Republic of Tuphs v Republic of Flecha

Herein below is a matter regarding the dispute between the Republic of Flecha and
the Republic of Tuphs. The matter relates to a suit filed by Tuphs at the International
Court of Justice arguing that Flecha violated the treaty between the two states for the
construction of a dam with the objective of producing adequate energy .

Issues

The legal issues are as follows;

1. Whether the Flecha’s grounds for discontinuation of the project were adequate and
justified.

2. Whether the act of the Tuphs to divert the waters of the Lauterpacht River in its
territory violated Flecha’s right under International law.

Argument

Article 62 of the Vienna Convention1 which is binding on the two states provides that
a fundamental change of the circumstances which has taken place after the conclusion
of a treaty and which was not foreseen cannot be invoked by a party as a ground for
termination or withdrawing from the treaty .
In this regard , Flecha’s ground for termination is not adequate. Nonetheless, it would
have left Tuphs at a great loss. Thus the termination was not justified.

Furthermore, Article 56(1) of the Vienna Convention on the Law of Treaties states
that a treaty which contain no provision regarding its termination and which does not
provide for denunciation or withdrawal is not subject to denunciation or withdrawal
unless:
a) It is established that the parties intended to admit the possibility of denunciation or
withdrawal or;
b) A right of denunciation or withdrawal may be implied by the nature of the treaty .

In cases of both (a) and (b), the party shall give not less that 12months notice of its
intention to denounce or withdraw from a treaty under paragraph 1.2

The treaty between Flecha and Tuphs for the joint construction of hydro electric dams
on the Lauterpacht River which marks the common boundary between both states do
not provide for its termination .Based on the facts given, it is not established that the
parties intended to admit the possibility of denunciation or withdrawal nor is it
implied by the nature of the treaty .Therefore, the treaty between Flecha and Tuphs is
not subject for termination .

Article 43 of the Vienna Convention provide that the termination or denunciation of a

treaty shall not in any way impair its duty to fulfill an obligation embodied in the
treaty to which it has voluntarily ratified3.In view of this article, Tuphs had an

1
Vienna convention on the Law of Treaties(1969), Article 62
2
Vienna convention on the Law of Treaties(1969), Aricle 56(1)
3
Vienna convention on the Law of Treaties(1969), Article 43
obligation to carry on its mandates even after the withdrawal of Flecha which was
not in line with Article 18(a) of the Vienna Convention,which states that; a State is
obliged to refrain from acts which would defeat the object and purpose of a treaty
when it has signed the treaty or has exchanged instruments constituting the treaty
subject to ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty.4

Therefore, the failure of Tuphs to execute its obligations under the treaty was not an
outright ground for Flecha to halt its obligations, rather, Tuphs was justified in
continuing with the project as per Article 43 of the Vienna Convention.

Nevertheless, the act of Tuphs diverting the waters of the Lauterpacht into its own
territory was not part of the treaty and is therefore in violation of International Law.

Conclusion
The Republic of Tuphs violated International Law by diverting the waters into its
territory contrary to the provisions of the treaty thus it has no rights to claim for
reparation. The Republic of Flecha as well violated international law by failing to
adhere to its obligations under the treaty .

A judgement is likely to find that both parties led to the losses and thereby apportion
the damages equally.

4
Vienna convention on the Law of Treaties(1969), Artcle 18(a)