Since Bananas exercised sovereignty over Blyn, it exercised sovereignty over the Shutka chain.
It is not required to control all of the territory that is claimed to be under the sovereignty of the state, it depends in each case upon the specific facts, for instance, "the nature of the territory involved, the amount of opposition as Malcolm Shaw points out."[10] In The Island of Palma case the arbitor concluded that in the situation, when the dispute concerning a group of islands arises "it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest."[11] The island of Blyn is the largest of the Shutka chain.[12] Since other islands are uninhabited, Blyn is considered to be the principal part of the archipelago. If sovereignty over the Blyn is recognized, then the Bananas exercises sovereignty over the whole archipelago.
It is accepted in international law that a newly created state, which received independence from a colonial regime, inherits the boundaries that it had during a colonial rule. However, this approach cannot be applied to the Shutka chain for several reasons.
The Palmas islands case deals with a similar question, and the arbitor came to the conclusion that "... Spain could not transfer more rights than she herself possessed"[13]. This reflects the general principle of international law.[14] In the present dispute it may be argued by the Respondent that the PRC inherited the title to the possession of the Shutka chain, but Lyagushkaland was not entitled to the Shutka chain. Thus, the analogy may be drawn between The Palma Islands case and the present one, which will exclude the possibility of uti possidetis juris principle.
i. Lyagushkaland did not occupied the Shutkas chain.
Malcolm Shaw gave a definition of ocсupation of a territory: "Occupation is a method of acquiring territory which belongs to no one (terra nullius) and which may be acquired by a state in certain situations. The occupation must be by a state and not by private individuals, it must be effective and it must be intended as a claim of sovereignty over the area."[15] In the present case the facts are quite the opposite. In 1795, when Lyagushkaland's agents arrived to the Shutkas chain, it was already occupied by Bananas for about eight centuries.[16] That is why Lyagushkaland did not occupy the Shutkas islands.
ii. Even assuming that the Shutka chain was terra nullius when Lyagushkaland discovered the Shutka chain, the sovereignty over the islands could not have been granted to Lyagushkaland. There is case-law applicable to the situation when a state, previously claiming the sovereignty, fails to exercise the effective control over the territory. "Under certain circumstances, sovereignty over territory might pass as a result of the failure of the State which has sovereignty to respond to conduct a titre de souverain of the other State."[17]. The state may even not to express to whom the title would transfer to.[18] There is a rule that can be derived from the case-law that "discovery does not create a definitive title of sovereignty."[19]After discovery of terra nullius a state must enforce its claim for sovereignty by "a reasonable period... [of] the effective occupation of the region claimed to be discovered."[20] Planting the flag and leaving a sign on constructed barracks as Lyagushkaland's agents did[21] was not sufficient to claim sovereignty, since the rules have changed since the 18th century.[22]
The facts of the present dispute show us that since 1795 neither Lyagushatniks nor the agents of its colonies ever returned to the islands.[23] Consequently, Lyagushkaland failed to exercise the effective control over the territory for a reasonable period of time, so it could not receive sovereignty over the Shutka chain. In the case with the Shutka chain, Lyagushaland abandoned the islands while Bananas continued to send to Blyn groups of people officially sanctioned by Bananas to worship in the temple at vernal equinox celebration.[24] As a conclusion, the sufficient control over Blyn by the Bananas entitles the republic to exersice sovereignty over the islands.
iii. Even if Lyagushkaland's actions constituted the soveregnty over the Shutkas, it had no effect to constitute soveregnty over the Shutkas by the PRC.
Those actions were committed on behalf of Lyagushkaland, and the acquisition of the Shutkas did not annex Shutkas to the Crud as it planted the colonial flag and not the Crud's one.[25]
As the conclusion to that sub issue, the principle uti possidetis juris is unapplicable for the Shutkas Islands, for Lyagushaland had no title to the possession of the disputed area.
In 1920, the Cruds overthrown a colonial rule as a result of revolution. Since that time the newly formed the PRC attempted to claim sovereignty for the Shutka archipelago. However, those attempts were unsuccessful and unlawful due to the following reasons:
All Bolshaya Babas proclaimed that sovereignty over the Shutkas Islands belong to the PRC. However, no relevant law may support this position. The Respondent may try to apply the fact that maps of the PRC showed Shutkas as a part of its territory[26]. But these maps are of a little value. In Burkina Faso v. Mali case the court concluded that " the weight of maps as evidence relate to the neutrality of their sources towards the dispute in question and the parties to that dispute."[27] In the present case the maps available are printed by the party to the dispute, so PRC maps hold a little significance the present case.
Lastly, the final question to answer is whether the exploration trip of 2009 constitutes the grounds for the legality of PRC claim of the soveregnty over the Shutkas. The only opportunity to answer this question positively is to prove that there was an estoppel. The example of the case-law on that matter is TheTemple of Preah Vihear one, where I.C.J. found "a tacit recognition by Siam of the sovereignity of Cambodia (under French Protectorate) over Preah Vihear"[28] in the failure of a Siam prince to react in any manner to the French flag waving over the disputed temple.[29] So the ruling is that a "[s]ubsequent conduct itself would in the material sense include the examples of the exercise of sovereign activity, various diplomatic and similar exchanges and records, and maps."[30] This rule is not applicable to the conduct of the Bananas for it immediately protested to the claim of sovereignty made in Spring, 2010. The PRC’s trip to the Shutkas is irrelevant, as the continuous occupation by the Bananas creates sovereignty over the islands. The PRC’s people are considered to be trespassers.
Conclusion to the first issue of the case: The sovereignty over the islands belongs to the Bananas since it exercised effective control over the principal part of thechain of the uninhabited islands, while no other evidence can be produced of other states entitled to possess the disputed territory.
II. Destruction of the monument by the PRC constitutes a violation of intenational law, thus, the PRC is responsible for internationally unlawfull act and is obliged to pay a reparation.
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