THE

CONCEPT OF A
STATE

Submitted by:

Mary Psyche A. Salvacion

Therese Angelie M. Camache
Introduction
As the basic unit of the international community, the state is the principal subject
of international law. As subjects of international law, are entities endowed with rights
and obligations in the international order and possessing the capacity to take certain
kinds of action on the international place. In other words, they are those who have
international personality. They are actors in the international legal system and are
distinct from objects of international law. It is, therefore, important to understand its
concept, the manner of its creation, its rights and responsibilities, the duration of its
existence, and the modes and effects of its extinction.

CREATION OF A STATE

Definition of the concept state

It is a community of persons more or less numerous, permanently occupying a
definite portion of territory, independent of external control, and possessing an
organized government to which the great body of inhabitants render habitual obedience.

Essential Elements of the State

Montevideo Convention of 1933 on Rights and Duties of States
a permanent population
a defined territory
government
the capacity to enter into relations with other States or the Sovereignty
The four essential elements is regarded in law as having achieved the status if a
state and may, therefore, be treated as an international person. The generally accepted
methods by which this status is acquired are revolution, unification, secession, assertion
of independence, agreement and attainment of civilization.

Revolution
Example:
The United States was created as a result of the revolution against British rule of
the thirteen original colonies that first formed a confederation in 1781 and then a
federation in 1789.

Unification
Example:
 The State of Italy grew out of the unification of the independent city states of
Sardinia, Florence, Naples, Rome and others in 1870 under the so-called principle of
nationalities.

Secession
Example:
Bangladesh became a separate state when is seceded from Pakistan in 1971.

Independence
Example:
This method is illustrated by the Philippines, which became a state by assertion
of its independence following the formal withdrawal therefrom of American sovereignty
in 1946.

Agreement
Example:
The Kingdom of the Netherlands was created by the Congress of Vienna of
1815, and Poland, more recently, was revived as a separate state by agreement, of the
victorious powers after World War II.

Attainment of Civilization
Example:
Japan is the best example of a country that became an international person by
attainment of civilization.

People or Population
As an element of a state, people simply means a community of persons
sufficient in number and capable of maintaining the permanent existence of the
community and held together by a common bond of law. It is of no legal consequence if
they possess diverse racial, cultural, or economic interests. Nor is a minimum
population required.
It is however, difficult to fix the size of the population of a state. For the Greek
Philosopher Plato, the ideal state should not contain more than 5040 people. But
Rousseau the French Philosopher would treat 10,000 inhabitants as the ideal
population.
Modern states greatly vary in population. While some modern states (e.g. the
USA, Russia and Canada) are still under populated relating to area, resources and
similar factors, others (e.g., China, India, Egypt) are confronted by the problem of
population which is expanding too rapidly for their natural and technological resources.
 There is no such hard and first rule as to the number of people required to make
a state. The population of a state must be large enough to preserve the political
independence and to exploit its natural resources and small enough to be well
governed.
Territory
Any area of the earths surface is a subject of sovereign rights and interest.
Territory is one of the fundamental attributes of a state. The exercise of sovereignty is
predicated upon territory. With territory it can perform acts and be subject to duties
which it could not perform and to which it would not be subject if it lack territory.
The territory of the State includes not only the land over which its jurisdiction
extends, but also the rivers, lakes, bays and the air space above it. The domain of a
State therefore may be described as terrestrial, fluvial, or maritime, and aerial.
The traditional modes of acquiring a territory of a State are: discovery,
occupation, prescription, cession, annexation, assimilation and conquest. Discovery is
the oldest method of acquiring title to territory. Up to the 18 th century, discovery alone
was enough to establish a legal title. But later, discovery had to be followed by effective
occupation in order to be recognized as the basis of title.
Acquisition of territory by prescription means continued occupation over a long
period of time by one State of territory actually and originally belonging to another State.
The Netherlands vs. United States: The Netherlands founded their claim to sovereignty
essentially on the title of peaceful and continuous display of State authority over the
land. Since this title would in international law prevail over a title o acquisition of
sovereignty not followed by actual display of State authority, it is necessary to ascertain
in the first place, whether the contention of the Netherlands is sufficiently established by
evidence, and, if so, for what period of time.

Government
Is defined as that institution or aggregate institution by which an independent
society makes and carries out those rules of action which are necessary to enable men
to live in a social state, or which are imposed upon the people forming that society by
those who possess the power or authority of prescribing them.
International law does not specify what form of government should have.
Moreover, for purposes of international law, it is the national government that has legal
personality and it is the national government that is internationally responsible for the
actions of other agencies and instrumentalities of the state. Finally, a temporary
absence of government, for instance during an occupation by a foreign power; does not
terminate the existence of a state.
Government usually consists of three branches: the Legislature, the Executive
and the Judiciary. Their respective functions are legislation, administration and
adjudication. The particular form of government depends upon the nature of the state
which in turn depends upon the political habits and character of the people.
Sovereignty
Sovereignty means independence from outside control. The Montevideo
Convention expresses this in positive terms as including the capacity to enter into
relations with other States. This latter element of sovereignty, however, is dependent on
recognition.
Sovereignty has two aspects: internal and external. Internal sovereignty is the
supreme authority of the state over all individuals and associations within its
geographical limits. By virtue of it, the state makes- and enforces laws on persons and
associations. Any violation of these laws will lead to punishment.
External sovereigntyimplies the freedom of the state from foreign control. No
external authority can limit its power. India before 1947 was not a state because though
it had the other three elements, i.e., population, territory and government, the fourth and
the most important one i.e., independence was missing.
A state's sovereignty extends to its territory. The sovereignty of the state over its
territory and its people must be accepted as undisputed. A state also requires
recognition by other sovereign states.
A state also requires recognition by other sovereign states. Such recognition is
provided by the community of states; international organizations like the United Nations,
which grant membership to sovereign states. The UN membership is a means of
recognizing state's sovereignty whenever a new state comes into existence, its
recognition by other states and by UN is extremely important.

Self-determination
Sovereignty as an element is related to but not identical with the broader concept
of the right of self-determination. In the post-World War II era, there have arisen
numerous new states. The impetus behind the birth of new states is the principle of self-
determination of peoples. Both the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social, and Cultural Rights assert the
principle of self-determination of people in identical language: All peoples have the
right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development. This principle
has been affirmed and reaffirmed by various documents of the United Nations, notably
the Declaration on the Granting of Independence to Colonial Countries and People
(1960) and the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United
Nations. (1970)
The various levels of claim to self-determination may be broken down into two
main categories. The first is the establishment of new states that is, the claim by a
group within an established state to break away and form an new entity. The second
does not involve the establishment of a new state. This can simply be claims to be free
from external coercion, or the claim to overthrow effective rulers and establish a new
government, that is, the assertion of the right of revolution; or the claim of people within
an entity to be given autonomy.
 The UN has used various means to give effect to self-determination: resolutions
of support for demands, sanctions for offenses against self-determination, helping
ascertaining the will of the people, giving rights of participation in international for a,
inquiries and reports, military force to maintain order, formulation of criteria whether self-
government exist, and technical assistance. But international law has not recognized a
right of secession from a legitimately existing state.

Recognition of States
When State A recognizes State B, it means that both recognize the capacity of
each other to exercise all the rights belonging to statehood. Recognition thus means the
act of acknowledging the capacity of an entity to exercise rights belonging to statehood.
There are two views on this. One view, the declaratory theory, is that recognition
is merely declaratory of the existence of the state and that its being a state depends
upon its possession of the required elements and not upon recognition. A recognizing
state merely accepts an already existing situation. The weight of authority favors the
declaratory view.
The other view, the constitutive theory, is that recognition constitutes a state,
that is, it is what makes a state a state and confers legal personality on the entity. In
effect, this merely emphasizes the point that states are under no obligation to enter into
bilateral relations. But then states may decide to recognize an entity as a state even if it
does not have all the elements of a state found in the Montevideo Convention.

Recognition of Government
Closely related to recognition of states is recognition of governments. It means
the act of acknowledging the capacity of an entity to exercise powers of government of
a state.
If a change in government in an existing state comes about through ordinary
constitutional procedure, recognition by others comes as a matter of course. The
problem is acute when a new government within a state comes into existence through
extra-constitutional means. The following are two cases involving recognition of
government:
Under The Tinoco Arbitration states that: Undoubtedly, recognition by other
Powers is an important evidential factor in establishing proof of the existence of a
government in society of nations. The non-recognition by other nations of government
claiming to be a national personality, is usually appropriate evidence that it has not
attained the independence and control entitling it by international law to be classed as
such.
Upright vs. Mercury Business Machines Co. ruled that: A foreign government,
although not recognized by the political arm of the United States Government, may
nevertheless have de facto existence which is juridically cognizable. The acts of such a
de facto government may affect private rights and obligations arising either as a result
of activity in, or with persons or corporations within, the territory controlled by such de
facto government. This is traditional law.

Consequences of Recognition or Non-recognition

In a world of growing interdependence, recognition or non-recognition of
government can have serious consequences. A government, once recognized, gains
increased prestige and stability. The doors of funding agencies are opened, loans are
facilitated, access to foreign courts, and immunity from suit are gained. Military and
financial assistance also come within reach. The absence of formal recognition, on the
other hand, bars an entity from all these benefits or at least, access to them may be
suspended.
Recognition of a government, however, like recognition of a state involves a
highly political judgment. The United States, for instance, refused for many years to
recognize the government of the Peoples Republic of China or of North Korea not
because it was not obvious that these governments had effective control of their territory
but because the United States did not wish these governments to benefit from the legal
effects of recognition.
While recognition of a state is not the same as recognition of government, the
two often go together in the case of new states. However, within established states,
governments come and go with no effect on recognition of the state. It should be noted,
moreover, that recognition of government does not mean approval of the recognized
governments methods. Nor do diplomatic relations connote approval; they are intended
merely to secure a convenience.

When is recognition terminated?

Recognition of a regime is terminated when another regime is recognized. For as
long as the state continues to meet the qualifications of statehood, its status as a state
cannot be derecognized. When the United States recognized the government of China
in 1979, it derecognized the government of Taiwan, but continued with commercial,
cultural, and other non-governmental relationships.

EXTINCTION OF A STATE

Nevertheless, it is error to suppose that a state is immortal, for the fact is that it is
possible for it to be extinguished, or die in a legal sense. For example, the population
may be completely wiped out by an epidemic or a thermonuclear explosion; or its may
emigrate en masse. Its government may be overthrown without being replaced,
resulting in anarchy.
The state may merge with another state or its territory may be dismembered or
annexed by others. If it is a federation, it may be broken up or dissolved by the
withdrawal of all its members. In case of an independent state that becomes dependent,
there is to the extent that it is deprived of freedom to direct its external affairs a partial
loss of its international personality. In every one of these instances, there is a radical
impairment or actual loss of one or more of the essential elements of the state that will
result in its extinction.
Example:
The Union of Soviet Socialist Republics did not end (despite initial use of
language implying its extinction), but rather survives as the Russian Federation.
Hyderabad was attacked by India and subsequently involuntarily merged with it.
The Socialist Republic of Yugoslavia involuntarily dissolved through civil war and
secession into several successor states. Initially the Federal Republic of
Yugoslavia claimed continuity with the Socialist Federal Republic of Yugoslavia,
but it ultimately withdrew that claim in the face of international opposition, not
least of which were the objections of the other successor states.

CONTINUITY AND SUCCESSION OF STATES

PRINCIPLE OF STATE CONTINUITY

From the moment of its creation, the state continues as a juristic being
notwithstanding changes in its circumstances, provided only that they do not result in
loss of any of its essential elements. As stated by author Charles G. Fenwick, Once its
identity as international person has been fixed and its position in the international
community established, the state continues to be the same corporate person whatever
changes may take place in its international operation and government.

The government, the instrumentality through which a state functions, may

change from time to time in form or personnel, but the States international personality
continues. This doctrine is illustrated in the decision of the United States Supreme
Court in the Sapphire Case.

THE SAPPHIRE, 78 U.S. 164 (1870)

Louis Napoleon III, Emperor of France, filed a civil case to claim for damages in a
California Circuit Court in connection with the collision of Sapphire, an American vessel, to
Euryale which is owned by France. However, Napoleon was deposed while the case was still
pending. This raised the question as to whether the case was abated by the emperors deposition.

The Court decided that;

 The reigning sovereign represents the national sovereignty, and the sovereignty is
continuous and perpetual, residing in the proper successors of the sovereign for the time being.
Napoleon was the owner of Euryale not as an individual but as sovereign of France.xxx On his
deposition the sovereignty does not change but merely the person or persons in whom it resides.

The foreign state is the true and real owner of its public vessels of war, The reigning
Emperor, or the National Assembly, or other actual person or party in power in power, is but the
agent and representative of the national sovereignty. xxxThe next successor recognized by our
government is competent to carry on a suit already commenced and receive the fruits of it.

The state is perpetual, and survives the form of government. This is further
demonstrated in the case of,

UNITED STATES (GEORGE W. HOPKINS CLAIM) v.

UNITED MEXICAN STATES
US-Mexico, General Claim Commission (1927)

Hopkins, an American national, bought six postal money orders from the Mexican
government in 1914 during the Huerta administration. When Hopkins presented the money
orders payment, the Mexican government refused on the ground that said money orders were
issued under an illegal government, and that the acts of said administration did not bind Mexico.

Examining the status of the Huerta administration, the commission found that there was
no room to doubt that the assumption of power of Huerta was pure usurpation.

In ruling, the Commission decided that, Hopkins contracts are unaffected by the
legality or illegality of the Huerta administration as such, that they bind the Government of
Mexico, that they have not been nullified by any decree issued and that they cannot be nullified
by any unilateral act of the present government.

SUCCESSIONS OF STATES

The question of state succession rises in the event that a state is extinguished or
is created. This takes place when one state assumes the rights and some of the
obligations of another because of certain changes in the condition of the latter.

2 Kinds of Succession

1. Universal- a state is annexed to another state or is totally dismembered or

merges with another state to form a new state. The international personality of
the of the former state is completely absorbed by the successor.
 Conquest and Subjugation- declared illegal by present laws
e.g. Mongol Empire to Asia and Europe (1300), German Invasion in
Western Europe (1940), Spanish Colonization of the
Philippines (1521)
Division of States-
e.g. Malaysia to Malaysia and Singapore (1965), Pakistan to
Pakistan and Bangladesh (1971), Czechoslovakia to Czech
Republic and Slovakia (1993)
Merger or Absorption- two or more states combines into one state
e.g. Tanganyika and Zanzibar to Tanzania (1964), Scotland and
Englandto United Kingdom of Great Britain(1707), North
Vietnam and South Vietnam(1976), British colony of Territory
of Papua and German New Guinea(1949), East and West
Germany (1990), North and South Yemen to Yemen Arab
Republic (1990), United States and Texas (1845)

2. Partial- takes place when a portion of the territory of a state secedes or is ceded
to another or when an independent state becomes a protectorate or suzerainty or
when a dependent state acquires full sovereignty.

Secession- the act of withdrawing from an organization, union, military

alliance or especially a political entity.

e.g. Secession of Belgium from the Netherlands (1830)

andIndonesia to Indonesia and Timor Leste (1975). Also, on
June 25, 1991, Croatia and Slovenia seceded from the
Socialist Federal Republic of Yugoslavia. Bosnia and
Hercegovina and Macedonia also declared independence,
after which the federation broke up, causing the separation
of the remaining two countries Serbia and Montenegro.
Several wars ensued between FR Yugoslavia and seceding
entitites and among other ethnic groups in Slovenia, Croatia,
Bosnia and Herzegovina, and later, Kosovo. Montenegro
peacefully separated from its union with Serbia in 2006.
Kosovo declared de facto independence on February 17,
2008, and was recognized by several dozen countries, but
officially remains under United Nations administration.

Cession- the assignment of property to another entity.

 e.g. Following the First Opium War (18391842) and Second
Opium War (18561860), Hong Kong (Treaty of Nanking)
and Kowloon (Convention of Peking) were ceded by the
Qing dynasty government of China to the United Kingdom;
and following defeat in the First Sino-Japanese War, Taiwan
was ceded to the Empire of Japan in 1895.

CONSEQUENCES OF STATE SUCCESSION

State succession raise complex legal problems concerning the extent to which
rights and obligations of the predecessor state are transferred to the successor state.
Until recently, state succession was merely based on customary international law but
the Vienna Convention on Succession of States in Respect to Treaties (1978) and the
Convention on Succession of States in Respect of State Property, Archives and Debts
(1983) regulate large areas of the law of state of succession.

As result of state succession, the allegiance of the inhabitants of the predecessor

state is transferred to the successor. Mass naturalization usually occurs as when
Philippine citizenship was conferred to the inhabitants of Philippine islands by virtue of
the Treaty of Paris. In addition, political laws are automatically abrogated and may only
be restored by a positive act of the new sovereign.

Generally, rights and obligations that are linked to the international personality of
the extinct state (in personam) are not automatically transferred to the successor state.
This includes treaties of political nature or military alliances. However, matters of
contractual obligations, debts or torts tied to the former successor state, is largely left to
the judgment of the successor state. Those rights and obligations that are linked to the
physical territory of the state (in rem) do survive, such as dispositive treaties which deal
with rights over territory, boundary treaties, servitudes, and title to public property.

Further, a State that acquires authority over land and people from another State
succeeds to the rights and obligations of that State. If third States have any claim
against the defunct State, the settlement of such obligations depends upon the
successor State. The Citizens of the defunct State have no right to resort to
international law against the actions taken by the annexing State, because their former
country has lost its international personality. Questions on said issues now become
domestic in nature. The sovereign also decides up to what extent it may be bound by
the obligations of the extinguished State to its citizens.
A. SUCCESSION AS TO TREATIES

A new state is bound by the existing rules on customary international law.

This becomes binding not because of its treaty character, but because of its
continued universal acceptance which has extended its operation beyond the
original parties or region. They remain res inter aliosacta as concerns the new
state.

Examples: General Treaty for the Renunciation of War (1928) and Hague
Conventions for the Rules of War.

In cases where a dependent State attained full sovereignty through a

gradual process, the new State may have enjoyed or exercised some of the
rights of a perfect subject of international law before it attained full independence
as a training for full statehood.

Examples: Commonwealth of Canada, Australia, South Africa and New Zealand

enjoyed separate representation to international conferences and the
participation of the Commonwealth of Philippines in the
establishment of the United Nations.

In addition, the Vienna Convention provides the following rule:

Moving Treaty/ Moving Boundaries Rule. When part of the territory of a

state becomes a territory of another state, the international agreements of
the predecessor state cease to have effect in respect of the territory and
the international agreements of the successor come into force.

When a state is absorbed by another state, the international agreements

of the absorbed state are terminated and the international agreements of
the absorbing state become applicable. Third states may appeal to rebus
sic stantibus.

Clean Slate Theory. When a part of a state becomes a new state, the
new state does not succeed the international agreements to which the
predecessor state was party, unless expressly or by implication, iyt
accepts such agreements and the other party agrees.

UtiPossidetisRule. Pre-existing boundary and other territorial

agreements continue to become binding.
B. SUCCESSION OF STATES MEMBERSHIP IN INTERNATIONAL
ORGANIZATIONS

Problems have arisen concerning the succession of States membership in

the United Nations.

In 1947, India while still under the British Empire, became a member of
the United Nations. Upon attaining independence, it was partitioned to India and
Pakistan. India was admitted by the General Assembly, since it was the same
international person as the former member. Pakistan, however, had to be
admitted as a new state and therefore had to satisfy the requirements under
Article 4 in the UN Charter.

In 1958, Egypt and Syria merged and formed the United Arab Republic. Its
Ministry of Foreign Affairs then informed the Secretary General of the United
Nation that it was now a single member and that all international treaties and
agreements concluded by Egypt and Syria would remain valid within the regional
limits prescribed in their documents. However, in 1961, a revolution broke out in
Syria, which resulted in the reestablishment of Syria as a separate state. Syria
then communicated to the General Assembly that it was resuming its former
status.

There is no problem if states changed their names without territorial

change, as in the case of Upper Volta to Burkina Faso, and Burma to Myanmar.
However, when the change reflects a change in the territory brought about by
dissolution of a state as in the case of Soviet Union and Yugoslavia, questions on
state succession arises.

In the case of Soviet Union, the President of Russian Federation notified

the Secretary General of its membership in lieu of the Union of Soviet Socialist
Republics in the United Nations, including the Security Council and all its other
organs. This was supported by the Decision of the Council of Heads of State and
Commonwealth of the Independent States on December 21, 1991.

On the part of Socialist Federal Republic of Yugoslavias membership,

many disputed the claim of some its former members and upon the
recommendation of the Security Council; Yugoslavia was suspended from
participating in the General Assembly and the Economic and Social Council till it
was finally declared inexistent on 1992. Serbia and Montenegro tried to claim
that they are the continuation of the mother state until later on gained its
 recognition and was finally admitted to the United Nations on 2000 and 2006
respectively and separately.

C. SUCCESSION AS TO PROPERTY

Subject to agreement between predecessor and successor, title passes as

follows:

Where part of the territory of a state becomes a territory of another

state, property of the predecessor located in that territory passes to the
successor.

Where state is absorbed by another state, property of the absorbed

state, wherever located, passes to the absorbing state.

Where part of s state becomes a separate state, property of the

absorbed state located in the territory of the new state passes to the
new.

D. SUCCESSION AS TO PUBLIC DEBTS

Subject to agreement, debts and contractual obligations remain with the

predecessor except as follows:

Where part of the territory of a state becomes a territory of another

state, local public debt and the rights and obligations of the
predecessor under contracts relating to the territory, are transferred to
the successor state.

Where a state is absorbed by another, the public debt, and the rights
and obligations under contracts of the absorbed state, pass to the
absorbing state.

Where part of the state becomes a separate state, debt and rights and
obligations relating to the territory of the new state, pass to the new
state.
 SUCCESSION OF GOVERNMENTS

The rights of the predecessor government are inherited in totoby the successor
government. Obligations, on the other hand, depend on the manner of the
establishment of the new government.

If the government was organized through a constitutional reform duly ratified by a

plebiscite, the new government assumes the obligations of the former. Conversely, if
was established through violence, it may lawfully reject the purely personal or political
obligations of the predecessor government, but not those contracted by it in ordinary
course of business.

Sources:

Books:

Introduction to Public International Law.(2009). Bernas, Joaquin G. Rex Printing

Company, Inc.

International Law and World Organizations.(2005)Coquia, Jorge R., Miriam

Defensor-Santiago.Central Lawbook Publishing Co., Inc.

International Law.(2003). Cruz, Isagani A. Central Lawbook Publishing Co., Inc.

International Law and World Politics.(2004). Paras, Edgardo L., Edgardo L.

Paras Jr. Rex Printing Company, Inc.

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