EXPLAIN THE PROVISIONS OF STATE: CONDITION OF STATEHOOD, TERRITORY AND UNDERLYING PRINCIPLES, SOVEREIGNTY UNDER INTERNATIONAL LAW

Abstract

This legal research paper examines the intricate balance between various countries in the world, along with the provisions that have been laid out by the international laws. Also, this paper delves into the multifaceted concept of statehood, elucidating its provisions and conditions. Statehood, as a fundamental concept in international law, involves a set of criteria that define the legal status and rights of entities within the international community. Provisions provided by the laws help these States to possess certain powers to regulate and restrict these rights for compelling reasons to maintain the ‘law and order’ all over the State and between different States across the seas. Through a detailed examination, this paper explores the principles of recognition, sovereignty, territory, government, and capacity, this paper offers insights into the complex dynamics that underpin the status of states in the modern world.

Keywords

Statehood, International Law, Recognition, Sovereignty, Territory, Government, Capacity.

Introduction

At the national and international levels, statehood is an abstract concept in politics and law. The steady legal framework of a political territory that enables it to integrate with other like-organized communities in the global community of states; known as the State in contemporary international law. States are the fundamental elements of the global community. During its evolution two or three centuries ago, states were emerging up from all the sectors of the globe, and these societies were made up entirely of several states, with very few exceptions of a sui generis nature. It is no longer possible to say that States make up the entirety of the international community, but they still hold a strong position in it, especially with the rise of numerous international organizations.

Historical Evolution

In the starting, people of the world used to live; mostly alone or were in various highly unorganised groups. But in time, people started to reside in some particular and specified areas with certain rules and regulations; among other people, in hope of leading a peaceful life. So, in the starting these functions and duties of central authority/power were limited to basic matters as the defence and protection of the realm, the maintenance of law and order, which further evolved with time.

While the constitutional and legal structures of the modern definition of State can be traced back to origins multiple centuries ago, but the essential crux of the State has in practice remained firmly rooted and fixated in the territorial boundaries flowing from the personal allegiance which in early times linked ‘the Ruler and the Ruled’. The organisation of the community of people became steadily more complex, which in the course of time led the rulers to associate into a wider circle of very powerful people with the task of governing their separate domains.

The ‘people’ had a degree of homogeneity which served to identify themselves with their particular rulers and to distinguish themselves from the people under the sway of other rulers. It is within this homogeneity that contemporary ideas of nationhood can be discovered. But this is not a place with clear borders. But since the middle of the 20th century, the world’s population has been moving at an exponential rate, making it harder in some cases to feel like a nation—whether as immigrants seeking a better life or as refugees suffering oppression and sickness.

A hundred years after the famous jurist Bodin, the English author Thomas Hobbes started to recast the idea of sovereign authority with his famous book called ‘Leviathan’. In this first version of ‘Social Contract’ theory, which described that the sovereign is still conceived as an absolute master, but the power vested in it is clearly no longer original and unconditional.

Fifty years later, this quasi-absolute conception of State sovereignty was first questioned the jurist known by the name John Locke.

In order to do this, Rousseau‘s account of sovereignty conceptualizes popular sovereignty and explains how political institutions’ use of sovereignty is subject to the respect of the public will.

All matters requiring the attention of the specific ruler and his court or immediate entourage became more complex and powerful over time, and their dependence on public approval led to the creation of numerous new types of laws. culminating in the development of the concept of states at the international level.

Statehood: A Brief Overview

Statehood is a fundamental concept in political science and international law, referring to a highly recognized status of an entity as a sovereign and independent political unit within the international community to represent it and its populace. The term encompasses a set of criteria and conditions that define the legal personality, rights, and responsibilities of that particular state.

The Montevideo Convention of 1933[1], also known as the Montevideo Convention on the Rights and Duties of States, was signed on December 26, 1933, during the Seventh International Conference of American States in Montevideo, Uruguay. The convention established the standard definition of a state under international law, stating that all states were equal sovereign units consisting of a permanent population, defined territorial boundaries, a stable and defined government, and an interest to enter into valid legal agreements with other states.

Key Elements of Statehood:

Territory: A defined territory with recognized boundaries with other states is a fundamental attribute of statehood. It delineates the geographical legal jurisdiction within which a state exercises its authority and administers its laws.[2] A popular case of UK vs. Norway (North Atlantic Fisheries Case)[3], further elaborates this element.

2. Population: States are characterized by a permanent population, which comprises the individuals residing within its territory. The population forms the social foundation of the state and contributes to its identity and cohesion.

3. Government: The presence of a government capable of exercising effective control and governance within the state’s territory is essential for statehood. Governments are responsible for enacting laws, maintaining order, and representing the state’s interests domestically and internationally.

The international laws and governments all over the world and through-out time, has recognised the following types of States:

Aristocracy
Authoritarianism
Capitalism
Colonialism
Communism
Democracy
Electocracy
Federalism
Meritocracy
Military Dictatorship
Monarchy
Republicanism
Socialism
Statism
Theocracy
Totalitarianism
Tribalism, etc.

Sovereignty: Sovereignty denotes the supreme authority of a state to govern its internal affairs without any external interference. It encompasses the state’s right to make decisions, exercise control over its territory, and represent itself in relations with other states. This idea of Public Sovereignty was propounded in the ‘General Will’ which was given by Jean-Jacques Rousseau[4]. One particular case on dispute on territory and sovereignty was State of West Bengal vs Union of India.[5]

Understanding State Sovereignty

State sovereignty stands as a cornerstone principle in the architecture of international relations, delineating the autonomous authority and independence of states within their defined territories. At its core, state sovereignty embodies the idea that states possess the supreme power to govern their internal affairs, enact laws, and interact with other states free from external interference.

The concept of state sovereignty traces its roots back to the Treaty of Westphalia in 1648, which marked the end of the Thirty Years’ War and laid the groundwork for the modern state system. This treaty established the notion of territorial integrity and recognized the autonomy of states to determine their own domestic policies and engage in diplomatic relations with other sovereign entities.

Key dimensions of state sovereignty include territorial sovereignty, political sovereignty, legal sovereignty, and external sovereignty.

Territorial sovereignty asserts a state’s exclusive control over its territory, including land, airspace, and maritime zones.
Political sovereignty refers to the authority of a state to establish and maintain a government that exercises legitimate control over its population and territory.
Legal sovereignty encompasses the recognition of a state’s legal system and the supremacy of its laws within its territory.
External sovereignty underscores a state’s independence and autonomy in its interactions with other states and international organizations, including the right to engage in diplomacy, enter into treaties, and participate in global forums.

According to Article 11of the Convention on the Succession of States, a state’s succession has no bearing on a treaty’s established boundaries, duties, or rights pertaining to that boundary’s regime.[6]

Article 2.4 of the United Nations Charter requires members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State’.[7]

Article 52 of the Vienna Convention on the Law of Treaties says that a treaty is null and void if it was obtained through the threat or actual use of force, in contravention of the principles of international law enshrined in the UN Charter.[8] Agreements between governments to transfer areas would no longer be valid if they were signed with such force.

However, the concept of state sovereignty is not without its challenges and controversies. In an increasingly interconnected world, issues such as globalization, human rights, and transnational threats have prompted debates about the scope and limitations of state sovereignty. Moreover, the emergence of supranational organizations and regional blocs has led to a revaluation of traditional notions of sovereignty and the balance between state autonomy and international cooperation.

In conclusion, state sovereignty remains a foundational principle in international relations, serving as a fundamental building block of the modern state system. While the concept continues to evolve in response to changing global dynamics, its enduring significance underscores the importance of respecting the autonomy and authority of states as primary actors in the international arena.

Theories of Recognition of State

The recognition of any new entity or nation of people as a sovereign state is based on two majorly main theories:

Consecutive Theory

The main philosophers who contended to this theory are Oppenheim, Hegal and Anziloti.
According to Holland, “a State cannot be said to have attained maturity unless it is stamped with the seal of recognition, which is indispensable to the full enjoyment of rights which it Connotes.” [9]

According to Oppenheim, “a State is and becomes, an international person through recognition only and exclusively.”[10] This idea holds that recognized States have obligations and rights under international law. The constitutive theory of recognition is supported by the recognition of Poland and Czechoslovakia by the use of the Treaty and Versailles.

According to consecutive theory, for a State to be considered as an International Person, it must be recognised by the pre-existing states as a sovereign. This theory majorly owns the vire that only after that recognition a State gets the status of an International Person and becomes a subject to International Law and provisions. Therefore, unless acknowledged by the current States, an entity—regardless of whether it possesses all the attributes of a state—does not acquire the status of an international person.

This theory maintains that a state does not exist until it is acknowledged by other existing States, but rather that a state only obtains exclusive rights and obligations and becomes subject to international law upon its recognition by other existing States.

Criticism of the theory

This theory has been criticised by several jurists. Two major criticisms of this theory are:

This idea is criticized since a state cannot be subject to the rights, obligations, and duties of the statehood community under international law unless it is acknowledged by other states already in existence.
This theory also leads a huge amount of confusion when a new state is acknowledged and recognised by some of the existing states and completely or partly not recognised by other states.

Declaratory Theory

The main philosophies who gave their input to formulate the Declaratory Theory of Statehood are Wigner, Hall, Fisher and Brierly.

This idea holds that the approval of existing states is not necessary for the creation of a new state. According to Article 3 of the 1933 Montevideo Conference[11], this hypothesis has been established. According to this view, recognition by the current state is not necessary for a new state to exist. Under international law, the newly formed state has the right to protect its independence and integrity even before other governments recognize it.

The process of recognition is only ever a formal acknowledgement of statehood by other governments, according to the theories’ adherents.

According to Professor Hall “the State, which is theoretically a political is organized Community, enters as of right into the family of States and must be treated According to the legislation, no state has the authority to refuse recognition when it has earned it as long as it can demonstrate the characteristics of statehood.”[12]

According to Brierly, “ the granting of recognition to a new State it is not a ‘constitutive’ but a ‘declaratory’ act it does not bring into legal existence a State which did not exist before. A state has the right to be viewed by other states as a state even if it does not have formal recognition from them. A state may exist without being acknowledged.”[13]

Criticism of the theory

There have also been criticisms of the declarative theory of statehood. The criticism levelled at this idea is that it cannot be used by itself to support the recognition of a state. The declaratory theory is applied when a state with essential characteristics first comes into being and is able to exercise its rights and obligations under international law. However, the consecutive theory is applied when other states recognize the state’s existence and grant it legal recognition rights.

Conclusion

In conclusion, this research paper underscores the provisions of states and conditions of statehood, along with sovereignty under international law, constitute the bedrock of the contemporary international legal framework. Through an in-depth analysis of these fundamental principles, it becomes evident that statehood encompasses a set of criteria including territory, population, government, and capacity to enter into relations, as outlined in documents such as the Montevideo Convention of 1933.

Moreover, state sovereignty, which underpins statehood, is characterized by territorial integrity, political autonomy, legal supremacy, and external independence. These dimensions of sovereignty provide states with the authority to govern their internal affairs, maintain control over their territory, enact and enforce laws, and engage in diplomatic relations with other sovereign entities. Even though, the concept of state sovereignty faces various challenges and complexities in the contemporary global landscape. Globalization, the rise of supranational organizations, and the increasing interconnectedness of states have posed challenges to traditional notions of sovereignty, leading to debates about its scope and application.

Furthermore, issues such as human rights violations, transnational threats, and environmental concerns have prompted calls for greater international cooperation and intervention, raising questions about the balance between state autonomy and collective action in addressing global challenges. Despite these challenges, state sovereignty remains a fundamental principle of international law, providing states with the legal and political framework necessary for self-determination, security, and stability. While the international community recognizes the sovereign equality of states, it also acknowledges the need for cooperation and coordination to address shared concerns and promote peace and prosperity on a global scale.

In conclusion, the provisions of states, conditions of statehood, and sovereignty under international law are essential elements of the modern international legal order. By understanding and upholding these principles, states can navigate the complexities of international relations, uphold the rule of law, and work towards a more peaceful and prosperous world for all.

References

Justia. (2021), Formation and Recognition of States Under International Law, https://www.justia.com/international-law/formation-and-recognition-of-states-under-international-law/.
Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations, Seventh, Oxford University Press; 2012.
A New History of the Irish in Australia: 2018, Hall, D., & Malcolm, E. (181101), Sydney: New South Publishing
Law of Restitution: By George E. Palmer, by Maurice J. Holland, Indiana University School of Law, 1979
Watts, A., State/Nation-State, The Princeton Encyclopedia of Self-Determination, https://pesd.princeton.edu/node/676.
Shaw, M. (2019), International law – Jurisdiction, In: Encyclopædia Britannica, https://www.britannica.com/topic/international-law/Jurisdiction.
LAW Notes, (2023), State recognition, https://lawnotes.co/state-recognition-2/ [Accessed 15 Feb. 2024].
Wikipedia Contributors (2020), List of forms of government, Wikipedia. https://en.wikipedia.org/wiki/List_of_forms_of_government.
Southern Poverty Law Center (2010), Sovereign Citizens Movement, Southern Poverty Law Center. https://www.splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement.

[1] Convention on the Rights and Duties of States (Montevideo Convention): Dec. 26, 1933, 165 L.N.T.S. 19, 28 AM. J. INT’L L. (Supp.) 75 (1934)

[2] Deutsche Continental Gas-Gesellschaft v. Polish State. Annual Digest of Public International Law Cases. 1936

[3] United Kingdom v Norway [1951] ICJ 3

[4] Book ‘General Will’ authored by Jean-Jacques Rousseau (1789)

[5] State Of West Bengal vs Union Of India, 1963 AIR 1241, 1964 SCR (1) 371

[6] Vienna Convention on the Succession of States in Respect of Treaties, 1978, Art. 11

[7] United Nations Charter, 1941, Art. 2.4

[8] Vienna Convention on the Law of Treaties, 1969, Art. 52

[9] The Elements of Jurisprudence: By Thomas Erskine Holland, D.C.L., LL.D., fifth edition, Oxford, 1908

[10] Finch, G.A. (1950) ‘International Law. By L Oppenheim. 7th ed. by H. Lauterpacht. Vol. I Peace: Longmans, Green & Co., 1948. pp. liv, 940. Appendices. Index. 70s.’, American Journal of International Law, 44(4), pp. 784–786. doi:10.2307/2195004.

[11] Montevideo Conference, 1933, Art. 3

[12] A New History of the Irish in Australia: 2018, Hall, D., & Malcolm, E. (181101). Sydney: New South Publishing

[13] Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations. Seventh. Oxford University Press; 2012.

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