PART A

The Facts:

1. Rutania is a state, the population of which is 65% ethnic Rutanians and 35% ethnic Adovans. The ethnic Adovans live, for the most part, in the three Northern Provinces – where they make up nearly 100% of the population. Together, the Northern Provinces constitute about one-third of Rutania’s land mass. Although divided into 12 provinces for administrative purposes, Rutania is a highly centralised state and the provinces have no courts or laws of their own.

2. Litvia is a small, developed and prosperous state on the northern border of Rutania. Its two Southern Provinces, which border Rutania’s Northern Provinces, comprise about 20% of Litvia’s total land mass. Their population is 90% ethnic Adovan. The rest of the country is populated by a mixture of ethnic Adovans, Junonians and Donaxes. Like the Adovans in Rutania, the Adovans in the Southern Provinces subscribe to orthodox Masantoism. However, unlike the Adovans in the Northern Provinces of Rutania, they enjoy a high degree of autonomy from the central Litvian government.

3. Since its independence in 1970, the Rutanian central government has found it difficult to control the Northern Provinces, which have largely been governed by tribal councils. Tribal councils’ rules are not recognised by the central government as legally binding but as a practical matter the councils’ rules are effective in the Northern Provinces. Tribal council members have exclusively Adovan ethnicity and practice an extreme orthodox form of the Masanto religion. Orthodox Masantoism requires all females over the age of 14 to wear a head covering, called a ‘Mavazi’, which completely covers the face, hair and shoulders, making identification of the wearer difficult and making it virtually impossible for the wearer to engage in activities or work outdoors. Those who refuse to wear the garment are forced to leave the Northern provinces and live in non-Adovan locales within Rutania or, if they remain and are caught, are punished severely, either by being confined to their homes for long periods of time, or, in the most severe cases, by receiving as many as 40 lashes in a public flogging ceremony.

4. Women in the Northern Provinces are not permitted to drive or have paid employment and are often married by their parents in traditional ceremonies at ages as young as 9, even though the official marriageable age is 18 for males and 16 for females under Rutanian law. The Rutanian authorities have made sporadic attempts to enforce Rutania’s marriage and anti-discrimination laws in the Northern Provinces, but, until recently, have never made a concerted effort to do so, preferring to avoid direct confrontation with the Adovan tribal leaders.

5. In 2015, the world’s largest reserve of columbite-tantalite (coltan), a ‘rare-earth’ mineral essential in the manufacture of mobile phones and other electronic products, was discovered in the Northern Provinces. This reserve represents the most important natural resource in Rutania. The central government immediately set about awarding contracts to major multinational corporations specialising in mineral extraction and transportation for the exploration and development of coltan mines in the Northern Provinces.

6. Given the economic importance of the coltan mines to Rutania, and in order to ensure availability of sufficient workers for the mines, the Rutanian central government promulgated a controversial ban on the wearing of the Mavazi and passed legislation requiring a 50% female workforce, sparking outrage in the Northern Provinces. The Adovan Democratic Party (ADP), which reportedly represents more than 75% of the ethnic Adovans living in Rutania, immediately called on Adovans in the Northern Provinces to ‘rise up against our oppressors’. It issued a Manifesto calling for the revenues from the coltan mines to be paid to the Adovans and demanding increased respect for their traditional, tribal way of life. The Manifesto concluded by calling for increased autonomy for Adovan tribal lands and, if that was not forthcoming, then total independence.

7. Responding in a television interview, Teemu Penza, the President of Rutania, stated ‘the Northern Provinces are an integral part of Rutania, and their people are governed by Rutanian law’. He stated that his goal was ‘to modernize the Northern Provinces so that no Adovan would ever again suffer from barbaric tribal customs that oppressed women and girls’. He disparaged Adovan traditional medicine and tribal structures and concluded that ‘if the Adovan provinces are less well-off than the rest of Rutania, it is because of the backwards mentality and insularity of their tribal leaders’.

8. Ethnic Adovans were incensed by President Penza’s remarks and sporadic fighting broke out in the Northern Provinces with Rutanian soldiers attempting to quell the disturbance. Tens of thousands of Adovans marched on the Rutanian capital, Rutaniaville, shouting for Adovan independence. Rutania responded to the violence and protests with measures including increased surveillance and arrest of protestors. This sparked increased violence and, after continuing unrest, President Penza invoked the emergency powers clause in the Rutanian Constitution and imposed bans on groups organizing and assembling in public places.

9. As tensions increased in the Northern Provinces, a group of Adovan leaders, all known ADP members, began mounting a violent campaign to press for full independence by attacking infrastructure in Rutania, kidnapping citizens of Rutania, and demanding the release of arrested Adovan prisoners in exchange for the safe release of the kidnap victims. A bridge was blown up in Rutaniaville, killing more than 130 Rutanians, and, in April and May 2015, a series of bombings took place at government buildings in the capital, killing more than 250 civilians, and wounding 700 others.

10. On May 30 2015, a bomb was detonated in the foyer of the Rutanian Ministry of the Environment. Among those killed were a group of 25 university students from Australia who had been visiting the Rutanian Ministry of the Environment as part of a study tour sponsored by the Rutanian government. During the subsequent investigation it was revealed that the Rutanian police unit assigned to ensure the security of the Ministry had been reassigned to other duties shortly before the bombing, leaving the building unguarded for a full five hours. The Rutanian authorities have not provided any official explanation for the decision to reassign the police unit, which was a clear breach of police operational guidelines requiring government Ministries to be guarded constantly. An article in Rutania’s most prominent national newspaper, the Rutanian Daily Monitor, suggested that one of the few ethnic Adovan commanders in the Rutanian police force had been in charge of the unit in question. Quoting unnamed government sources, the article suggested that the police commander had reassigned her unit on the morning of May 30, before disappearing in the chaos following the attack.

11. The Adovan attacks resulted in ever greater government crackdown in the Northern Provinces. Declaring that the situation in the Northern Provinces constituted ‘a threat to the life of the Rutanian nation’ and that the government was ‘at war with the Adovan secessionist movement and its supporters’, the central government banned the practice of the Masanto religion and closed down Adovan schools and community centres. A full scale military offensive was launched to enforce martial law and to protect the mines. The ADP leaders were declared ‘terrorist traitors’, the ADP was declared an illegal organisation and membership in the ADP was made a capital offence. Warrants were issued for the arrest of Grigor Vinitsa, the Chairman of the ADP, and the other leaders of the ADP, on the basis of their leadership of an outlawed organisation and their alleged participation in the direction, planning and perpetration of the kidnappings and bombings.

12. In October 2015, the Rutanian government discovered that the Adovan resistance was receiving weapons and supplies via underground tunnels dug from the Southern Provinces of Litvia into the Northern Provinces. President Penza immediately accused Litvia of supplying the Adovan ‘terrorists’ with arms, an accusation hotly denied by Glenda Arwen, the President of Litvia.

13. In October 2017 the Rutanian Daily Monitor published a story alleging that the ADP leadership had been holding secret meetings in Litvia and that the President of Litvia, herself an ethnic Adovan, had met with Rutanian Adovan tribal leaders in Litvia on several occasions during 2016 and 2017. The article further alleged that Arwen had signed a ‘secret written agreement’ stating that she would support a future Adovan State on Rutanian territory so long as the Adovan separatists agreed to renounce any secessionist claims or intentions against Litvia. President Arwen’s office issued a press release confirming that she had met with the tribal leaders but had merely discussed how best to strengthen friendly ties between the Rutanian and Litvian Adovans. In a subsequent press conference, she refused to disclose the contents of the discussions and would neither confirm nor deny the existence of any agreement. She denied any knowledge of the current whereabouts of the ADP leadership. However, she announced that effective immediately, she was conferring Litvian nationality on all members of the ADP, including Chairman Vinitsa, and on all non-Litvian Adovans, wherever they might be located. Rutania immediately denounced this act as ‘an unjustifiable interference in the domestic affairs of Rutania and of no legal force and effect’.

14. In January 2018, the Rutanian chief of police reported to the public prosecutor that the search for Vinitsa had been unsuccessful. Under Rutanian law, Vinitsa was tried in absentia and, on 15 February 2018, found guilty of 250 counts of murder and numerous terrorist offences, and sentenced to death by hanging.

15. On 1 March 2018, citing as their reasons the ‘unjust denial of the sovereign rights of the Adovan peoples to their natural resources, the ongoing violations of their fundamental human rights and their inherent right to self-determination’, the ADP leadership, whose whereabouts were unknown, issued a unilateral declaration of independence on behalf of the Adovan Rutanians, proclaiming the independence of the Northern Provinces under the name of the Republic of Adova and naming Vinitsa as the Interim President of Adova. The President of Litvia immediately announced her country’s recognition of the newly independent Republic of Adova and stated that Litvia would do everything possible ‘within the bounds of international law’ to assist Adova to maintain its independence. Seven other states also announced their recognition of the newly independent state of Adova.

16. In April 2018, from intelligence gained from Litvian insiders, Rutania learned that seven of the leaders of the ADP were in hiding in a villa in Junoniaville, the capital city of Litvia. The President of Rutania immediately demanded that Litvia hand over ‘the terrorists and traitors’. The President of Litvia issued a statement saying that Litvia would never hand over its nationals to the Rutanian authorities and that Vinitsa was, in any event, immune as the Head of State of Adova.

17. Australia took a different approach. Aided by the Litvian insiders whose identity has not been revealed, ASIS agents entered Litvia in a clandestine midnight raid on the villa. During the raid two ADP leaders were killed along with six South African nationals employed as guards at the villa compound. Four leaders escaped, however, Vinitsa was captured and spirited away to Australia where he was handed over to the police and charged with 25 counts of murder. Litvia immediately demanded his return, accusing Australia of violating its territorial integrity and Vinitsa’s immunity as Head of State of Adova, and of killing and kidnapping its nationals. Rutania demanded Vinitsa be handed over to be executed in accordance with the decision of the Rutanian courts. South Africa demanded that Australia compensate the families of the dead guards for their unlawful deaths. To date, Australia has refused all these requests saying that it is legitimately entitled to exercise jurisdiction over Vinitsa for the murders of the Australian university students. In particular, it has stated that Vinitsa does not enjoy Head of State immunity and that it cannot hand Vinitsa over to Rutania as to do so would be a breach of its international obligations. Finally, it says there is no basis on which South Africa can bring a claim for compensation on behalf of the families of the dead guards.

18. In early May 2018, the families of the Australian students lost their cases in the Rutanian courts for compensation for the wrongful deaths of their children. The Rutanian court dismissed the cases summarily on the basis that Rutania could not possibly be held responsible for the actions of the terrorists. Although there is a right of appeal the families’ lawyers do not think there is any chance for success on appeal and they have asked the Australian government to take up their compensation claim on their behalf. The Australian government has said that it will consider the matter.

QUESTION 1

Question 1(a)

Advise the Australian Government on the issues of international law that arise from the situation in Northern Provinces of Rutania, including on whether it should recognise the independent state of Adova.

Question 1(b)

Advise the Australian Government on the legal claims and counter-claims arising in respect of the Australia’s seizure of Vinitsa.

Question 1(c)

Advise the Australian Government on whether, and if so on what grounds, it can bring a claim against Rutania on behalf of the families of the dead students.

PART B

YOU MUST ANSWER TWO (AND ONLY TWO) QUESTIONS FROM THIS PART

QUESTION 2

‘The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law …’ (The Lotus Case (France v Turkey), [1927] PCIJ Reports Series A, No 10).

Critically analyse the claim that the rules of international law emanate from states’ free will, with reference to material studied in the course. (1400 words)

QUESTION 3

‘The traditional methods of obtaining title to territory are obsolete in the light of contemporary international law.’

Critically analyse this claim with reference to material studied in the course. (1400 words)