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STATES: CONDITIONS OF STATEHOOD, TERRITORY AND UNDERLYING PRINCIPLES, SOVEREIGNTY

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This article is written by Chitrankshi, an intern under Legal Vidhiya

ABSTRACT:

This is an article regarding a very basic and important concept under the subject of international law, the concept of state. It gives a brief about the independent concept of sovereignty while connecting it with the concept of birth and evolution of states. It will allow the reader to get a grasp at the knowledge of the theories and modes of evolution and recognition of state and starts with the very basic concept and definition of a state under the international law and the essential factors of being called as a state. The reader can draw a distinction between the different theories mentioned and can numerically identify the different types of states.

INTRODUCTION:

The main and the first question which crosses our mind right now is ‘what is a state?’ .

And that is indeed right, because instead of jumping to the details, it is important to clear the basics first.

What is a state under International Law?

In a very basic sense, state sometimes means the countries or sometimes it defines the parts of the countries. But in international law, States are its primary subjects and are loaded with a great range of rights and obligations.

A state is a community which is formed by people and which exercises its permanent power within a specified territory.

The international law defines state as something based on the Montevideo Convention, 1933.

CONDITIONS OF STATEHOOD:

The Montevideo Convention of 1933 lays down the criteria or the essentials of a state to be called a state, which are as follows:

  1. Permanent population
  2. Defined territory
  3. Government
  4. Capacity to conduct international relations
  1. A PERMANENT POPULATION:

This consists of a large number of people who live together in a particular prescribed boundary. And by people, we mean people of different religion, races, cultures and groups. There can be no state without population and hence it is the first and most important condition of being a state.

  1. A TERRITORY:

Territory means a prescribed area limit and this may be of any size- large or small.

Micro or Mini states- states with very low population, small area and human factor while in comparison to other states. But as they are independent, they are called as states.

Ambiguous territories are also considered as territories and there is no such hard and fast rule of a rigidly fixed boundary (case law Deutsche Constitutional Gas Cesselshaft vs. Polish  state). International law says the compulsion that a state should have possession and control over a territory and in case if it loses its control over the territory for a short time, then that will be considered as a possessed territory. 

If a foreign state forcefully occupies the territory of a state then that foreign state has no right to declare the occupied territory as his own.

3.A GOVERNMENT:

This is a governing factor of a state, as the other 2 factors- population and territory are governed by a government. A state without a government can never be considered as a state. A state acts as a government, always.

A government is classified into 4 types:

a)De facto government

b)De jure government

c)Militarily government

d)Government in exile

  1. DE FACTO GOVERNMENT:

This is a type of government who has its origin and existence contrary to the constitutional method of the state. It seizes the de jure government through unconstitutional methods of the state or by force. It is called so as it is not recognised by other states in the world, it is unlawful.Examples of this are- the Taliban’s attack on Afghanistan and taking up of its government and live-in relationship as marriage is an example of de jure government.

This has its origin and existence in conformity with the constitution of the concerned state. Its legality is uncontested in international law and it is lawful.

This refers to any type of government which is administered by military forces.

This is a type of temporary political group which claims to be a country’s legitimate government. It resides in foreign country and is unable to exercise its legal power. Its occurrence is frequently seen during wartime occupation.

SOVEREIGNTY:

This is one of the basic principles of international law. It states that all states are equal to each other and are independent in international relations and their territorial and political independence cannot be violated. And due to this principle, they exercise supreme power over their own territory. This principle also states that other states should refrain from committing such actions that would violate the sovereignty and should not knowingly make available their territory for any such acts that would refrain the rights of the other states.

State sovereignty is the quality of the power of the state to be superior than any other social power within its territorial limits, independence while compared to any other state or international body, the quality to determine the functions of its activities and the fundamental tasks which it has to fulfill.

Case law: USA vs. Netherlands:  Sovereignty in context of relations between states signifies independence. Independence to a particular portion of the world is the right to exercise the functions of the state. The development of the national organisations and the international law, in the last few centuries, have brought this principle of exclusive competence of the state in regard to its own territory, in a way to make it the point of departure in settling questions concerning international relations.

THEORIES OF RECOGNITION OF STATE:

 There are 2 theories of recognition of state:

1)Constructive theory

2)Declarative theory

1)CONSTRUCTIVE THEORY:

This was coned by two people- Hegel and Oppemheim. This says that the state is considered as an international person. After recognition, a state is granted the status of an international person and becomes a subject to international law. Though the state exists even before its recognised, it gets its exclusive rights and obligations only after it gets recognised by the other states.

2)DECLARATIVE THEORY:

This theory was coined by Hall Wagner and Fisher. This was developed to address the shortcomings of the constitutive theory. It said that before the recognition of the state, a new state has the right to defend its integrity under the international law. This theory was laid down under the Article 3 of the Montevideo Conference of 1933.

FORMS OF RECOGNITION:

There are two forms of recognition of state, namely: De facto recognition and De jure recognition.

  1. DE FACTO RECOGNITION:

This is granted to the governments, most of the times and is a temporary recognition of states which can be with or without any condition. This is generally granted when a new states has enogh control over a particular territory. This can be taken as a test of control for the newly formed states. Example- the UK government initially recognised Soviet Government under de facto recognition in 1921 and later under de jure recognition in 1924.

This is given to a new state when it fulfills all the essential characteristics of a State and can be directly granted to a State who has or has not been granted de facto recognition.

It can never be revoked. Such states have a right to Diplomatic immunities and have have absolute rights over other and against other states.

THE TYPES OF STATES:

There are total of three kinds of states- sovereign states, not-fully sovereign states, non-typical states.

~SOVEREIGN STATES- those states which take their own decisions and can make and enforce laws. No foreign control. There are some elements important for the sovereign equality- the states should have judicial equality, the state enjoys the rights under full sovereignty, the states have a common duty to respect the personality  of the other states, the territorial integrity and political independence of the states cannot be violated.

Example- USA.

~NON-SOVEREIGN STATES- sovereignty is not necessary to become a state. If there are all necessary elements present without sovereignty, then that would come under this category of states.

~NON-TYPICAL STATES- some of the states which are sovereign but are not like the sovereign states, come under this category of states. As

RIGHTS AND DUTIES OF THE STATES

The General Assembly of the United Nations adopts the Declaration on Rights and Duties of States

RIGHTS OF THE STATES:

  1. Every state has the right to be independent and exercise its powers without any interference from any other state.
  2. The states also have a right to exercise jurisdiction over their own territories and over all the people concerning the same.
  3. All states have equal rights in the eyes of the law.
  4. All states have a right to individual or collective self defence in case of any armed attack.
  5. Like all other human rights, right to education is also important.

DUTIES OF THE STATES:

  1. All states have a duty to not interfere in the matters of any other states unless those states themselves ask for it.
  2. All states are supposed to respect human rights and the fundamental freedom of people. There should be no distinction between people on the basis of caste, race, sex,religion, or any other ground.
  3. Every state has a duty to look after the maintainance of international peace.
  4. Every state should be in a good relation with the other states under international law.
  5. Every state should make peaceful means and ways as their priority for settling any types of disputes.
  6. States should refrain from assistance to such states that violate the international law by waging wars, etc.
  7. All states have an obligation to take measures to prevent  other factors from interfering with the right to education and take positive steps enable the individuals enjoy their right to privacy.

CONCLUSION:

There is a transformation of international law from a European based supporting sovereign states to interact in a limited number of areas to an international order with increasingly cooperative requirements

REFERENCES:

For the purpose of this article, the following sites and platforms have been referred:

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