Professional Documents
Culture Documents
2015 Philip C Jessup Moot Court Body
2015 Philip C Jessup Moot Court Body
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. Agnostica’s Constitution allows dissolution by a
three-quarters vote of the federal parliament.
Nearly 30% of Agnostica’s are ethnic Reverentians, called Agnorevs. Despite the
continuous attempts of the Reverentia to 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 early-
childhood 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.
ISSUES
ISSUE 1: WHETHER REVERENTIA’S SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA IS CONSISTENT WITH INTERNATIONAL LAW;
ARGUMENTS
ISSUE:
1. WHETHER REVERENTIA’S SUPPORT FOR THE REFERENDUM IN
EAST AGNOSTICA WAS CONSISTENT WITH INTERNATIONAL LAW.
In Nicaragua vs. United States, military movement that does not cross
into another state’s 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, Reverentia’s 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.
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 self-determination 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 self-
determination. This Court may not order remedies that violate
international law, and international law adapts to facts on the ground.
YES, the Marthite Convention was still in effect until March 1, 2013 for the
following reasons:
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 significance 8 to Marthite
which Agnostica claims was erroneously accepted by both the parties.
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 obligations 14 and
it lacks the proper legal prescription for the very significant change of
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.
circumstances in relation to an international agreement, if those cannot
qualify as falling within the legal rubric of rebus sic stantibus.15
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
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
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. INT’L L. COMM’N 86 (1966).
23
Ibid.
radically transform Agnostica’s obligations. Agnostica’s obligations to
Reverentia under the Marthite Convention remain intact.
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
In Gabčĭkovo,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 Agnostica’s obligations.
ISSUE
4. WHETHER REVERENTIA’S REMOVAL OF THE SOFTWARE IN THE
MARTHITE EXTRACTION FACILITIES WAS CONSISTENT WITH
INTERNATIONAL LAW.
29
O. Dörr 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
Dörr, see Note 26. See also. J.B Scott, The Hague Court Reports, 1916, pp. 317-318.
32
Ibid.
33
1938 Marthite Convention, see Annex.
YES, Reverentia’s 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 facilities” 37 but the
“technology”38 Reverentia agreed to provide on an ongoing basis.
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).
B. In the case of Gabčíkovo-Nagymaros, the violation of treaty
obligations, regardless of their materiality, may justify the taking of
countermeasures by an injured State.42
42
Gabčíkovo-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).