1. Assess the ability of Maligait to exist as a state under international law. The issue is whether Maligait can exist as a state under international law. According to Vitoria, state is defined as a perfect state or community complete in itself which is not part of another community but has its own laws, council, magistrate and has authority to declare war.
The traditional criteria for statehood can be found in the Article 1 of Montevideo Convention 1933 which outlines that in order to qualify as a state, there are certain requirements which are; there must be permanent population, there must be a defined territory, there must be a government and lastly the capacity to enter into relations with other states. However, there are also requirements which are suggested as important requirements for an entity to claim statehood that can be seen in the Guidelines on the Recognition of New States in Eastern Europe and in Soviet Union by the EC in 1991.
These are the need to meet international standards on human rights and self-determination. Firstly, according to the traditional requirement of statehood, there must be permanent population. According to Oppenheim, permanent population can be defined as an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to a different races or creeds, or be of different colour. There is no minimum population size to be adhered to in order to qualify as a state.
The country of Tuvalu for example has only ten thousand inhabitants but still qualifies as having a permanent population. Applying to the matter at hand, Maligait is inhabited by the Rocky Tribe whom migrated to Maligait in the middle of 17th century and has resided there ever since. There is no specific number of people residing in Maligait however as they resided there permanently since the 17th century, it can be said that there is a permanent population thus the first element is fulfilled. The second requirement of statehood is a defined territory.
In the Island of Palmas case, the court noted that territorial sovereignty involves the exclusive rights to display the activities of the state within a certain geographical area. However, it is not necessarily defined or agreed boundaries. There is no rule prescribing a minimum size if the territory of the State. Tuvalu for example is a state even though its territory is only seven square kilometres. According to John Crawford in Creation of States, the size of the territory is not what matters provided that there is an independent authority that exercises actual authority over the territory.
Applying to the matter at hand, even though there are no defined or exact borders to indicate a defined territory, Maligait can be said to have defined territory as it has an independant authority that exercises actual authority over the territory which is the Blood Rockers Liberation Movement (BRLM). BRLM exercise authority over the territory of Maligait as it was created to protect and govern the Rocky Tribe whom resides in Maligait. Thus their act of having actual authority over the territory constitutes a defined territory and the second requirement is fulfilled.
The third requirement is having a government. According to the traditional law of statehood, there criteria for government consists of two related divisions which are firstly the must be an institutionalized political, administrative and executive organizational machinery for the purpose of regulating the relations in the community and charged with the task of upholding the rules. Secondly is that there must be an effective government which means that the organizational machinery must actually exercise state authority over the claimed territory and the people residing in that territory.
The fulfilment of these two criteria would constitute a government. In the Aaland Island case, Finland became a sovereign state only after a stable political organization had been created and until the public authority has become strong enough to assert themselves in the territory of the state without assistance of the troops. Applying to the matter at hand, Maligait does not have a government that is in effective control of its territory and that is independent from any other authority. Rock has provided financial and arms to BRLM (Blood Rockers Liberation Movement) which formed by Rocky Tribes.
The inhabitant of Maligait is the Rocky Tribe who is the descendant of Rock people. State of Kingfisher decided to place Maligait within Karakura administrative border. Rocky Tribe always seeks assistance from Rock to protect them from bandits and attacks by the Novanut people. The element of statehood on government is not fulfilled. The fourth requirement is capacity to enter into relations with other states. The capacity to enter into relations with other states is a consequence of independence.
In the Island of Palmas Case, the court held that independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other state, the functions of a state. In the case of Caglar v Billingham (Inspector of Taxes), the court held that the Turkish Republic of Northern Cyprus (TRNC) failed to qualify as a state. The court stated that in view of the non-recognition of the TRNC by the whole of the international community other than Turkey the court concluded that it does not have functional independence as it cannot enter into relations with other states.
It does not therefore satisfy the fourth requirement of statehood. Applying to the matter at hand, as Maligait is only recognized by Rock, it can be said that it does not have functional independence. Furthermore, Maligait has been dependant on Rock as they receive all the arms and financial assistance from Rock. Therefore, they can be said to have no capacity to enter into relation thus the fourth element is not fulfilled. A new category to determine statehood is respect for human rights and self-determination.
When the Soviet Union dissolved in 1991, the European Community indicated that it would recognize only those parts of the former of Soviet Union claiming to be independent states that are willing to protect and respect human rights. The requirement entails that a government that denied basic rights could not be truly organized and effective. Here BRLM can be said to exercise the respect for human rights as they are created to protect the Rocky tribe form the injustice inflicted to them by the Novanut people.
BRLM does not in any way harm the Rocky Tribe but instead strives to protect their human rights. BRLM can also be said to respect the right to self-determination as the organization itself was created by the Rocky Tribe themselves, it was created for the people by the people and their proclaimance of independence was a practice of collective self-determination of the people as they themselves wanted to break away from the clutches of Karukara administration. Thus, they fulfil the new requirements of statehood. The next element in statehood is recognition.
Recognition is defined as political discretion of state to acknowledge the existence of international person enabling them to conduct relation in accordance to international law. There are two types of recognition of states as subject of international law which are unilateral and collective. The first type of recognition of states is unilateral recognition. It means an individual state recognizes that an entity claiming to be a state meets the factual requirement of statehood. In unilateral recognition, it is divided into two which are Constitutive School and Declaratory School.
Constitutive School is the recognition of a claimant entity as a state creates or constitutes the state (additional requirement of statehood). In Constitutive Schools, states do not regard themselves having the obligation to recognise an entity as a state once it complies with the requirement of statehood. Individual states free to determine the legal status of a state. Ian Browley stated that there is no legal duty on part of state to recognise as a state. Recognition as a public act of state is optional. There are several objections to the constitutive view.
Firstly if the claimant state is recognised by state A and not state B, it becomes both a state and a non-state. For example, China recognised North Korea, United States of America does not recognised North Korea. Second objection is glaring anomaly or grotesque spectacle, a state exist only in relation to another. Thirdly, if unrecognised state is not a state, it is not entitled to the rights or subject to the obligations of international law. The state cannot enjoy rights under international law. Fifthly is an inconsistency. State accord recognition for example based on political considerations.
Political considerations do influence the decision and may prompt as state to recognise an entity prematurely or refusal to grant it recognition. For example, European Community recognised Croatia and Bosnia before they fulfilled the requirements of statehood for various political reasons including to prevent escalation of violence. Second division of unilateral recognition is Declaratory School. In Declaratory School, an entity becomes a state on meeting the factual requirement of statehood and that recognition by other state simply acknowledges as a fact something that has hitherto been uncertain.
In Declaratory School, recognition is ceremonial. It is not essential or necessary. Declaratory School accept that an entity that meets the requirements of statehood becomes a state regardless of recognition. In S v Banda, the court conducted enquiry into the respective merits of the constitutive and declaratory approaches and found in favour of the latter on the grounds that it is more objective and less politically subjective and supported by most writers.
In Deutsche Continental Gas-Gesselschaft v Polish State, German-Polish Mixed Arbitral Tribunal stated that according to the opinion rightly admitted by the great majority of writers on international law, the recognition of a States is not constitutive but merely declaratory. The State exists by itself and the recognition is nothing else than a declaration of this existence, recognised by the State from which it emanates. In Tinoco Arbitration, it is suggest that recognition is simply evidence that the international law requirements are met.
State practice confirms this in the sense that states do not refrain from bringing claims under international law against unrecognised states or governments. Applying to situation, Maligait did not fulfil the requirement of statehood. There is a permanent population and defined territory but Maligait does not have a government that is in effective control of its territory and that is independent from any other authority. Rock has provided financial and arms to BRLM (Blood Rockers Liberation Movement) which formed by Rocky Tribes.
The inhabitant of Maligait is the Rocky Tribe who is the descendant of Rock people. State of Kingfisher decided to place Maligait within Karakura administrative border. Rocky Tribe always seeks assistance from Rock to protect them from bandits and attacks by the Novanut people. Also, Maligait do not have capacity to enter relations with other state. In the case Caglar v Bilingham, Turkish Republc of Nothern Cyprus (TRNC) is recognised only by Turkey but not with other state, it does not have functional independence as it cannot enter into relations with other states.
TRNC fail to qualify as a state. Here, only Rock recognised Maligait as a state. Also, element of respect for human rights and self-determination failed. Novanut People always attack the Rocky tribe. According to Constitutive School, recognition of state is additional requirement to constitute state. Here even though there is recognition by other state, Maligait did not fulfil the element of statehood. The only country that recognised the existence of Maligait as a state and the government lead by BRLM is Rock. Maligait do not have capacity to enter relations with other state and a government.
Next according to Declaratory School, recognition is only ceremonial and not necessary. So long fulfil other requirement of statehood, recognition is not important. Here, Maligait has not capacity to enter relations with other state. The only country that recognised the existence of Maligait as a state and the government lead by BRLM is Rock. The recognition by Rock is not important as Maligait also did not fulfil other requirement of statehood. In methods of recognition, there are no rules prescribed for the act of recognition.
Usually it will take the form of public declaration by the recognising state. However, it must be accompanied by clear evidence of an intention to recognise. It can be inferred from an exchange of diplomats and the signing of a bilateral treaty. The second type of recognition of state is collective recognition. Collective recognition means a group of states recognises the existence of a state directly or indirectly by admission. United Nation Charter provides for two categories of members which are original members (Article 3) and subsequent membership (Article 4).
Article 3 of UN Charter stated the original members of United Nations shall be the states which having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 10. The General Assembly adopted the Granting of Independence to Colonial Countries and Peoples in 1960 in which it outlawed colonialism and calls for immediate steps to be taken to transfer all powers to the peoples of those territory.
Once a state is admitted to the United Nations, its acceptance as state for all people is assured. Today, apart from Israel whose statehood is still denied by most Arab states, all members of United Nations are accepted as states despite the fact that several probably would not have received widespread recognition by individual states using the traditional criteria. In Collective Non-recognition, United Nation may block the acceptance of a state by means of collective non-recognition. Collective Non-recognition based on the principle of ex injuria jus non oritur.
Non-recognition is based on the view that acts contrary to international law are invalid and cannot become a source of legal rights for the wrongdoer. That view applies to international law as one of the general principles of law recognised by civilised nations. An act in violation of a norm having the character of jus cogens is illegal, therefore null and void. This applies to the creation of states and acquisition of territory. States are under duty not to recognise such acts under customary international law.
In resolutions of General Assembly and Security Council, Article 40-41 of the draft articles on The Responsibility of States for Internationally Wrongful Act. Some of the peremptory norms that have been recognised by the United Nations for the purposes of non-recognition are the prohibition on aggression. The Security Council adopted a resolution declaring that the annexation of Kuwait had no legal validity and states were required not to recognise that annexation. Next is the prohibition on the acquisition of territory by means of force.
In Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory, the Court observes that the obligations violated by Israel include certain obligation erga omnes. All States are under an obligation not to recognise the illegal situation resulting from the construction of the Wall in the Occupied Palestinian Territory, including in and around Jerusalem. They are also under obligation not to render or aid or assistance in maintaining the situation created by the Wall. Here, Rock has provided financial assistance and arms to BRLM.
Rocky Tribe formed the Blood Rockers Liberation Movement (BRLM) in 1920 to protect them from bandits and attacks by Novanut People. The representatives of BRLM proclaimed the independence of Maligait in 1965. The only country that recognised the existence of Maligait as a state and the government lead by BRLM is Rock. Rock is supposedly under a duty not recognize BRLM acts under customary international law based on resolutions of General Assembly and Security Council, Article 40-41 of the draft articles on The Responsibility of States for Internationally Wrongful Act.
But here since BRLM uses force by the arms assisted by Rock to protect them from the attack by Novanut People. They use force to protect themselves. The Novanut People in Karakura had made several attempts to chase Rocky Tribes out of Maligait. Aggression is only to the extent of protecting themselves from the attack by Novanut People and the action taken is proportional as there is no choice of means. In the Nicaragua v United States of America (USA), court discuss what level of force is necessary to qualify as an armed attack.
The traditional customary rules on self-defence derive from an early diplomatic incident between the United States and the United Kingdom over the killing on some US citizens engaged in an attack on Canada, then a British colony. The so-called Caroline case established that there had to exist “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation,’ and furthermore that any action taken must be proportional, “since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.
” These statements by the US Secretary of State to the British authorities are accepted as an accurate description of the customary right of self-defence. As a conclusion, Maligait cannot be exist as a state under international law as it has not fulfilled all the criteria of statehood. ———————–  (1928) 2 R. I. I. A. 829  (1920) L. N. O. J. Special Supp. , No 3, p. 3   S. T. C. (S. C. D. ) 150 Sp Comm.  (1929) 5. A. D. 11.  1 R. I. A. A. 369.   S. T. C. (S. C. D. ) 150 Sp Comm.  I. C. J. Rep. 2004.