MEMORIAL FOR RESPONDENT REVERENTIA

FACTS
The Reverentians and the Agnosticans were two ethnic groups. In 18th century, their
lands are administered into two colonies, based on the linguistic, cultural and religious
differences.
In 1925 those colonies gained independence and formed the Federal Republic of
Agnostica and the State of Reverentia.
Reverentia is a unitary state, while Agnostica has two provinces, which have sovereignty
over cultural affairs and education. Agnosticas Constitution allows dissolution by a
three-quarters vote of the federal parliament.
Nearly 30% of Agnosticas are ethnic Reverentians, called Agnorevs. Despite the
continuous attempts of the Reverentia to encourage them to return over 85 % of them
decided to remain citizens of Agnostica.
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. On 14 April 1938, Agnostica and Reverentia concluded a
bilateral treaty, called The Marthite Convention. Marthite has always been a core
ingredient in Reverentian traditional medicine but is virtually unknown outside the
Thanatosian Plains until the ILSA scientific report in 2011 which reported that high doses
of Marthite were over 90% effective in treating previously untreatable infant and earlychildhood diseases, afflicting tens of thousands of children worldwide.
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.
RMT is to sell only to traditional practitioners located in the territory of the State Parties
at fixed price. RMT may not sold production outside Agnostica and Reverentia unless the
yearly supply exceeds demand from traditional practitioners by 25%. If the demand is
exceeded by 125% the salt may be sold without restriction on price, purchaser, or
intended use.
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.
On 1 February 2012, Agnostica proposed Reverentia to terminate the Marthite
Convention, due to the fundamental change in the science, offering reimbursement and
compensation. Reverentia rejected.

On 2 April 2012 in light of Reverentias refusal to accept a mutually-beneficial settlement

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

ISSUES
ISSUE 1: WHETHER REVERENTIAS SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA IS CONSISTENT WITH INTERNATIONAL LAW;
ISSUE 2: WHETHER EAST AGNOSTICAS 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;
ISSUE 3: WHETHER THE MARTHITE CONVENTION WAS IN EFFECT
UNTIL 1 MARCH 2013, AND AGNOSTICA BREACHED THAT CONVENTION;
AND
ISSUE 4: WHETHER REVERENTIAS REMOVAL OF THE SOFTWARE IN
THE MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.

ARGUMENTS
ISSUE:
1. WHETHER REVERENTIAS SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA WAS CONSISTENT WITH INTERNATIONAL LAW.
A. YES! Reverentias support for the Agnorevs in East Agnostica leading
up to the referendum did not violate the duty of non-intervention.
Reverentia did not intervene in Agnosticas affairs because it never
extended military, logistical, economic, or financial support for East
Agnosticas referendum of independence. Violations of the principle of
non-intervention have been limited by this Court primarily to specific
situations such as military intervention, occupation, or furnishing of
assistance to armed rebel movements. In Nicaragua v. United States
the Court specified the types of activities constituting illegitimate
intervention, such as the use of force, occupation, military activities, or
assisting armed rebel groups by extending financial support, training,
supply of weapons, intelligence and logistic support.

B. Reverentia neither threatened nor utilized force against Agnostica

either before or after East Agnosticas referendum of independence.
In Nicaragua vs. United States, military movement that does not cross
into another states territory is not considered a threat against that state
like when the United States placed troops near the Nicaraguan border
and deployed vessels off the Nicaraguan coast during military
exercises. This Court did not find these actions, which did not cross
into Nicaraguan territory, a threat or use of force.
In this case, Reverentias acts remained within its borders and had
explicit peaceful intensions, hence, they were not a threat or use of
force against Agnostica and thus consistent with international law.
Reverentias extension of support to the referendum is not an act of
aggression as it does not involve the use of force or an armed attack in
the territory of Agnostica. The UNGA Res. on Aggression 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.
ISSUE:
2.

WHETHER EAST AGNOSTICAS 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
A. YES. The right of a people to exercise self-determination has been
repeatedly recognized by this Court and various international
instruments.1 A peaceful referendum, held as a last resort, is a lawful
way for a people to realize its right to external self-determination. The
Kosovo Advisory Opinion demonstrates that declarations of
independence are not per se prohibited under international law2 and
such declarations have been recognized in instances including the
breakup of the former Yugoslavia.3 Here, the Agnorevs pursued their
right to external self-determination through peaceful secession only
after the federal political process failed to afford them just and
effective rights.

1 See U.N. Charter art. 1; International Covenant on Civil and Political Rights, art. 1, 1.
2 Accordance with International Law of the Unilateral Declaration of Independence in Respect
of Kosovo, 2010 I.C.J. 403, 423 123 (Jul. 22)
3 Alain Pellet, The Opinions of the Badinter Arbitration Committee: A second breath for the selfdetermination of peoples, 3 E.J.I.L. 178 (1992).

WHETHER THIS COURT SHOULD NOT ORDER THE

RETROCESSION OF EAST AGNOSTICA TO AGNOSTICA
AGAINST THE EXPRESSED WILL OF ITS POPULATION
B. Even if the Agnorevs did not have a right to secede from Agnostica,
forcing them to re-join Agnostica would violate their right to selfdetermination. This Court may not order remedies that violate
international law, and international law adapts to facts on the ground.
Under the effectivity principle, international law may well adapt to
recognize a political and/or factual reality, regardless of the legality of
the steps leading to its creation. In other words, the existence of a
positive legal entitlement is quite different from a prediction that the
law will respond after the fact to a then existing political reality. These
two concepts examine different points in time. In the context of
secession, the question of whether a people contemplating secession
has the right to secede is different from how the law will react once a
people have already seceded.
C. Finally, even if this Court were to find the Integration Agreement
between East Agnostica and Reverentia invalid, East Agnostica still
became an independent state. As a non-party to this dispute, its rights
cannot be adjudicated here. In East Timor, for example, this Court
declined to exercise jurisdiction over an alleged breach of international
law by Australia because a necessary third party, Indonesia as the de
facto authority over East Timor, had not consented to the Courts
jurisdiction and was not present in the case.4 Here, if this Court does
not enforce the Integration Agreement, it still cannot order retrocession
as a necessary party, East Agnostica, has not consented to this Courts
jurisdiction.
ISSUE
3.

WHETHER THE MARTHITE CONVENTION WAS IN EFFECT UNTIL 1

MARCH 2013
YES, the Marthite Convention was still in effect until March 1, 2013 for the
following reasons:
A. Agnosticas 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 it relates to a fact which

4 East Timor (Port. v. Austl.), 1991 I.C.J. 84 (Feb. 22)

was assumed by that State to exist at the time when the treaty was
concluded.5
The error may lead to the nullity of the treaty if one speaks of an error
de facto6 alleged by the State to have existed at the moment the treaty
was concluded and forming an essential basis of its consent.7 However,
this doctrine does not satisfy the conditions in the present case.
The treaty was entered into out of respect for traditional Reverentian
medicine, emphasizing the lack of commercial significance8 to Marthite
which Agnostica claims was erroneously accepted by both the parties.
Although Marthite was virtually unknown outside the Thanatosian
plains,9 the treaty itself included provision for such commercial use up
to 25%.10 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.
B. Agnosticas 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.11
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 burdensome12 to at least one of the
parties that such party has a right under the law or right of necessity to
terminate the treaty.13 International law regards this doctrine as
justifying the repudiation of excessively burdensome obligations14 and
5 V.C.L.T., art. 65
6 L. Oppenheim, International Law, 1955, p. 342.
7 J.L. Brierly, The Law of Nations, 1955, p. 256. Hereafter referred to as Brierly.
8 1938 Marthite Convention, see Annex.
9 See Compromis, par. 9.
10 Marthite Convention, art. 4(d) limits the sale of Marthite outside Reverentia and Agnostica
except when supply yields the demand by 125% for tradition practitioners.
11 Free Zones of Upper Savoy and the District of Gex, Aug. 19, 1932 P.C.I.J. (ser. A/B) No. 46,
p. 156.
12 William W. Bishop, Jr., The Permanence of Treaties, 22 A.J.I.L. 89, 102 (1928).
13 Ibid.
14 Sinclair, The Vienna Convention on the Law of Treaties, 1984, p. 192-6.

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.15
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.16
However, a party cannot unilaterally renounce treaty obligations17
unless there is explicit provision for unilateral termination or an express
consent of the other parties concerned18 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.19
In Free Zones,20 the right to invoke the clause as a ground for the
extinction of treaties was recognized, but Russia's claim to unilaterally
to denounce a treaty was rejected.21 The effect of the change is radically
to transform the scope of obligations still to be performed under the
treaty.22
I.LCs definition of the fundamental change of circumstances23 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.

15 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).
16 Hackworth, Digest of International Law, 1943, p. 429. Hereafter referred to as Hackworth.
17 Sir Humphrey Waldock, Second Report on Law of Treaties, Y.I.L.C 84 (1963).
18 Hackworth, ibid.
19 Brierly, p. 256.
20 See note 8 above.
21 L.C. Green, International Law Through the Cases, 1959, p. 764.
22 Report of the I.L.C., Y.B. INTL L. COMMN 86 (1966).
23 Ibid.

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 in1938 and in no way
radically transform Agnosticas obligations. Agnosticas 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.24
Agnostica cannot claim that commercial significance is an unforeseen
condition and in any case, the scope and extent of Agnosticas
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.25
The I.C.J in Fisheries,26 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 Gabkovo,27 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.28 Therefore, it can be inferred that discovery of new
properties of Marthite cannot be completely unforeseen and in any case,
do not transform Agnosticas obligations.
WHETHER AGNOSTICA BREACHED ITS OBLIGATIONS
UNDER THE MARTHITE CONVENTION
YES, Agnostica breached its obligations under the Marthite Convention.
C. Agnostica breached its obligations under the V.C.L.T.

24 Marthite Convention, art. 4, par. d.

25 Report of the I.L.C., Y.B. Intl L. Commn 140 (1963).
26 Anglo-Norwegian Fisheries Case (U.K. v. Nor.) Jan. 18, 1951 I.C.J. 117, 132.
27 Gabkovo-Nagymaros Project (Hung. v. Slov.), April 9, 1997 I.C.J. 7.
28 S. A. Tiewul, The Fisheries Jurisdiction Cases (1973) and the Ghost of rebus sic stantibus, 6
N.Y.U. J.Intl. L. Poly 554-556 (1973).

Agnostica immediately leased to Baxter International all Marthite

mining facilities after unlawfully denouncing the Marthite Convention,
in spite of Reverentias 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.29
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 treaties.30 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.31 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.17832
D. 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.33 Agnostica, in
spite of Reverentias 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
29 O. Drr and K. Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary,
2012, p.544.
30 J. F. Williams, The Permanence of Treaties Source, 22 A.J.I.L. 1, 89 (1978).
31 Drr, see Note 26. See also. J.B Scott, The Hague Court Reports, 1916, pp. 317-318.
32 Ibid.
33 1938 Marthite Convention, see Annex.

against the object and purpose of the treaty and in clear breach of
Article 4 of the Marthite Convention.
ISSUE
4.

WHETHER REVERENTIAS REMOVAL OF THE SOFTWARE IN THE

MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.
YES, Reverentias removal of the software in the Marthite extraction facilities
was consistent with international law.
A. Under international law, a treaty should be interpreted in good faith in
accordance with the ordinary meaning of its terms in their context and
in the light of its object and purpose.34 A facility is generally defined as
a building or a large piece of equipment built for a specific purpose.35
Technology, conversely, is defined as the application of scientific
knowledge for practical purposes, especially in industry.36 The mining
extraction software aligns far better with the definition of technology,
being specifically designed to increase extraction quantities in the
Marthite-mining industry. The software was therefore not part of the
mining and mining-support facilities37 but the technology38
Reverentia agreed to provide on an ongoing basis.
Other provisions in the Convention support this conclusion. The
description of the facilities, for example, merely denoted the specific
geographical location of each building along with the proximity of the
corresponding Marthite reserves.39 Surely if the software was
included within the meaning of facility, it would have been mentioned
in the description of each. Moreover, an interpretation that would
require Reverentia to give up its unique intellectual property, likely
advanced and further developed after execution of the Convention, for
a nominal 100 francs hardly seems like an interpretation in good
faith.40
Accordingly, title to the facilities transferred under Article 2, but not
title to the software. Reverentia was thus entitled to retrieve the
software after suspending the Treaty so that Agnostica was not able to
further profit from its breach.41 Even if this Court were to find the

34 VCLT 31 (1); see also Competence of the General Assembly for the Admission of a State to
the United Nations, Advisory Opinion, 1950 I.C.J. 4, 8 (Mar. 3).
35 See e.g., OXFORD ENGLISH DICTIONARY, 27 (7th ed. 2013).
36 See e.g., OXFORD ENGLISH DICTIONARY, 27 (7th ed. 2013).
37 Compromis, Annex.
38 Id.
39 Clarifications, 5.
40 Compromis, Annex.
41 VCLT art. 60(1).

software within the meaning of facilities, however, this transfer would

have been conditioned on Agnosticas performance of its treaty
obligations. Once Agnostica prevented RMTs access to the Marthite
reserves, it failed to meet the requisite conditions for title to transfer.
B. In the case of Gabkovo-Nagymaros, the violation of treaty
obligations, regardless of their materiality, may justify the taking of
countermeasures by an injured State.42
Reverentias removal of the software was a direct response to
Agnosticas prior breach of the Marthite Convention.43 Any assertion
of wrongfulness in regards to Reverentias removal of the software,
therefore, is precluded because the act was a valid, non-forcible
countermeasure.
To comply with the requirements of international law, a
countermeasure must above all be taken with the intention of bringing
a state back into compliance with its legal obligations,44 and it cannot
involve the use of force.45 Accordingly, to the extent possible,
countermeasures should be temporary in character and reversible in
their effects.46 These requirements are satisfied here. Reverentia
removed the software to prevent Agnostica from profiting from its
breach and to encourage Agnostica to respect its treaty obligations.47
Removing the software also cannot be deemed a forcible action within
the meaning of the U.N. Charter, because removing the software did not
destroy any government property. Where an action and its results on
another states governmental property are reversible, they cannot be
considered destruction, which is by nature irreversible.48

42 Gabkovo-Nagymaros, 106.
43 Compromis, 17-18.
44 ASR art. 49(1). See ICSID, Archer Daniels Midland Company and Tate & Lyle Ingredients
Americas, Inc. v. the United Mexican States, Case No. ARB(AF)/04/05, Award, 21 November 2007,
121 (taking articles 22 and 49 of the ASR as an authoritative statement of customary international
law on countermeasures).
45 ASR art. 52.
46 ASR art. 49(2),(3).
47 Compromis, 18.
48 C.f. Guyana v. Suriname, 47 I.L.M. 166 446 (Perm. Ct. Arb. 2007).