t c 669r the 2015 philip c. jessup international law moot court...
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-MEMORIAL FOR THE RESPONDENT-
TEAM CODE: 669R
THE 2015 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION
IN THE INTERNATIONAL COURT OF JUSTICE
AT
THE PEACE PALACE, HAGUE
CASE CONCERNING THE SECESSION AND ANNEXATION OF EAST AGNOSTICA
FEDERAL REPUBLIC OF AGNOSTICA
(APPLICANT)
V.
STATE OF REVERENTIA
(RESPONDENT)
MEMORIAL FOR THE RESPONDENT
-STATE OF REVERENTIA-
-PRELIMINARIES-
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................................................... iv
STATEMENT OF JURISDICTION .............................................................................................. xii
QUESTIONS PRESENTED ....................................................................................................... xiii
STATEMENT OF FACTS .......................................................................................................... xiv
SUMMARY OF PLEADINGS .................................................................................................. xviii
PLEADINGS ................................................................................................................................ 1
I. REVERENTIA’S SUPPORT FOR THE REFERENDUM IN EAST AGNOSTICA IS
CONSISTENT WITH INTERNATIONAL LAW. ............................................................................. 1
A. REVERENTIA’S SUPPORT FOR THE REFERENDUM IS NOT AN ACT OF AGGRESSION OR
INTERVENTION IN THE AFFAIRS OF AGNOSTICA. .................................................................. 1
1. REVERENTIA’S SUPPORT FOR THE REFERENDUM DOES NOT CONSTITUTE AN ACT OF
AGGRESSION. ............................................................................................................. 1
2. REVERENTIA REFRAINED FROM ANY FORM OF COERCION AIMED AGAINST THE
POLITICAL INDEPENDENCE OR TERRITORIAL INTEGRITY OF AGNOSTICA. ..................... 2
B. THE TERRITORIAL INTEGRITY OF AGNOSTICA IS LIMITED BY THE RIGHT OF SELF-
DETERMINATION AND AGNOSTICA FAILED TO EXERCISE ITS TERRITORIAL INTEGRITY IN
CONFORMITY WITH THIS RIGHT. ............................................................................................ 3
1. THE RIGHT TO SELF-DETERMINATION IS A PEREMPTORY NORM OF INTERNATIONAL
LAW POSSESSING AN ERGA-OMNES CHARACTER. ......................................................... 3
2. AGNOSTICA FAILED TO EXERCISE ITS TERRITORIAL INTEGRITY IN CONFORMITY WITH
SELF-DETERMINATION. .............................................................................................. 5
C. THE FAILURE OF AGNOSTICA IN RESPECTING THE SELF-DETERMINATION OF AGNOREVS
OBLIGATED REVERENTIA TO SUPPORT THE REFERENDUM IN EAST AGNOSTICA. ............... 5
1. INTERNATIONAL LAW RECOGNISES A RIGHT TO EXTERNAL SELF-DETERMINATION OF
AGNOREVS. ............................................................................................................... 5
2. REVERENTIA’S SUPPORT TO THE REFERENDUM WAS IN FURTHERANCE OF THE RIGHT
OF EXTERNAL SELF-DETERMINATION OF AGNOREVS. .................................................. 6
-PRELIMINARIES-
ii
II. EAST AGNOSTICA’S SECESSION FROM AGNOSTICA AND INTEGRATION INTO
REVERENTIA ARE CONSISTENT WITH INTERNATIONAL LAW, AND IN ANY EVENT, THIS
COURT SHOULD NOT ORDER THE RETROCESSION OF EAST AGNOSTICA TO AGNOSTICA
AGAINST THE EXPRESSED WILL OF ITS POPULATION. ........................................................... 9
A. AGNOREVS HAVE A RIGHT TO SELF-DETERMINATION. .................................................... 9
1. THE RIGHT OF SELF-DETERMINATION IS AVAILABLE TO PEOPLES SUFFERING
SYSTEMATIC OPPRESSION. .......................................................................................... 9
2. AGNOREVS QUALIFY AS A “PEOPLE” UNDER INTERNATIONAL LAW. ....................... 10
3. AGNOREVS HAVE A RIGHT TO EXTERNAL SELF-DETERMINATION. .......................... 12
B. EAST AGNOSTICA’S INDEPENDENCE HAS BEEN ACHIEVED IN CONSISTENCE WITH
INTERNATIONAL LAW WHICH IS NEUTRAL TOWARDS SECESSION. ...................................... 14
1. THE SECESSION OF EAST AGNOSTICA WAS ACCOMPLISHED IN ACCORDANCE WITH
THE PRINCIPLES OF THE UNITED NATIONS CHARTER AND THE RIGHT TO SELF-
DETERMINATION. ..................................................................................................... 14
2. STATE PRACTICE AND JUDICIAL OPINIONS SUPPORT A RIGHT TO EXTERNAL SELF-
DETERMINATION OF AN OPPRESSED PEOPLE. ............................................................. 17
C. EAST AGNOSTICA HAS ESTABLISHED ITSELF AS A STATE. ............................................ 19
1. EAST AGNOSTICA HAS A PERMANENT POPULATION. ............................................ 20
2. EAST AGNOSTICA CONSTITUTES A ‘STATE’ AS IT HAS A DEFINED TERRITORY. ....... 21
3. EAST AGNOSTICA CONSTITUTES A ‘STATE’ AS IT HAS A GOVERNMENT HAVING
EFFECTIVE CONTROL. ....................................................................................................... 21
4. EAST AGNOSTICA QUALIFIES A A ‘STATE’ AS IT HAS THE CAPACITY TO ENGAGE IN
INTERNATIONAL AFFAIRS AND ENTER INTO TREATIES. .................................................. 21
III. THE MARTHITE CONVENTION WAS IN EFFECT UNTIL 1 MARCH 2013, AND
AGNOSTICA BREACHED THAT CONVENTION. ................................................................ 24
A.AGNOSTICA’S UNILATERAL TERMINATION OF THE MARTHITE CONVENTION IS
INVALID. ..................................................................................................................... 24
1. AGNOSTICA’S UNILATERAL TERMINATION CANNOT BE JUSTIFIED ACCORDING TO THE
DOCTRINE OF ERROR. .............................................................................................. 24
-PRELIMINARIES-
iii
2. AGNOSTICA’S UNILATERAL TERMINATION CANNOT BE JUSTIFIED ACCORDING TO THE
DOCTRINE OF FUNDAMENTAL CHANGE OF CIRCUMSTANCES. ................................... 26
B. AGNOSTICA BREACHED ITS OBLIGATIONS BY ENTERING INTO AN AGREEMENT WITH
BAXTER INTERNATIONAL. ................................................................................................... 29
1. AGNOSTICA BREACHED ITS OBLIGATIONS UNDER THE V.C.L.T. ............................ 29
2. AGNOSTICA BREACHED ITS OBLIGATIONS UNDER THE MARTHITE CONVENTION. ... 30
IV. REVERENTIA’S REMOVAL OF THE SOFTWARE IN THE MARTHITE EXTRACTION
FACILITIES WAS CONSISTENT WITH INTERNATIONAL LAW...........................................31
CONCLUSION AND PRAYER ................................................................................................... 37
-PRELIMINARIES-
iv
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
African Charter on Human and Peoples' Rights, entered into force on Oct. 21, 1986, 567
U.N.T.S. 435 .......................................................................................................................... 9
Charter of the United Nations, entered into force on 24th Oct 1945, 892 U.N.T.S. 119 ........... 2
Convention on the Rights and Duties of States, entered into force on 26th Dec., 1933, 165
U.N.T.S. 19 .......................................................................................................................... 19
International Covenant on Civil and Political Rights, entered into force on 16th December
1966, 1057 U.N.T.S 407 ........................................................................................................ 3
International Covenant on Economic, Social and Cultural Rights, entered into force on Jan. 3,
1976, 993 U.N.T.S. 3 ............................................................................................................. 9
The Marthite Convention, entered into force on 14th April, 1938, Compromis (Annex)
................................................................................................................ ..............24, 25,28,30
Vienna Convention on the Law of Treaties, entered into force Jan. 27, 1980, 1155 U.N.T.S.
331................................................................................................................................ 4,24,33
UNITED NATIONS, DOMESTIC LEGISLATIONS AND OTHER DOCUMENTS
A. Cristescu, The Right to Self-Determination, Historical and Current Development on the
basis of United Nations Instruments, U.N. Doc. E/CN.4/Sub.2/404/Rev.1, 26, (1981) ...... 13
Crawford, Response to Experts Reports of the Amicus Curiae, 159-160, Thomas M. Franck,
Opinion Directed at Question 2 of the Reference, 78, Alain Pellet, Legal Opinion on
Certain Questions of International Law Raised by the Reference, 122, Malcolm Shaw, Re:
Order in Council PC 1996-1497 of 30 September 1996, 136. ............................................. 15
Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations, UNGA Res.
2625 (XXV), U.N. Doc. A/8082 (1970) ................................................................................ 2
Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, UNGA Res.
50/6, U.N. Doc. A/RES/50/6 (1995) ...................................................................................... 9
Definition of Aggression, UNGA Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (1974) ............ 1
ECOSOC Res. 1503(XLVIII), U.N. Doc. E/4832/Add.1, ¶ 1 (1970) ....................................... 7
General Comment 8, The Relationship between Economic Sanctions and Respect for
Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1997/8 (1997) .......................... 35
-PRELIMINARIES-
v
I.L.C. Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N.
Doc. A/56/10 (2001) ............................................................................................................ 31
Organization for Security and Co-operation in Europe, Conference on Security and Co-
operation in Europe: Final Act of Helsinki, Aug. 1, 1975, 14 I.L.M. 1292........................... 9
Organization for Security and Co-operation in Europe, The Charter of for a New Europe, 31
I.L.M. (1991) 193................................................................................................................. 10
Question of Namibia, UNGA Res. 2518 (XXIV), U.N. Doc. A/RES/2518 (1969) ................ 16
Question of Rhodesia, UNGA Res. 2383 (XXIII), U.N. Doc. A/RES/2382 (1968) ............... 16
Question of Southern Rhodesia, UNGA Res. 2151 (XXI), U.N. Doc. A/RES/2151 (1966) .. 16
Question of Southern Rhodesia, UNGA Res. 2508 (XXIV), U.N. Doc. A/RES/2508/ (1969)
.............................................................................................................................................. 16
Report of the I.L.C., Y.B. Int’l L. Comm’n 140 (1963) .......................................................... 28
Report of the I.L.C., Y.B. Int’l L. Comm’n 86 (1966) ............................................................ 27
Situation in South Africa, UNGA Res. 34/93 (1979) .............................................................. 16
U.N. Doc. A/RES/34/93 (1979) ............................................................................................... 16
UNESCO, Final Report and Recommendations, International Meeting of Experts on Further
Study of the Concept of the Rights of Peoples, 22 Feb, 1990, U.N. Doc. SHS-
89/CONF.602/7, 22 (1990) .................................................................................................. 10
United Nations, Compilation of General Comments and General Recommendations Adopted
by Human Rights Treaty Bodies, 15 Aug, 1997, UN doc. HRI/GEN/1/Rev.3, 13, ¶1-2 and
6 (1997). ............................................................................................................................... 12
UNSC Res. 787 (1992), U.N. Doc. S/RES/799 (1992) .......................................................... 16
UNSC Res. 217(1965), U.N. Doc. S/RES/217 (1965) ............................................................ 16
UNSC Res. 277(1970), U.N. Doc. S/RES/277 (1970) ............................................................ 16
UNSC Res. 402 (1976), U.N. Doc. S/RES/402 (1976) ........................................................... 16
UNSC Res. 407 (1977), U.N. Doc. S/RES/407 (1977) ........................................................... 16
UNSC Res. 541 (1983), U.N. Doc. S/RES/541 (1983) ........................................................... 15
UNSC Res. 550 (1984), U.N. Doc. S/RES/550 (1984) ........................................................... 15
UNSC Res. 828/1993, U.N. Doc. S/RES/828 (1993) .............................................................. 17
Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (1993) ................ 5
Written Statement of Albania, Apr. 14, 2009, 79 .................................................................... 13
Written Statement of Denmark, Apr. 16, 2009, 14 .................................................................. 13
Written Statement of Finland, Apr. 16, 2009, 10 ..................................................................... 13
Written Statement of Germany, Apr. 15, 2009, 34 .................................................................. 13
-PRELIMINARIES-
vi
Written Statement of Japan, Apr. 17, 2009, 4 .......................................................................... 13
Written Statement of Netherlands, Apr. 17, 2009, 13 ............................................................. 13
Written Statement of Poland, Apr. 15, 2009, 26 ...................................................................... 13
Written Statement of Russia, Apr. 16, 2009, 34 ...................................................................... 13
Written Statement of Slovenia, Apr. 17, 2009, 3 ..................................................................... 13
Written Statement of U.S.A, Apr. 17, 2009, 39 ....................................................................... 13
Written Statement of United Kingdom, Apr. 17, 2009 ............................................................ 13
Written Statements of Ireland, Apr. 17, 2009, 9 ...................................................................... 13
Written Statements of Switzerland, Apr. 15, 2009, 26, ........................................................... 13
I.C.J. CASES
Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, 2010 I.C.J. 141 (July 22) (Separate Opinion of Judge Trindade) ..................... 10
Anglo-Norwegian Fisheries Case (U.K. v. Nor.) 1951 I.C.J. 117, 132 (Jan. 18) .................... 28
Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5) .... 4
Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. Rep. 6
.............................................................................................................................................. 21
Case of Pulp Mills on River Uruguay (Argentina v. Uruguay) 2010 I.C.J. 14 (Apr. 20) ........ 36
East Timor (Port. v. Aus.), 1995 I.C.J. 90, 102 (June 30) .................................................... 4,10
Gabčĭkovo-Nagymaros Project (Hung. v. Slov.), 1997 I.C.J. 7 (Apr. 9) ................................. 28
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16
(June 21)............................................................................................................................... 10
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
2004 I.C.J. 136, 171-2 (July 9) .............................................................................................. 4
Legality or the Threat of Use of Nuclear Weapons, 1996 I.C.J. 254 (July 8). .......................... 2
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14
(June 27)............................................................................................................................... 31
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,
351 (June 27) (Separate Opinion of Judge Schwebel) ...................................................... 3,31
North Sea Continental Shelf Cases (F.R.G. v. Denmark, F.R.G. v. Netherlands), 1969 I.C.J.
3, 26, 32 (Feb. 20) ................................................................................................................ 21
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (June 16)
.............................................................................................................................................. 36
-PRELIMINARIES-
vii
Western Sahara, 1975 I.C.J. 12 (Oct. 16) ................................................................................ 10
P.C.I.J. CASES
Factory Case (Germany v. Poland) 1927 P.C.I.J. (Ser. A) No. 9 (Sept. 13) ............................ 36
Free Zones of Upper Savoy and the District of Gex, 1932 P.C.I.J. (ser. A/B) No. 46 (Aug. 19)
.............................................................................................................................................. 26
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig
Territory case 1932 P.C.I.J. 3 (ser. A/B) No. 44 (Feb. 4) .................................................... 32
U.N.R.I.A.A. & MISCELLANEOUS CASES
Appellate Body Report, Mexico–Tax Measures on Soft Drinks and Other Beverages,
WT/DS308/AB/R, DSR 2006:I, (Mar. 24, 2006). ............................................................... 35
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22,
Award (24 July 2008) .......................................................................................................... 36
Case Concerning the Air Service Agreement of 27 March 1946 (Fr. v. U.S.A.) 1978, 18
R.I.A.A. 416 ......................................................................................................................... 31
CMS Gas Transmission Company v. Argentine Republic ICSID Case No. ARB/01/8 (25 Sep
2007) .................................................................................................................................... 36
Conference on Yugoslavia, 1991, Arbitration Commission, Opinion No. 1, 92 I.L.R. 162
(Nov. 29) .............................................................................................................................. 19
Cyprus v. Turkey, 1975 E.C.H.R., 18 E.C.H.R. Yearbook, 82, 112-116 (1975) (May 26) .... 19
Cysne Case (Port. v. Germ.) 1928, 2 R.I.A.A. 1052................................................................ 32
Deutsche Continental Gas Gesellschaft v. Polish State, German-Polish Mixed Arbitral
Tribunal, 1929, 5 I.L.R. 11, 13 (Aug. 1) .............................................................................. 19
Kevin Mgwanga Gunme v. Cameroon, Comm. No. 266/2003, 2009 A.C.H.P.R., 26 Ann.
Activity Rep. (2008-09) .................................................................................................. 11,18
Legal Consequences, supra note 16; Katangese Peoples’ Congress v. Zaire, Comm No.
75/92, 1995 A.C.H.P.R, (2000) A.H.R.L.R. 72 ............................................... 10,11,12,13,18
M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) 1988 I.T.L.O.S. Reports 24
(March 11) ........................................................................................................................... 36
Naulilaa Arbitration (Portugal v. Germany) 1928, 2 R.I.A.A. 1025 ....................................... 32
Reference re Secession of Quebec, (1998) 2 S.C.R. 217, 285 (1998) (Can.) . 10,12,13,15,18,22
-PRELIMINARIES-
viii
S. v. Banda and Others, Supreme Court of Bophuthatswana, 1989, 4 South African Law
Reports 519 (BG), 531-539 (1989) (Feb. 6). ....................................................................... 19
Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v. Sudan,
Comm. No. 279/03-296/05, 2009 A.C.H.P.R., 28 Ann. Activity Rep. (2009-10) .............. 11
The Aaland Islands Questions, Report Presented to the Council of the League of Nations by
the Commission of Rapporteurs, League of Nations Doc. B.721/68/106 ............................ 18
BOOKS
A. BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS
FOR INTERNATIONAL LAW, 357-359 (2007) ................................................................ 12
AKEHURST, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW (PETER
MALANCZUK ED., 7TH ED. 1997). ............................................................................ 1, 20
AKEHURST, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 75 (1997) ... 20
ANTONIO CASSESE, SELF DETERMINATION OF PEOPLE: A LEGAL REAPPRAISAL 133-136
(1995) .......................................................................................................................... 4
BROWNLIE, INTERNATIONAL LAW AND USE OF FORCE BY STATES 361 (1963) ................... 1
BRUNNO SIMMA, CHARTER OF UNITED NATIONS, A COMMENTARY 316 (2012) ............ 4,11
CAHEIR, ESSAYS IN HONOUR OF ROBERTO AGO 163 (1987) ............................................ 24
CHESNCY HILL, THE DOCTRINE OF REBUS SIC STANTIBUS IN INTERNATIONAL LAW, (1934)
................................................................................................................................... 27
CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 119 (2006) ................... 13
D. ALLAND, JUSTICE PRIVEE ET ORDRE JURIDIQUE INTERNATIONAL: ETUDE THEORIQUE
DES CONTRE-MESURES EN DROIT INTERNATIONAL PUBLIC (1994) ............................. 31
D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 218-219 (2002) ................. 4
E. DE VATTEL, THE LAW OF PRINCIPLES, OR THE PRINCIPLES OF LAW OF NATURE 342
(1844) ........................................................................................................................ 31
E. ZOLLER, PEACETIME UNILATERAL REMEDIES: AN ANALYSIS OF COUNTERMEASURES
179–189 (1984) .......................................................................................................... 31
H. HANNUM, AUTONOMY, SOVEREIGNTY AND SELF-DETERMINATION: THE
ACCOMMODATION OF CONFLICTING RIGHTS 471 (1990) .............................................. 13
HACKWORTH, DIGEST OF INTERNATIONAL LAW, 429 (1943) ........................................... 26
I. BROWNLIE AND G. GOODWIN-GILL, BASIC DOCUMENTS ON HUMAN RIGHTS 866 (2006)
................................................................................................................................... 10
-PRELIMINARIES-
ix
I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (1991) ............................ 4
J.B SCOTT, THE HAGUE COURT REPORTS 317-318 (1916) ............................................... 30
J.L. BRIERLY, THE LAW OF NATIONS 256 (1955) ............................................................ 25
JORRI DUURSMA, FRAGMENTATION OF INTERNATIONAL RELATIONS AND MICRO-STATES
116 (1996) .................................................................................................................. 21
L. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF DETERMINATION, 92-97 (1978) 12,13
L. OPPENHEIM, INTERNATIONAL LAW 209 (1955) ........................................................... 20
L.-A. SICILIANOS, LES REACTIONS DECENTRALISEES A L’ILLICITE: DES CONTRE-MESURES
A LA LEGITIME DEFENSE 501–525 (1990) ................................................................... 31
L.C. GREEN, INTERNATIONAL LAW THROUGH THE CASES, 764 (1959) ............................ 27
LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 91 (1947) ................................... 20
LORD MCNAIR, LAW OF TREATIES 405-8 (1961) ............................................................. 25
O DÖRR AND K SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES: A
COMMENTARY 544 (2012) .......................................................................................... 29
O. Y. ELAGAB, THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN
INTERNATIONAL LAW 227–241 (1988) ........................................................................ 31
P. DAILLIER, A. PELLET, DROIT INTERNATIONAL PUBLIC, 526 (2002) ............................. 15
SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 192 (1984) ................. 24
ARTICLES & COMMENTARIES
A. E. Boyle, The G/N Case: New Law in Old Bottles, Symposium: The Case Concerning the
G/N Project, 8 Y.B.I.E.L. 13 (1997) .................................................................................... 26
C. Tomuschat, Self- Determination in a Post-Colonial World, Modern Law of Self
Determination, 8-11 (1993) ................................................................................................. 12
Cannizzaro, Enzo, The Role of Proportionality in the Law of International Countermeasures,
Eur. J. Int'l L. 889 (2001) ..................................................................................................... 34
Christian Tomuschat, Secession and Self-determination, in Secession: International Law
Perspectives 40 (2006) ................................................................................................... 5,7,12
Daniel Thurer and Thomas Burri, Secession, 9 Max Planck Encyclopaedia of International
Law 55 (2012) ...................................................................................................................... 13
European Community, The E.C. Guidelines on the Recognition of New States in Eastern
Europe and the Soviet Union and the E.C. Declaration on Yugoslavia 62 B.Y.I.L. 559 .... 10
-PRELIMINARIES-
x
F.L. Kirgis Jr., The Degrees of Self-Determination in the United Nations Era, 88 A.J.I.L. 304,
305-306 (1994)..................................................................................................................... 13
G. Abi Saab, Conclusion, in Secession: International Law Perspectives 474 (2006) ............. 15
G. Marston, Termination of Trusteeship, 18 Int’l. Comp. L.Q. 1, 3 (1969) ............................ 20
Gaetano Arangio-Ruiz, Fourth Report On State Responsibility, 2 Y.B. INT’L L. COMM’N 1
(1992) Document A/CN/4/444 ............................................................................................ 33
H. Gros Espiell, Self-Determination and Jus Cogens, UN Law/Fundamental Rights 167-73
(1978) ..................................................................................................................................... 4
International Commission of Jurists, The Events in East Pakistan, 8 International
Commission of Jurists Review 23, 70 (1972) ...................................................................... 11
James Crawford, State Practice and International Law in Relation to Secession, 69
B.Y.B.I.L. 114 (1998) .......................................................................................................... 12
James Crawford, The Rights of Peoples: Some Conclusions, Rights of People, 166 ................ 4
John Dugard and David Raic, Role of Recognition in the Law and Practice of Secession, in
Secession: International Law Perspectives, 103, 106 (2006) ................................. 5,10,12,17
John Fischer Williams, The Permanence of Treaties Source, 22 AM. J. INT’L L. 1, 89 (1978)
.............................................................................................................................................. 30
K. Doehring, Self-Determination, in The Charter of the United Nations, A Commentary 57
(2002) ................................................................................................................................... 12
M. Higgins, International Law and the Avoidance, Containment and Resolution of Disputes
230 RECUEIL DES COURS 165 (1991) .................................................................................. 15
O.C. Okafor, Entitlement, Process, and Legitimacy in the Emergent International Law of
Secession, 9 Int’l. J. Minority & Group Rights 41, 45-46 (2002)........................................ 15
R. Ago, Le délit international, 68 RECUEIL DES COURS 415 (1947) ...................................... 31
R. Erich, La naissance et la reconnaissance des Etats, 13 RECUEIL DES COURS 427, 442
(1926) ................................................................................................................................... 20
R. McCorquodale, Self-determination: A Human Rights Approach, 43, Int’l. Comp. L.Q. 241
(1994) ................................................................................................................................... 13
S.A. Tiewul, The Fisheries Jurisdiction Cases (1973) and the Ghost of rebus sic stantibus, 6
N.Y.U. J.Int’l. L. Pol’y 554-556 (1973) .............................................................................. 29
S.R. Chowdhary, The Status and Norms of Self-determination in Contemporary International
Law, 24 Essays on International Law and Relations in Honour of A.J.P. Tommes 72, 80
(1977) ................................................................................................................................... 13
Sir Humphrey Waldock, Second Report on Law of Treaties, Y.I.L.C 84 (1963) .................... 27
-PRELIMINARIES-
xi
T. Franck, Opinion directed at Question 2 of the Reference, Self Determination, in
International Law: Quebec and Lessons Learned 78 (2000) ............................................... 15
Thomas D. Musgrave, Self Determination and National Minorities, in Oxford Monographs in
International Law 76 (1997) ................................................................................................ 12
Thomas M. Franck, Postmodern Tribalism and the Right to Secede, in People and Minorities
13-14 (1993)......................................................................................................................... 12
U.K. and Argentina's Statements in the Context of the Falklands/Malvinas Dispute 53
B.Y.B.I.L. 366-379 (1982)..................................................................................................... 4
William Riphagen, The Sixth Report of the Special Rapporteur on State responsibility, Art. 8
of Part Two of the Draft Articles, 2 Y.B. INT’L L. COMM’N 10 (1985) Document A/
CN.4/389 ......................................................................................................................... 32,34
William W. Bishop, Jr., The Permanence of Treaties, 22 AM. J. INT’L L 89, 102 (1928) ..... 26
Y. Dinstein, Collective Human Rights of Peoples and Minorities, 25 Int’l. Comp. L.Q. 102,
108 (1976) ............................................................................................................................ 13
-PRELIMINARIES-
xii
STATEMENT OF JURISDICTION
Pursuant to the Joint Notification and the Compromis concluded on 2nd September 2014,
agreed to therein, between the Federal Republic of Agnostica (Applicant) and the State of
Reverentia (Respondent) (hereinafter referred to as ‘the Parties’), and in accordance with
Article 40(1) of the Statute of the International Court of Justice, the Parties hereby submit to
this Court its dispute Concerning the Secession and Annexation of East Agnostica. In
accordance with Article 36(1) of the ICJ Statute and Article 5(a) of the Compromis, each
party will accept the judgement of the Court as final and binding. In accordance with Article
3 of the Compromis, the Court is hereby requested to adjudge the dispute.
-PRELIMINARIES-
xiii
QUESTIONS PRESENTED
I. WHETHER REVERENTIA’S SUPPORT FOR THE REFERENDUM IN EAST AGNOSTICA IS
CONSISTENT WITH INTERNATIONAL LAW.
II. WHETHER EAST AGNOSTICA’S SECESSION FROM AGNOSTICA AND INTEGRATION
INTO REVERENTIA ARE CONSISTENT WITH INTERNATIONAL LAW AND WHETHER THE
COURT SHOULD ORDER THE RETROCESSION OF EAST AGNOSTICA TO AGNOSTICA
AGAINST THE EXPRESSED WILL OF ITS POPULATION.
III. WHETHER THE MARTHITE CONVENTION WAS IN EFFECT UNTIL MARCH 1, 2013 AND
WHETHER AGNOSTICA BREACHED THAT CONVENTION.
IV. WHETHER REVERENTIA’S REMOVAL OF THE SOFTWARE IN THE MARTHITE
EXTRACTION FACILITIES WAS CONSISTENT WITH INTERNATIONAL LAW.
-PRELIMINARIES-
xiv
STATEMENT OF FACTS
1. The Kingdom of Credera, conquered the Thanatosian Plains and incorporated the
region into its global empire as two separately-administered colonies, Reverentia and
Agnostica. The Crederan authorities demarcated the two territories based upon their
observations of linguistic, cultural, and religious differences between their respective
inhabitants. The colony of Reverentia was located in the eastern half of the Thanatosian
Plains. The colony of Agnostica was located in the western half of the Thanatosian
Reverentia functioned as a manufacturing and urban trading centre. A large number of ethnic
Reverentians migrated to Agnostica, settling in East Agnostica and are known as Agnorevs.
Federal Republic of Agnostica (Applicant) and the State of Reverentia (Respondent) were
established on 1 August 1925.
-The Marthite Convention-
2. Within the territory of East Agnostica were the only areas in the world that contain
deposits of Marthite, a naturally-occurring mineral salt which was known to possess mildly
restorative properties Marthite has always been a core ingredient in Reverentian traditional
medicine but is virtually unknown outside the Thanatosian Plains.
On 14 April 1938, Agnostica and Reverentia concluded a bilateral treaty, called “The
Marthite Convention. The facilities in East Agnostica produced between 200 and 250 tonnes
of Marthite per year, and the Reverentian Marthite Trust (RMT) sold the entire output to
traditional medicine practitioners in Reverentia and East Agnostica. In late 2011 it was found
that high doses of Marthite were over 90% effective in treating a broad range of previously
untreatable infant and early-childhood autoimmune disorders. RMT shifted its focus to the
international market, selling some 75% of the total quantity of mined Marthite to
pharmaceutical companies for as much as ten times its maximum permitted sale price under
the Marthite Convention.
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xv
3. On 1st February 2012, Agnostican Prime Minister Maxine Moritz contacted the
President of Reverentia, Antonis Nuvallus, proposing to terminate the Marthite Convention
by mutual consent. The President of Reverentia did not agree to terminate the treaty. On 2nd
April 2012, Agnostica declared the 1938 Marthite Convention to be terminated and without
further effect. The Prime Minister also disclosed that Agnostica had agreed, once it was no
longer subject to the Convention, to lease all rights to the existing East Agnostican Marthite
facilities to Baxter Enterprises, Ltd. (“Baxter”). Following this, all the Reverentian Engineers
engaged at the facility were called back.
-Turmoil in East Agnostica-
4. On 1st October 2012, the Agnostican Parliament passed the Marthite Control Act
(MCA), under which an Agnostican citizen possessing Marthite without a Government
license would be subject to a mandatory prison term of from 18 months to four years. On 23rd
November 2012, Gohandas Sugdy, a 19-year-old Agnorev miner, was found to be in
possession of two pocketfuls of Marthite, and was arrested and charged under the MCA. He
wanted the Marthite for his sick grandfather and later on committed suicide in prison cell
when he was unable to do so.
Hailing Mr. Sugdy as a martyr to the Reverentian cause, the leading East Agnostican
newspaper denounced the Marthite ban as “denying Reverentians in Agnostica the fruits of
our own labour, the product of our own lands, and the lifeblood of our ancient traditions.”
Through the remainder of 2012, demonstrations across East Agnostica increased in number,
frequency, and intensity.
5. On 2nd January 2013, with clashes between the authorities and protesters continuing,
Mr. Bien, the Agnorev head of the East Agnostican, proposed a resolution before the
Agnostican Parliament, calling upon the Prime Minister “to de-escalate” the police and
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xvi
military presence in East Agnostica. On 5 January 2013, Mr. Bien presented a resolution to
the Agnostican Parliament proposing the dissolution of the nation. This resolution was
defeated.
-Referendum on the question of secession-
6. On 10th January 2013, the Reverentian Parliament adopted a resolution titled “On the
Crisis in East Agnostic” which dealt with the secession of East Agnostica from Agnostica.
The East Agnostican provincial parliament voted on 16 January 2013 to schedule a plebiscite
“open to all Agnostican citizens resident in East Agnostica” on the question of secession. On
29 January 2013, the plebiscite was held, and 73 percent of voters cast their ballots in favour
of secession. The next day, the members of “Agnorev People’s Parliament” (APP), ratified
the secession of East Agnostica and voted unanimously to send a delegation headed by Mr.
Bien to enter into talks with Reverentia.
7. On 6th February 2013, the President of the Security Council expressed concern over
what he termed the “question of the continued territorial integrity of Agnostica,” and the
possibility that recent events might constitute “an unjustifiable and illegal interference in
Agnostican domestic affairs.” On 18th February 2013, five of the largest international
pharmaceutical manufacturers jointly announced that they were suspending purchases of
Marthite until “the legal status of East Agnostica – and of the Marthite itself – is conclusively
resolved.”
8. President Nuvallus announced on 22nd February 2013 that he and Mr. Bien had signed
an Integration Agreement that would make East Agnostica a semi-autonomous province of
Reverentia, with the APP as its provincial legislature. Prime Minister Moritz denounced the
annexation.
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xvii
-Dispute Settlement-
9. Agnostica and Reverentia sent their Foreign Ministers to New York on 10th May
2013. Reverentia expressed willingness to submit the dispute over East Agnostica to the
jurisdiction of the International Court of Justice, but Agnostica’s Foreign Minister insisted
that it would agree only if the Court were seized also of the “inextricably related” disputes
over the Marthite Convention.
The parties subsequently negotiated and concluded this Special Agreement.
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xviii
SUMMARY OF PLEADINGS
I. Reverentia’s support for the Referendum is not an act of aggression or intervention in the
domestic affairs of Agnostica but in support of the right to self-determination which is
recognized as a jus cogens norm. The territorial integrity of Agnostica is limited by the right
of self-determination of the Agnorevs and Agnostica failed to give effect to the Agnorev’s
right of self-determination and therefore obligated Reverentia to support the Referendum in
East Agnostica.
II. East Agnostica’s secession and its subsequent integration with Reverentia are consistent with
international law. Agnorevs were denied their right of internal self-determination and
therefore had to realize their right of self-determination externally in pursuance with
international covenants. Peoples suffering systematic oppression have a right to remedial
secession and Agnorevs had to invoke such a right as the last resort which is viewed as
neutral by International Law. East Agnostica established itself as a State by fulfilling all the
criteria of statehood as prescribed under the Montevideo Convention and exercises effective
sovereignty over its territory.
III. Agnostica has unilaterally terminated the Marthite Convention, 1938 with disregard to the
cultural and traditional rights of the users of Marthite. The recent commercial significance
attached to Marthite does not change the extent of obligations of Agnostica or Reverentia.
Agnostica’s invocation of the doctrine of fundamental change of circumstances is invalid and
Agnostica failed to follow any procedural guidelines with regard to termination of treaty. The
Marthite Convention remained in force till 1 March 2013 and Agnostica has breached the
treaty by entering into an agreement with Baxter International during the subsistence of the
treaty.
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xix
IV. Reverentia’s act of removal of software from the Marthite mining facilities is a valid counter
measure taken in response to Agnostica’s breach of the Marthite Convention. The counter
measure is intended to bring Agnostica in compliance to its treaty obligations and respect the
perpetuality of treaties in international law. The counter measure taken by Reverentia
commensurates with the test of proportionality and necessity as prescribed by the Draft
articles of the International Law Commission on State Responsibility, 2001.
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PLEADINGS
I. REVERENTIA’S SUPPORT FOR THE REFERENDUM IN EAST AGNOSTICA IS CONSISTENT
WITH INTERNATIONAL LAW.
Reverentia’s support for the Referendum is not an act of aggression or intervention in affairs
of Agnostica [A.]. The territorial integrity of Agnostica is limited by the right of self-
determination and Agnostica failed to exercise its territorial integrity in conformity with this
right [B.]. The failure of Agnostica in respecting the right of self-determination of the
Agnorevs obligated Reverentia to support the Referendum in East Agnostica [C.].
A. REVERENTIA’S SUPPORT FOR THE REFERENDUM IS NOT AN ACT OF AGGRESSION
OR INTERVENTION IN THE AFFAIRS OF AGNOSTICA.
1. Reverentia’s support for the referendum does not constitute an act of aggression.
Reverentia’s extension of support to the referendum is not an ‘act of aggression’ as it does
not involve the use of force or an armed attack1 in the territory of Agnostica. The UNGA Res.
on Aggression2 defines aggression as an invasion or attack by the armed forces of a State of
the territory of another, and recognises any military occupation, resulting from such invasion
or attack, or any annexation by the use of force of the territory of another State or part thereof
as illegal.
Reverentian support for the Referendum does not quantify the above definition. Reverentia
passed a Resolution supporting the right of self-determination of Agnorevs3 which cannot be
1 BROWNLIE, INTERNATIONAL LAW AND USE OF FORCE BY STATES 361 (1963) [hereinafter‘BROWNLIE’]. 2 Definition of Aggression, UNGA Res. 3314 (XXIX), U.N. Doc. A/RES/3314 (1974) [hereinafter ‘Aggression’]. 3 Compromis, ¶ 35.
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termed as an ‘act of aggression’ as it did not advocate the use or threat of force but stated that
Reverentia would take all measures to ensure the realization of the right of self-
determination.4 The Troops of Reverentia were stationed within Reverentian borders with
express orders not to leave Reverentian territory.5
2. Reverentia refrained from any form of coercion aimed against the political
independence or territorial integrity of Agnostica.
Reverentia is obligated under Art. 2(4) of the UN Charter6 and customary international law
(hereinafter, C.I.L.) to not use force or threat of force in its support for the East Agnostican
Referendum. The Friendly Relations Declaration (hereinafter F.R.D.)7 obligates States to
refrain from military, political, economic or any other form of coercion aimed against the
territorial integrity of any State’.8 Reverentia has acted in furtherance of these obligations.
This Court has opined9 that a “threat of force consists in an express or implied promise by a
government of a resort to force conditional on non-acceptance of certain demands of that
government. If such promise is without justification, the threat itself is illegal.”10
There is no express or implied intention to resort to force in the Reverentia Resolution in case
the self-determination of Agnorevs is not achieved.
4 Id. 5 Compromis, ¶ 37. 6 Charter of the United Nations, entered into force on 24th Oct 1945, 892 U.N.T.S. 119, art. 2, ¶4 [hereinafter U.N.C.]. 7 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), U.N. Doc. A/8082 (1970) [hereinafter ‘F.R.D.’]. 8 Id., Preamble, ¶ 9. 9 Legality or the Threat of Use of Nuclear Weapons, 1996 I.C.J. 254 (July 8). 10 BROWNLIE, supra note 1, at 364.
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Judge Schwebel stated in the Nicaragua case, 11 that it is lawful for a foreign State to give to
a people struggling for self-determination moral, political and humanitarian assistance but it
is unlawful for a foreign State to intervene with force. Reverentia’s support was lawful as it
was a moral and humanitarian assistance in consistence with the principles of international
law without the use of force. This court has held that the existence of military maneuvers near
a State’s border does not constitute a use or threat of force.12 Reverentia’s troops were sent to
offer aid to any Agnorevs fleeing the violence in East Agnostica.13
B. THE TERRITORIAL INTEGRITY OF AGNOSTICA IS LIMITED BY THE RIGHT OF SELF-
DETERMINATION AND AGNOSTICA FAILED TO EXERCISE ITS TERRITORIAL INTEGRITY IN
CONFORMITY WITH THIS RIGHT.
1. The right to self-determination is a peremptory norm of international law possessing an
erga-omnes character.
The I.C.C.P.R.14 gives all peoples the right to self-determination, to freely determine their
political status and freely pursue their economic, social and cultural development. I.C.C.P.R.,
obligates States to promote the realization of the right of self-determination, and respect it in
11 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 351 (June 27) (Separate Opinion of Judge Schwebel) [hereinafter‘Nicaragua’]. 12 Id., at 118, ¶ 227. 13 Compromis, ¶ 37. 14 International Covenant on Civil and Political Rights, entered into force on 16th December 1966, 1057 U.N.T.S 407, art. 1, ¶ 1 [hereinafter ‘I.C.C.P.R.’].
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conformity with the provisions of the Charter of the United Nations.15 The peoples’ right to
self-determination is an inalienable right of erga omnes character.16
Erga omnes are obligations owed to the international community as a whole.17 Thus, all
States have an obligation to promote the realisation of the right to self-determination.
Because of its fundamental importance, Judge Ammoun18, emphasized that the right to self-
determination is based on the ‘norm of jus cogens’19, derogation from which is not
permissible under any circumstance.20.
Reverentia, a party to the I.C.C.P.R.21 is obligated to respect the right of self-determination of
all peoples including Agnorevs. Reverentia’s support for the referendum was to promote the
realization of the right of self-determination.
15 Id., art. 1, ¶ 3. 16 East Timor (Port. v. Aus.), 1995 I.C.J. 90, 102 (June 30) [hereinafter ‘East Timor’]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136, 171-2 (July 9) [hereinafter ‘Legal Consequences’]. 17 Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5) [hereinafter ‘Barcelona Traction’]; BRIAN D LEPARD, CUSTOMARY INTERNATIONAL LAW 264 (2012). 18 Barcelona Traction, supra note 17. 19 Supporters of the view that the right of self-determination is part of jus cogens include: I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (1991); D. RAIC, STATEHOOD AND THE LAW OF SELF-DETERMINATION 218-219 (2002); BRUNNO SIMMA, CHARTER OF UNITED NATIONS, A COMMENTARY 316 (2012) [hereinafter ‘SIMMA’]; ANTONIO CASSESE, SELF DETERMINATION OF PEOPLE: A LEGAL REAPPRAISAL 133-136 (1995) [hereinafter ‘CASSESE’]; James Crawford, The Rights of Peoples: Some Conclusions, RIGHTS OF PEOPLE, 166; H. Gros Espiell, Self-Determination and Jus Cogens, UN LAW/FUNDAMENTAL RIGHTS 167-73 (1978); U.K. and Argentina's Statements in the Context of the Falklands/Malvinas Dispute 53 B.Y.B.I.L. 366-379 (1982). 20 Vienna Convention on the Law of Treaties, entered into force Jan. 27, 1980, 1155 U.N.T.S. 331, art. 53 [hereinafter ‘V.C.L.T.’]. 21 Compromis, ¶ 44.
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2. Agnostica failed to exercise its territorial integrity in conformity with self-determination.
Territorial integrity must be exercised in conformity with a State’s obligation under, inter
alia, the law of self-determination, the law concerning human rights and humanitarian law.22
In case of breach of jus cogens rules or erga omnes obligations, any constraints derived from
the principle of national sovereignty can be brushed aside.23 Agnostica failed to exercise its
territorial integrity by denying the right of internal self-determination to Agnorevs as it failed
to recognize the outcome of the referendum.24
C. THE FAILURE OF AGNOSTICA IN RESPECTING THE SELF-DETERMINATION OF
AGNOREVS OBLIGATED REVERENTIA TO SUPPORT THE REFERENDUM IN EAST
AGNOSTICA.
1. International law recognises a right to external self-determination of Agnorevs.
The F.R.D.,25 and the 1993 Vienna Declaration,26 implicitly recognises a right to remedial
secession.27 The flagrant discrimination of the internal self-determination of the Agnorevs on
the basis of their ethnicity by Agnostica has given Agnorevs a right to exercise external self-
determination which gives them a right to remedial secession.28
22 John Dugard and David Raic, Role of Recognition in the Law and Practice of Secession, in SECESSION: INTERNATIONAL LAW PERSPECTIVES, 103, 106 (2006) [hereinafter ‘Dugard and Raic’]. 23 Christian Tomuschat, Secession and Self-determination, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 40 (2006) [hereinafter ‘Tomuschat’]. 24 Compromis, ¶ 38. 25 F.R.D., supra note 7, at ¶ 5(7). 26 Vienna Declaration and Programme of Action, U.N. Doc. A/CONF.157/23 (1993) [hereinafter ‘Vienna Declaration’]. 27 F.R.D., supra note 7, at ¶ 5(7). 28 Id.
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2. Reverentia’s support to the referendum was in furtherance of the right of external self-
determination of Agnorevs.
The F.R.D.29 regarding the principle of self-determination was widely discussed in the
Special Committee on Principles of International Law Concerning Friendly Relations and
Co-operation Among States.30 The instrument is primarily concerned with ‘Friendly
Relations and Co-operation Among States’31 and so it must be assumed that the negative
formulation in Paragraph 5(7) that the principle of self-determination shall not authorise or
encourage any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States” was intended to be addressed
to third States.32
It may be argued, therefore, a contrario that third States would be entitled to support a people
which attempts to secede even if such support would lead to the infringement of the territorial
integrity of the target State33 as long as the target State does not conduct itself with the right
of self-determination of the people concerned and such support is in accordance with the
other principles contained in the F.R.D.34 The permissibility of ‘action’ by third States which
may dismember or impair the territorial integrity of the parent State must be linked to the
justifiability of secession.35 This issue is indirectly dealt with in Paragraph 5(7) in the context
29 Id. 30 Dugard and Raic, supra note 22, at 103. 31 Id. 32 Id. 33 Id. 34 F.R.D., supra note 7, ¶ 1. 35 Dugard and Raic, supra note 22, at 104.
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of the permissibility of ‘action’ by third States in those cases where the right to self
determination is seriously violated by the parent State. 36 Governmental actions in a given
State amounts to a ‘consistent pattern of gross and reliably attested violations of human
rights’,37 the international community is called upon to respond by taking remedial action in
favour of the human being under threat.38 The inference is to be drawn that third States would
be entitled to provide any kind of support short of military means.39
Agnostica failed to align itself with the right of self-determination as it denied Agnorevs
equal opportunities in social, economic and political matters.40 Such failure gave a right to
Reverentia to promote and realize their right to external self-determination which was the
only means available to Agnorevs after all other efforts to practice internal self-determination
were exhausted. This was realized when the Resolution proposing dissolution was defeated in
the Agnostican Parliament41. Reverentia supported the Referendum in compliance with the
other principles of F.R.D.42 Reverentia passed a Resolution,43 in support of the referendum
which does not qualify as use or threat of force, keeping with the F.R.D.44 It should be made
clear that the movement of Reverentia soldiers to the Reverentian borders with strict
36 Id. 37 ECOSOC Res. 1503(XLVIII), U.N. Doc. E/4832/Add.1, ¶ 1 (1970). 38 Tomuschat, supra note 23, at 39. 39 Id., at 44. 40 Compromis, ¶ 28. 41 Compromis, ¶ 33. 42 F.R.D., supra note 7. 43 Compromis, ¶ 35. 44 F.R.D., supra note 7, at ¶ 3.
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instructions not to leave the Reverentian territory was done to provide aid to Agnorevs
fleeing the violence in East Agnostica45 and to avoid violence spilling into Reverentia.46
Reverentia was merely exercising its sovereignty and respecting the prohibition on the threat
or use of force in international relations47 as mentioned in the UN Charter.48 Thus,
Reverentia’s support for the Referendum was consistent with international law.
45 Compromis, ¶ 37. 46 Id. 47 Id., at art. 2, ¶ 4. 48 U. N. C., supra note 6, art. 2, ¶ 1.
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II. EAST AGNOSTICA’S SECESSION FROM AGNOSTICA AND INTEGRATION INTO
REVERENTIA ARE CONSISTENT WITH INTERNATIONAL LAW, AND IN ANY EVENT, THIS
COURT SHOULD NOT ORDER THE RETROCESSION OF EAST AGNOSTICA TO AGNOSTICA
AGAINST THE EXPRESSED WILL OF ITS POPULATION.
East Agnostica’s secession and its subsequent integration with Reverentia are lawful as
international law provides a right of external self-determination to Agnorevs [A.]. East
Agnostica’s independence has been achieved in consistence with international law which is
neutral towards secession [B.]. East Agnostica has established itself as a State and exercises
effective sovereignty over its territory. [C.].
A. AGNOREVS HAVE A RIGHT TO SELF-DETERMINATION.
1. The right of self-determination is available to peoples suffering systematic oppression.
Common Article 1 of the two International Human Rights Covenants49 provides that all
peoples have the right of self-determination. By virtue of this right, they freely determine
their political status and freely pursue their economic, social and cultural development.50 It is
principle of C.I.L. as it has been declared in numerous international treaties,51 instruments,52
49 I.C.C.P.R., supra note 14, art.1; International Covenant on Economic, Social and Cultural Rights, entered into force on Jan. 3, 1976, 993 U.N.T.S. 3, art. 1 [hereinafter I.C.E.S.C.R.]. 50 I.C.C.P.R., supra note 14, art. 1, ¶ 2; I.C.E.S.C.R., supra note 49, art. 1, ¶ 2. 51 U.N.C., supra note 6, art. 1, ¶ 2, 55; African Charter on Human and Peoples' Rights, entered into force on Oct. 21, 1986, 567 U.N.T.S. 435, art. 20 [hereinafter A.C.H.P.R.]. 52Organization for Security and Co-operation in Europe, Conference on Security and Co-operation in Europe: Final Act of Helsinki, Aug. 1, 1975, 14 I.L.M. 1292, art. 1(a)(VIII) [hereinafter ‘H.F.A.’]; Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, UNGA Res. 50/6, U.N. Doc. A/RES/50/6 (1995); Vienna Declaration, supra note 26; F.R.D., supra note 7.
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and judicial opinions.53 The right of self-determination is available to “all peoples” under
systematic oppression “beyond the traditional confines of the historical process of
decolonization”.54 Subjection of a people to exploitation constitutes a violation of the
principles of equal rights and self-determination of peoples, and is contrary to the U.N.C.55
Agnorevs being an oppressed people are entitled to exercise their right to self-determination.
Agnostica is violating its obligation56 to promote this right.
2. Agnorevs qualify as a ‘people’ under international law.
A group is considered a people if it shares the objective factors of a common historical
tradition, a racial or ethnic identity, cultural homogeneity, linguistic unity, religious and
ideological affinities, territorial connection, and a common economic life and the subjective
factor of identifying themselves as a ‘people’ sharing the above objective characteristics,57 as
53 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16 (June 21) [hereinafter ‘Namibia’]; Western Sahara, 1975 I.C.J. 12 (Oct. 16); East Timor, supra note 16; Legal Consequences, supra note 16; Katangese Peoples’ Congress v. Zaire, Comm No. 75/92, 1995 A.C.H.P.R, (2000) A.H.R.L.R. 72 (8th Annual Activity Report) [hereinafter ‘Katangese Peoples’]. 54 I.C.C.P.R., supra note 14, art.1, ¶ 1; I.C.E.S.C.R., supra note 49, art. 1, ¶ 1; H.F.A., supra note 52; Organization for Security and Co-operation in Europe, The Charter of for a New Europe, 31 I.L.M. (1991) 193; I. BROWNLIE AND G. GOODWIN-GILL, BASIC DOCUMENTS ON HUMAN RIGHTS 866 (2006); European Community, The E.C. Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union and the E.C. Declaration on Yugoslavia 62 B.Y.I.L. 559; Vienna Declaration, supra note 26; Reference re Secession of Quebec, (1998) 2 S.C.R. 217, 285 (1998) (Can.) [hereinafter ‘Quebec’]; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 141 (July 22) (Separate Opinion of Judge Trindade) [hereinafter ‘Kosovo’]. (All these Instruments and cases contemplate a right of self-determination unrelated to decolonization.) 55 F.R.D., supra note 7, Preamble. 56 I.C.C.P.R., supra note 14, art. 2; U.N.C., supra note 6, art. 1, ¶ 2, 55. 57 UNESCO, Final Report and Recommendations, International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, 22 Feb, 1990, U.N. Doc. SHS-89/CONF.602/7, 22 (1990).
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confirmed58 by the A.C.H.R. observing that self determination can be exercised by a people
sharing the above characteristics. The Commission has held that people of Katanga, South
Cameroon, and South Sudan constitute a ‘people’.59 Agnorevs are bound together by their
history and traditions, and have a distinct ethnicity and culture.60 In Separate Opinions61 in
the Kosovo Advisory Opinion, a similar definition of people was opined, recognising the
Albanians of Kosovo having a right to self-determination. In Quebec it was held that “people
may include only a portion of the population of an existing State.62 The Bengali people of
East Pakistan were recognised as having a right to self-determination.63 Agnorevs being only
a portion of the population of Agnostica constitute a distinct “people” in international law as
they are bound together by ethnicity and culture and have the consciousness of constituting
such a people.64
58 Katangese People’s, supra note 53; Kevin Mgwanga Gunme v. Cameroon, Comm. No. 266/2003, 2009 A.C.H.P.R., 26 Ann. Activity Rep. (2008-09) ¶ 170, (Mar. 27) [hereinafter ‘Kevin Mgwanga’]; Sudan Human Rights Organisation and Centre on Housing Rights and Evictions v. Sudan, Comm. No. 279/03-296/05, 2009 A.C.H.P.R., 28 Ann. Activity Rep. (2009-10), ¶ 220 (May 27). 59 Id. 60 Compromis, ¶ 4. 61 Kosovo, supra note 54, Separate Opinion of Judge Yousaf, at 621, ¶ 9; Kosovo, supra note 54, Separate Opinion of Judge Trindade, at 523, ¶ 228. 62 Quebec, supra note 54, ¶ 123-124. 63 International Commission of Jurists, The Events in East Pakistan, 8 International Commission of Jurists Review 23, 70 (1972) [hereinafter ‘The Events in East Pakistan’]. 64 Id.
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3. Agnorevs have a right to external self-determination.
The recognized sources of international law65 establish that the right to self- determination of
a people is normally fulfilled internally through a people’s pursuit of its political, economic,
social and cultural development within the framework of an existing State.66
A right to external self-determination arises in exceptional cases, legitimising secession from
an independent State. 67 The flagrant discrimination of the internal self-determination of the
Agnorevs by Agnostica68 has given them a right to exercise external self-determination which
can be realised through the “establishment of a sovereign and independent State, or the free
association or integration with an independent State.”69
F.R.D.70 recognises a right to external self-determination and the possibility of remedial
secession71 in situations where a government practices systematic discrimination and is not
65 U.N.C., supra note 6 art. 1, ¶ 2; I.C.C.P.R., supra note 14, art. 1(2); I.C.E.S.C.R., supra note 49, art. 1(2); F.R.D., supra note 7, ¶ 5(1). 66 Quebec, supra note 55, ¶ 127. 67 Quebec, supra note 54; Katangese Peoples’, supra note 53; Thomas D. Musgrave, Self Determination and National Minorities, in OXFORD MONOGRAPHS IN INTERNATIONAL LAW 76 (1997); A. BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW, 357-359 (2007); L. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF DETERMINATION, 92-97 (1978) [hereinafter ‘BUCHHEIT’]; Thomas M. Franck, Postmodern Tribalism and the Right to Secede, in PEOPLE AND MINORITIES 13-14 (1993). 68 Compromis, ¶ 28. 69 F.R.D., supra note 7, ¶ 5(4); United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 15 Aug, 1997, UN doc. HRI/GEN/1/Rev.3, 13, ¶1-2 and 6 (1997). 70 Id., ¶ 5(7). 71 F.R.D., supra note 7, ¶ 5(4); K. Doehring, Self-Determination, in THE CHARTER OF THE UNITED NATIONS, A COMMENTARY 57 (2002); James Crawford, State Practice and International Law in Relation to Secession, 69 B.Y.B.I.L. 114 (1998); C. Tomuschat, Self- Determination in a Post-Colonial World, in MODERN LAW OF SELF DETERMINATION, 8-11 (1993).
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representative of its entire population.72 Systematic oppression ranging from denial of
participatory rights, to serious and systematic discrimination and other violations of human
rights of the members of one part of the population73 of a State give rise to a legitimate
secession legitimate.74
Agnostica has disrespected the right of self-determination by denying Agnorevs effective
guarantees, and the right to practice their culture. The MCA was a thinly veiled
discrimination against the Agnorevs denying them their cultural rights. Discriminatory
practices such as the federal judicial posts being ‘dominated’ by Agnostican lawyers,75
72 Tomushcat, supra note 23, at 38-42; CASSESE, supra note 19, at 118; F.L. Kirgis Jr., The Degrees of Self-Determination in the United Nations Era, 88 A.J.I.L. 304, 305-306 (1994); S.R. Chowdhary, The Status and Norms of Self-determination in Contemporary International Law, 24 ESSAYS ON INTERNATIONAL LAW AND RELATIONS IN HONOUR OF A.J.P. TOMMES 72, 80 (1977); SIMMA, supra note 10, at 97; BUCHHEIT, supra note 67, at 220-3; Y. Dinstein, Collective Human Rights of Peoples and Minorities, 25 INT’L. COMP. L.Q. 102, 108 (1976); H. HANNUM, AUTONOMY, SOVEREIGNTY AND SELF-DETERMINATION: THE ACCOMMODATION OF CONFLICTING RIGHTS 471 (1990); R. McCorquodale, Self-determination: A Human Rights Approach, 43, INT’L. COMP. L.Q. 241 (1994); A. Cristescu, The Right to Self-Determination, Historical and Current Development on the basis of United Nations Instruments, U.N. Doc. E/CN.4/Sub.2/404/Rev.1, 26, (1981); CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 119 (2006) [hereinafter ‘CRAWFORD’]. 73 Id. 74 Vienna Declaration supra note 26; H.F.A. supra note 52; Daniel Thurer and Thomas Burri, Secession, 9 MAX PLANCK ENCYCLOPAEDIA OF INTERNATIONAL LAW 55 (2012); Quebec, supra note 54; Katangese Peoples’, supra note 53; Kevin Mgwanga, supra note 58 ; Kosovo, supra note 54, Written Statement of United Kingdom, Apr. 17, 2009, ¶ 5.33, Written Statement of Finland, Apr. 16, 2009, 10 at ¶ 18, Written Statement of Denmark, Apr. 16, 2009, 14 at ¶ 2.7, Written Statement of Netherlands, Apr. 17, 2009, 13 at ¶3.21, Written Statement of Albania, Apr. 14, 2009, 79 at ¶ 43, Written Statement of Russia, Apr. 16, 2009, 34 at ¶ 88; Written Statement of U.S.A, Apr. 17, 2009, 39, Written Statements of Switzerland, Apr. 15, 2009, 26, Written Statement of Slovenia, Apr. 17, 2009, 3, Written Statement of Poland, Apr. 15, 2009, 26 at ¶ 6.7, Written Statement of Japan, Apr. 17, 2009, 4, Written Statements of Ireland, Apr. 17, 2009, 9 at ¶ 9, Written Statement of Germany, Apr. 15, 2009, 34 (All these states support the right of external determination of a people suffering human rights violations and systematic oppression). 75Compromis, ¶ 28.
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“complete absence’ of Agnorevs among senior officers of the Agnostican armed services, the
‘disproportionate’ allocation of government scholarships to ethnic Agnostican university
students76, the “unrelentingly negative” characterization of Agnorevs in West Agnostican
primary-school textbooks and the national media77 and ‘frequent characterization’ of
Agnorevs as wealthy villains in Agnostican cinema78 are evidence of the discrimination
against on the basis of their ethnicity in Agnostica.
Agnostica used military troops against its own citizens79 killing sixty demonstrators and
seriously injuring others and failed to ‘de-escalate’ police and military presence in East
Agnostica. These instances exhibit a violation of the Agnorevs’ right to internal self-
determination, forcing them to exercise the right of external self-determination.
B. EAST AGNOSTICA’S INDEPENDENCE HAS BEEN ACHIEVED IN CONSISTENCE WITH
INTERNATIONAL LAW WHICH IS NEUTRAL TOWARDS SECESSION.
1. The secession of East Agnostica was accomplished in accordance with the principles of
the United Nations Charter and the right to self-determination.
The independence of the seceding entity is a matter of fact in international or national law.
The F.R.D.,80 the Quebec case81 and Kosovo Advisory Opinion of the ICJ in part82 showcase
76 Id. 77 Id. 78 Id. 79 Compromis, ¶ 29. 80 F.R.D., supra note 7. 81 Quebec, supra note 54. 82 Kosovo, supra note 54.
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that unilateral secession is a political fact not regulated,83 held neutral84 or banned by
international law maintaining that the breaking away of a nation or ethnic group is neither
authorized nor prohibited by legal rules;85 it is simply regarded as a fact of life, outside the
realm of law, and to which law can attach legal consequences depending on the
circumstances of the case.86
The UN has directed States to not recognize secessionist entities whose secession has been
brought about by the unlawful use of force, the denial of self-determination, systematic racial
discrimination and the suppression of human rights.87 This is supported by this Court’s
Kosovo Advisory Opinion. 88
The Court’s observation is based on the practice developed with regard to Turkey’s forceful
creation of Northern Cyprus,89 declarations of independence of Southern Rhodesia90, four
83 P. DAILLIER, A. PELLET, DROIT INTERNATIONAL PUBLIC, 526 (2002); T. Franck, Opinion directed at Question 2 of the Reference, Self Determination, in INTERNATIONAL LAW: QUEBEC AND LESSONS LEARNED 78 (2000); G. Abi Saab, Conclusion, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 474 (2006). 84 CRAWFORD, supra note 72, 390; M. Higgins, International Law and the Avoidance, Containment and Resolution of Disputes 230 RECUEIL DES COURS 165 (1991); CASSESE, supra note 19, at 123; O.C. Okafor, Entitlement, Process, and Legitimacy in the Emergent International Law of Secession, 9 INT’L. J. MINORITY & GROUP RIGHTS 41, 45-46 (2002). 85Quebec, supra note 54; Crawford, Response to Experts Reports of the Amicus Curiae, 159-160, Thomas M. Franck, Opinion Directed at Question 2 of the Reference, 78, Alain Pellet, Legal Opinion on Certain Questions of International Law Raised by the Reference, 122, Malcolm Shaw, Re: Order in Council PC 1996-1497 of 30 September 1996, 136. 86 CASSESE, supra note 19, at 340. 87 Dugard and Raic, supra note 22, at 71. 88 Kosovo, supra note 54, at 81. 89 UNSC Res. 541 (1983), U.N. Doc. S/RES/541 (1983); UNSC Res. 550 (1984), U.N. Doc. S/RES/550 (1984).
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South African Homelands,91 Republica Srpska,92 and South Africa’s illegal presence in
Namibia.93 United Nations condemned Iraq’s annexation of Kuwait and Russia’s annexation
of Crimea in which the territorial illegality was not created by the unilateral character of
declarations of independence but by the fact that these entities intended to become States as a
result of illegal use of force or in pursuance of apartheid.
Such is not the case of East Agnostica since the secession is not in pursuance of apartheid or
in violation of the rule on prohibition of use of force. The referendum was an expression of
free will of the Agnorevs94 which is supplemented by the remarks of many international
observers who termed the referendum free of irregularities and the result fair and accurate95
in pursuance of their right to self determination which was supported by Reverentia in a
manner consistent with the UN Charter96. The secession and annexation of East Agnostica are
valid in fact and law and this Court is requested not to order the retrocession of East
Agnostica.
90 UNSC Res. 217(1965), U.N. Doc. S/RES/217 (1965); UNSC Res. 277(1970), U.N. Doc. S/RES/277 (1970); Question of Southern Rhodesia, UNGA Res. 2151 (XXI), U.N. Doc. A/RES/2151 (1966); Question of Rhodesia, UNGA Res. 2383 (XXIII), U.N. Doc. A/RES/2382 (1968); Question of Southern Rhodesia, UNGA Res. 2508 (XXIV), U.N. Doc. A/RES/2508/ (1969). 91UNSC Res. 402 (1976), U.N. Doc. S/RES/402 (1976); UNSC Res. 407 (1977), U.N. Doc. S/RES/407 (1977); Situation in South Africa, UNGA Res. 34/93 (1979), U.N. Doc. A/RES/34/93 (1979). 92 UNSC Res. 787 (1992), U.N. Doc. S/RES/799 (1992). 93 Question of Namibia, UNGA Res. 2518 (XXIV), U.N. Doc. A/RES/2518 (1969). 95 Compromis, ¶ 38.
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2. State practice and judicial opinions support a right to external self-determination of an
oppressed people.
State practice supports the right of a people, within a territory, not representing the population
of the territory as a whole to secede.97 The International Commission of Jurists, in its report
on Bangladesh's secession, stated that “if one of the constituent peoples of a State is denied
equal rights and is discriminated against, it is submitted that their full right of self-
determination will revive.”98 Bangladesh came into being when the Bengalis of Pakistan
seceded from Pakistan;99 Israel established itself as a State by secession from Palestine;100
Eritrea seceded from Ethiopia after a gruesome struggle.101 The South Sudanese people
seceded from Sudan in 2011.102 The Albanian people of Kosovo seceded from Serbia in
2008;103 and Abkhazian people and South Ossetian people seceded from Georgia in 2008.104
Opinio juris is established by the participation of the world community in the F.R.D.,105 the
97 Dugard and Raic, supra note 22, at 143. 98 Events in East Pakistan, supra note 63, at 69. 99 CRAWFORD, supra note 72, 393 (Bangladesh proclaimed its independence on Mar. 26, 1971). 100 Id., at 432 (State of Israel was unilaterally declared on 14 May 1948). 101 UNSC Res. 828/1993, U.N. Doc. S/RES/828 (1993) (Eritrea became an independent state and was immediately admitted to the UN). 102 Dugard and Raic, supra note 22, at 155 (South Sudan became an independent State on July 9, 2011). 103 Dugard and Raic, supra note 22, at 159. (The democratically elected leaders of Kosovo unilaterally declared independence on Feb. 17, 2008). 104 Dugard and Raic, supra note 22, at 165 (Abkhazia and South Ossetia declared their independence unilaterally in 1999 and 2005 respectively). 105 F.R.D., supra note 7.
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1993 Vienna Declaration,106 the Helsinki Final Act (hereinafter, H.F.A.)107 which advance a
right of external-self determination for a part of population of an independent State suffering
human rights violations and systematic oppression at the hands of the parent State. The
subjective belief of States in such a right is also showcased through the recognition of
Bangladesh, Eritrea, Kosovo, and South Sudan.108
External right of self-determination is available to a minority as a last resort when the parent
State lacks either the will enact and apply effective guarantees.109 In the Quebec Case, the
Court recognised the right of a people to secede unilaterally when denied their right to
internal self-determination stating that “where a definable group is denied meaningful access
to pursue their political, economic, social and cultural development, the people in question
are entitled to right to external self-determination because they have been denied the ability
to exert internally their right to self-determination as a last resort.”110 The right of external
self determination was also recognized in the Katangese Peoples’ Congress v. Zaire111 and
Kevin Mgwanga Gunme v. Cameroon112.
106 Vienna Declaration, supra note 26. 107 H.F.A., supra note 52. 108 Bangladesh was admitted to the UN in 1974; Eritrea was admitted to the UN in 1993; South Sudan was admitted to the UN in 2011; Kosovo has been recognized by 100 states as of January, 2015. 109 The Aaland Islands Questions, Report Presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc. B.721/68/106; Quebec, supra note 54, ¶ 134. 110 Id. 111 Katangese Peoples’, supra note 53. 112 Kevin Mgwanga, supra note 58.
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Mr. Bien’s resolution to the Agnostican Parliament proposing the dissolution of the nation
was defeated by all delegates from West Agnostica.113 The plebiscite was condemned by the
PM and National Police was ordered to block the referendum,114 the result of which was not
recognized115 by Agnostica, extinguishing Agnorevs of all options but secession.
C. EAST AGNOSTICA HAS ESTABLISHED ITSELF AS A STATE.
East Agnostica fulfils the criteria laid down in the Montevideo Convention to qualify as a
State.116 Art.1 of the Montevideo Convention provides that “[t]he State as a person of
international law should possess a permanent population, defined territory, a government and
the capacity to enter into relations with other States.”117 This is supported by Opinion No. 1
of the Yugoslavia Arbitration Commission118 which stated “a State is commonly defined as a
community which consists of a territory and a population subject to an organized political
authority; that such a State is characterized by sovereignty.”119 The political existence of the
State is independent of recognition by other States.120 Thus, the existence of a State is a
113 Compromis, ¶ 33. 114 Id at 37. 115 Id at 38. 116 Convention on the Rights and Duties of States, entered into force on 26th Dec., 1933, 165 U.N.T.S. 19, art. 1 [hereinafter ‘Montevideo Convention’]. 117 Id. 118 Established in 1991, under the chairmanship of Mr. Badinter of France, to advise the European Community on legal problems arising from the dissolution of the Socialist Federal Republic of Yugoslavia. 119 Conference on Yugoslavia, 1991, Arbitration Commission, Opinion No. 1, 92 I.L.R. 162 (Nov. 29) [hereinafter ‘Opinion No. 1’] 120 Montevideo Convention, supra note 116, art. 3; Deutsche Continental Gas Gesellschaft v. Polish State, German-Polish Mixed Arbitral Tribunal, 1929, 5 I.L.R. 11, 13 (Aug. 1)
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question of fact and not of law121.The law takes account of the new situation in case of
creation of a new State, despite its lawfulness,122 checking for effectiveness123 in the light of
the facts.124 Post referendum, East Agnostica established itself as a State with a permanent
population, defined territory, an effective government and the capacity to enter into relations
with other States.125
1. East Agnostica Has a Permanent Population.
A State exercises territorial jurisdiction over its inhabitants and personal jurisdiction over its
nationals.126 The East Agnostican province was created as per the Agnostic Constitution127
and was a Provincial Parliament,128 governing East Agnostica. Post secession, since the same
government is at the helm, it can be assumed that the defined population of erstwhile
province of Agnostica continues.
[hereinafter ‘Gesellschaft’]; Cyprus v. Turkey, 1975 E.C.H.R., 18 E.C.H.R. YEARBOOK, 82, 112-116 (1975) (May 26); S. v. Banda and Others, Supreme Court of Bophuthatswana, 1989, 4 SOUTH AFRICAN LAW REPORTS 519 (BG), 531-539 (1989) (Feb. 6). 121 Opinion No. 1, supra note 119; L. OPPENHEIM, INTERNATIONAL LAW 209 (1955) [hereinafter ‘OPPENHEIM’]; CRAWFORD, supra note 72, at 4; R. Erich, La naissance et la reconnaissance des Etats, 13 RECUEIL DES COURS 427, 442 (1926); G. Marston, Termination of Trusteeship, 18 INT’L. COMP. L.Q. 1, 3 (1969). 122 CRAWFORD, supra note 72, at 5. 123 OPPENHEIM, supra note 121; Quebec, supra note 54. 124 LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 91 (1947). 125 Montevideo Convention, supra note 116. 126 AKEHURST, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 75 (1997) [hereinafter ‘AKEHURST’]. 127 Compromis, ¶ 8. 128 Compromis, ¶ 39.
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2. East Agnostica constitutes a ‘State’ as it has a defined territory.
The State must consist of an effectively governed territory 129 which is defined by geography,
separated by borderlines. 130 Denmark and Greenland; France and Martinique, East and West
Pakistan before the secession of Bangladesh in 1971 are few such examples. The territory of
East Agnostica held provincial status before the secession under Constitution of Agnostica
and therefore, has a defined territory.131
In arguendo, the territory of a State need not be exactly affixed by definite frontiers132 and a
new State may exist despite claims to its territory.133 This Court has opined that there is no
such rule prescribing ‘fully delimited and defined’ land frontiers.134 Thus, sufficient
identification of core territory is enough for a State to exist.135
3. East Agnostica constitutes a ‘State’ as it has a government having effective control.
Effective control by a government136 over its territory and population is a necessary condition
of Statehood.137 Political and administrative organs capable of maintaining a legal order in
129 CRAWFORD, supra note 72, at 40. 130 AKEHURST, supra note 126, at 76. 131 Compromis, ¶ 8. 132 JORRI DUURSMA, FRAGMENTATION OF INTERNATIONAL RELATIONS AND MICRO-STATES 116 (1996). 133 CRAWFORD, supra note 72, at 48. 134 North Sea Continental Shelf Cases (F.R.G. v. Denmark, F.R.G. v. Netherlands), 1969 I.C.J. 3, 26, 32 (Feb. 20) ¶ 46; Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. Rep. 6, 22, 26, ¶ ¶ 44, 52. 135 AKEHURST, supra note 126, at 76. 136 CRAWFORD, supra note 72, at 55. 137 AKEHURST, supra note 126, at 77.
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the State in question are required.138 The success of a unilateral secession depends on
effective control of a territory.139 An independent, peaceful referendum having been
conducted and subsequently ratified, showcases effective control of the government of East
Agnostica.140 The return of the military units stationed in East Agnostica to their bases in
West Agnostica further supports this contention.141
4. East Agnostica qualifies as ‘State’ as it has the capacity to engage in international
affairs and enter into treaties.
As long as a State performs the functions which independent States normally perform,
international law treats the State as independent.142 East Agnostica sent a delegation to
Reverentia to initiate talks with them regarding their territories.143 Both these functions
signify that the new State possesses the capacity to enter into relations with other States. This
is evidenced by the recognition granted by thirty States including two permanent members of
the Security Council.144
In any case, the political existence of the State is independent of recognition by the other
States.145 This can be taken to imply that the Statehood of an entity is independent of its
138 Dugard and Raic, supra note 22, at 48. 139 Quebec, supra note 54, at 106. 140 Compromis, ¶ 39. 141 Clarifications to the Compromis, ¶ 1. 142 AKEHURST, supra note 126, at 78. 143 Compromis, ¶ 39. 144 Clarifications to the Compromis, ¶ 7. 145 Montevideo Convention, supra note 116, art. 3.
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relations with other States.146 East Agnostica would still constitute a State, regardless of its
limited capacity to enter into relations with other States, based on the fulfilment of other
prime factors.
146 CRAWFORD, supra note 72, at 61.
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III. THE MARTHITE CONVENTION WAS IN EFFECT UNTIL 1 MARCH 2013, AND AGNOSTICA
BREACHED THAT CONVENTION.
The Marthite Convention was concluded in 1938 recognizing the significance of Marthite to
the traditions of medical practice147 of Reverentians.148 A treaty is concluded against the
background of all kinds of circumstances, which a State takes into account in consenting to
be bound by the treaty.149 Agnostica has unilaterally terminated the treaty without due
procedure.
A. AGNOSTICA’S UNILATERAL TERMINATION OF THE MARTHITE CONVENTION IS
INVALID.
To give effect to changing economic considerations concerning Marthite and disregarding
cultural rights of the users of Marthite, Agnostica has terminated the Marthite Convention,
offering no negotiation or following substantive procedure for termination of a treaty.150
1) Agnostica’s unilateral termination cannot be justified according to the Doctrine of
Error.
A State may invoke an error in a treaty to invalidate its consent to be bound by the treaty, if
the error formed an essential basis of the consent of the State to be bound by the treaty and if
147 The Marthite Convention, entered into force on 14th April, 1938, Compromis (Annex), Preamble [hereinafter ‘Marthite Convention’]. 148 Compromis, ¶ 10. 149 SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 192 (1984) [hereinafter ‘SINCLAIR’]; CAHEIR, ESSAYS IN HONOUR OF ROBERTO AGO 163 (1987) [hereinafter ‘CAHEIR’]. 150 V.C.L.T., supra note 20, art. 65.
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it relates to a fact which was assumed by that State to exist at the time when the treaty was
concluded.151.
The ‘error’ may lead to the nullity of the treaty if one speaks of an error de facto152 alleged by
the State to have existed at the moment the treaty was concluded and forming an essential
basis of its consent.153 However, this doctrine does not satisfy the conditions in the present
case.
The treaty was entered into out of respect for traditional Reverentian medicine, emphasising
the lack of commercial significance to Marthite154 which Agnostica claims was erroneously
accepted by both the parties. Although Marthite was virtually unknown outside the
Thanatosian plains,155 the treaty itself included provision for such commercial use up to
25%.156 This substantiates that commercial use of Marthite was envisaged and foreseen,
although its extent and possibility was unknown to the parties.
The erroneous assumption that Agnostica claims is indeed a pretext to terminate the treaty
unilaterally.
151 Id., art. 48(1). 152 OPPENHIEM, supra note 121, at 342; LORD MCNAIR, LAW OF TREATIES 405-8 (1961) [hereinafter ‘MCNAIR’]. 153 J.L. BRIERLY, THE LAW OF NATIONS 256 (1955) [hereinafter ‘BRIERLY’]. 154 Marthite Convention, supra note 147, Preamble. 155 Compromis, ¶ 9. 156 Marthite Convention, supra note 147, art. 4(d) limits the sale of Marthite outside Reverentia and Agnostica except when supply yields the demand by 125% for tradition practitioners.
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2) Agnostica’s unilateral termination cannot be justified according to the Doctrine of
Fundamental Change of Circumstances.
The approach of the application of the doctrine of fundamental change of circumstances is to
admit the existence of the doctrine but it severely restricts its scope.157
The doctrine of rebus sic stantibus rests upon the fact whether or not the fulfillment of a
treaty after occurrence of a change in the state of facts would be so injurious and
burdensome158 to at least one of the parties that such party has a right under the law or right
of necessity to terminate the treaty.159 International law regards this doctrine as justifying the
repudiation of excessively burdensome obligations160 and it lacks the proper legal
prescription for the very significant change of circumstances in relation to an international
agreement, if those cannot qualify as falling within the legal rubric of rebus sic stantibus.161
The expectations of parties have considerable value in State practice and the termination of a
treaty is not the only proper effect of invocation of a change of circumstances but, depending
upon the expectations of the parties, there can be suspension or limitation of performance.162
However, a party cannot unilaterally renounce treaty obligations163 unless there is explicit
157 Free Zones of Upper Savoy and the District of Gex, 1932 P.C.I.J. (ser. A/B) No. 46 (Aug. 19) at 156 [hereinafter ‘Free Zones Case’]. 158 William W. Bishop, Jr., The Permanence of Treaties, 22 A.J.I.L. 89, 102 (1928). 159 Id.; WILLIAMS, ASPECTS OF MODERN INTERNATIONAL LAW, 94 (1939). 160 SINCLAIR, supra note 149 at 192-6; CAHEIR, supra note 149, 168. 161 A. E. Boyle, The G/N Case: New Law in Old Bottles, Symposium: The Case Concerning the G/N Project, 8 Y.B.I.E.L. 13 (1997). 162 HACKWORTH, DIGEST OF INTERNATIONAL LAW, 429 (1943) [hereinafter ‘HACKWORTH’]. 163 Sir Humphrey Waldock, Second Report on Law of Treaties, Y.I.L.C 84 (1963).
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provision for unilateral termination or an express consent of the other parties concerned164
and a change of circumstances may be invoked even if it was not totally unforeseeable, the
parties may be aware that there is a possibility of change.
The effect of change of circumstances can be related to the specific expectations of the
parties as implied by their knowledge of the legislative basis of the agreement.165
In Free Zones,166 the right to invoke the clause as a ground for the extinction of treaties was
recognised, but Russia's claim to unilaterally to denounce a treaty was rejected.167 The effect
of the change is radically to transform the scope of obligations still to be performed under the
treaty.168
I.LC’s definition of the fundamental change of circumstances169 contains a series of limiting
conditions. a) The change must be of circumstances existing at the time of the conclusion of
the treaty; b) it must be a fundamental one; c) it must also be one not foreseen by the parties;
d) the existence of those circumstances must have constituted an essential basis of the
consent; and, e) the effect of the change must be radically to transform the extent of
obligations still to be performed under the treaty.
Agnostica does not fulfil any of those conditions as the object of the treaty, which is regard
for traditional Reverentian medicine, has not changed. Those circumstances exist as it did in
164 HACKWORTH, supra note 162. 165 BRIERLY, supra note 153; CHESNCY HILL, THE DOCTRINE OF REBUS SIC STANTIBUS IN INTERNATIONAL LAW, (1934). 166 Free Zones Case, supra note 157. 167 L.C. GREEN, INTERNATIONAL LAW THROUGH THE CASES, 764 (1959). 168 Report of the I.L.C., Y.B. INT’L L. COMM’N 86 (1966).
169 Id.
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1938 and in no way radically transform Agnostica’s obligations. Agnostica’s obligations to
Reverentia under the Marthite Convention remain intact.
The Marthite Convention makes provision for a scenario wherein other uses of Marthite can
be catered to along with its traditional uses.170 Agnostica cannot claim that commercial
significance is an unforeseen condition and in any case, the scope and extent of Agnostica’s
obligations remain exactly the same.
When it can be established that the treaty would have been concluded even under the changed
circumstances, there can be no case of invoking the clause.171
The I.C.J in Fisheries,172 noted when Iceland claimed owing to changed circumstances the
Notes concerning fishery limits exchanged in 1961 are no longer applicable, not only has the
jurisdictional obligation not been radically transformed in its extent; it has remained precisely
what it was in 1961, akin to the present instance.
In Gabčĭkovo,173 the Court did not accept that argument of Hungary that individually or
collectively, the effect of changed circumstances would radically transform the extent of
obligations to be performed. The changes must be completely unforeseen and not expected by
the parties. In pertinence, the Court in Fisheries Case said that development of new scientific
advancements is not unforeseeable while dismissing the claim of Iceland.174 Therefore, it can
170 Marthite Convention, supra note 147, art. 4, ¶ d. 171 Report of the I.L.C., Y.B. Int’l L. Comm’n 140 (1963). 172 Anglo-Norwegian Fisheries Case (U.K. v. Nor.) 1951 I.C.J. 117, 132 (Jan. 18). [hereinafter ‘Fisheries Case’]. 173 Gabčĭkovo-Nagymaros Project (Hung. v. Slov.), 1997 I.C.J. 7 (Apr. 9) [hereinafter ‘Gabcikovo’]. 174 S.A. Tiewul, The Fisheries Jurisdiction Cases (1973) and the Ghost of rebus sic stantibus, 6 N.Y.U. J.Int’l. L. Pol’y 554-556 (1973).
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be inferred that discovery of new properties of Marthite cannot be completely unforeseen and
in any case, do not transform Agnostica’s obligations.
B. AGNOSTICA BREACHED ITS OBLIGATIONS BY ENTERING INTO AN AGREEMENT WITH
BAXTER INTERNATIONAL.
1. Agnostica breached its obligations under the V.C.L.T.
Agnostica immediately leased to Baxter International all Marthite mining facilities after
unlawfully denouncing the Marthite Convention, in spite of Reverentia’s refusal to terminate
the treaty. V.C.L.T. lays down procedural safeguards with regard to unilateral termination.
Article 56(2) in relation to denunciation of or withdrawal from a treaty containing no
provision regarding termination, denunciation or withdrawal, says in relevant part that a party
shall give not less than twelve months' notice of its intention to denounce or withdraw from a
treaty. The article is thus confined to two clear and simple rules. A treaty may be terminated
or a party may terminate its own participation in a treaty by agreement in two ways: (a) in
conformity with the treaty, and (b) at any time by consent of all the parties.175 Agnostica is
clearly in breach of the above obligation and hence, the unilateral termination should be
deemed unlawful.
Article 65 lays down the procedure with respect to invalidity, termination of the operation of
the treaty. The first part imposes a duty to notify the opposite party of the claims of the party
terminating the treaty and reasons thereof.
The procedural guidelines of V.C.L.T are fundamental to application of the provisions of the
present part dealing with the invalidity, termination or suspension of the operation of
175 O DÖRR AND K SCHMALENBACH, VIENNA CONVENTION ON THE LAW OF TREATIES: A COMMENTARY 544 (2012) [hereinafter ‘O DÖRR’].
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treaties.176 Some of the grounds upon which treaties may be terminated or suspended under
those sections, if allowed to be arbitrarily asserted in face of objection from the other party,
would involve real dangers for the security of treaties.177 These dangers were, they felt,
particularly serious in regard to claims to denounce or withdraw from a treaty by reason of an
alleged breach by the other party or by reason of a fundamental change of circumstances.178
2. Agnostica breached its obligations under the Marthite Convention.
Article 4 of the Marthite Convention clearly says that, the Reverentian Marthite Trust
(R.M.T.), a State-owned Reverentian corporation shall thereupon become the exclusive
owner of Marthite.179 Agnostica, in spite of Reverentia’s repeated refusal to denounce the
Marthite Convention unlawfully terminated the treaty and leased all mining rights belonging
to R.M.T to Baxter International. This act is clearly against the object and purpose of the
treaty and in clear breach of Article 4 of the Marthite Convention.
176 John Fischer Williams, The Permanence of Treaties Source, 22 A.J.I.L. 1, 89 (1978). 177 O DÖRR, supra note 175; J.B SCOTT, THE HAGUE COURT REPORTS 317-318 (1916). 178 Id. 179 Marthite Convention, supra note 147, Preamble.
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IV. REVERENTIA’S REMOVAL OF THE SOFTWARE IN THE MARTHITE EXTRACTION
FACILITIES WAS CONSISTENT WITH INTERNATIONAL LAW.
Reverentia’s removal of the software in the Marthite extraction facilities was consistent with
international law. It is a proportional and lawful counter measure in international law.
Judicial decisions, state practice and doctrine confirm the proposition that countermeasures
meeting certain substantive and procedural conditions may be legitimate.180 As provided
under Article 22 of the ILC Articles on State Responsibility181, the wrongfulness of an act of
a State not in conformity with an international obligation to another State is precluded if and
to the extent that the act constitutes a countermeasure taken against the latter State in
accordance with Chapter 2 of part 3.182
Agnostica’s unlawful claim for unilateral termination of the Marthite Convention is a
violation of international law. Such a violation gives Reverentia the right to take a lawful
countermeasure as per the law of counter measures. Reverentia’s act of removal of software
is a way of self help in response to a breach as mandated by the law on countermeasures.183
180 E. ZOLLER, PEACETIME UNILATERAL REMEDIES: AN ANALYSIS OF COUNTERMEASURES 179–189 (1984); O. Y. ELAGAB, THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN INTERNATIONAL LAW 227–241 (1988); L.-A. SICILIANOS, LES REACTIONS DECENTRALISEES A L’ILLICITE: DES CONTRE-MESURES A LA LEGITIME DEFENSE 501–525 (1990); D. ALLAND, JUSTICE PRIVEE ET ORDRE JURIDIQUE INTERNATIONAL: ETUDE THEORIQUE DES CONTRE-MESURES EN DROIT INTERNATIONAL PUBLIC (1994). 181I.L.C. Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N. Doc. A/56/10 (2001), art.1 [hereinafter ‘A.R.S.I.W.A.’]. 182R. Ago, Le délit international, 68 RECUEIL DES COURS 415 (1947); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27); Case Concerning the Air Service Agreement of 27 March 1946 (Fr. v. U.S.A.) 1978, 18 R.I.A.A. 416 [hereinafter ‘Air Service Agreement’]. 183 E. DE VATTEL, THE LAW OF PRINCIPLES, OR THE PRINCIPLES OF LAW OF NATURE 342 (1844).
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In the Gabicikovo Case,184 I.C.J. clearly accepted that countermeasures might justify
otherwise unlawful conduct taken in ‘response to a previous international wrongful act’ of
another State and directed against that State,’185 provided certain conditions are met. Similar
recognition of the legitimacy of measures of this kind in certain cases can be found in arbitral
decisions, in particular the Naulilaa186, the Polish Colonies case 1949187, Cysne (1928)188 and
Air Service Agreement.189
Also, there is no requirement that States taking countermeasures should be limited to
suspension of performance of the same or a closely related obligation.190 However, the
requirement of proportionality and necessity are to be noted.191
Reverentia’s actions fulfil the requirement of legal countermeasures as given in the I.L.C
articles.192
Article 49 lists prerequisites which must be fulfilled by the State which is taking the
countermeasure.
184 Gabčĭkovo, supra note 173. 185 Report of the I.L.C., Y.B. INT’L L. COMM’N 2 (2001), ¶ 77. 186 Naulilaa Arbitration (Portugal v. Germany) 1928, 2 R.I.A.A. 1025. 187 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory case 1932 P.C.I.J. 3 (ser. A/B) No. 44 (Feb. 4). 188 Cysne Case (Port. v. Germ.) 1928, 2 R.I.A.A. 1052. 189 Air Services Agreement, supra note 182. 190 William Riphagen, The Sixth Report of the Special Rapporteur on State responsibility, Art. 8 of Part Two of the Draft Articles, 2 Y.B. INT’L L. COMM’N 10 (1985) Document A/ CN.4/389. 191 A. R.I.S.W.A., supra note 181, arts. 49, 51, 52. 192 Id.
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a. It must be taken in response to a previous international wrongful act of another State
and must be directed against that State in order to induce that State to comply with its
obligations.193
This requirement has been fulfilled by Reverentia as the impugned order was issued
after Agnostica’s unilateral termination of the Marthite Convention despite
Reverentia’s persistent objections.194 Agnostica did not adhere to any procedural
requirements that are necessitated by the V.C.L.T.195
b. Secondly, the countermeasure should be limited to the non-performance196 for the
time being of international obligations of the State taking the measures towards the
responsible State.197
This condition has also been satisfied by Reverentia as removal of software and
personnel is temporary and with the resources Reverentia processes, it could be
restored any intended time. Furthermore, Agnostica claimed that they can easily
replace the experts that Reverentia has withdrawn. 198
c. Thirdly, a countermeasure shall be taken in such a way as to permit the resumption of
performance of the obligation in question.199
193 Id., at art. 49(1). 194 Compromis, ¶ 15. (President Nuvallus clearly stated that Reverentia sees no reason to end The Marthite Convention. Moreover, he rejected the premise of Agnostica’s proposal: it is Agnostica’s economic interests that have changed, not the properties of Marthite.”) 195 V.C.L.T., supra note 20, art.67. 196 Gaetano Arangio-Ruiz, Fourth Report On State Responsibility, 2 Y.B. INT’L L. COMM’N. 1 (1992) Document A/CN/4/444. 197 A.R.I.S.W.A., supra note 181, art. 49(2). 198 Compromis, ¶ 18. 199 A.R.I.S.W.A., supra note 181, art. 49(3).
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The impugned order involving removal of software is only temporary in nature and
Reverentia can ensure operation of RMT. Thus this requirement is also being fulfilled
by Reverentia in taking a lawful countermeasure against the breach of international
obligations by Agnostica. Reverentia’s act of removal of software, as a
countermeasure are intended as instrumental—and it is taken with a view to procuring
cessation of and reparation for the internationally wrongful act of Agnostica.
Reverentia has the technology to run the Marthite facilities and the countermeasure was
intended to be enforced only till such time as Agnostica respects its treaty obligations.
President’s order clearly signifies this aspect.200
The removal of software was preceded by a demand by the injured Reverentian State that the
Agnostica comply with its obligations201 and was accompanied by an offer to negotiate202 as
required.203
Countermeasures involve conduct taken in derogation from a subsisting treaty obligation but
justified as a necessary and proportionate response to an internationally wrongful act of the
State against which they are taken.204 They are essentially temporary measures, taken to
achieve a specified end, whose justification terminates once the end is achieved.205
200 Compromis, ¶ 17. 201 A.R.S.I.W.A, supra note 181, Part II. 202 Compromis, ¶ 17. 203 A.R.S.I.W.A, supra note 181, art. 55, ¶ 2. 204Cannizzaro, Enzo, The Role of Proportionality in the Law of International Countermeasures, E.J.I.L 889 (2001). 205 William Riphagen, The Sixth Report of the Special Rapporteur on State responsibility, Art. 8 of Part Two of the Draft Articles, 2 Y.B. INT’L L. COMM’N. 10 (1985) Document A/ CN.4/389.
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Agnostica has alleged that Reverentia’s act of removal of software has crippled Marthite
mining and distribution disproportionately but the basic objective of the countermeasure to
apply political and economic pressure upon the governing elite of a country to persuade them
to conform to international law is sanctioned by law.206
The WTO in its 2005 report Mexico – Taxes on Soft Drinks 207, noted considered that the
phrase “to secure compliance” in article XX(d) was to be interpreted as meaning “to enforce
compliance.”208
In the Air Service Agreement case209, the issue of proportionality was examined in some
detail. In that case there was no exact equivalence between France’s refusal to allow a change
of gauge in London on flights from the west coast of the United States and the United States’
countermeasure which suspended Air France flights to Los Angeles altogether. The tribunal
nonetheless held the United States measures to be in conformity with the principle of
proportionality because they “do not appear to be clearly disproportionate when compared to
those taken by France”.
Similarly, the unilateral termination of the Marthite Convention and Agnostica’s immediate
deal with Baxter clearly threatened Reverentia’s interests in the mining and use of Marthite
206General Comment 8, The relationship between economic sanctions and respect for economic, social and cultural rights, U.N. Doc. E/C.12/1997/8 (1997). 207 Appellate Body Report, Mexico–Tax Measures on Soft Drinks and Other Beverages, WT/DS308/AB/R, DSR 2006: I, (Mar. 24, 2006). 208Id. (The panel noted that Mexico’s invocation of article XX(d) of GATT 1994 as a justification for the measures at issue by invoking the articles finally adopted by the International Law Commission in 2001, which it considered a codification of C.I.L. on the conditions imposed on countermeasures). 209 Air Service Agreement, supra note 182.
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and hence Reverentia is justified in taking a serious measure in order to ensure compliance by
Agnostica.
Agnostica is liable to make reparations for having violated international law and having
caused an internationally wrongful act by breaching the Marthite Convention as provided
under the I.L.C., Articles.210 Reparation, as a principle of international law, has been
established by international practice and has been accepted as an appropriate remedy by
various jurisdictions as C.I.L.211. The State of Agnostica is obligated for Compensation212 for
the damage caused to Reverentia by the pre-mature and wrongful termination of the Marthite
Convention by Agnostica which in fact remained in effect till March 1, 2013. Agnostica is
also obligated for Satisfaction213 in the form of an acknowledgment of the breach, and an
expression of a formal apology for the internationally wrongful act it has caused.
210 A.R.I.S.W.A., supra note 181, art. 31. 211Chorzow Factory Case (Germany v. Poland) 1927 P.C.I.J. (Ser. A) No. 9 (Sept. 13); Case of Pulp Mills on River Uruguay (Argentina v. Uruguay) 2010 I.C.J. 14 (Apr. 20); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (June 16); M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) 1988 I.T.L.O.S. Reports 24 (March 11); CMS Gas Transmission Company v Argentine Republic ICSID Case No. ARB/01/8 (25 Sep 2007); Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award (24 July 2008). 212 A.R.I.S.W.A., supra note 181, art. 36. 213 A.R.I.S.W.A., supra note 181, art. 37.
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CONCLUSION AND PRAYER
For the foregoing reasons, the State of Reverentia, Respondent, respectfully requests the
Court to adjudge and declare that:
I. Reverentia’s support for the referendum in East Agnostica is consistent with
international law;
II. East Agnostica’s secession from Agnostica and integration into Reverentia are
consistent with international law, and in any event, this Court should not order the
retrocession of East Agnostica to Agnostica against the expressed will of its
population;
III. The Marthite Convention was in effect until 1 March 2013, and Agnostica breached
that Convention; and
IV. Reverentia’s removal of the software in the Marthite extraction facilities was
consistent with international law.
All of which is respectfully submitted.
X
Agents for the Respondent