Consider the following hypothetical situation X is a nomadic minority group living in the northern part of State A, which borders the sea. In 2017, group X began making claims of independence from State A. Consequently, State A sent military troops to control protest movements within the territory where group X lives. Clashes between armed forces and protesters have led to hundreds of members of group X being severely injured between 2017 and 2018. In June 2018, group X declared independence from State A and the constitution of a separate State B.
No State has explicitly recognised the independence of State B. However, in August 2018 State B concluded a treaty with neighbouring State C for the exploitation of oil and gas in themaritime area between the two States. The sea area dividing States B and C is around 50 nautical miles. The treaty provides for equal rights of exploitation for companies registered in States B and C. The treaty also recognises limited rights for companies registered in State A to exploit oil and gas in the sea area between States B and C. The treaty between States B and C provides that any disputes between a company and a State concerning the application of the treaty be unilaterally submitted to arbitration and resolved according to the law of the State where a breach of the treaty is committed.
State C has a federal structure and its constitution provides that ‘the general rules of international law shall be an integral part of federal law’. In August 2018, the Federal Parliament passed statutes implementing the treaty, but these have not been implemented via necessary legislation in federated States. Y is a company based in State B and claims in the courts of State C that State C denies equal access to oil and gas exploitation in its contiguous zone within the sea area regulated by the treaty between States B and C. State C objects that it has no responsibility, because the denial of equal access is due to the fact that its federated States have not passed necessary legislation to implement the treaty domestically.
State D has important economic relations with companies registered in State A, from which it imports large amounts of oil and gas. Given the loss of access to the sea as a consequence ofthe declared independence of State B and the limited rights of exploitation recognised in favour of State A’s companies in the treaty between States B and C, State D claims that the treaty between B and C is ineffective. According to State D, the treaty is overridden by a customarily established practice between States A and C, whereby companies registered in States A and C have an equal right to exploit oil and gas in the maritime area governed by the treaty.
Now answer the following questions:
1 Is the declaration of independence of State B valid and effective?
2 Is the treaty between States B and C validly concluded?
3 Assuming that the treaty between States B and C is validly concluded, can the treaty produce effects with respect to companies registered in State A?
4 Assuming that the treaty between States B and C is validly concluded, can company Y succeed in claiming the responsibility of State C via arbitral proceedings for not providing equal access to resources in its contiguous zone?
5 Assuming that the treaty between States B and C is validly concluded, can State D validly claim that the treaty between States B and C is overridden by customary law?
The question covers topics 1-5. Of course, you can establish sensible connections with othertopics. Remember that it is crucial to provide simple and logical answers. For further information, please refer to the study guide.
