary, the

Agnorev’s rights are well preserved due to the fact that they are represented in the National

Parliament94 and Agnostica has a developed civil law system.95 Hence, the preconditions for

exercising the right of remedial secession are not present in the situation at hand.

B. Reverentia’s annexation of East Agnostica violates international law

1. Annexation is illegal under international law

This Court has observed in the Wall AO that “no territorial acquisition resulting from

the threat or use of force shall be recognized as legal.”96 As was discussed supra, Reverentia

threatened Agnostica with force thereby illegally supporting the aspirations of the Agnorevs.

Consequently, the annexation is illegal.97 This was the stance of the community of States in

the situation with Crimea – many States, condemned the Russian Federation’s annexation.98

2. Resulting from the illegality of the secession, the annexation is also illegal

93
BUCHANAN, A., JUSTICE, LEGITIMACY, AND SELF-DETERMINATION, 355 (2007); COPPIETERS,
B. & RICHARD SAKWA, CONTEXTUALIZING SECESSION: NORMATIVE STUDIES IN COMPARATIVE
PERSPECTIVE, 7 (2003); Scharf, M., Earned Sovereignty: Juridical Underpinnings, DENV. J.
INT’L L. & POL’Y 373, 381 (2003).

94
Compromis, ¶31.

95
Clarification, ¶4.

96
Wall, ¶87.

97
Cyprus v. Turkey, Judgment, E.Ct.H.R., 25781/94, ¶60–1 (2001); S.C. Res. 662, U.N. Doc.
S/RES/662 (1990).

98
Statement on the reported holding of local elections in Crimea, EU Doc. No. 140915/01.
18
 It is a general principal of law that an “illegal act cannot give birth to a right in law”.99

Consequently, if the Court finds that the secession of East Agnostica is illegal, then the

annexation is also illegal.

3. The decision of the so-called Agnorev’s Parliament has no legal force

The decision for East Agnostica’s integration into Reverentia was given by the

Agnorev People`s Parliament. This is not however an organ having “the capacity of an

institution created by and empowered to adopt a measure of [such] significance and

effects.”100

In any event, the option to integrate with an independent State is set forth in the

Declaration on the Granting of Independence. However, this resolution is strictly limited to

colonial peoples.101 Hence, the APP`s decision to send an invitation for integration of East

Agnostica into Reverentia does not entail any legal consequences.

4. In any event, the uti possidetis principle renders East Agnostica’s secession and

annexation illegal

Under the uti possidetis principle boundaries are to follow the colonial administrative

boundaries.102 In the case at hand, both Agnostica and Reverentia are ex-colonies of Credera.

99
SHAW, 361; OPPENHEIM’S, 699.

100
Kosovo, ¶105.

101
Western Sahara, ¶57.

102
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), Judgment, 1992 I.C.J., ¶¶28,40. [‘El Salvador’].

19
Consequently, the principle applies in casu rendering the boundaries as inherited intangible.103

The purpose of this principle “is to prevent the independence and stability of new States being

endangered by fratricidal struggles provoked by the challenging of frontiers following the

withdrawal of the administering power.”104 In order to prevent further struggles the uti

possidetis principle renders the principle of self-determination inoperable.105 Since the

principle of uti possidetis is violated, the annexation is not in conformity with international

law.

III. THE MARTHITE CONVENTION CEASED TO BE IN EFFECT AS OF 2 APRIL 2012 AND, IN ANY

EVENT, AGNOSTICA DID NOT BREACH THE CONVENTION

Both States are parties to the Vienna Convention on the Law of Treaties (‘VCLT’).

However, according to Article 4 thereof and the principle of non-retroactivity, it is not

applicable to treaties concluded before its entry into force, The Marthite Convention was

concluded in 1938106, therefore the provisions of the VCLT apply only in so far as they reflect

customary international law.

103
Frontier Dispute (Benin/Niger), Judgment, 2005 I.C.J. 90, ¶45.

104
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 I.C.J. 554 ¶19, ¶¶21-
22 [‘Burkina Faso/ Mali’]; Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, 2007 I.C.J. 659, ¶151;
Frontier Dispute (Burkina Faso/Niger), Judgment, 2013 I.C.J. 44, ¶63.

105
Burkina Faso/Mali, ¶25.

106
Reports of the International Law Commission on the second part of its seventeenth session
and on its eighteenth session, Document A/6309/Rev.l:, ILC Law of the Treaties Final Draft
with Commenataries, Commentary to Art 45, 244 ¶4; Y.B.I. L.C., vol. II, U.N. Doc.
A/CN.4/SER.A/Add.l (1966).

20
 Customary law regulating the law of treaties provides that a convention is no longer in

effect under certain set of conditions. These conditions are discussed in the next sections..

A. Agnostica has lawfully terminated the Marthite Convention based on the general

rules for termination

The parta sunt servanda rule is a customary law rule, but it also has a number of

exceptions107, in which a treaty ceases to be in force.108 Treaties which do not include specific

termination provisions, such as the Marthite Convention, may be terminated only on the

grounds listed in Part V of the VCLT109, which represent customary international law.110 As

well settled in the practice of this Court111, the foregoing provisions are directly applicable as

law under art. 38(1)(b) of the Court’s Statute.112

1. Agnostica was entitled to terminate the Convention on the basis of a material breach

107
Special Rapporteur Sir Humphrey Waldock, Second Report on Law of Treaties,
Y.B.I.L.C., vol.II (Part One) (1963), 39[‘Waldock II Report’];VILLIGER, M., COMMENTARY
ON THE 1969 VIENNA CONVENTION ON THE LAW OF THE TREATIES 545 (2009).

108
OPPENHEIM’S, 1296.

109
Article 42, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 33 (1969),;
Gabčíkovo, ¶100.

110
OPPENHEIM’S, 1300; DÖRR, O., SCHMALENBACH, K., VIENNA CONVENTION ON THE LAW OF
TREATIES, A COMMENTARY 737(2012).

111
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1997 I.C.J., ¶46
[‘Gabčíkovo’]; PCIJ Diversion of Water from the Meuse, Judge Anzilotti Dissenting Opinion
P.C.I.J. Ser A/B No 70, 50 (1937) [Diversion, Anzilloti]; Namibia, ¶96, 98;

112
Statute of the International Court of Justice, 59 Stat.1055, 33 U.N.T.S. 993 (1945).

21
 Art. 60 (1), VCLT outlines that a material breach of a bilateral treaty by one of the

parties entitles the other to invoke the breach as a ground for terminating the treaty. A

material breach is “the violation of a provision essential to the accomplishment of the object

or purpose of the treaty.”113 As the Court stressed in Namibia AO, article 60, VCLT is also

considered a codification of customary law.114 This is confirmed also by the fact that during

the Vienna Conference, Article 60 was adopted without any negative vote or objection.115

Determining what a ‘material breach’ is depends on the precise facts and

circumstances of each case.116 But as this Court confirmed, it presents a deliberate violation of

obligations which destroys the very object and purpose of the treaty.117

The object and purpose of a treaty are to be interpreted in conformity with the general

rules of interpretation established in international law.118 This Court has always accepted the

preamble of a given treaty as guidance for its object and purpose.119

113
Article 60(3) VCLT; OPPENHEIM’S, 1300; Namibia, ¶96, 98.

114
Namibia, ¶94.

115
DÖRR, 1027.

116
Aust, A., Treaties, Termination, M.P.E.P.I.L. ¶31 (2006).

117
VCLT, art 60 (3).

118
Nuclear weapons, ¶19; LaGrand (Germany v. United States of America) 2001, I.C.J., ¶99;
Avena and other Mexican nationals (Mexico v. United States of America), Judgment, 2009
I.C.J., ¶83; Case Concerning the Arbitral Award of 31 July 1989, (Guinea-Bissau v. Senegal)
1991, ¶48; Kasikili/Sedudu Island (Botswana v. Namibia), Judgment,1999 I.C.J., ¶18
[“Kasikili/Sedudu”]; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v.
France) 2008 I.C.J., ¶123; Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Judgment, 2010 I.C.J, ¶91 [‘Pulp Mills’].

22
 As for the Preamble of the Marthite Convention, its main purpose is to “ensure reliable

supply of Marthite to those for whom it holds cultural significance”. This stipulation is

guaranteed by prohibiting Marthite sales outside Reverentia and Agnostica, unless supply in

any given calendar year is 25% higher than local demand.120 RMT is allowed to sell Marthite

without any restrictions only if the mined Marthite is in excess of 125% of demand from

traditional practitioners.121

In breach of the Convention’s provisions, within weeks after the ILSA Report, RMT

sold 75% of the total quantity of mined Marthite to pharmaceutical companies for as much as

ten times its maximum permitted sale price, while traditional users suffered shortages and

price increases.122 This is in grave contrast to the object and purpose of the convention,

therefore, Agnostica was entitled to invoke the breach as a ground for termination.

2. Alternatively, Agnostica terminated the treaty in the light of fundamentally changed

circumstances

119
Gabčíkovo ¶15; Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v.Rwanda), Jurisdiction and Admissibility, I.C.J. 2006, 67
[Congo v. Rwanda]; Reservations to the Convention on Genocide, Advisory Opinion, I.C.J.
Reports 1951, 23 [Convention on Genocide]; ILC, Guide to Practice on Reservations to
Treaties (2011), Y.B.I.L.C., 2011, vol. II, Part Two. Draft Guideline 3.1.5.1.

120
Marthite Convention, art. 4 (d).

121
Corrections, ¶2.

122
Compromis, ¶13.

23
 This Court has observed in Fisheries Jurisdiction that article 61 VCLT is declaratory

of customary international law.123 Article 61 strictly defines the cumulative conditions124

under which a change of circumstances may be invoked:

i) it must affect circumstances existing at the time of the conclusion of the treaty which have

not been foreseen by the parties at the moment of conclusion;

In casu, at the time of the conclusion of the Convention, Marthite was virtually

unknown outside the Thantonian Plate and it had significance only for the traditional users.125

Therefore, its medical use outside of the scope of traditional medicine had been unknown and

unpredictable for the parties.

ii) The change must be ‘fundamental’ and the effect of the change must radically transform

the extent of the obligations to be performed

In order for a change to be considered ‘fundamental’,126 it would suffice if “the value

to be gained by further performance is diminished”127 or if it results from changes in “the

availability of natural resources”.128

123
Fisheries Jurisdiction Case (United Kingdom v. Iceland), Merits, 1974 I.C.J., ¶40, ¶49
[Fisheries Jurisdiction].

124
Gabčíkovo, ¶104.

125
Marthite Convention, Preamble; Fisheries Jurisdiction, ¶3, ¶19; Gabčíkovo, ¶104.

126
Fisheries Jurisdiction, ¶3, 19; Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland), Merits, 1974 I.C.J., 49; Gabčíkovo ¶104.

127
DÖRR, 1089.

128
Ibid, 1081.

24
 The newly discovered medical use of the Marthite does constitute a fundamental

change, because it radically transforms the extent of the obligations still to be performed. The

new medical use of the mineral changes its application and the main purpose of the

cooperation between Agnostica and Reverentia, namely respecting and honouring

Reverentia`s ancient traditions. If the Convention remains applicable Agnostica would be

obliged to provide its natural resource to RMT for limited distribution amongst traditional

practitioner with price restriction clauses of the Convention instead providing it in help of the

child saving activities. In the light of the newly discovered fact that high doses of Marthite

were reported to be over 90% effective in treating a broad range of previously untreatable

infant and early-childhood diseases, afflicted tens of thousands of children worldwide129 the

extent of the obligations of the Parties are certainly radically transformed.

iii) the circumstances’ existence must have constituted “an essential basis of the parties

consent to be bound by the treaty”

As the Travaux of Article 62 make clear, the rule exists to allow States to adjust their

treaty relations, when, what they have become obliged to do in the new circumstances is

''something essentially different from that originally undertaken", without essential fault on

their part.130 The P.C.I.J. has suggested that a particular matter could only be a "circumstance"

for this purpose if it was "in view of and because of the existence of a particular state of facts

that the treaty was originally concluded”.131

129
Compromis, ¶12.
130
Waldock II Report,18.

131
Free Zones of Upper Savoy and the District of Gex, Merits, 1932, P.C.I.J., Series A/B, No.
46, 156.

25
 Similarly, the Court has recognized in Gabčíkovo that the expectations of the parties,

e.g. concerning the profitability of an agreed project, can form an essential basis of their

consent as well.132

According to the Preamble of the Marthite Convention, both parties recognized that

“Marthite is without significant commercial value outside its traditional uses”. 133 Moreover,

the main purpose for the conclusion of the treaty was “out of respect for traditional

Reverentian medicine and its users.”134 Taken in their entirety, the foregoing circumstances

form the essential basis of the consent of the Parties, therefore, their change makes article 26

operative.

In sum, all of the requirements for the existence of fundamental change of

circumstances are present in the case at hand. It is submitted that the fundamental change of

circumstances is due to: “fundamental change in the science underlying the treaty” 135 and the

the newly discovered medical uses of Marthite. As a consequence, the Marthite Convention

was lawfully terminated by Agnostica.

B. Alternatively, the Marthite Convention ceased to be in effect by 2 April 2012 since

Reverentia’s consent is invalidated on the ground of error

132
Gabčíkovo, ¶104.

133
Marthite Convention, Preamble, (e).

134
Compromis, ¶26.

135
Ibid, ¶14.

26
 As was recognized in Mavrommatis , error affecting the essential basis of consent

applies to treaties.136 As further recognized by this Court in the Temple case137 Article 48 of

the VCLT codifies customary law.138 It entitles a State to invalidate its consent to be bound by

a treaty on the basis of an error relating “to a fact or situation”, which has been assumed to

exist at the time of conclusion and formed an essential basis of the State’s consent to be bound

by the treaty”.139 The fact or situation must appear objectively essential to both states140 and

the error must be closely related to the “the substance” or “roots” of the treaty.141 The

assessment of the sufficient proximity of the error is a matter of treaty interpretation.142

In casu, Agnostica concluded the Marthite Convention under the consideration that the

Marthite is virtually unknown outside the Thanatosian Plains143 and that it is without

significant value outside its traditional uses. This is clear from the Convention’s Preamble144,

136
Mavrommatis Jerusalem Concessions, 1925, P.C.I.J., Series A -No 5,,30–31
[‘Mavrommatis’].

137
Temple of Preah Vihear (Cambodia v. Thailand), I.C.J. 1962, 25.

138
DÖRR, O., 833, Kasikili/Sedudu, Declaration of Judge Higgins, ¶1114; Judge Fleischhauer
Dissenting Оpinion, ¶1196, ¶1203.

139
Art.48 VCLT; DÖRR, 815.

140
VILLIGER, M., 608-609; Mavrommatis, ¶30-3.

141
DÖRR, 820.

142
Ibid.

143
Compromis, ¶9.

144
Marthite Convention, Preamble (e ).

27
which serves as an indication of the decisive factors for the consent of both parties.145

Therefore, the medical use of marthite constituted an essential condition for the conclusion of

the Convention. Consequently, the newly discovered medical use of the mineral146 provides a

ground for Agnostica to invoke Article 48 VCLT.

C. Agnotica lawfully declared the Marthite Convention to be out of effect

Under customary international law there are no specific procedural obligations

pertaining to the termination of treaties on the abovementioned grounds.147 In any event, the

Party which seeks to rely on a custom bears the burden of proving it148 therefore the burden is

on the Respondent to prove that Applicant failed to observe any procedural requirements.

For the sake of argument, it should be noted that the rule of pacta sunt servanda is

founded on the general principle of good faith.149 As stated in doctrine, this principle permits

145
Gabčíkovo ¶15; Congo v. Rwanda, Jurisdiction and Admissibility, ¶67; Convention on
Genocid,e 23.

145
Compromis, ¶9.

146
Ibid, ¶12.

147
DÖRR, 1133, Racke GmbH & Co. v. Hauptzollamt Mainz, E.C.R., I-3655, Case C-162/96
(1998) ¶58-60, [‘Racke’].

148
Asylum, 276.

149
Nuclear Tests (New Zealand v. France) 1974, ¶49; Nuclear Tests (Australia v. France)
1974, I.C.J., ¶46; Nuclear weapons, ¶102; Nicaragua, Preliminary objections 1984, ¶60;
Border and Transborder Armed Actions 1988, ¶94; Pulp Mills 2010, ¶ 145; Request for
interpretation of the Judgment of 11 June 1998 in the case concerning the Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections
1998, I.C.J., ¶ 38.

28
“unilateral suspension or termination of treaties” in exceptional situations.150 Similarly, the

European Court of Justice has concluded that the suspension of the cooperation agreement

between the European Economic Community and the Socialist Federal Republic of

Yugoslavia without prior notification or a waiting period was consistent with international

law.151

Moreover, As Judge Jessup pointed out in his separate opinion in the North See

Continental Case Shelf Cases152, when a notification is made, it is essential to consider the

response of the other party to a bilateral treaty in such situations, in view of the principle of

international cooperation in the exploitation of a natural resources.

Applicant has invoked the above grounds in good faith by first offering a mutually

beneficial settlement, reimbursement and compensation for Reverentia.153 Agnostica made all

efforts to bring the grounds enumerated above to the knowledge of Reverentia, while the latter

refused to cooperate. Consequently, Agnostica has lawfully invoked the termination of the

Marthite Convention.154

D. In any event, Agnostica did not breach that Convention

151
Racke, ¶58-60.

152
North Sea Continental Shelf (Federal Republic of Germany/Netherlands), Judge Jessup
Separate Opinion 1969, I.C.J., 83.

153
Compromis, ¶14.

154
Congo v. Rwanda ¶244, G.A. Res 1803, U.N. Doc. A/RES/1803 (1962); G.A. Res. 3201
(S-VI), U.N. Doc. A/RES/S-6/3201 (1974); G.A. Res. 3281, U.N. Doc. A/RES/29/3281
(1974).

29
 Even if this Court finds that there are no grounds justifying the termination of the

Marthite Convention and it is still in force, Agnostica did not breach the Convention. The

Respondent may argue that the ban on transfer and sale of Marthite from Agnostica to

Reverentia incorporated in the Marthite Control Act155 violates article 6 of that Convention

which ensures the free movement of Marthite from Agnostica to Reverentia.

Contrariwise, it is submitted that a possible breach is justified due to a state of necessity.

As stated in Gabčíkovo, the principle of necessity is part of customary international

law under the condition that it can be invoked only “on an exceptional basis.”156

In order for a State to invoke necessity on a valid legal basis certain conditions should

be met. First, it should be the only way for the State to safeguard its essential interest against a

grave and imminent peril157 which should not be “merely apprehended or contingent”.158

Second, the act should not seriously impair an essential interest of another State towards

which the obligation exists.159 The first condition extends to particular interests of the State

and its people, as well as of the international community as a whole. 160 The peril has to be

155
Compromis, ¶22.

156
Gabčíkovo, ¶51.

157
Commentary to Art. 25 of the ILC Draft ASR, Y.B.I.L.C., 1975, II, ¶1(a) [Art. 25
Commentary].

158
Ibid, ¶16-17.

159
Art. 25, ¶1 (b), Art. 52 ARSIWA.

160
Art. 25 Commentary, ¶16-17.

30
objectively established and proximately imminent.161 However, the peril might appear in the

long term, if at the relevant time it is established that its occurrence is inevitable.162

Agnostica’s Parliament passed the MCA, banning the transfer of Marthite from

Agnostica to Reverentia as well as the unauthorized purchase, sale, or possession of

Marthite.163 Those measures were taken in the light of shortages in Marthite supply,164

crippled mining operations due to Reverentia’s removal of software and interrupted extraction

activities for week if not months.165 Those circumstances constitute grave and imminent peril

since they flagrantly endangered the supply of Marthite. In the context of its newly discovered

uses, in high doses the mineral is 90 % effective for the treatment of previously untreated

infant and early-childhood diseases. These disorders affect tens of thousands of children

worldwide.166 Consequently, the peril will affect an essential interest of the international

community as a whole. It should also be taken into account that the mining facilities are built

in the only areas in the world containing deposits of Marthite.167

Secondly, the ban did not seriously impair an essential interest of the other State. The

interest relied on must outweigh all other considerations, not merely from the point of view of

161
Ibid.

162
Gabčíkovo ¶54.

163
Compromis, ¶22.

164
Ibid., ¶13.

165
Ibid., ¶18.

166
Ibid., ¶13.

167
Ibid., ¶9.

31
the acting State but on a reasonable assessment of the competing interests.168 The foregoing

medical interests of the international community are in no way outweighed by the interest of

the traditional practitioners from Reverentia.

Overall, the wrongfulness Agnostica’s actions barring the free movement of Marthite

to Reverentia is precluded by necessity.

IV. REVERENTIA’S REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION

FACILITIES VIOLATED INTERNATIONAL LAW

Reverentia’s conduct with respect to the software removal is not in conformity with

international law and therefore it entails its international responsibility. Reverentia has acted

in violation of both its treaty obligations as well the rules arising from customary international

law.

A. Reverentia deprived Agnostica of its property.

States enjoy immunity with respect to its sovereign property and no other State should

take action that would affect its sovereign immunity.169 In the case at hand, the title to the

software installed at the mining facilities has been transferred.

1. Agnostica is the exclusive owner of the facilities under the Marthite Convention

International agreements between states can serve as a valid ground for transfer of

property. It is a general principle of law that treaty termination operates ex nunc170, therefore

even if it ceases to be in effect, the transfer of property remains valid.

168
Art. 25 Commentary, ¶17.

169
Germany v. Italy, ¶118 ;Convention on the Jurisdictional Immunities of States and Their
Property, U.N. Doc. A/RES/59/38 Annex (2004), article 5; SHAW, 709.

32
 Under the Marthite Convention Agnostica owns the Marthite mining and mining-

support facilities within the territory of East Agnostica.171 This results into a valid transfer of

title to property, although there is no transfer of direct possession.172

2. The title to the software has been lawfully transferred to Agnostica as well

The software used for the Marthite extraction is considered part of the facilities. This

is grounded in the principle that when software is “pre-loaded”, it is transferred along with the

installation of which it forms part.173 If the transfer of property over the hardware is valid, it is

sufficient to justify the right to use the software as well.174 This renders the buyer the superior

possessory and proprietary right over the transferred software copy.175

170
DÖRR, 167, 735.

171
Art.1, 2, Marthite Convention.

172
§ 428 Austrian Civil Code; Art 924, Czech Republic Civil Code; German Civil Code §
930; Greek Civil Code Art 977; Netherlands Civil Code Art 3.115; Turkey Art 979 Civil
Code; SCHWENZER, IN., HACHEM, P., KEE, CH., GLOBAL SALES AND CONTRACT LAW, PART X
TRANSFER OF TITLE, 39 (2012).

173
Advent Systems Ltd v Unisys Corp, 925 F. 2d 670 at II; and St Albans DC v International
Computers [1997] F.S.R. 251 at 265 per Sir Iain Glidewell.

174
Eng St Albans City and District Council v International Computers Ltd [1996] 4 All ER
481 (QB); BENJAMIN’S SALE OF GOODS, FIRST SUPPLEMENT TO THE 8TH EDITION, BRIDGE M.,
14 (2012); Southwark LBC v IBM UK Ltd (2011) E.W.H.C., 549, (TCC) ¶97, The Hong Kong
Law Reform Commission Report, Contracts For The Supply Of Goods, LC Paper No.
CB(2)222/09-10 (2009)¶ 2.92, (http://www.legco.gov.hk/yr09-
10/english/panels/ajls/papers/aj1123cb2-222-e.pdf), SCHWENZER, IN., HACHEM, P., KEE, CH.,
GLOBAL SALES AND CONTRACT LAW, PART II AMBIT OF SALES LAW, 7 THE CONCEPT OF

GOODS, ¶7.24 (2012); South Central Bell Telephone Co v Sidney J Barthelemy, Supreme
Court of Louisiana , 643 So. 2d 1240 at 1246 (La. 10/17/94), [hereinafter “South Central
Bell”]; Federal Court of Justice/Bundesgerichtshof, Germany, (8 ZR 306/95) (1996).

33
 Additionally, when the software is designed for the specific needs of the customer, it is

considered part of the facilities, if its removal causes material damage to the host object.176

Agnostica was owner of the carrier of the software which has been created for the specific

purposes of those facilities, therefore, by removing the software, Reverentia has violated

Agnostica`s property rights.

B. Reverentia has no right to take countermeasures because the Marthite Convention

was not in effect after April 2012

Under international law countermeasures cannot be taken against a breach of

obligations arising under a treaty which is not in force.177

As argued above, the Marthite Convention was not in effect after April 2012. The removal of

the software occurred after this date, therefore it cannot be considered a lawful

countermeasure against Agnostica`s actions.

C. Countermeasures are not applicable since the conduct of Agnostica falls under the

regime of Treaty Law, not the Law of State responsibility

Doctrine and customary international law178 provide that the two regimes of a material

breach and state responsibility exist in parallel. Under the ARSIWA state responsibility does

not deal with the right of an injured state to terminate or suspend a treaty for a material

175
Princen Automatisering Oss B.V. v. Internationale Container Transport GmbH, [1996]
Court of Appeal, (770/95/HE), 72(The Netherlands); Green S., Saidov D., Software as Goods,
J. Bus. L. 161-181 (2007).

176
GOODE R. M., COMMERCIAL LAW 197 (3RD ED. 2004); South Central Bell ¶1246.

177
SHAW, 794.

178
DÖRR, 1242; VERHOEVEN J., THE LAW OF RESPONSIBILITY AND THE LAW OF TREATIES IN

JAMES CRAWFORD ET AL. (EDS.), THE LAW OF INTERNATIONAL RESPONSIBILITY 112 (2010).

34
breach, as reflected in Art. 60 of the VCLT.179 The Special Rapporteur of ILC Mr. James

Crawford confirmed that it is impossible to apply circumstances precluding wrongfulness,

such as countermeasures, to state actions which concern the validity, termination or

suspension of the operation of a treaty.180

Reverentia removed the software, stating that this is only “until such time as Agnostica

agrees to respect its treaty obligations.”181 However, the actions of Agnostica concern the

termination of the treaty. The reason for its non-compliance is that Agnostica considers its

obligations under the Marthite Convention without any legal value. Since this concerns more

the general question of the validity and effect of those treaty obligations, the law of the

circumstances precluding wrongfulness of State acts is not applicable in the case at hand.

D. Alternatively, even if Reverentia can rely on countermeasures, its conditions are not

satisfied

If the Court finds that countermeasures apply within a treaty relationship, certain pre-

conditions must be met.182 Reverentia fails to fulfill these requirements.

179
EVANS M. INTERNATIONAL LAW 197 (2010), 197; Commentary to Art. 56 of the ILC Draft
ASR, Y.B.I.L.C., 1975, II, (3), at 141.

180
Special Rapporteur James Crawford, Third report on State responsibility
A/CN.4/SER.A/2000/Add.1 (Part 1), 3; Commentary to Art. 56 of the ILC Draft ASR, YBILC,
1975, II, ¶3, at 141; Crawford, J., Olleson, S., The Exception of Non-Performance: Links
between the Law of Treaties and the Law of State Responsibility (2001) 21 A.Y.I.L., 60.

181
Compromis, ¶17.

182
Gabčíkovo ¶83; Nicaragua, ¶249; Case concerning the Air Service Agreement of 27 March
1946 between the United States of America and France, United Nations, R.I.A.A., vol. XVIII,
(1978) [‘Air Service Agreement’]¶443; Art 47-50, ARSIWA,; ELAGAB O. Y.THE LEGALITY OF
NON-FORCIBLE COUNTER-MEASURES IN INTERNATIONAL LAW 227–241 (1988); Mexico – Tax

35
1. The procedural requirements were not observed

Under customary international law183, countermeasures must be “preceded by a

demand by the State that the responsible State comply with its obligations” and “an offer to

negotiate.”184 In casu, Reverentia did not inform Agnostica prior to the software removal. The

President instructed the Reverentian engineers “also to remove any software installed by RMT

at the Marthite mining facilities”185, without informing Agnostica.186 Moreover, Reverentia

rejected Agnostica`s offer for negotiations187, showing lack of intention to cooperate.

Therefore, Reverentia fails to meet the procedural requirement under Art. 52 ARSIWA, which

renders its actions unlawful.

2. The countermeasure was not proportionate

Proportionality is concerned with the relationship between the internationally wrongful

act and the countermeasure.188 Both case law189 and customary law190 emphasize that

Measures on Soft Drinks and Other Beverages, Report of the Panel, WTO Doc.
WT/DS308/R, (2005), ¶5.54–55.

183
Air Service Agreement, ¶85-87; Gabčíkovo ¶84, ¶47; Rainbow Warrior case (New
Zealand, France), Award of 30 April 1990, U.N.R.I.A.A. vol. XX 217 (1990).

184
Art 52, ARSIWA;

185
Compromis, ¶17.

186
Compromis, ¶18.

187
Compromis, ¶17.

188
ILC Report on the work of its thirty-first session 14 May-3 August 1979, Y.B.I.L.C. vol.II
(Part Two) (1979), p. 118, fn. 595; United States—Transitional Safeguard Measure on
Combed Cotton Yarn from Pakistan, WTO Appellate Body, WT/DS192/AB/R, (2001), ¶120;
Agreement of 27 March 1946 (United States v. France) Case 54 I. L. R., 304 (1946).

36
countermeasures must be equal to the injury suffered, be assessed not only in quantitive terms,

but considering also the gravity of the internationally wrongful act and the importance of the

rights in question.191

The measure should be “necessary and reasonably connected” with the purpose of

countermeasures192 and should be sufficient to induce the responsible state to comply with its

obligations, without having a punitive effect.193 However, proportionality requires not only

189
Naulilaa (Responsibility of Germany for damage caused in the Portuguese colonies in the
south of Africa), UNRIAA, vol. II, 1011 (1928); Air Services Agreement ¶83; Gabčíkovo ¶85,
¶87; United States—Import Measures on Certain Products From the European Communities,
WTO Panel Report, WT/DS165/R, ¶ 6.23, (2000); United States—Transitional Safeguard
Measure on Combed Cotton Yarn from Pakistan, WTO Appellate Body, WT/DS192/AB/R,
¶120 (2001).

190
Art. 51, ARSIWA.

191
Gabčíkovo¶83, 85, 87; United States—Definitive Safeguard Measures on Imports of
Circular Welded Carbon Quality Line Pipe from Korea, WTO Appellate Body Report,
WT/DS202/AB/R, .¶259 (2002); Air Service Agreement ¶83.

192
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. the
United Mexican States, Judgment, ICSID Tribunal, Case No. ARB(AF)/04/05, 21 (2007).
¶153; ARSIWA, Art. 49; Materials on the responsibility of states for internationally wrongful
acts, U. N. L.S., ST/LEG/SER B/25, 326 (2012).

193
Materials on the responsibility of states for internationally wrongful acts, U. N. L.S.,
ST/LEG/SER B/25, 326 (2012); ILC Report on the work of its fifty-third session (23 April–1
June and 2 July–10 August 2001), U.N. Doc. A/56/10, Y.B.I.L.C, Volume II (Part Two)
(2001), p. 135.; United States—Subsidies on Upland Cotton, Recourse to Arbitration by the
United States under Article 22.6 of the DSU and Article 4.11 of the SCM Agreement, WTO,
Case No. WT/DS267/ARB/1, (2009) ¶4.113.

37
employing the means appropriate to the aim chosen, but implies an assessment of the

appropriateness of the aim itself, considering the structure and content of the breached rule.194

Reverentia explained that the reason behind the software removal has been mainly not

to allow Agnostica “be able to profit from that breach”.195 However, in reality, the sabotage`s

effects go well beyond this, since they also affect the rights of the people with medical needs

for Marthite, namely the traditional users and the suffering children.196 The significantly

decreased Marthite levels have caused difficulties for Agnostica to provide life-saving

Marthite “to suffering children of the world”, making it necessary to impose restrictive

measures on the use and possession of the mineral.197

Reverentia`s actions do not meet the proportionality requirement for the validity of

countermeasures under customary international law and thus its wrongfulness is not

precluded.

194
Gabčíkovo, ¶7.

195
Compromis, ¶18.

196
Ibid., ¶12.

197
Ibid., ¶22.

38
 PRAYER FOR RELIEF

The Federal Republic of Agnostica respectfully requests the Honourable Court to

adjudge and declare that:

I. Reverentia’s encouragement of East Agnostica’s referendum violated Agnostica’s

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

generally;

II. 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;

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

Agnostica breached the Convention;

IV. Reverentia’s removal of the software from the Marthite extraction facilities violated

international law.

Respectfully submitted,

Agents for the Applicant

39