GOOD AFTERNOON AGAIN….

YOUR EXCELLENCY(S) I WILL NOW CONTINUE PRESENTING THE APPLICANTS

REQUESTS TO BE ADJUDGED AND DECLARED OF, BY THIS COURT:
ISSUES: 3&4 OR c&d
ISSUE C: The Marthite Convention ceased to be in effect as of April 2, 2012….. Agnostica did not breach the
Convention.
ISSUE D: The Reverentia’s removal of the software at the Marthite Software at the marthite extraction facilities is
in violation of the international law.
BACKGROUND OF THE MARTHITE CONVENTION
The MARTHITE CONVENTION was concluded by Agnostica and Reverentia on April 14, 1938 primarily because of
the Marthite (a mineral________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
_____________________________________________________________________________________________
____________________________________________________________),that can be found along/between the
borderlines of both Reverentia and East Agnostica. Moreover, for the purposes and objectives that:
(a) desiring to fortify the friendship between the two nations;
(b) recognizing the significance of the mineral Marthite to the traditions of medical practice of Reverentians:
(b) respecting and honoring those ancient traditions
(d) wishing to ensure reliable supply of the Marthite to those for whom it holds cultural significance
(e) at the same time recognizing that Marthite is without significant commercial value outside its traditional
uses…..
First issue to be discussed:
Upon the consent of both states to be bound by this treaty/ convention, both states cannot as they wishes free
themselves from the obligation of such treaty or convention. (principle of pacta sunt servanda in relation to
principle of good faith under the VCLT or a well-known principle of international law).
Nevertheless, the principle allows some exceptions:
material breach
supervening impossibility of performance
fundamental change of circumstances
obsolescence necessity
force majeure…………………………..to which state can ignore its treaty obligation and that a treaty cease to take effect
the applicant The applicant submit that it will limit its argument to most relevant exceptions which are material
breach and fundamental changed of circumstances as prevalent in the case at hand and as allowed by the VCLT.
Since, the Marthite Convention did not provide for the specific termination provisions, it may be terminated only
on the grounds listed in Part V of the which represent customary international
The applicant also finds that a State can therefore set aside its obligations to a treaty or convention when
it finds a ground which invalidates a treaty. Moreover, Article 48 of the VCLT provides that a State invalidate its
consent to be bound by a treaty on the basis of an error relating “to a fact or situation”, which has been assumed
to exist at the time of conclusion and formed an essential basis of the State’s consent to be bound by the treaty
Article 48 of the VCLT codifies customary law. Therefore, the applicant finds it necessary to included “error” as one
of its argument in making the treaty ineffective.
Agnostica under the rules is entitled to terminate a treaty due to material breach
Art. 60 (1), VCLT outlines that a material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty. A material breach is “the violation of a
provision essential to the accomplishment of the object or purpose of the treaty.”
What constitute a ‘material breach’ is a case-to-case bases or depends on the precise facts and
circumstances of each case. But with accordance to the international law, it presents a deliberate violation of
obligations which destroys the very object and purpose of the treaty. This right is granted or an injured party has
the right to take this action arises under the law of treaties independently of any right of reprisal, the principle
being that a party cannot be called upon to fulfil its obligations under a treaty when the other party fails to fulfil
those which it undertook under the same treaty. This right would, of course, be without prejudice to the injured
party's right to present an international claim for reparation on the basis of the other party's responsibility with
respect to the breach.
 The object and purpose of a treaty are to be interpreted in conformity with the general rules of
interpretation established in international law. This Court has always accepted the preamble of a given treaty as
guidance for its object and purpose
Marthite Convention has for its preamble, its main purpose is to ensure reliable supply of
Marthite to those for whom it holds cultural significance and acknowledging the fact it is without commercial value
outside Thanatosian Plains. This stipulation is guaranteed by prohibiting Marthite sales outside Reverentia and
Agnostica, unless supply in any given calendar year is 25% higher than local demand . Also, RMT is allowed to sell
Marthite without any restrictions only if the mined Marthite is in excess of 125% of demand from traditional
practitioners.

In breach of the Convention’s provisions, within weeks after the ILSA Report, RMT sold 75% of
the total quantity of mined Marthite to pharmaceutical companies for as much as ten times its maximum
permitted sale price, while traditional users suffered shortages and price increase. Definitely, these facts show it
runs inconsistent with the object and purpose of the convention entitling the Agnostica to invoke the breach as a
ground for termination.

Alternatively, the State can terminate the treaty on the concept of “fundamental changed of circumstances”
The VCLT outlines that when there is a fundamental change circumstances a party can terminate
a treaty. Hence, the problem is how to define the principle, rebus sic stantibus, in a manner which will provide
adequate safeguards against its arbitrary application; at the same time, it should not be restricted to such an
extent as to render it ineffective . So the VCLT rather to define the principle instead provided for its elements or
condition on how it can be invoke: A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:
(a) The existence of those circumstances constituted an essential basis of the consent of the parties to be bound
by the treaty; and
(b) The effect of the change is radically to transform the scope of obligations still to be performed under the treaty
.
In case Fisheries Jurisdiction the ICJ expanded that a party may invoke a fundamental change in
circumstances
(a) if the change in the circumstances was unforeseen by the parties,
(b) those circumstances constituted an essential basis of consent of the parties, to be bound by the treaty and
(c) the change radically transformed the performance of the obligations of the parties .

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

At the time the Convention was concluded, Marthite was virtually unknown
outside the Thanatosian plains and it had significance only for the traditional users. This is evident from the
Convention, which stipulates that Marthite was without significant commercial value outside the Thanatosian
plains and the only demand which the parties expected outside the Thanatosian plains was from the small
diaspora communities of ethnic Reverentians .
Hence, its medical use outside of the scope of traditional medicine had been
unknown and unpredictable for the parties.

b. The significance and the commercial value of Marthite were ‘circumstances’ which constituted the ‘essential
basis for the consent’ of the parties.

It is stipulated in the treaty that “The Federal Republic of Agnostica and the
State of Reverentia, (a) desiring to fortify the friendship between the two nations; (b) recognizing the significance
of the mineral Marthite to the traditions of medical practice of Reverentians on both sides of the border between
the two states; (c) respecting and honoring those ancient traditions; and (e) at the same time recognizing that
Marthite is without significant commercial value outside its traditional uses, have agreed upon the following
articles.
c. The change radically transformed the performance of the obligations under the Convention.
In order for a change to be considered ‘fundamental’, it would suffice if “the
value to be gained by further performance is diminished” or if it results from changes in “the availability of natural
resources.” The discovery of medical use of the Marthite constitutes a fundamental change as it profoundly
transforms the extent of the obligations still to be performed under the treaty. The new found use of the mineral
changes its application and the main purpose of the cooperation between Agnostica and Reverentia, particularly
respecting and honouring the ancient traditions of Reverentia. If the Convention remains applicable, Agnostica
would be obliged to provide its natural resource to RMT for limited distribution amongst traditional practitioners
with price restriction clauses of the Convention instead of providing it to help child saving activities. Due to the
huge international demand for Marthite, Reverentia started selling 75% of the mined Marthite to the international
market , and allowing this radically transformed Agnostica, as its own resources were being exploited for purposes
unforeseen by the parties.

Following these requirements, Agnostica has a right to terminate the Marthite

Convention in accordance with the Doctrine of Fundamental Change of Circumstances. Given all the foregoing,
Prime Minister Moritz’s unilateral declaration on April 2, 2012 to terminate the treaty is both valid and binding,
thus making such date the determinate date that the treaty ceased. Given such, the subsequent actions of
applicant i.e leasing to Baxter, etc. is not a breach of the convention.

i. Or, The Marthite Convention by termination of Agnostica is therefore ineffective by 2 April 2012 on
ground of error committed by Reverentia nullifying the consent of Agnostica to be bound thereof
The VCLT outlines that 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 was assumed by that State to exist at the time when the treaty was
concluded. Error is define as an error relating “to a fact or situation”, which has been assumed to exist at the time
of conclusion and formed an essential basis of the State’s consent to be bound by the treaty to vitiate the consent
of a State to a treaty, an error must relate to a matter constituting an essential basis of its consent to the treaty .

In the case, Agnostica concluded the Marthite Convention under the consideration that the
Marthite is virtually unknown outside the Thanatosian Plains and that it is without significant value outside its
traditional uses. This is clearly deviating from the true intention of the object and purpose of the convention which
serves as an indication of the decisive factors for the consent of both parties . Therefore, the medical use of
marthite constituted an essential condition for the conclusion of the Convention. Consequently, the newly
discovered medical use of the mineral provides a ground for Agnostica to invoke error as grounds to terminate
and declare the convention without effect.

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

Though Agnostica and Reverentia have ratified the 1969 Vienna Convention on the Law
of Treaties (VCLT) in 1983 , hence, Article 4 of the VCLT expressly provided the non-retroactivity of such; The
Marthite Convention was concluded in 1938 making the VCLT not applicable to the present convention as basis of
its validity. Nevertheless, the provisions of the VCLT still be apply but only in so far as they reflect customary
international law .

Under customary international law there are no specific procedural obligations

pertaining to the termination of treaties on the abovementioned grounds . In any event, the Party which seeks to
rely on a custom bears the burden of proving it therefore the burden is on the Respondent to prove that Applicant
failed to observe any procedural requirements.
ISSUE D:

A. Agnostica owned the software thus its removal by Reverentia violated international law
i. The Marthite Convention provides that Agnostica owned the software.
The term ‘technology’ mentioned in Article 1 of the Marthite Convention includes the
‘software’. In interpretation of a treaty, the Vienna Convention of the Law of treaties provides
that the context of the treaty together with any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its interpretation shall be taken
into account.1 The payment by Agnostica to Reverentia of the sum of 100 Swiss francs made the
former the owner of the facilities including the software. In addition, after the execution of the
Marthite Convention, Agnostica was the one maintaining and operating the software which is
one of the factors that made them the owner.
ii. The technology mentioned in Article 1 is include in the facilities owned by Agnostica
Any true interpretation of a treaty in international law will have to take into account all
aspects of the agreement, from the words employed to the intention of the parties and the aims
of the particular document.2 Under Article 2 of the Marthite Convention, all the facilities
described in Article 1 are owned by Agnostica. It is provided in the Marthite Convention that
Agnostica, through its facilities, will be the one to produce the Marthite and Reverentia will be
the one to sell. It was also agreed that Reverentia will pay to Agnostica an annual royalty. With
this being the case, it is clear that the payment of annual royalty by Reverentia to Agnostica is
not only for Marthite deposits but also for the technology used to operate the facilities. Thus, the
‘facilities’ and ‘technology’ is owned by Agnostica.

B. Even after the termination of the Marthite Convention, Agnostica’s ownership over the software
continued.
Under Article 70 of the Vienna Convention on the Law of Treaties, termination of a
treaty under its provisions or in accordance with the present Convention releases the parties
from any obligation further to perform the treaty. However, termination does not affect any
right, obligation or legal situation of the parties created through the execution of the treaty
prior to the date that the termination takes effect. 3 This means that even if the effects of
Marthite Convention cease to exist, the rights of the parties created through the treaty remain
unaffected.
Therefore, Reverentia’s act of removing the software was a violation of the rights of
Agnostica since the rights of Agnostica with regards to ownership over the software continued
and was not affected by the termination of the Marthite Convention.
C. Reventia’s act of removing the software from the facilities constitutes an abuse of rights.
In International law, abuse of rights refers to a State exercising a right either in a way which impedes
the enjoyment by other States of their own rights or for an end different from that of which the right
was created, to the injury of another State.4
Reverentia abused its rights by removing the software from the Marthite mining
facilities owned by Agnostica. The withdrawal of software by Reverentia crippled
the Marthite operations. Reverentia sabotaged the operating systems and other software
upon which the mining system depends. Due to the act of Reverentia, it interrupted Agnostica’s
Marthite operations and it would take months for the latter to fully restore its
operations. Thus, the unlawful taking being constitutive of abuse of rights abhorred by
civilized nations, and having prejudiced not only the property rights of Agnostica, the Marthite
industry and Agnostica’s economy, their locals, and causing unnecessary trouble and difficulty
on the part of the workers directly benefitted by Marthite, it is only proper for
Reverentia to recompense Agnostica for all these troubles and perform all acts as would correct
the mistake by returning or reactivating the software unlawfully withheld from the rightful
owner.
D. REVERENTIA’S REMOVAL OF THE SOFTWARE AT THE MARTHITE EXTRACTION FACILITIES VIOLATED
INTERNATIONAL LAW.
A. Agnostica owned the software thus its removal by Reverentia violated international law
i. The Marthite Convention provides that Agnostica owned the software.
The term ‘technology’ mentioned in Article 1 of the Marthite Convention includes the ‘software’. In
interpretation of a treaty, the Vienna Convention of the Law of treaties provides that the context of the treaty
together with any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation shall be taken into account.1 The payment by Agnostica to Reverentia of the
sum of 100 Swiss francs made the former the owner of the facilities including the software. In addition, after the
execution of the Marthite Convention, Agnostica was the one maintaining and operating the software which is one
of the factors that made them the owner.
ii. The technology mentioned in Article 1 is include in the facilities owned by Agnostica
Any true interpretation of a treaty in international law will have to take into account all aspects of the
agreement, from the words employed to the intention of the parties and the aims of the particular document.2
Under Article 2 of the Marthite Convention, all the facilities described in Article 1 are owned by Agnostica. It is
provided in the Marthite Convention that Agnostica, through its facilities, will be the one to produce the Marthite
and Reverentia will be the one to sell. It was also agreed that Reverentia will pay to Agnostica an annual royalty.
With this being the case, it is clear that the payment of annual royalty by Reverentia to Agnostica is not only for
Marthite deposits but also for the technology used to operate the facilities. Thus, the ‘facilities’ and ‘technology’ is
owned by Agnostica.

B. Even after the termination of the Marthite Convention, Agnostica’s ownership over the software
continued.
Under Article 70 of the Vienna Convention on the Law of Treaties, termination of a treaty under its
provisions or in accordance with the present Convention releases the parties from any obligation further to
perform the treaty. However, termination does not affect any right, obligation or legal situation of the parties
created through the execution of the treaty prior to the date that the termination takes effect.3 This means that
even if the effects of Marthite Convention cease to exist, the rights of the parties created through the treaty
remain unaffected.
Therefore, Reverentia’s act of removing the software was a violation of the rights of Agnostica since the
rights of Agnostica with regards to ownership over the software continued and was not affected by the
termination of the Marthite Convention.
C. Reventia’s act of removing the software from the facilities constitutes an abuse of rights.
In International law, abuse of rights refers to a State exercising a right either in a way which impedes the
enjoyment by other States of their own rights or for an end different from that of which the right was
created, to the injury of another State.4
Reverentia abused its rights by removing the software from the Marthite mining facilities
owned by Agnostica. The withdrawal of software by Reverentia crippled the Marthite operations.
Reverentia sabotaged the operating systems and other software upon which the mining system depends. Due
to the act of Reverentia, it interrupted Agnostica’s Marthite operations and it would take months for the
latter to fully restore its operations. Thus, the unlawful taking being constitutive of abuse of rights
abhorred by civilized nations, and having prejudiced not only the property rights of Agnostica, the Marthite
industry and Agnostica’s economy, their locals, and causing unnecessary trouble and difficulty on the part of
the workers directly benefitted by Marthite, it is only proper for Reverentia to recompense Agnostica for all
these troubles and perform all acts as would correct the mistake by returning or reactivating the software
unlawfully withheld from the rightful owner.