QUESTION 1: Assess the ability of Maligait to exist as state under international law.

The issue that arise is whether Maligait has the ability to exist as state. According to Macmillan dictionary, state is a nation or a country. In legal definition, state means a people permanently occupying a fixed territory bound together by common habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other states. The 1933 Convention on the Rights and Duties of States (aka Montevideo Convention) specifically defines statehood as: "The state as a person of international law should possess the following qualifications: a permanent population; a defined territory; government; and capacity to enter into relations with the other states." In the Declaration on the `Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union' (16 December 1991) on the formal recognition of new states in Eastern Europe and in the Soviet Union: The Community and its Member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination. They affirm their readiness to recognize, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations. The first criteria of statehood are permanent population. There is no minimum population size is required. In fact, Vatican City is the world's smallest country with an estimated population of 832. Second criteria is define territory which not necessary essential of statehood that a state has clearly defined an undisputed border. It should have stable community within an area over which its government has control and it not necessarily to occupy a single territory. For example Canada separates Alaska from the rest of United States. The third criteria are a state must have a government that is in effective control of its territory and that is independent of other authority. In Aaland Island case, the exact date it become independent, stable political organization had been created and public authority become strong enough to assert themselves throughout the territory of the state without assistance of foreign troop. The fourth criteria are the capacity to enter relations with other states. This criteria is a consequence of independence. In Island of Palmas (1928), 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. The claimant entity must be recognized by at least some states to make this capacity a reality to give it functional independent. In case related to Turkish Republic of Northern Cyprus (TRNC) is recognized only by Turkey; in case Caglar v Bilingham(Inspector of Taxes) the court held that, in view of the non-recognition of the Turkish Republic of Northern Cyprus by the whole of the international community other than Turkey we conclude that it does not have functional independence as it cannot enter into relations with other states. It does not therefore satisfy the forth requirement of statehood. One more criteria is respect of human rights and self-determination. The Declaration on the `Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union' (16 December 1991) adopt a common position on the process of recognition of these new States, which requires: (i)

respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights;(ii) guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE;(iii)respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement;(iv) acceptance of all relevant commitments with regard to disarmament and nuclear nonproliferation as well as to security and regional stability; and (v)commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning State succession and regional disputes.

There are five mode of acquisition of territory. First, occupation, it is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi). There are two elements of effective occupation. One is the intention and will to act as sovereign (animus), and two is the peaceful and continuous display of state authority (factum. The display of state authority must be peaceful and continuous. Mere protests from rival claimant states do not lose the peaceful character of the display of state authority. However, consistent protests over a long period of time if not rebutted by the claimant state may disturb the peaceful character of the display of state authority. In Island of Palmas case: the continuous and peaceful display of territorial sovereignty( peaceful in relation to other states) as good as title. The continuous display of state authority encompasses two ideas: (1) that the display of authority is ongoing; and (2) the display of state authority must exist up to the "critical date". The critical date in a territorial dispute is the date on which the location of territorial sovereignty is crucial. Normally it is the date of the origin of the dispute. The state which can present an effective title in the period immediately preceding the critical date has the superior claim. Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. This requirement had been stated in Sovereignty over Pulau Ligitan and Pulau Sipadan case. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state. Cession is the transfer of territory usually by treaty from one state to another. Affiliated of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise. Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his

state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community. A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion. In Maligait case, to begin with, Maligait is a terra nullius, which means the land not belong to no one, until in 1885 State of Kingfisher assign it to Karakura administrative border. Terra nullius are acquired by means of discover in 15th and 16th centuries and later by mode of occupation. The essential element for acquisition through mode of occupation is the territory subject of claim must not be under the sovereignty of any state (terra nullius); and the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation on the territory after it displayed its intention to occupy. In addition, two elements of effective occupation; is the intention and will to act as sovereign, and two is the peaceful and continuous display of state authority and the display of state authority must be peaceful and continuous. The Governors of Karakura rarely visited Rocky tribe which is the inhabitants of Maligait. In the case of Island of Palma, the Netherlands' primary contention was that it held actual title because the Netherlands had exercised authority on the island since 1677. The Netherlands showed that the Dutch East India Company had negotiated treaties with the local princes of the island since the 17th century and had exercised sovereignty, including a requirement of Protestantism and the denial of other nationals on the island. The arbitrator pointed out that if Spain had actually exercised authority, then there would have been conflicts between the two countries but none are provided in the evidence. Thus, Karakura cant claim its right on Maligait based on this. For Maligait to exist as a state, it have to fulfill the criteria of statehood like had been stated earlier. First, permanent population; Maligait had a population which is the Rocky Tribe. Second, Maligait had its own define territory of a surface area of 100,000 squares kilometer consisting desert flatland. Thirdly, government requirement. Maligait have Blood Rockers Liberation Movement (BRLM) which is in effective control of Maligait by protecting it from Novanut People. The fourth criteria is capacity to enter relation with other state. The existence of Maligait as a state and government is only recognized by Rock. Based on the case Caglar v Bilingham(Inspector of Taxes) where the court held that, in view of the non-recognition of the Turkish Republic of Northern Cyprus by the whole of the international community other than Turkey we conclude that it does not have functional independence as it cannot enter into relations with other states. It does not therefore satisfy the forth requirement of statehood, Maligait didnt satisfy the fourth requirement. Maligait fail one of qualification of the statehood as in the Montevideo Convention to qualify and exist as state. Consequently, Maligait cant exist as a state.

QUESTION 2: Assess the strength of the Colourcloud and Taruska over Bernina Island.

There are five modes of acquisition of territories: occupation, prescription, accretion, conquest and cession. First, occupation, it is the intentional acquisition by a state over a territory which at the time of claim not under the sovereignty of any state. There are two requirements: (1) the territory subject of claim must not be under the sovereignty of any state (terra nullius); and (2) the state must have effectively occupied the territory, that is, the state claiming the territory must have exercised immediate occupation (corpus occupandi) on the territory after it displayed its intention to occupy (animus occupandi). Cession is the transfer of territory usually by treaty from one state to another. Affiliated of transfer of territory is the transfer of sovereignty from the owner state to another state. And since cession is a bilateral transaction, the parties involved are states. Cession may also be in the form of exchange of territory or in the form gift or donation or devise. Conquest is acquiring territory by the use of force. The practice before was after conquest, the conqueror annexed the conquered territory to his state. Thus, conquest first takes place followed by annexation. But with the establishment of the United Nations, conquest is no longer acceptable in the international community. A state may also increase or decrease its territory through accression and avulsion. Accression is the attainment of sovereignty over new land due to slow movement of natural forces. Example of this is the gradual movement of a river bed. On the other hand, if the natural forces happened suddenly, like creation of an island in territorial waters due to volcanic eruption, it is referred as avulsion. Prescription means continued occupation over a long period of time by one state of territory actually and originally belonging to another state. There are four requirements of prescription: (1) the possession must be exercised in the form of actual exercise of sovereign authority; (2) the possession must be peaceful and uninterrupted; (3) the possession must be public; and (4) the possession must be for a long period of time. This requirement had been stated in Sovereignty over Pulau Ligitan and Pulau Sipadan case. The peaceful and continuous display is also an essential element although as compared to occupation, prescription requires a stricter proof and longer period of the display of authority. Moreover, any protest or objection by the losing state destroys the peaceful display of authority of the claiming state. In Pulau Batu Puteh Case, it was originally within the territory of the Johor Sultanate which was founded in 1528, and remained under the new Sultanate of Johor under the British sphere of influence following the signing of the AngloDutch Treaty of 1824 between the United Kingdom and the Netherlands. Between 1850 and 1851, the British built Horsburgh Lighthouse on the island without informing the Johor authorities of their decision to do so or seeking consent for its erection. From that time, the island was administered by the United Kingdom and its successor, Singapore. On 21 September 1953, the Acting State Secretary of Johor, responding to a query from the Colonial Secretary of Singapore about the status of the island, stated that "the Johore Government does not claim ownership of Pedra Branca".

On 21 December 1979 Malaysia published a map which showed the island to be within its territorial waters. This ignited a 29-year territorial dispute which, together with the issue of sovereignty over the nearby maritime features of Middle Rocks and South Ledge, was presented to the International Court of Justice (ICJ) for resolution. The ICJ delivered its judgment on 23 May 2008. It held that although Pedra Branca had originally been under the sovereignty of Johor, the conduct of Singapore and its predecessors titre de souverain (with the title of a sovereign) and the failure of Malaysia and its predecessors to respond to such conduct showed that by 1980, when the dispute between the parties arose, sovereignty over the island had passed to Singapore. The relevant conduct on the part of Singapore and its predecessors included investigating marine accidents in the vicinity of the island, planning land reclamation works, installing naval communications equipment, and requiring Malaysian officials wishing to visit the island to obtain permits. In contrast, Johor and its successors had taken no action with respect to the island from June 1850 for a century or more. In 1953 the Acting Secretary of the State of Johor had stated that Johor did not claim ownership of Pedra Branca. All visits made to the island had been with Singapore's express permission, and maps published by Malaysia in the 1960s and 1970s indicated that it recognized Singapore's sovereignty over Pedra Branca. It stated in ICJ Report of Judgment: The question to which the Court must now respond is whether in the light of the principles and rules of international law it stated earlier and of the assessment it has undertaken of the relevant facts, particularly the conduct of the Parties, sovereignty over Pedra Branca/Pulau Batu Puteh passed to the United Kingdom or Singapore. The conduct of the United Kingdom and Singapore was, in many respects, conduct as operator of Horsburgh lighthouse, but that was not the case in all respects. Without being exhaustive, the Court recalls their investigation of marine accidents, their control over visits, Singapores installation of naval communication equipment and its reclamation plans, all of which include acts titre de souverain, the bulk of them after 1953. Malaysia and its predecessors did not respond in any way to that conduct,or the other conduct with that character identified earlier in this Judgment, of all of which (but for the installation of the naval communication equipment) it had notice. The Court concludes, especially by reference to the conduct of Singapore and its predecessors titre de souverain, taken together with the conduct of Malaysia and its predecessors including their failure to respond to the conduct of Singapore and its predecessors, that by 1980 sovereignty over Pedra Branca/Pulau Batu Puteh had passed to Singapore. The situation that happen in Benina Island is similar with the case of Pulau Batu Puteh. The fact are pari materia. Colourcloud had construct a lighthouse. The agreement between President of Kingfisher and the Governors of Colourcloud, the President of Kingfisher agreed to give Benina Island to Colourcoud. This is one of the form of mode of acquisition of territories which is cession. Thus, Colourcloud had strong claims upon Benina Island.