MEMORIAL FOR RESPONDENT REVERENTIA

FACTS: Situated in the Southern Hemisphere, the Thanatosian plains is a landlocked region
which has since time immemorial been home to two ethnic groups – the Reverentians and the
Agnosticans. In the 18th century, their lands are administered into two colonies based on the
linguistic, cultural and religious differences.
The colony of Reverentia functioned as manufacturing and urban trading center while the colony
of Agnostica enjoyed fertile land and abundant mineral resources which served it as a source of
raw materials, usually exporting these products into Reverentia for refining, processing and
onward sale.
Sometime in 1925, those colonies gained independence and formed the Federal Republic of
Agnostica and the State of Reverentia. The former is a unitary state while the latter has two
provinces, which have sovereignty over cultural affairs and education.
A large number of ethnic Reverentians migrated to Agnostica to take advantage of economic
prosperities presented by commerce across the shared border. As per the 1919 Crederan census,
almost 70 percent of the permanent population of Agnostica was ethnic Agnostican while 30
percent was ethnic Reverentian.
Within the territory of East Agnostica are the only areas in the world that contain deposits of
Marthite, a naturally-occurring mineral salt which was known to possess mildly restorative
properties.
A bilateral treaty called “The Marthite Convention” was concluded between Agnostica and
Reverentia sometime in 1938. 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 percent effective
in treating previously untreatable infant and early-childhood diseases, afflicting tens of thousands
of children worldwide.
In 2012, the leader of the Agnostica has proposed to terminate the Marthite Convention relative to
the so-called “fundamental change in the science underlying the treaty” and offered to reimburse
Reverentia the costs of constructing and staffing the mining facilities, plus an additional sum for
the loss of its supply of Marthite during the remaining term of the Convention.
However, in the same year, the Reverentia rejected the proposal and the latter’s refusal to accept
mutually-beneficial settlement, Agnostica declared the Convention terminated and leased all rights
to the existing facilities to Baxter Enterprises.

ISSUES
ISSUE 1: WHETHER OR NOT REVERENTIA’S SUPPORT FOR THE REFERENDUM
IN EAST AGNOSTICA IS CONSISTENT WITH INTERNATIONAL LAW;
ISSUE 2: WHETHER OR NOT 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;
ISSUE 3: WHETHER OR NOT THE MARTHITE CONVENTION WAS IN EFFECT
UNTIL 1 MARCH 2013 AND AGNOSTICA BREACHED THAT CONVENTION; AND
ISSUE 4: WHETHER OR NOT REVERENTIA’S REMOVAL OF THE SOFTWARE IN
THE MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.

SUBMISSIONS
FIRST SUBMISSION:
WHETHER REVERENTIA’S SUPPORT FOR THE REFERENDUM IN EAST
AGNOSTICA WAS CONSISTENT WITH INTERNATIONAL LAW.

There is no violation in terms of the duty of non-intervention by way of Reverentia’s support

for the Agnorevs in East Agnostica steering up to the referendum. The latter did not intervene
in the former’s affairs since it never extended support in any other manner such as military,
logistical economic or even financial aids for East Agnostica’s referendum of independence.
The infractions of the principle of non-intervention have been restricted by this Court
primarily to a particular situation like military intervention, occupation, or providing of
assistance to armed rebel group. In Nicaragua v. United States, the Court mentioned the
types of activities constituting unlawful intervention, such as the utilization of force,
occupation, military activities or assisting armed rebel organizations by extending financial
aid, training, supply of weapon, intelligence and logistic support.

There was neither threat nor utilization of forced made by Reverentia against Agnostica
either prior or immediately after East Agnostica’s referendum of independence.

And in a similar above-mentioned case, military movement that does not cross into
another state’s boundary is not regarded as a threat against that state like when the United
States placed troops near the Nicaraguan territory and deployed ships off the Nicaraguan
cost during military exercises. This Court however, did not find these actions, which did
not cross into Nicaraguan territory, a threat or use of strength.

Likewise, in this case, there were no threats or utilization of power against Agnostica as
the acts of Reverentia remained to be within its territorial limitations and had explicit
peaceful intentions. Thus, consistent with international law.
 The UNGA Resolution on Aggression defines the latter as an invasion or attack by the
armed forces of a State of the territory of another, and recognizes 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. Therefore, Reverentia’s extension of support to
the referendum could not be regarded as an act of aggression as it does not involve the use
of force or an armed attacked in the territory of Agnostica.
SECOND SUBMISSION:
WHETHER OR NOT 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
EXPRESED WILL OF ITS POPULATION.

First Argument: Yes. The ultimate right of the people to exercise self-determination has been
continuously recognized by this Court and different international instruments.

A peaceful referendum1, held as a final resort, is a legal means for the people to realize its
right to external self-determination.

The Kosovo Advisory Opinion demonstrates that declaration of independence is not per
se restricted under the international law2 and such declarations have been recognized in
situations including the breakup of the former Yugoslavia3.

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.

Second Argument: Assuming further, that Agnorevs did not have a right to secede from
Agnostica, forcing them to re-join Agnostica would deprive their right to self-
determination.

This Court may not offer remedies that violate international law, and the same adapts the
facts on the ground. Under the “effectivity principle’, international law may well consider
1
See U.N. Charter Art. 1; International Covenant on Civil and Political Rights, Art. 1

2
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 ICJ
403,423, 123 (July 22)
3
Alain Pellet, The Opinions of the Badinter Arbitration Committee: A second breath for the self-determination of
peoples, 3 E.J.I.L
 to adaptand 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 react after the fact to a them existing
political reality.

These two concepts examine different points in time. In the context of secession, the
question of whether people contemplating secession has the right to secede is different
from how the law will respond once people have already seceded.

A. Ultimately, assuming that this Court were to find the Integration Agreement between East
Agnostica and Reverentia invalid, the former still became an independent state.

As a non-party to this dispute, its rights cannot be adjudicated here. In East Timor, for
instance, this Court declined to exercise jurisdiction over an alleged breach of
international law by Australia since a necessary third party, Indonesia as the de facto
authority over East Timor, had not consented to the Court’s jurisdiction and was not
present in the case. Here4 this Court does not enforce the Integration Agreement, it still
cannot order retrocession as a necessary party, East Agnostica has not consented to this
Court’s jurisdiction.
THIRD SUBMISSION:
WHETHER THE MARTHITE CONVENTION WAS IN EFFECT UNTIL 1 MARCH
2013.

First Argument: There is no justification relative to Agnostica’s unilateral termination with

reference to the Doctrine of Error.

To invalidate the state’s consent to be bound by the treaty, a State has to invoke an
error in a treaty. The error may lead to the nullity of the treaty if one speaks of an error
de facto alleged by the State to have existed at the moment the treaty was concluded
and forming an important justification of its consent. If such error established a
significant basis of the consent of the State to be bound by the treaty and if it relates to
a fact which was presupposed by that State to appear at the time when the treaty was
concluded5.

However6 this doctrine does not fulfill the conditions in the present case. The treaty
was entered into out of respect for traditional Reverentian medicine, highlighting the

4
East Timor (Portugal vs Australia), 1991 ICJ 84 (Feb. 22)
5
V.C.L.T., Art. 65
6
J.L. Brierly, The Law of Nations, 1955, p. 256
 lack of commercial significance7to Marthite which Agnostica claims was erroneously
accepted by both parties.

Even if Marthite was virtually unknow beyond the Thanatosian plains8. The treaty itself
included provision for such commercial use up to25% 9 . 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 actually a pretext to terminate the treaty unilaterally.

Second Argument: The Doctrine of Fundamental Change of Circumstance cannot be

applied and cannot be utilized to justify Agnostica’s unilateral termination.

The admission of the existence of the doctrine though severely restricts its scope10 is
the approach of the application of the doctrine of fundamental change of
circumstances. The doctrine of rebus sic stantibus rests on the fact whether or not the
satisfaction of a treaty after occurrence of a change in the state of facts would be so
injurious and burdensome11 to at least one of the parties that such party has a right
under the law or right of necessity to terminate the treaty12. International law regards
this doctrine as justifying the repudiation of excessively burdensome obligations13 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 stantibus14. 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 change of circumstances but depending on the expectations of the parties,
there can be suspension or limitation of performance15

A party cannot unilaterally renounce treaty obligations 16 unless there is explicit

provision for unilateral termination or an express consent of the parties concerned17

7
1938 Marthite Convention, see Annex
8
See Compromis, par. 9
9
Marthite Convention, art. 4(d) limits the sale of Marthite outside Reverentia and Agnostica except when supply
yields the demand by 125% for traditional practitioners.
10
Free Zones of Upper Savoy and the District of Gex, Aug. 19, 1932 P.C.I.J (ser.A/B) No. 46, p. 156
11
William W. Bishop, Jr., The Permanence of Treaties, 22 A.J.I.L. 89, 102 (1928)
12
Ibid

13
Sinclair, The Vienna Convention on the Law of Treaties, 1984, p. 192-6

14
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)
15
Hackworth, Digest of International Law, 1943, p. 429. Hereafter referred to as Hackworth.
16
Sir Humphrey Waldock, Second Report on Law of Treaties, Y.I.L.C 84 (1963)
17
Hackworth, ibid
 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 result of change of situations can be related to a particular expectation of the parties
as implied by their knowledge of the legislative basis of the agreement 18 . In Free
zones19, the right to invoke the clause as a ground for the extinction of treaties was
recognized, but Russia’s claim to unilaterally denounce a treaty was rejected20. The
effect of the change is radically to transform the scope of obligations still to be
performed under the treaty 21 . ILCs definition of the fundamental change of
circumstances 22 contains a series of limiting conditions. 1. The change must be of
circumstances existing at the time of the conclusion of the treaty; 2. It must be a
fundamental one; 3. It must also be one not foreseen by the parties; 4. The existence of
those circumstances must have constituted an essential basis of the consent and 5. The
effect of the change must be radical to transform the extent of obligations still to be
performed under the treaty.

Those conditions as the object of the treaty does not fulfill by Agnostica which is
relative to traditional Reverentian medicine, has not changed. Those circumstances
exist as it did in 1938 and in no way has radically transform Agnostica’s
obligations. The latter’s obligations to Reverentia under the Marthite Convention
remain intact.

Such convention makes provision for a scenario wherein other uses23of Marthite can
be catered along with its traditional uses. 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 clause24.

The International Court of Justice in Fisheries25, 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.

18
Brierly, p. 256

19
See note 8 above
20
L.C. Green, International Law Through the Cases, 1959, p. 764
21
Report of the I.L.C., Y.B. INT’L L. COMM’N 86 (1966)
22
Ibid.
23
Marthite Convention, Art. 4, par. D
24
Report of the I.L.C., Y.B. Int’l L. Comm’n 140 (1963)
25
Anglo-Norwegian Fisheries Case (U.K. V Nor.) Jan. 18, 1951, I.C.J. 117, 132.
 The Court did not accept that argument if Hungary that individually or collectively, the
effect of changed circumstances would radically transform the extent of obligations to
be performed in Gabčĭkovo26. 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 unforeseen while dismissing the
claim of Iceland27. Therefore, it can be inferred that discovery of new properties of
Marthite cannot be completely unforeseen and in any case, do not transform
Agnostica’s obligations.

Indeed, Agnostica breached its obligations under the Marthite Convention

First Argument: Under the Vienna Convention on the Law of Treaties, Agnostica has
breached its obligations.

After unlawfully denouncing the Marthite Convention, in spite of Reverentia’s refusal

to terminate the treaty, Agnostica has immediately leased to Baxter International all
Marthite mining facilities.

The Vienna Convention on the Law of Treaties lays down procedural safeguards
relative to unilateral termination. Under Article 56 (2) relative 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 12 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: 1.
In conformity with the treaty, and 2. At any time by consent of all parties28. Agnostica
is clearly in breach of the above obligation and hence, the unilateral termination should
be deemed illegal. Article 65 provides 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 Vienna Convention on the Law of Treaties’ procedural guidelines are fundamental
to application of the provisions of the present part dealing with the invalidity,
termination or suspension of the operation of treaties29. Some of the grounds upon
which treaties may be terminated or suspended under those sections, if allowed to be

26
Gabčĭkovo - Nagymaros Project (Hung. V. Slov.), April 9, 1997 I.C.J. 7

27
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)
28
O. Dorr and K. Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary, 2012, p. 544
29
J.F. Williams, The Permanence of Treaties Source, 22 A.J.I.L. 1,89 (1978)
 arbitrarily asserted in face of objection from the other party, would involve real dangers
for the security of treaties 30 . These dangers were, they felt, particularly serious in
respect 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 circumstances31.

Second Argument: Under the Marthite Convention, Agnostica has breached its
obligations.

The Reverentian Marthite Trust or the R.M.T, a State-owned Reverentian corporation

as per Article 4 of the Marthite Convention has clearly says that the former shall there
upon become the exclusive owner of the Marthite32. Agnostica, in spite of Reverentia’s
repeated refusal to denounce the Mathite Conventiion has 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.

Fourth Submission:
WHETHER REVERENTIA’S REMOVAL OF THE SOFTWARE IN THE
MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.

Indeed, it is consistent with International Law the act of Reverentia’s removal of its software
in the Marthite extraction facilities.

First Argument: As per the International law, a treaty should be interpreted in good faith in
accordance with the plain meaning of its terms in their context and in the light of its object
and purpose. A facility is generally defined as a building or a large piece of equipment built
for a specific purpose. Technology, conversely, is defined as the application of scientific
knowledge for practical purposes, especially in industry. The mining extraction software
aligns far better with the definition of technology, being specially designed to increase
extraction quantities in the Marthite-mining industry. The software was therefore not part of
the mining and mining-support facilities but the technology Reverentia agreed to provide on
an ongoing basis.

Likewise, there are other provisions in the Convention that support this idea. The
description of the facilities, for instance, merely denoted the specific geographical
location of each building along with the proximity of the corresponding Marthite

30
Dorr, see Note 26. See also: J.B Scott, The Hague Court Reports, 1916, pp. 317-318.
31
Ibid.

32
1938 Marthite Convention, see Annex
 reserves33 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 of good faith34.

Consequently, title to the software is not transferred unlike the title to the facilities
under Article 2. Reverentia was thus entitled to retrieve the software after suspending
the Treaty so that Agnostica was not able to further profit from its breach35. Even if
this Court were to find the software within the meaning of facilities, however, this
transfer would have been conditioned on Agnostica’s performance of its treaty
obligations. Once Agnostica prevented RMT’s access to the Marthite reserves, it failed
to meet the requisite conditions for title to transfer.
Second Argument: The violation of treaty obligations in the case of Gabčíkovo-
Nagymaros, regardless of their materiality, may justify the taking of countermeasures
by an injured State.

Any assertion of wrongfulness in respect to Reverentia’s removal of the software,

therefore is precluded because the act was a valid non-forcible countermeasure.
Reverentia’s removal of the software was a direct response to Agnostica’s prior breach
of the Marthite Convention36. To comply with the requirements of international law, a
countermeasure must above all be taken with the intention of bring a State back into
compliance with its legal obligations 37 , and it cannot involve the use of force 38
Accordingly, to the extent possible, countermeasures should be temporary in nature
and reversible in their effects 39 . 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 obligations40. Removing the software also
cannot be deemed a forcible action within the meaning of the United Nations Charter
since removing the software did not destroy any government property. Where an
action and its results on another state’s governmental property are reversible, the y
cannot be considered destruction which is by character irreversible41.

33
Clarifications, 5
34
Compromis, Annex.
35
VCLT, art. 60 (1)
36
Compromis, 17-18
37
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).
38
ASR Art. 52.
39
ASR Art. 49(2), (3).
40
Compromis, 18.
41
C.f Guyana v. Suriname, 47 I.L.M. 166 p.446 (Perm. Ct. Arb. 2007).
CONCLUSION:
Therefore, the State of Reverentia respectfully requests the Court to adjudge and declare
that:
a. Reverentia’s support for the referendum in East Agnostica is consistent with
international law;
b. East Agnostica’ 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 expressed will of its
population.
c. The Marthite Convention was in effect until 1 March 2013, and Agnostica
breached that Convention; and
d. Reverentia’s removal of the software in the Marthite extraction facilities was
consistent with international law.