State - International law

Legal Help Desk By Keshav Choudhary
 State Sovereignty
States are Primarily subjects of International law. Sates has different
meaning at different time. In Some times it refers to countries where
sometime it refers with in part of countries.
A state is a community formed by people and exercising permanent power within a specified
territory.
According to international law, a state is typically defined as being based on the
1933Montevideo Convention. According to Article 1 of the Convention, the state
as a person of international law should possess the following qualifications:
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with the other states.

Qualification to become a state are following:
1. Population- Population means large number of people. Population is 1st
essential to become a state. A group of people who is living together is
considered as population. People of different races, different culture, different
religion, different groups live together within the prescribed . boundary is
consider as population. No state can be form without Population. Montevideo
Convention on Rights and Duties of States 1993 states that State must have a
“Permanent Population” instead of population as one of the essential of a
state.
2. Territory- For become a State it must have a territory. It is 2nd essential
element to become a state. Territory means “Prescribed area limit”. Territory
may be small or large. Size of state is immaterial. It may be small or large.

Macro or Mini State- Those state whose population is very low in the
comparison of other states is considered as Mini or Macro states. Micro states
are those which ae exceptionally small in area, population and human and
economic sources but they are independent therefore they called as State.
It is essential that the territory should be defined as laid down in the
Montevideo Convention on Right and Duties of a State. Border dispute does
not mean that they do not have defined territory. Ambiguous territory is also
consider as territory which is essential element of a state.
Landmark Cases are- Deutsche Constitutional Gas Cesselshaft vs Polish state ,
in this case it was stated to become a state does not absolutely depend on
existence of rigidly fixed boundaries.

 International law always insists that a state should have possession and
control over a territory. In exceptional case, if a state has lost control
over the territory for a short time, it will be deemed as possess territory.
If the territory of state has been forcibly occupied by a Foreign state the
occupant is not entitled to treat the occupied territory as its own
territory.
Like China has occupied the region Tibet forcibly, it does not mean that
Tibet is part of China. Tibet was independence state from centuries but
China has ousted the government of Tibet and occupied it.
3. Government- It is 3rd essential element to become a state. State must
have a Government. A state which does not have government is not
regarded as state. The people and territory should be governed by a
government. A state always act a government.

Government can be of following types:
1. De facto government
2. De jure government
3. Militarily government
4. Government in exile
De facto government- A de facto government is a government whose origin and
existence is contrary to the constitutional method of the state. De facto government
is one who seizes the de jure government through unconstitutional method or by
force. It is called de facto government because if it is recognized by other states in
world. It is not lawful.
Taliban attacked on Afghanistan forcibly remove the government and take all the
power of government or live in relationship is example of de facto government
where as marriage is de jure government.

 Once the state is established temporary interruption of effectiveness of
its government as in civil war or a result does not effect the recognition
of state in international context.
2. De jure government- A de jure government whose origin or existence is
in conformity with the constitutional law of the state represented and
whose legality is uncontested in international law.It means legal control
over of a state. It is lawful.
3. Military government- A military government is generally
any government that is administrated by military forces,

 A government-in-exile refers to a temporary political group claiming to
be a particular country’s legitimate government. Generally, a government-
in-exile is unable to exercise its legal power and it resides in a foreign
country. Government-in- exile frequently occur during wartime
occupation.

Kinds of State
1. Sovereign States
2. Not-fully sovereign States
3. Non-typical States.
Sovereign States- Sovereign means supreme. Sovereignty of state means an
independent state which is free from foreign intervention. Those state which
takes its own decision, who make law and enforce it, is considered as
Sovereign State. It has no any foreign control. U.S.A is a sovereign state.

 Essential element to become a Sovereign state are following
1. Sovereignty of state is exercised within territorial limits
2. Sovereignty is constituted by the independence of state. There is no foreign
control. It means authority over which there is no authority.
A sovereign state is independent in two ways:-
1. Independence in internal affairs
2. Independence in external affairs
Independence in internal affair- A state is free to make laws in conformity with
international law. The law will be applicable within the territory of state. Its state duty
to protect the life of citizen with their basic rights.

If government fails to protect or state itself involves in crime against
humanity like genocide, mass violation of human right etc in those
situation international community may intervene.
Independence in external affairs- It means a state is independent to
exercise its external function. A state is free to frame its foreign policy, it
can establish the relations with other states and it may decide itself on all
foreign issues.
Sovereign state is bound by rules framed by international law. State laws
should not violate the international law. Sanction is imposed on the
violation of international law on the states. Article14 of the Declaration
states that every state has duty to conduct it relation with other states in
accordance with international law.

Principle of Good Neighbour
Mutual cooperation and avoidance of harm to each other is a concept is
main concept of this principle. A state is not permitted to use its territory for
purpose injurious to the interest of other. If such acts are done by a state
which causes injury to other state, then that state shall remain responsible
for the injury to the victim state.
Preamble of the charter of UN lays down that States shall live together in
peace with one another as Good Neighbour. A state is under a duty to
prevent its territory from being a source of economic injury to neighbouring
territory.

Sovereign Equality of States
The principle of equality of states means that every state is entitled to full respect as a
sovereign state by other states. All the sovereign states are equal in status irrespective
of their size population, resources and on other feature. Article 2 para 1 of the Charter of
the United Nations which says that “the organisation is based on the principle of the
sovereign equality of all its members.
Sovereign equality includes the following elements:
1. States are judicially equal
2. Each state enjoys the rights inherent in full sovereignty
3. Each state has the duty to respect the personality of other states.
4. The territorial integrity and the political independence of the states are inviolable.
Within the General Assembly of United Nations, the doctrine of equality is maintained
by the rule of one state, one vote, irrespective of realities of power.

Union of States
Syria and Egypt are sovereign state earlier. In 1958 Both merged and become
themselves under the name of UAR (United Arab Repulic). UAR became a democratic
independent and sovereign republic and continued as single member of UN. The
President of UAR was head of state. Such union are called Real Union.
Non-Sovereign States- It is not necessary that a state should be sovereign in order
to be an international person. All the essential of state is present except sovereignty
became considered as International person.
(a) Protectorate State- Protectorate means a state that is controlled and protected by
another state or A Protectorate state is protected by stronger state.

When one state surrenders itself by an agreement in the form of treaty to
deal with foreign relation and to protect the territory of from foreign
invasion/attack . Protected state is not sovereign states. However, they are
prima facie independent and possessor of all rights which they not
surrendered. They are therefore international persons and subjects of
International law.
Bhutan became a Protectorate of India through a Treaty of Friendship
concluded on August 1949.
Sikkim became a Protectorate of India through a Treaty concluded in 1950
with all the responsibility of Sikkim as its external affairs, communications,
defence and territorial integrity. Later Sikkim became a part of India.

(b) Vassal States- A state which remains under the domain of another state is
called Vassal State. Although vassal state do not have capacity to enter into
relationship with other states.
Tibet is Vassal State. Tibet was independent state till 1720 when it is incorporated
by China in its state. Vassal states does not have its any international status.
(c) Federal States- A federal states is a union of several states. The union is based
normally through an international treaty of the member states and subsequently
accepted constitution of the Federal state. They are integral part of single state.
(d) Commonwealth- Commonwealth is neither a formal alliance nor a federation
of states since three exists no central government. It is an association of free and
equal states who believe and recognize certain common principles. India is part
of commonwealth.

 Non typical states- A few states which are though sovereign, are not
like sovereign states is consider as Non typical states.
(a) Holy see- The term Holy see is used the supreme organ of the Catholic
Church, i.e Bishop of Rome.
Vatican city is example of Vatican city.
(b) Neutralized States- When a state declare that it would never take up arms
against any other State except in case of aggression and it shall adopt the
attitude of impartiality in all the wars that may occur those state is called
neutralized state. Oppenheim says that a Neutralized state is a state whose
independence and integrity are guaranteed by treaty, on condition that such
state binds itself not to enter into into military alliances.

Three elements require to be a Neutralized State. They are:
1. A state must abstain from offensive action. However it may take up arms in
case aggression.
2. A State must remain neutral in all the wars in future.
3. Those state should be guaranteed collectively by other states in an
international convention
Neutralized state are not fully sovereign state. Neutralized states are sovereign
states like other states but they are different because of their special status.
Switzerland is in the category of Neutralized States. Belgium and Luxemburg
ceased after the first World War to be neutralised states.

(c) Free Cities- Free cities are specific formation comprising of one
independent town. Their status is determined by the agreement with the
States concerned.
At present Trieste only enjoy the status of free city.

Rights and Duties of States
States are the primary subjects of international law. Some of the rights
and duties are inherent in them. The basis of the right and duties of the
states according to the naturalist school is the natural law. This theory as
dominant throughout the seventeenth and eighteen centuries. The
writers of the above period were of the view that International law are
also based on the law of nature according to the writer of 17th and 18
century.
Right of a States
1. Right of Independence- Every state has the right to independence and
hence to exercise freely without any direction of any other state.
2. Right to territorial Independence- Every state has the right to exercise
jurisdiction over its territory and over all persons.

3. Right to equality- Every state has equal right in the eye of law.
4. Right of Self-defence- Every State has the right of individual or
collective self defence against armed attack.
Duties of State:-
1. It is duty of every state to not interfere in internal or external matter of
another state till the state requested that.
2. It is duty of every state to respect for human rights and Fundamental
freedom. Every state has duty to treat all person, under its jurisdiction
without distinction of race, caste, sex, language or religion

3. It is duty of every state to maintain the international peace.
4. It is duty of every state to being in a good relation with another state in
accordance of international law.
5. It is duty of every state to settle the dispute by peaceful means.
6. It is duty of every state to refrain from giving assistance to those states
who is violating international law like wagging war against state.
Economic Right and Duties of a State
Economic Rights of a State
1. Right to choose its economic system.
2. Permanent sovereignty over Natural Resources
3. Right to engage in International trades

4. Transfer of Technology
5. Right to participate in International Decision-making process.
Economic Duties of a State;
1. Duty to promotion, expansion and liberalisation of World Trade.
2. Duty of world wide commodity agreements.
3. Duty of indexation of Prices
COMPLETED

State - International law

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