QUESTION 1
There is no question that there are substantial and important differences between international law and municipal law. There is, of course, no overarching legislature of international law capable of passing binding international laws. There is no international legislative body and no corresponding national legislature. The international legal framework is primarily one that requires the permission of those it can govern, but not strictly.International law can generally only be formed by consent – issues who cannot be forced should never be compelled to do so. The scheme of international law is best understood as a horizontal hierarchical arrangement, not a vertical one. What it means is that while legislation is enacted in domestic law on the subjects by the legislative body, it is the parties themselves who make the law in international law for themselves. This is somewhat unsatisfactory, but it may be best understood as the appropriate consequence of international law specifically dealing with laws directed at sovereign States. Likewise, there is no international tribunal in which States can regularly be required to appear in violation of international law.
The function of the state is complex in the modern world. According to legal theory, each state is sovereign and equal, but it cannot be fully sovereign to the most powerful states. The growth and expansion of international law raises concerns about the role of the state in the international system. This has led to a growing interpenetration of international and municipal law in a number of fields, such as human rights, environmental and international investment legislation.
Municipal law regulates the domestic facets of government and discusses issues between individuals and between individuals and the administrative system, while international law emphasizes the relationship between states. However, this is now an unduly common claim. There are also situations where there may be conflicts and complications between the two systems. In a proceeding before a municipal court, an international law rule can be introduced as a shield against an allegation, as in R v. Jones , for example, where the privilege of trying to deter a greater crime (essentially international law) has been asserted in relation to the suspected criminal offense (in English law) or where a vessel is punished for being in territorial waters (as applicable to domestic law) but will be considered as part of the high seas under international law.
Nonetheless, there are cases where both national and international tribunals have the same situation which can apply in a complex mediation process with each other's decisions. There exists an International Court of Justice, although that only includes cases between parties involved before the Court and only states are eligible whether the Court decides to issue a definitive decision instead of providing an advisory opinion . The Court has no part to play in penalizing States that violate their obligations under international law.The function is to settle state-to - state conflicts by using sanctions. And while some states have acknowledged the International Court of Justice's compulsory jurisdiction, it would only be applicable in disputes between states where both parties to the conflict have agreed to the compulsory jurisdiction. Most likely the Court may only have authority if the parties to the case agree to the Court's jurisdiction over a specific case. So the focus here too remains on consent.
QUESTION 2A
The Montevideo convention on right and duties of a state, under Article 1, outlined four requirements for statehood. Article 1 reads thus:
“The state as a person of international law should possess the following qualification: (a) a permanent population; (b) a defined territory; (c) government; and (d)capacity to enter into relations with other states.”
Permanent Population: The first requirements of the Montevideo convention include the permanent population of the state and the definition of this population as a 'stable community.' As a result, the population must be united, but not uniform in reality. This need underlines the critical need for some sort of stable human community capable of sustaining the superstructure of the state. It means that the occupants will have the goal of living in a given place forever . The simple occupancy of the land would not be adequate to satisfy the legal obligation. The presence of historically nomadic people does not necessarily have a lasting effect on permanence necessity.
Nevertheless, it does seem obvious that there is a need for any permanence to satisfy this condition, if not in living conditions then at least to imply the stability of the society over time. This does not automatically imply that it requires any unique amount of durability or prolonged legacy before a population can form the foundation of a society. Nor is the size of the population needed, as shown by the presence of states with very small populations.
Territory: To meet the second Montevideo condition, power of a certain territory must be exercised. This condition is a crucial prerequisite for nationhood . Exclusive territorial jurisdiction remains a basic requirement for every State's ability and power to execute and exercise its State functions both in fact and in statute.
Determining the exact delimitations of this area is not a prerequisite. In the case ofNorth Sea Continental Shelf the international Court of Justice held that:
“The appurtenance of a given area, considered as an entity in no way governs
the precise determination of its boundaries, any more than uncertainty as
to boundaries can affect territorial rights. There is, for instance, no rule that
the land frontiers of a State must be fully delimited and defined, and often in
various places and for long periods they are not”
The region's size or income isn't significant either. What is relevant in terms of territory is the creation of an exclusive right to exhibit state control in that region – that is, active government. Sufficient if a state’s territory possessesa “sufficient consistency” even though its boundaries have not yet been accurately delimited
Government: The third requirement of Montevideo convention allows a state agency to have a central government functioning as a legislative institution under land law and in successful territorial power. The society in question must be constituted of a hierarchical, fairly structured political order; central institutions must exist for the formation and enforcement of the norms of that order, particularly that organ called government. State obligation is not bound to any single mode or type of government, but rather to a cohesive, functional, and efficient governmental organization.
The mere existence of a government would not be enough to satisfy the demands of an effective society. To accomplish this, it must be independent and autonomous, meaning that it is not subject to the control of another State across its territories. In international law, the importance of government as a metric of statehood is best respected by appreciating the need for stability and productivity both within the state and in the external relations of the state.
Capacity to Enter into Legal Relations:This is the fourth and last of the Montevideo convention requirement for statehood and is highly discrete, but it is often viewed in practice as being closely related to the third prerequisite of effective policy. It is because the willingness to negotiate with other states is mainly concerned with the developing institution possessing the requisite diplomatic and legal mechanisms for participating in the dynamic field of international affairs . The crucial factor attached to this condition is that of the willingness to function independently, rather than evidence of practice, in international legal affairs. This is attributed to the fact that central governments and not regional governments have the right to intervene at the international level.
Article 2 of the Montevideo Convention provides that:
‘the federal state shall constitute a sole person in the eyes of international law’.
QUESTION2B
This question is answered in the negative. The protocol should not vest the authenticity of the entity’s statehood merely on how it is viewed or perceived by other members of the global community. This is because the existence of a state is not dependent on the recognition of other states. This was provided for in Article 3 of the Montevideo convention which stated thus:
"The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interest, administer its service and to define the jurisdiction and competence of its court. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international Law."
It is referred to as the declarative law of Statehood and it contradicts the alternative constitutive law of statehood which states that a State exists only to the degree that all States recognize it.
QUESTION3A
Although acquisition of territory by the use of military force was one of the traditional modes of acquiring a territory, it is an illegal mode of acquiring a territory. This is premised on the fact that every State enjoys territorial sovereignty and as such, such sovereignty should be recognized and respected by other States. This is referred to as subjugation. The charter of the United Nations made an express provision to that effect. Article 2(4) stipulates that:
“Member States must refrain from the threat or use of force against the territorial integrity or political independence of any stateor in any other manner inconsistent with the Purposes of the United Nations.”
The United Nations through its General Assembly adopted resolution 2625(XXV), entitled 'Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States', reiteratedthat:
"No territorial acquisition resulting from the threat or use of force shall be recognised as legal."
Consequently, the acquisition of Utim territory by Tansan through the use of military force is illegal and breeches the provisions of international Law
QUESTION3B
Annexation amounts to a unilateral act by which a state asserts its jurisdiction over the territories of another Entity. This typically includes the threat or use of coercion, as the annexing state generally controls the land in question to claim its control over it. Annexation amounts to an act of war and is forbidden under international law. It is a legal act by which a power, hitherto outside its control, proclaims its jurisdiction over the region. Unlike cession, by which territories are given or sold by treaties, annexation is a sovereign act induced by real ownership and legitimated by public recognition (Hofmann, Rainer 2013) .However, annexation would become legal and legitimate if it gets a general recognition by other international bodies i.e. countries and intergovernmental organization.
Having stated the above and in answer to the above question, although annexation involves the use of force to take over a territory of another state, as is seen in the scenario, but my answer would be different from (3A) only if the acquisition of the territory of Utim by Tansan gets a general recognition by other international bodies. This is because it is this general recognition that legitimizes the acquisition by annexation.
QUESTION3C
There are different modes of acquiring territory ofUtmi that Tansan could adopt which would be legally recognized. These modes of acquisition will be discussed below;
1. Accretion: Accretion, also known as avulsion, relates to the natural geological processes that lead to a growth or decline in the territory and, as territorial sovereignty, are relatively uncontroversial . For example, if the loss of land that once constituted the upstream jurisdiction of the State contributes to the expansion of the river bank of the State downstream, the borders of both States will be reduced or extended accordingly. Unnatural structures, including man-made islands, banks, etc., do not enlarge the territory of the state. Therefore, no nation can change its own territory purposely without a prior agreement with the other state that would be affected by the change.
2. Cession: This is another mode of acquiring territory. Cession happens when a state of possession transfers jurisdiction to another state over the territory. A state may cede some part of its land territory, and it will merge fully with the other state by ceding all of its territory. Rivers and the maritime belt cannot be ceded on their own, since they represent an inalienable possession of land. In order to carry out a cession of territories, it must be expected that the owner-state transfers sovereignty, and not simply legislative powers outside sovereignty . Cessions of territory are typically performed by a treaty. An example is when China ceded Hong Kong and part of Kowloon to the UK as a result of the opium wars.
3. Occupation: Occupation as a means of acquiring territory traditionally occurred only when a State intentionally gained jurisdiction over territories not subject to the jurisdiction of another State. In other words, the territories at that time would have been unpopulated or occupied by people whose society was not considered a state. This was the core of the case of the Western Sahara, where it was decided that the land populated by a nation with a political or social system is not terra nullius and cannot therefore be occupied. The acquiring state first had to take control of the territory for occupation to have effectively established title to land. This necessitated both physical ownership and the requisite intention to achieve sovereignty. Secondly, an administration in the name of the acquiring state had to be formed over the territory. If a responsible authority which carried out governing functions was not formed by the acquiring State within a reasonable time from taking over, then there was no effective occupation because no sovereignty was exerted .Finally, there must have been some desire to behave as a sovereign, an animus possidendii. This was also necessary that the State's actions be beneficial to it and not natural persons not authorized.It is conceivable today that the acquisition of new territory by occupation is almost impossible, given that on this planet little to no terra nullius land remains. That does not mean however that profession is insignificant to current international law.
4. Prescription: While there has always been a school of thought challenging whether acquisitive prescription is also a mode of acquisition, it was widely agreed that territory could be acquired as a matter of practice by prescription. Acquisitive prescription required the transfer of territory to an acquiring state by open ownership through consistent and unhindered actions of acquisition for a period of time. There were no specific rules specifying a minimum period of time or necessary acts of sovereignty to have obtained title by prescription successfully.These matters were determined by the particular situations of each case. It is important to note that these definitions of acquisitive prescription are now obsolete, as with occupation, which stresses the passing of time. Most specifically, maintaining successful controls. A perfect instance of prescription-based title can be seen in the case of the Isle of Palmas. In this case, Judge Huber discovered that even though it was agreed that, as argued by the United States, Spain had a discovery title to the island, this title did not prevail in the face of a 'continuousand peaceful show of sovereignty.' In this case, acts ascribable mostly to sovereignty and the willingness on the part of the initial sovereign to act as sovereign and, moreover, acceptance were required.
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