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.