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State[1]

Table of Contents

QUESTION BANK

Explain the concept of State under International Law. What are the kinds, rights and duties of the State under International Law?
What is recognition? Explain the kinds and significance of recognition.
Comment on the concept, basis, kinds and consequences of State Responsibility.
What is the concept of State Jurisdiction? How can a state exercise criminal jurisdiction on “Terrorism” and “Hijacking”?
Discus meaning, basis and kinds of “State Responsibility”.
Explain the concept of international legal responsibility. What are the kinds of State Responsibility?
What do you mean by ‘Recognition of State”. Explain the kinds and theories of Recognition of State.
Explain State responsibility. Explain its basis and kinds. State the responsibility of International organisations.
Explain the concept of ‘State Succession. State the kinds and theories of State Succession.
Explain the concept of “State succession”. State kinds and consequences of state succession.

Short Notes

State Recognition.
Kinds of State Succession.
State succession.

I. Introduction-

The State is the primary subject of International Law. International Law was primarily related to rights, duties, interests and relations between the States. The primary view was that the State was the only subject of international law. However, individuals, international organisations, and non-state entities were subsequently added as subjects of international law. However, till now, the State has been considered the main subject of International Law. Therefore, it is necessary to study the concept of ‘State’ in detail.

II. Definitions of ‘State’-

Many thinkers have defined “State” in many ways, viz.

1) Aristotle-

The State is “a union of families and villages having for its end a perfect and self-sufficient life by which we mean a happy and honourable life.”

2) Ciero-

“The State is a numerous society, united by a common sense of right and mutual participation in advantages”.

3) Stephen L. Wasby-

A state is “a collection of people in a certain territory, having organised Government and possessing autonomy with respect to other such units”.

4) Chambers-

“A State is an independent political society occupying a definite territory or territories, the members of which are united together for the purpose of resisting external force and the preservation of internal order”.

5) Jhon Salmond-

The State is “an association of human beings established for the attainment of certain ends by certain means, the ends being defaced against external enemies and the maintenance of peaceable and orderly relations within the community itself.”

6) Montevideo Convention-

The Convention lays down the qualifications of “State”,

“The State as a person of International Law should possess the following qualifications: (a) permanent population; (b) a definite territory; (c) a Government; and (d) capacity to enter into relations with other State.”

III. Characteristics / Essential ingredients of ‘State’-

From the above definitions, we may lay down the following essential characteristics of the State as follows-

a) Definite territory[2]–

To be called a ‘State’ in International Law, it should have definite territory. However, no lower limit of the territory is prescribed. Therefore, the State of ‘Nauru’ has eight square miles area, and Vatican City has 100 acres of the area are ‘states’ internationally. Moreover, it is not always necessary that the State should have exactly defined or undisputed territory; having boundary disputes does not affect the statehood of the State.

b) Permanent Population[3]–

A state subject to International Law should have a permanent population. However, there is no lower limit to the size of the population. Thus, the State of Nauru, even having a population of 9000 inhabitants, is a State. Similarly, Vatican City had a population of 801 in 2018, which is a ‘State’.

A ‘permanent population’ does not require homogenous racial, ethnic, tribal, religious, linguistic, etc. The only requirement is that the population must be settled.

c) Government-

To be called a ‘State,’ it should have its own Government. Such a Government must be effective and have control throughout its territory. Independent states and dependent states (whether protectorate or colonial) on the way to becoming independent are also subjects of international law.

The existence of an effective government with some centralised administrative and legislative organs assures the internal stability of the State. Such a Government also shows its ability to fulfil its international obligations. However, a State does not cease to exist when it is temporarily deprived of its Government because of civil war, etc.

d) A capacity to enter into relations with other states[4]–

To be called a ‘state’, it must be capable of entering into relations with other states. It is an important attribute of the independent or sovereign State. The State should be capable of entering into relations with other states.

III. Kinds of States-

To be called a ‘State’, the existence of the above four essential characters is necessary. It shows that to be subject to international law, it is not necessary for the state to be sovereign. Even non-sovereign states are also subjects of International Law. International Law recognises the following kinds of States as its subjects, viz.-

(1) Sovereign States[5]–

According to Hobbes, a sovereign or independent State’ is a ‘supreme and absolute power of the State. ‘Sovereignty’ implies independence all around, within and without the county’s borders. A ‘Sovereign State is a State which is independent internally and externally. ‘Internal Sovereign State’ means a State which enjoys full freedom from internal interference. In other words, its political authority is free to make its decisions without interference. Such political authority is absolute and does not act under the subordination of anybody else. Thus, such a sovereign State is free to adopt any constitution it likes, arrange its administration in any way it thinks proper, enact laws as it pleases, organise its defence forces as it likes, etc. ‘Sovereignty’ pre-supposes the absence of a puppet[6] Government.

‘External Sovereignty’ presupposes the absence of any external interference in the State’s external or foreign affairs; no other state can prescribe the rules of conduct to a sovereign State. A Sovereign State is absolutely free to frame its foreign policy, establish relations with other states, etc. Thus, India, the U.S.A., China, France, etc., are called sovereign states.

(2) Not-fully sovereign State-

To be an international person, a State doesn’t need to be sovereign. In other words, even non-sovereign or not-fully sovereign states may be the subject of International Law. What is necessary is that the State should possess four basic characteristics[7], even to the smallest degree. However, such states are not fully perfect and normal subjects of International Law. ‘Not fully Sovereign’ are the states which remain subject to the authority of one or more other states. Such states are as follows-

(a) Protectorate States[8]–

‘Protectorate State’ is a State that, by formal treaty, places itself under the protection of a stronger State, surrendering to the latter control over its foreign relations while retaining a large measure of control over its domestic Government.

Bhutan is the Protectorate of India through a Treaty of Friendship entered into in 1949. Morocco was a protectorate of France by the Treaty of Fez in 1912.

(b) Vassal State[9]–

A state that remains under the suzerainty of another state is called a ‘Vassal State’. The suzerain state absorbs all international relations of the Vassal state and is not capable of entering into relations with other states. Tibet was the Vassal State of China by the treaty of 1951.

(c) Federal States[10]–

A Federal State is a union of several States. Such a union is generally based on the international treaty of Member States. Member States accept the constitution of the Federal State. Members of a federal state are not recognised as international persons. They are neither full nor half-sovereign political entities. ‘Federal State’ exercises international powers and relationships. For example, India is a federal union of 29 States and seven union territories. Similarly, the U.S.A. is a union of 50 federal states.

(d) Trust-Territories-

League of Nations, after the First World War, put eleven states, unable to manage themselves, under some other states’ control. This system was called the trusteeship system. These states were not sovereign while under trusteeship. These states were administered by administering powers like Australia, Belgium, France, Italy, etc.

All the territories placed under the trusteeship system have become independent.

(3) Not-Typical States[11]–

There are some states that are members of international law, but they cannot be typically called states.

(a) Holy See-

The Holy See is a small sovereign State with a land area of about half a square kilometre and a population of about 800 in 2019. The term ‘Holy See’ refers to the supreme organ of the Catholic Church, i.e., the Bishop or Pope. The head of the Catholic Christian Pope is the monarch of the Holy See.

Holy See is an international person, hence, the subject of International Law.

(b) Neutralized States[12]–

A Neutralized State is one that undertakes not to take arms against any state except for defence. However, the declaration of neutralisation by that State should be agreed upon by other states. Switzerland is a Neutralized State today. Belgium and Luxemburg were Neutralized states. However, they ceased to be so after the First World War.

(c) Free Cities[13]–

Free Cities are subjects of International Law. A city constituting an Independent State is called a ‘Free City’ State. Cracow and Danzig were free city-states; presently, ‘Trieste’ is a free city-state.

IV. Rights and Duties of the States-

‘International Law Commission’ has framed the following rights and duties of the States.

(a) Rights of States-

1. Right to Independence-

Every State has the right to independence and, hence, to exercise freely, without dictation by any other State, all its legal powers, including the choice of its own form of Government.

2. Right to Territorial Jurisdiction-

Every State has the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognised by International Law.

3. Right to Equality-

Every State has the right to equality in law with every other State.

4. Right to self-defence-

Every State has the right to self-defence against armed attack. Such State may individually or collectively exercise this right of self-defence.

5. Economical Rights-

The Charter of Economic Rights and Duties in 1974 lays down the economic rights and duties of the State. According to the Charter, every State has the right (1) to choose its Economic System, (2) to have permanent Sovereignty over its natural resources, (3) to engage in international trade, (4) to associate with producer organisations, (5) to participate in the international decision-making process, (6) to get technology transferred.

(b) Duties of States-

The Charter has framed the following duties of States-

1. Duty to refrain from intervention-

Every state has the duty to refrain from intervening in any other state’s internal or external affairs.

2. Duty to refrain from fomenting Civil Strife[14]–

Every State has the duty to refrain from fomenting civil strife in the territory of another State. Moreover, every State is also duty-bound to prevent the organisation within its territory of activities calculated to foment such civil strife.

3. Duty to respect human rights and fundamental freedoms-

Every State has the duty to treat all persons under its jurisdiction with respect and to protect their human rights and fundamental freedoms without distinction as to race, sex, language, or religion.

4. Duty to ensure International peace-

Every state has the duty to ensure that the conditions prevailing in its territory do not endanger international peace.

5. Duty to settle disputes by peaceful means-

Every State has the duty to settle its disputes with other States by peaceful means in such a manner that international peace, security, and justice are not endangered.

6. Duty to refrain from resorting to war-

Every State has the duty to refrain from resorting to war as an instrument of national policy. States are also duty-bound to refrain from the threat or use of force against another State’s territorial integrity or political independence or in any other manner inconsistent with international law and order.

7. Duty to refrain from giving assistance to delinquent State[15]–

Every State has the duty to refrain from assisting any State which is acting in violation of the duty to refrain from resorting to war or against which the United Nations is taking preventive or enforcement action.

8. Duty to refrain from recognising territorial acquisition-

Every State has the duty to refrain from recognising the territory of another state acquired by war.

9. Duty to carry out obligations in good faith-

Every State has the duty to carry out, in good faith, its obligations arising from treaties and other sources of International Law. The State cannot beg excuse of its contrary municipal laws for not carrying its International obligations.

10. Duty to conduct relations with other States-

Every State has the duty to conduct its relations with other States in accordance with International Law.

11. Economic Duties-

As there are economic rights, duties are also imposed on States, such as (1) the duty of promotion, expansion and liberalisation of world trade, (2) the duty of utilisation of resources released by disarmament, (3) the duty of co-existence and living together in peace, (4) duty of indexation of prices, (5) duty to contribute in the development of International trade.

In conclusion, the above list of rights and duties is fundamental for International peace, security, and progress.

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[1] राष्ट्र / देष

[2] निष्चित भुभाग

[3] स्थिर लोकसंख्या

[4] दुसरे राश्ट्रांचेबराबर संबंध ठेवण्यची योग्यता

[5] सार्वभौम राश्ट्र

[6] कळसुत्री सरकार

[7] Territory, population, government and capacity to enter into relation with other States.

[8] संरक्षित राश्ट्ª

[9] दुसÚया राश्ट्ªच्या अंकीत राश्ट्

[10] संघराज्य

[11] राश्ट्च्या संकल्पनेत पुर्णपने न बसनारी राश्ट्रे

[12] कोनत्याही युघ्दात भाग न घेनारे व हमला न करणारे / तटस्थ राश्ट्र

[13] मुक्त षहर नागरी

[14] संधर्शास चेतावनी न देने

[15] नियम भंग करणारे