Since the end of the 19th century, almost the entire globe has been divided into sections (countries) with more or less defined borders assigned to different states.[citation needed] Previously, quite large plots of land were either unclaimed or deserted, or inhabited by nomadic peoples that were not organized into states.[6] However, even in modern states, there are large remote areas, such as the Amazon's tropical forests, that are either uninhabited or inhabited exclusively or mainly by indigenous people (and some of them are still not in constant contact). There are also states that do not exercise de facto control over their entire territory, or where this control is disputed.
Currently, the international community includes more than 200 sovereign states, most of which are represented in the United Nations. These states exist in a system of international relations, where each state takes into account the policies of other states by making its own calculations. From this point of view, States are integrated into the international system of special internal and external security and legitimization of the dilemma. Recently, the concept of the international community has been formed to refer to a group of States that have established rules, procedures and institutions for the implementation of relations. Thus, the foundation for international law, diplomacy between officially recognized sovereign states, their organizations and formal regimes has been laid.
Westphalian sovereignty is the concept of nation-state sovereignty based on territoriality and the absence of a role for external agents in domestic structures. It is an international system of states, multinational corporations, and organizations that began with the Peace of Westphalia in 1648.
Sovereignty is a term that is frequently misused.[7][8] Up until the 19th century, the radicalised concept of a "standard of civilization" was routinely deployed to determine that certain people in the world were "uncivilized", and lacking organised societies. That position was reflected and constituted in the notion that their "sovereignty" was either completely lacking or at least of an inferior character when compared to that of the "civilized" people".[9]Lassa Oppenheim said, "There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning, which was universally agreed upon."[10] In the opinion of H. V. Evatt of the High Court of Australia, "sovereignty is neither a question of fact, nor a question of law, but a question that does not arise at all".[11]
Sovereignty has taken on a different meaning with the development of the principle of self-determination and the prohibition against the threat or use of force as jus cogens norms of modern international law. The United Nations Charter, the Draft Declaration on Rights and Duties of States, and the charters of regional international organizations express the view that all states are juridically equal and enjoy the same rights and duties based upon the mere fact of their existence as persons under international law.[12][13] The right of nations to determine their own political status and exercise permanent sovereignty within the limits of their territorial jurisdictions is widely recognized.[14][15][16]
In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete self-sufficiency in the frames of a certain territory, that is its supremacy in the domestic policy and independence in the foreign one.[17]
Named after the 1648 Treaty of Westphalia, the Westphalian System of state sovereignty, which according to Bryan Turner is "made a more or less clear separation between religion and state, and recognized the right of princes "to confessionalize" the state, that is, to determine the religious affiliation of their kingdoms on the pragmatic principle of cuius regio eius religio[whose realm, his religion]."[18]
Before 1900, sovereign states enjoyed absolute immunity from the judicial process, derived from the concepts of sovereignty and the Westphalian equality of states. First articulated by Jean Bodin, the powers of the state are considered to be suprema potestas within territorial boundaries. Based on this, the jurisprudence has developed along the lines of affording immunity from prosecution to foreign states in domestic courts. In The Schooner Exchange v. M'Faddon, Chief Justice John Marshall of the United States Supreme Court wrote that the "perfect equality and absolute independence of sovereigns" has created a class of cases where "every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation".[19][20]
Absolute sovereign immunity is no longer as widely accepted as it has been in the past, and some countries, including the United States, Canada, Singapore, Australia, Pakistan and South Africa, have introduced restrictive immunity by statute, which explicitly limits jurisdictional immunity to public acts, but not private or commercial ones, though there is no precise definition by which public acts can easily be distinguished from private ones.[20]
Recognition
State recognition signifies the decision of a sovereign state to treat another entity as also being a sovereign state.[21] Recognition can be either expressed or implied and is usually retroactive in its effects. It does not necessarily signify a desire to establish or maintain diplomatic relations.
No definition is binding on all the members of the community of nations on the criteria for statehood. In practice, the criteria are mainly political, not legal.[22] L.C. Green cited the recognition of the unborn Polish and Czechoslovak states in World War I and explained that "since recognition of statehood is a matter of discretion, it is open to any existing State to accept as a state any entity it wishes, regardless of the existence of territory or of an established government."[23]
In international law, however, there are several theories of when a state should be recognised as sovereign.[4]
Constitutive theory
The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state. This theory of recognition was developed in the 19th century. Under it, a state was sovereign if another sovereign state recognised it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognised nations did not have to respect international law in their dealings with them.[24] In 1815, at the Congress of Vienna, the Final Act recognised only 39 sovereign states in the European diplomatic system, and as a result, it was firmly established that in the future new states would have to be recognised by other states, and that meant in practice recognition by one or more of the great powers.[25]
One of the major criticisms of this law is the confusion caused when some states recognise a new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents, suggested that a state must grant recognition as a possible solution. However, a state may use any criteria when judging if they should give recognition and they have no obligation to use such criteria. Many states may only recognise another state if it is to their advantage.[24]
In 1912, L. F. L. Oppenheim said the following, regarding constitutive theory:
International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.[26]
By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity's statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force. The declarative model was most famously expressed in the 1933 Montevideo Convention.[27]
A "territory" in international law consists of land territory, internal waters, territorial sea, and air space above the territory. There is no requirement on strictly delimited borders or minimum size of the land, but artificial installations and uninhabitable territories cannot be considered territories sufficient for statehood. The term "permanent population" defines the community that has the intention to inhabit the territory permanently and is capable of supporting the superstructure of the State, though there is no requirement for a minimum population. The government must exercise effective control over a territory and population (the requirement known in legal theory as the "effective control test") and guarantee the protection of basic human rights by legal methods and policies. The "capacity to enter into relations with other states" reflects the entity's degree of independence.[28]
Article 3 of the Montevideo Convention declares that political statehood is independent of recognition by other states, and the state is not prohibited from defending itself.[29] In contrast, recognition is considered a requirement for statehood by the constitutive theory of statehood. An important part of the convention was Article 11 which prohibits using military force to gain sovereignty.
A similar opinion about "the conditions on which an entity constitutes a state" is expressed by the European Economic CommunityOpinions of the Badinter Arbitration Committee, which found that a state was defined by having a territory, a population, government, and capacity to enter into relations with other states.[30]
State practice relating to the recognition of states typically falls somewhere between the declaratory and constitutive approaches.[31] International law does not require a state to recognise other states.[32] Recognition is often withheld when a new state is seen as illegitimate or has come about in breach of international law. Almost universal non-recognition by the international community of Rhodesia and Northern Cyprus are good examples of this, the former only having been recognized by South Africa, and the latter only recognized by Turkey. In the case of Rhodesia, recognition was widely withheld when the white minority seized power and attempted to form a state along the lines of Apartheid South Africa, a move that the United Nations Security Council described as the creation of an "illegal racist minority régime".[33]
In the case of Northern Cyprus, recognition was withheld from a state created in Northern Cyprus.[34] International law contains no prohibition on declarations of independence,[35] and the recognition of a country is a political issue.[36] On 2 July 2013, The European Court of Human Rights (ECtHR) decided that "...notwithstanding the lack of international recognition of the regime in the northern area, a de facto recognition of its acts may be rendered necessary for practical purposes. Thus the adoption by the authorities of the "TRNC" of civil, administrative or criminal law measures, and their application or enforcement within that territory, may be regarded as having a legal basis in domestic law for the purposes of the Convention".[37] On 9 October 2014, the US's Federal Court stated that "the TRNC purportedly operates as a democratic republic with a president, prime minister, legislature and judiciary".[38][39][40] On 2 September 2015, ECtHR decided that "...the court system set up in the "TRNC" was to be considered to have been "established by law" with reference to the "constitutional and legal basis" on which it operated, and it has not accepted the allegation that the "TRNC" courts as a whole lacked independence and/or impartiality".[41] On 3 February 2017, The United Kingdom's High Court stated "There was no duty in the United Kingdom law upon the Government to refrain from recognizing Northern Cyprus. The United Nations itself works with Northern Cyprus law enforcement agencies and facilitates co-operation between the two parts of the island".[42] and revealed that the co-operation between the United Kingdom police and law agencies in Northern Cyprus is legal. Turkish Cypriots gained "observer status" in the Parliamentary Assembly of the Council of Europe (PACE), and their representatives are elected in the Assembly of Northern Cyprus.[43] As a country, Northern Cyprus became an observer member in various international organizations (the Organisation of Islamic Cooperation (OIC), the Economic Cooperation Organization (ECO), the Organization of Turkic States (OTS), the Parliamentary Assembly of Turkic States (TURKPA), etc.).
De facto and de jure states
De facto map of control of the world, May 2019
Most sovereign states are both de jure and de facto (i.e., they exist both in law and in reality).[citation needed] However, states which are only de jure states are sometimes recognised as being the legitimate government of a territory over which they have no actual control.[citation needed] For example, during the Second World War, governments-in-exile of several states continued to enjoy diplomatic relations with the Allies, notwithstanding that their countries were under occupation by Axis powers. Other entities may have de facto control over a territory but lack international recognition; these may be considered by the international community to be only de facto states. They are considered de jure states only according to their law and by states that recognise them. For example, Somaliland is commonly considered to be such a state.[44][45][46][47]
Semi-sovereign states
Sovereignty is most commonly conceptualised as something categorical, which is either present or absent, and the coherence of any intermediate position in that binary has been questioned, especially in the context of international law.[48] In spite of this, some authors admit the concept of a semi-sovereign state, a state which is officially acknowledged as sovereign but whose theoretical sovereignty is significantly impaired in practice, such as by being de facto subjected to a more powerful neighbour; Belarus, in its relationship with Russia, has been proposed as a contemporary example of a semi-sovereign state.[49] In a somewhat different sense, the term semi-sovereign was famously applied to West Germany by political scientist Peter Katzenstein in his 1987 book Policy and Politics in West Germany: The Growth of a Semi-sovereign State,[50] due to having a political system in which the sovereignty of the state was subject to limitations both internal (West Germany's federal system and the role of civil society) and external (membership in the European Community and reliance on its alliance with the United States and NATO for its national security).[51]
Relationship between state and government
Although the terms "state" and "government" are often used interchangeably,[52] international law distinguishes between a non-physical state and its government; and in fact, the concept of "government-in-exile" is predicated upon that distinction.[53] States are non-physical juridical entities, not organisations of any kind.[54] However, ordinarily, only the government of a state can obligate or bind the state, for example by treaty.[53]
State extinction
Generally speaking, states are durable entities, though they can become extinguished, either through voluntary means or outside forces, such as military conquest. Violent state abolition has virtually ceased since the end of World War II.[55] Because states are non-physical juridical entities, it has been argued that their extinction cannot be due to physical force alone.[56] Instead, the physical actions of the military must be associated with the correct social or judiciary actions in order for a state to be abolished.
Ontological status of the state
The ontological status of the state has been a subject of debate,[57] especially, whether or not the state, being an object that no one can see, taste, touch, or otherwise detect,[58] actually exists.
The state as "quasi-abstract"
It has been argued that one potential reason as to why the existence of states has been controversial is because states do not have a place in the traditional Platonist duality of the concrete and the abstract.[59] Characteristically, concrete objects are those that have a position in time and space, which states do not have (though their territories have a spatial position, states are distinct from their territories), and abstract objects have a position in neither time nor space, which does not fit the supposed characteristics of states either, since states do have a temporal position (they can be created at certain times and then become extinct at a future time). Therefore, it has been argued that states belong to a third category, the quasi-abstract, that has recently begun to garner philosophical attention, especially in the area of Documentality, an ontological theory that seeks to understand the role of documents in understanding all of social reality. Quasi-abstract objects, such as states, can be brought into being through document acts, and can also be used to manipulate them, such as by binding them by treaty or surrendering them as the result of a war.[59]
Scholars in international relations can be broken up into two different practices, realists and pluralists, of what they believe the ontological state of the state is. Realists believe that the world is one of only states and interstate relations and the identity of the state is defined before any international relations with other states. On the other hand, pluralists believe that the state is not the only actor in international relations and interactions between states and the state is competing against many other actors.[60]
The state as "spiritual entity"
Another theory of the ontology of the state is that the state is a spiritual,[61] or "mystical entity"[61] with its own being, distinct from the members of the state.[61] The German Idealist philosopher Georg Hegel (1770–1831) was perhaps the greatest proponent of this theory.[61] The Hegelian definition of the state is "the Divine Idea as it exists on Earth".[62]
Trends in the number of states
Since the end of World War II, the number of sovereign states in the international system has surged.[63] Some research suggests that the existence of international and regional organisations, the greater availability of economic aid, and greater acceptance of the norm of self-determination have increased the desire of political units to secede and can be credited for the increase in the number of states in the international system.[64][65] Harvard economist Alberto Alesina and Tufts economist Enrico Spolaore argue in their book, Size of Nations, that the increase in the number of states can partly be credited to a more peaceful world, greater free trade and international economic integration, democratisation, and the presence of international organisations that co-ordinate economic and political policies.[66]
The Montevideo Convention on the Rights and Duties of States is a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codifies the declarative theory of statehood as accepted as part of customary international law. At the conference, United States President Franklin D. Roosevelt and Secretary of State Cordell Hull declared the Good Neighbor Policy, which opposed U.S. armed intervention in inter-American affairs. The convention was signed by 19 states. The acceptance of three of the signatories was subject to minor reservations. Those states were Brazil, Peru and the United States.
Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the person, body, or institution that has the ultimate authority over other people in order to establish a law or change existing laws. In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity. In international law, sovereignty is the exercise of power by a state. De jure sovereignty refers to the legal right to do so; de facto sovereignty refers to the factual ability to do so. This can become an issue of special concern upon the failure of the usual expectation that de jure and de facto sovereignty exist at the place and time of concern, and reside within the same organization.
The right of a people to self-determination is a cardinal principle in modern international law, binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It states that peoples, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.
A territorial dispute or boundary dispute is a disagreement over the possession or control of land between two or more political entities.
The controversy surrounding the political status of Taiwan or the Taiwan issue is a result of World War II, the second phase of the Chinese Civil War (1945–1949), and the Cold War.
An associated state is the minor partner in a formal, free relationship between a political territory and a major party—usually a larger nation.
Diplomatic recognition in international law is a unilateral declarative political act of a state that acknowledges an act or status of another state or government in control of a state. Recognition can be accorded either on a de facto or de jure basis. Recognition can be a declaration to that effect by the recognizing government or may be implied from an act of recognition, such as entering into a treaty with the other state or making a state visit. Recognition may, but need not, have domestic and international legal consequences. If sufficient countries recognise a particular entity as a state, that state may have a right to membership in international organizations, while treaties may require all existing member countries unanimously agreeing to the admission of a new member.
The political status of the Cook Islands and Niue is formally defined as being states in free association within the Realm of New Zealand, which is made up of the Cook Islands, Niue, and New Zealand and its territories, Tokelau and the Ross Dependency. The Cook Islands and Niue have full constitutional independence from New Zealand and act as independent countries. Some countries have recognised them as sovereign entities and established diplomatic relations. However, New Zealand may carry out defence and foreign affairs on behalf of the two associated states when requested.
A quasi-state is a political entity that does not represent a fully institutionalised or autonomous sovereign state.
An aspirant state is a polity which seeks to achieve international recognition as a sovereign state. This can involve separatist polities seceding from their parent state with or without legal permission or individuals seeking to establish a novel state in what is considered international territory. Regardless of its founding circumstances, all aspirant states claim sovereignty over their claimed territory and seek formal recognition of their statehood in international society. Such an entity is only considered an aspirant state while it formally claims sovereignty but has not achieved international recognition as a sovereign state. Consequently, an aspirant state could be recognized by no other political entities or many other political entities, its status as an aspirant state or a sovereign state is subjective and there are multiple different theories which seek to delineate what qualifies as statehood.
Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p.178. Article 1 of the Montevideo Convention on Rights and Duties of States, 1 lays down the most widely accepted formulation of the criteria of statehood in international law. It note that the state as an international person should possess the following qualifications: '(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states'.
Jasentuliyana, Nandasiri, ed. (1995). Perspectives on international law. Kluwer Law International. p.20. So far as States are concerned, the traditional definitions provided for in the Montevideo Convention remain generally accepted.
Wheaton, Henry (1836). Elements of international law: with a sketch of the history of the science. Carey, Lea & Blanchard. p.51. A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers.
"sovereign", The American Heritage Dictionary of the English Language (4thed.), Houghton Mifflin Company, 2004, archived from the original on 7 October 2015, retrieved 21 February 2010, adj. 1. Self-governing; independent: a sovereign state.
"sovereign", The New Oxford American Dictionary (2nded.), Oxford: Oxford University Press, 2005, ISBN978-0-19-517077-1, adjective ... [ attrib. ] (of a nation or state) fully independent and determining its own affairs.
Alain Pellet (1992). "The Opinions of the Badinter Arbitration Committee"(PDF). European Journal of International Law. 3 (1): 182. Archived(PDF) from the original on 8 October 2018. Retrieved 7 October 2020. The Committee considers [...] that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty; [...]
1 2 Thomas D. Grant, The recognition of states: law and practice in debate and evolution (Westport, Connecticut: Praeger, 1999), chapter 1.
↑ Krasner, Stephen D. (1999). Sovereignty: Organised Hypocrisy. Princeton University Press. ISBN978-0-691-00711-3.
↑ Núñez, Jorge Emilio (2013). "About the Impossibility of Absolute State Sovereignty". International Journal for the Semiotics of Law. 27 (4): 645–664. doi:10.1007/s11196-013-9333-x. S2CID150817547.
↑ Wilde, Ralph (2009). "From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers". Loy. L.A. Int'l & Comp. L. Rev. 31: 85–142 [p. 94].
↑ Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)
↑ Akweenda, Sackey (1997). "Sovereignty in cases of Mandated Territories". International law and the protection of Namibia's territorial integrity. Martinus Nijhoff Publishers. p.40. ISBN978-90-411-0412-0.
↑ Grinin L. E. Globalization and Sovereignty: Why do States Abandon their Sovereign Prerogatives? Age of Globalization. Number 1 / 2008 Archived 5 June 2019 at the Wayback Machine
↑ Turner, Bryan (July 2007). "Islam, Religious Revival and the Sovereign State". Muslim World. 97 (3): 405–418. doi:10.1111/j.1478-1913.2007.00187.x.
↑ See B. Broms, "IV Recognition of States", pp 47-48 in International law: achievements and prospects, UNESCO Series, Mohammed Bedjaoui(ed), Martinus Nijhoff Publishers, 1991, ISBN92-3-102716-6Archived 14 November 2022 at the Wayback Machine
↑ BBCArchived 22 May 2018 at the Wayback Machine The President of the International Court of Justice (ICJ) Hisashi Owada (2010): "International law contains no prohibition on declarations of independence."
↑ Fazal, Tanisha M.; Griffiths, Ryan D. (1 March 2014). "Membership Has Its Privileges: The Changing Benefits of Statehood". International Studies Review. 16 (1): 79–106. doi:10.1111/misr.12099. ISSN1468-2486.
Schmandt, Henry J.; Steinbicker, Paul G. (1956) [1954]. Fundamentals of Government (2nd printinged.). Bruce Publishing Company. Archived from the original on 15 January 2023. Retrieved 17 November 2017.
Raič, D. Statehood and the Law of Self-determination. Martinus Nijhoff Publishers, 2002. ISBN978-90-411-1890-5. p 29 (with reference to Oppenheim in International Law Vol. 1 1905 p110)
Schmandt, Henry J., and Paul G. Steinbicker. Fundamentals of Government, "Part Three. The Philosophy of the State" (Milwaukee: The Bruce Publishing Company, 1954 [2nd printing, 1956]). 507 pgs. 23cm. LOC classification: JA66 .S35 Fundamentals of government
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