SUMBISSION B ISSUES 1. Whether Go Swastikas can be legally considered as the governing body of Diamond. 2.

Whether Diamond can be regarded as a state by the international law. LAW FOR THE 1ST ISSUE Insurgents in a civil war have long been recognized in international law as subjects having certain rights and duties. This status comes into being through their struggle against a State to which they formerly belonged. They are born from a wound in the body of a particular State, and therefore not easily accepted by the international community unless they can prove that they exercise some of the sovereign rights typical of States for example by effective control over territory or people. They assert themselves by force and acquire international status proportionate to their power and authority. However, their existence is by definition provisional whereby they either win and turn into a complete States or are defeated and disappear. Practically, insurgent bodies within a State may enter into legal relations and conclude agreements with States and other insurgent bodies. According to the constitutive theory, a State or government does not exist unless it has been recognized as such by other States. Recognition thus has constitutive effect in the sense that it is necessary condition for the creation of the government concerned. Through recognition only a State becomes an international person and a subject of international law. However, according to the declaratory theory, the granting of recognition to a new State is not a constitutive but a declaratory act. Case: Great Britain v Costa Rica (1923) 1 RIAA 369 (Tinoco arbitration) Facts: Frederico Tinoco came to power in Costa Rica after a coup dtat. His government concluded certain contracts with British corporations. In 1919, Tinoco was ousted and the new government repudiated the obligations undertaken by the Tinoco government towards British nationals. Great Britain made claims against Costa Rica in respect of the injuries to its nationals caused by these repudiations. The

main issue was the status of the Tinoco regime in the international law in the light of non-recognition of it by other States. Held: Tinoco regime was the government of Costa Rica because it was clearly in effective control of Costa Rica. The fact that it had not been recognized by several States, including Great Britain, made no difference. Recognition of governments may occur expressly or impliedly. It is express when it is made by a formal declaration or statement. It is implied when it is to be inferred from certain relations between the recognizing state and the new state or government, such as entry into diplomatic relation or the conclusion of a bilateral treaty. When a new government comes into power not in a constitutional manner but after a coup dtat, or a revolution, or a civil war, recognition of that government is a serious question and a decision thereon is to be made with great care. The conditions under international law for the recognition of a new government are: 1. That the new regime has in fact effective control over most of the States territory 2. That this control seems likely to continue Recognition of a government which comes into power unconstitutionally has sometimes been misinterpreted as implying approval of that revolutionary government. In order to avoid such misrepresentations, some states have adopted the policy never recognizing governments, better known as The Estrada doctrine which was originated in Mexico, after the name of the Mexican Secretary of State of Foreign Relations. According to this doctrine, the change of government in a State is an internal matter and does not concern international law or other states. LAW FOR THE 2ND ISSUE Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 provides that the States as a person of international law should posses the following qualifications: 1. A permanent population; 2. A defined territory; 3. Government; and 4. Capacity to enter into relations with other States.

For a State to exist there must be a defined territory. The control over the territory is the essence of a State. What is important is that a State consistently controls a sufficiently identifiable core of territory. Besides that, the criterion of a permanent population is very essential as it is connected with that of territory and constitutes the physical basis for the existence of a State. Wandering tribes does not constitute to be a State. In the Western Sahara case, it was noted that the territory of Western Sahara is populated by nomadic tribes who go freely across the desert. However, it was held that their link with the territory is such that they may be regarded as its population. The third requirement is that, for there to be a State there must be government. The government must be effective within the defined territory and exercise control over the permanent population. The mere existence of a government in itself does not suffice. Case: Aaland Island Case (1920) L.N.O.J. Spec. Supp. No. 3. Facts: Finland had been a part of the Russian Empire until the Russian Revolution. The Finnish Diet (Parliament), declared Finlands independence on December 4, 1917. This was recognized by the Soviet Government but there was opposition within Finland by those who rejected the idea of independence. As a result, violence broke out and for a time the government of the new state was able to maintain order only with the help of the Soviet troops. Held: The exact date Finland become a State was when the public authorities has become strong enough to assert themselves through the territories of the state without the assistance of foreign troops. APPLICATION In applying to the question in hand, since Go Swastikas was an insurrectionary group prior to the conquest of the Diamond province, they are allowed by the international law to enter into legal relations with States or other insurrection bodies. Recognition from other states is not required in fact because by virtue of the Estrada doctrine, the change of government is an internal matter and does not concern international law or other states. What Go Swastika could do is to ensure the recognition within the people in the territory and has effective control over them in order for Go Swastika to legally govern the Diamond province and for Diamond to be regarded as a State

under the United Nations. If Go Swastika can prove that they has in fact effective control over Diamond and the control is continued, the conditions under the international law for the recognition of a new government is said to be established. As been explained above, the mere existence of a government is not enough; the government must have effective control over the territory. By virtue of the Aaland Islands case, Go Swastika must prove that they had effective control and can assert themselves through the Diamond province without the assistance of any other states or troops as they had been assisted by the State of Jealous and poor locals prior to the conquest. All in all, for Go Swastika to be legalized as the governing body of Diamond they must prove recognition as well as effective control over such territory and for international law to regard Diamond as a State, it must fulfill the four requirements under Article 1 of the Montevideo Convention. As far as the statement of facts is concern, it can be said that Diamond can be regarded as a State and Go Swastika is the legal governing body of the State of Diamond.