Written phase of the question: is it a state? According to the Montevideo Convention
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Course
Public International Law
Institution
Universiteit Utrecht (UU)
This document includes the written phase of the course Public International Law, answering the question: is (in my year; Pomegranate Island) a state? The question is answered according to article 1 of the Montevideo convention:
• a permanent population (a);
• a defined territory (b);
• a g...
The issue is whether Pomegranate Island, by creating a man-made island, can now be
considered as an independent state.
There are two approaches regarding recognition of a State; the declarative and the constitutive
theory . The constitutive theory will be used in the application of the statement of facts.
Both theories assume that statehood depends on the four conditions included in article 1 of the
1933 Montevideo Convention on the Right and Duties of States. The difference between them
is that the constitutive theory also assumes that statehood is established by the acceptance and
recognition of other states. The declarative theory contradicts this. According to this theory,
recognition is not an extra requirement to be an existing state. By all means, to be entitled as a
State, all four conditions of article 1 of the Montevideo Convention must be fulfilled. You do
not necessarily have to be a member of the this Convention because the following conditions
are considered as international customary law;
a permanent population (a);
a defined territory (b);
a government (c);
a capacity to enter into relations with other states (d);
First, the requirement of a permanent population is explained. To speak of a permanent
population, someone must consider the territory as their home and live there. The size of the
population does not matter in this case.
The second requirement – a defined territory – does not require the boundaries of a territory to
be precisely defined and settled . However, there needs to be a physical space. An example of
a country in which the boundaries were not counted in order to be recognized as a state is
Israel. As long as the authorities have control over a coherent and undisputed area, this
requirement will be adopted.
The existence of an effective government is the third requirement to be recognized as a State.
This means that – at the time that a State was formed – there is a political entity who can
exercise control over the territory and make sure that the international obligations are met .
The government does not have to be democratic but it must be effective.
The last requirement is the presence of the capacity to enter into relations with other states.
There must be legal independence from other states. This means that restrictions do not ensure
that the legal authority is under another State.
The aforementioned legal framework is applied to the statement of facts.
a. Someone must consider Pomegranate Island as their home to speak of a permanent
population. More than 100 people wanted to call the island their home and received the
nationality of the island by getting a passport. However, none of these passports are
recognized by other states. Reasoned from the constitutive theory, the recognition is a
precondition and therefore the island can not have a permanent population, so can not be
identified as a state. Counter arguments of the reasoning of this theory are the quantity of
states that do not recognize and the order between the importance of the states that do not
recognize . However, both of these arguments can be omitted. There is no state that does
recognize the passports so there is also no order in importance between them.
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