LAW088 TUTORIAL (WEEK 4)

Ques%on 1

ISSUE

Whether Ukulu is a state that enjoys legal personality according to interna%onal law.

LAW

In order for a region to be recognized as a state that enjoys legal personality according to
interna%onal law, there are few requirements that are to be met. The most widely accepted source
to a defini%on of statehood is the Montevideo Conven%on on the Rights and Du%es of States 1933.

Ar%cle 1 states that the state as a person of interna%onal law should possess these qualifica%ons;
permanent popula%on, a defined territory, effec%ve government and capacity to enter into rela%ons
with other states. Firstly, permanent popula%on which necessitates a popula%on connected to a
par%cular territory on a rela%vely permanent basis, and these individuals can be recognized as
inhabitants of that territory. Secondly, defined territory which is the core of being a state is having
control over a specific area, marked by borders separa%ng it from other states. Thirdly, effec%ve
government which for a state to be recognized, its government needs to effec%vely govern the
designated territory and have control over its permanent popula%on. Next, capacity to enter into
rela%ons with other states which implies that an en%ty should have the capacity to engage in
diploma%c rela%ons with other states which includes the ability to enter into trea%es, nego%ate
agreements, and par%cipate in interna%onal organisa%ons. An en%ty that sa%sfies the criteria of
statehood provided in Ar%cle 1 of Montevideo Conven%on is consider as a state. These are called
declara%ve theory.

Next is the cons%tu%ve theory. Apart from declara%ve theory, there is also another theory of
statehood known as cons%tu%ve theory. In contrast to the declara%ve theory, cons%tu%ve theory
suggests that a state or a government doesn’t exist unless it has been acknowledged as such by other
states. According to cons%tu%ve theory, recogni%on plays a cons%tu%ve role, meaning it is a vital
requirement for establishing the state or government in ques%on. Only through recogni%on does a
state acquire interna%onal personhood and become a subject of interna%onal law. Recogni%on in
the cons%tu%ve theory is separated into 2 which are by expressing recogni%on or implying
recogni%on. Expressing recogni%on is when recogni%on is made by a formal declara%on or
statement. On the other hand, implying recogni%on refers to when recogni%on is to be inferred from
certain rela%ons between the recognizing state and the new state of government, such as entry into
diploma%c rela%on or the conclusion of a bilaterial treaty.

APPLICATION

Applying to the Ukulu region case, it was men%oned that Ukulu has its own government and there
are no outside power that are controlling the country. This proves that Ukulu does have effec%ve
government which are one of the requirements to be recognized as a state. Next, it was stated in the
ques%on that there are 15,000 people that are living in Ukulu. This %cked the box that Ukulu does
has permanent popula%on which are also one of the requirements for a region to be recognized as a
country. Nevertheless, Ukulu has no control over specific area, marked by borders separa%ng it from
other states. This means Ukulu does not has a defined territory and is actually not qualified to be
recognized as a country. There are also no states that are interested in forming any business with
Ukulu which means that it has no capacity to enter into rela%onship with other countries. Lastly,
there are no recogni%on made by any recognized country towards Ukulu. Neither formal declara%on
nor statement are made.

CONCLUSION

In conlusion, Ukulu is not a state that enjoys legal personality according to interna%onal law because
it does not fill in the requirements to be considered as a country according to Ar%cle 1 of
Montevideo Conven%on on Rights and Du%es of States 1933 which are also known as the declara%ve
theory and Ar%cle 3 of Montevideo Conven%on on Rights and Du%es of States 1933 or cons%tu%ve
theory. Therefore, in order to become a state, declara%ve and cons%tu%ve theory are needed to
complement each other. An en%ty need to fulfill the criteria of statehood under Montevideo
Conven%on as well as received recogni%on from other states which are also need to be a recognized
state.

Ques%on 2

a) ISSUE
Whether Covidia has fulfilled the criteria of statehood according to the declara%ve and
cons%tu%ve theory of statehood.

LAW

In order for a region to be recognized as a state that enjoys legal personality according to
interna%onal law, there are few requirements that are to be met. The most widely accepted source
to a defini%on of statehood is the Montevideo Conven%on on the Rights and Du%es of States 1933.
Ar%cle 1 states that the state as a person of interna%onal law should possess these qualifica%ons;
permanent popula%on, a defined territory, effec%ve government and capacity to enter into rela%ons
with other states. Firstly, permanent popula%on which necessitates a popula%on connected to a
par%cular territory on a rela%vely permanent basis, and these individuals can be recognized as
inhabitants of that territory. Secondly, defined territory which is the core of being a state is having
control over a specific area, marked by borders separa%ng it from other states. Thirdly, effec%ve
government which for a state to be recognized, its government needs to effec%vely govern the
designated territory and have control over its permanent popula%on. Next, capacity to enter into
rela%ons with other states which implies that an en%ty should have the capacity to engage in
diploma%c rela%ons with other states which includes the ability to enter into trea%es, nego%ate
agreements, and par%cipate in interna%onal organisa%ons An en%ty that sa%sfies the criteria of
statehood provided in Ar%cle 1 of Montevideo Conven%on is consider as a state. These are called
declara%ve theory.

Next is the cons%tu%ve theory. Apart from declara%ve theory, there is also another theory of
statehood known as cons%tu%ve theory. In contrast to the declara%ve theory, cons%tu%ve theory
suggests that a state or a government doesn’t exist unless it has been acknowledged as such by other
states. According to cons%tu%ve theory, recogni%on plays a cons%tu%ve role, meaning it is a vital
requirement for establishing the state or government in ques%on. Only through recogni%on does a
state acquire interna%onal personhood and become a subject of interna%onal law. Recogni%on in
the cons%tu%ve theory is separated into 2 which are by expressing recogni%on or implying
recogni%on. Expressing recogni%on is when recogni%on is made by a formal declara%on or
statement. On the other hand, implying recogni%on refers to when recogni%on is to be inferred from
certain rela%ons between the recognizing state and the new state of government, such as entry into
diploma%c rela%on or the conclusion of a bilaterial treaty.

APPLICATION

In the case of Covidia, it was stated in the ques%on that Covidia is a highly dense territory measuring
around 100km2 with almost 5 million popula%ons. This shows that Covidia does have defined
territories and permanent popula%on. Next, it was stated that as for 2022, only Crood Island and
Jus%nia recognize the independence of Covidia, with both countries having limited recogni%on.
Based on this statement, it shows that Covidia has met the requirements for Ar%cle 3 of Montevideo
Conven%on. However, it was said that Covidia is ruled by the Peace Union Party. This on its own
shows that Covidia does not has the effec%ve government as the region is controlled by foreign
powers. It is not controlled by their own people or government. To add on, Covidia does not has the
capacity to enter into rela%onship with other countries which makes it not considered as a country.

CONCLUSION

In conclusion, Covidia has fulfilled the criteria of statehood according to cons%tu%ve theory as there
are countries that recognized it as a country. Nevertheless, it fails to fulfill the requirements
according to the declara%ve theory as it does not have an effec%ve government and don’t have the
capacity to enter into rela%onship with other countries.

b) The word sovereignty is derived from the La%n word superanus which means supremacy or
superior power. There are 2 types of sovereignty which are de jure sovereignty and de facto
sovereignty. De jury sovereignty is the authority of the ruler or government which is recognized by
law as supreme. It also means legal recogni%on, sovereignty concerns the expressed and
ins%tu%onally recognized right to exercise control over a territory.

If Covidia’s independence is recognized, the type of sovereignty that could be recognized is de facto
sovereignty. This is because, the term “de facto sovereignty” refers to an individual or group
currently wielding power, capable of enforcing obedience, or receiving voluntary compliance from
the majority of the populance. The key criterions is the actual obedience to commands. Lord Bryce
defines de facto sovereign as ‘the person or body of persons who can make his or their will prevail
whether with law or against the law; he or they is the de facto rules, the person whom obedience is
actually paid’.