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“State”
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(..2..)
State
QUESTION BANK
1.
Explain the concept of State under International Law. What are the kinds, rights and
duties of the State under International Law?
2.
3.
4.
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”?
5.
6.
Discus meaning, basis and kinds of “State Responsibility”.
Explain the concept of international legal responsibility. What are the kinds of State
Responsibility?
7.
What do you mean by ‘Recognition of State”. Explain the kinds and theories of
Recognition of State.
8.
Explain State responsibility. Explain its basis and kinds. State the responsibility of
International organisations.
9.
Explain the concept of ‘State Succession. State the kinds and theories of State
Succession.
10.
Explain the concept of “State succession”. State kinds and consequences of state
succession.
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Short Notes
1. State Recognition.
2. Kinds of State Succession.
3. State succession.
SYNOPSIS
I. Introduction-
II. Definitions of ‘State’-
1) Aristotle-
2) Ciero-
3) Stephen L. Wasby-
4) Chambers-
5) Jhon Salmond-
6) Montevideo Convention-
III. Characteristics / Essential ingredients of ‘State’-
a) Definite territory-
b) Permanent Population-
c) Government-
d) A capacity to enter into relations with other states-
III. Kinds of States-
(1) Sovereign States-
(2) Not-fully sovereign State-
(a) Protectorate States-
(b) Vassal State-
(c) Federal States-
(d) Trust-Territories-
(3) Not-Typical States-
(a) Holy See-
(b) Neutralized States-
(c) Free Cities-
IV. Rights and Duties of the States-
(a) Rights of States-
1. Right to Independence-
2. Right to Territorial Jurisdiction-
3. Right to Equality-
4. Right to self-defence-
5. Economical Rights-
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(b) Duties of States-
1. Duty to refrain from intervention-
2. Duty to refrain from fomenting Civil Strife-
3. Duty to respect human rights and fundamental freedoms-
4. Duty to ensure International peace-
5. Duty to settle disputes by peaceful means-
6. Duty to refrain from resorting to war-
7. Duty to refrain from giving assistance to delinquent State-
8. Duty to refrain from recognizing territorial acquisition-
9. Duty to carry out obligations in good faith-
10. Duty to conduct relations with other States-
11. Economic Duties-
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
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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-
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-
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-
To be called a ‘state’, it must be capable of entering into relations with other states.
It is an important attribute of an independent or sovereign State. The State should be
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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-
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 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, 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-
‘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-
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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-
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-
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-
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-
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-
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‘International Law Commission’ has framed the following rights and duties of the
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“State”
Prof. S.D. Bhosale
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-
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
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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-
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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