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Nature of State: Different Kinds of State and Elements of State in International Law

The document discusses the nature of states and non-state entities in international law, highlighting essential elements of a state, such as permanent population, defined territory, government, and sovereignty. It explains the evolution of the concept of sovereignty from absolute power to shared sovereignty and the equality of states, while also describing different types of states, including confederations, federal states, vassal states, and protectorates. Additionally, it provides a brief insight into the international positions of Bhutan and Tibet, and the Commonwealth of Nations as a loose association of states.

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NATURE OF STATE AND DIFFERENT KINDS OF STATES AND NON-STATE ENTITIES State is the main subject of international law. And Acc. to Salmond, "State is a community of people which has been established for some objectives such, internal order and external security.“ Oppenheim, the existence of State is possible only when the people of State have settled under a highest governmental authority and habitually follow its order. Essential elements of a State.- Acc. to Article 1 of Montevideo Convention, 1933, the State as a person of International Law should possess for ingredients- (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other States.
Acc. to Oppenheim, population, a defined territory, government and sovereignty are the essential elements of a State. Holland has added one more essential element, namely. to some extent 'civilization' because of which the State becomes an international person. Functions of State- The modern period has witnessed revolutionary changes in regard to functions of a State. Previously the concept of a police State prevailed. According to this concept, essential functions of a State were to maintain internal peace and order and to defend it from external aggression. It cannot be denied that even today these are the essential functions of a State but in the present period the concept of State has undergone significant changes. Instead of the concept of police State, the present concept is that of a welfare State. That is to say, for the benefit of the people, State has to perform many social, economic, educational and cultural functions.
Sovereignty has two dimensions: Internal Sovereignty and External Sovereignty. Concept of sovereignty: Only sovereign States are entitled to be the members of the family of nations. Sovereignty is accepted as the exclusive property and hallmark of the State. In Island of Palmas Arbitration, Max Huber has defined the term 'sovereignty' : "Sovereignty in the relation between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein to the exclusion of other States, functions of a State." In the modern period, the credit of propounding the concept of sovereignty goes to Jean Bodin. In 1576, he, in his book "De Republic", put forward the concept of sovereignty. Acc. to him the essential element of sovereignty is the law-making power of the sovereign, Since the sovereign makes the law, he does not intend to bind himself by that law. He has tended to add that the sovereign is however bound by the Divine Law.
Slowly & gradually the concept of sovereignty became distorted & it converted into “absolutism”. In 16th Century, Hobbes expressed the view that by absolute and complete power of the sovereign, it came to be defined as the supreme power over a definite territory unregistered by any earthly power. Acc. to Austin, Sovereignty is indivisible and illimitable. In the modern period there have been revolutionary changes in the concept of sovereignty because of which it is not proper to say that States sovereignty is essential, indivisible and illimitable. In the present time, States have entered into many international treaties thereby surrendering a part of their sovereignty. Acc. to Starke: "Sovereignty has a much restricted meaning today than in the 18th and 19th centuries, when with the emergence of powerful highly nationalized States, few limits on States' autonomy were acknowledged. At the present time there is hardly a State which in the interest of the international community has not accepted restrictions on its liberty of actions." In Union of India v. Sukumar Sengupta, Sabyasachi Mukharji, C.J. of the Supreme Court of India quoted with approval the above observation of Starke.
Ordinarily, over one and the same territory there can be only one sovereign. In practice however, there can be several exceptions such as: (a) The condominium which exists between two or more States exercising sovereignty jointly over a territory e.g. condominium of Austria and Prussia over Schleswig Holstein Lanenburg from 1864 till 1866 and condominium of Great Britain and France over New Helerides (now the independent State of Vanuatu). (b) One State exercising sovereignty which is, in law vested elsewhere i.e. where a territory is administered by a foreign power with the consent of the owner State e.g., Great Britain exercised sovereignty over Turkish Island from 1878 to 1914, (c) Giving territory on lease or pledge by the owner State to a foreign power. For example, in 1898 China leased the district of Kiaochow to Germany, Wei-Hai-Wei and the land opposite the Island of Hongkong to Great Britain, Kuang-Chouwan to France and Port Arthur to Russia. (d) Where the use, occupation and control of the territory are granted in perpetuity by the grantor State to the other State e.g., in 1903 the Republic of Panama transferred to the United States of America a ten-
(e) In case of Federal State also sovereignty is divided between a federal State and it member States, (f) Lastly, in case of a mandated or trust territory, the State which is given a mandated or trust territory, exercises sovereignty over it although the territory is not its own. Principle of the Equality of States: As the members of international- community, in principle, all States are equal. This equality is due to their international personality. Despite the dissimilarity in respect of their territories, population, Power, civilization, prosperity, etc. all States as international persons are equal. According to Oppenheim following are the consequence of this legal equality: 1. When any question is to be decided by consent each State is entitled to have one vote. But there are exceptions to this rule, such as the veto of the permanent members of the 'Security Council’. 2. Legally the importance of the votes of the weak as well strong nation is same, there are some exceptions to this rule also. 3. No State can exercise jurisdiction over another State. This rule has been applied by the courts in many cases.
4. Generally, the courts of a State cannot challenge the validity of the official acts of another State so far as these acts are related to the jurisdiction of that State. In principle all States are equal. But in reality, they are unequal in respect of their respective powers, territory, property, etc. Oppenheim has rightly pointed out the legal equality must not be confused with political equality. Politically, States are in no manner equals. The U.N. Charter is based on the principle of 'Sovereign equality of States but in reality great powers are unequal to small States. Thus, the equality of States is a general principle but there are several important exceptions of this principle. Different kinds of States and Non-State Entities (1) Confederation.-It is formed by States who are independent in the international field. It is a group of 2 or more sovereign states which have given up their liberty for some specific aims & objects. Under International Law confederation has no international personality. The States forming confederation are not treated as international persons. E.g. European Trade Union Confederation 1973.
(2)Federal State.-Generally a federal State is formed by the merger of two of more sovereign States. A federal State is an international person under international law. United States of America, Switzerland and India are good examples of federal States. There is division of powers between Union & its members States. (3) Condominium.-Condominium is a territory where two or more States exercise sovereignty. New Hebrides is a good example of condominium. England and France had a joint sovereignty over New Hebrides. Control. It is not considered and not recognized as State. (4) Vassal State.-A vassal State is a State which is under the suzerainty of another State. Its independence is so restricted that it has no importance under international law, it is treated to be under the international guardianship of another independent State. For internal matters it is autonomous but in external matters it is completely dependent upon another State. A vassal State is bound by treaty of war or peace entered into by the State under whose int. guardianship it remains. It has not capacity to enter into relationship with other State. So not regarded as member of Int. community. Tibet is subject to China.
(5) Protectorate State.-A protectorate State is a State which entrusts some of its important functions to another sovereign State. It retains a sufficient measure of sovereignty and remains a State under international law. For example, Bhutan is a protectorate State of India. A protectorate State generally entrusts its defense, external affairs etc. to another State. A protectorate State remains a State under int. law. Since a protectorate State retains a sufficient measure of sovereignty, declaration of war or peace made by the protecting State with another State is not binding upon it. (6) Trust Territories: It is non-self governing territory i.e. administered by the United Nations Trusteeship Council. All of the trust territories under the UN Trusteeship system have either become independent States / joined neighboring independent countries. World War II. (7) A Neutral State: Neutral State do not support either party during war. It is generally deemed a temporary status & can be terminated by joining either of State at war. It is a country that chooses not to participate in a war between other countries. Neutrality can be perfect, imperfect, or treaty-based & is meant to localize wars & encourage peaceful resolutions between belligerents. Neutralization makes a country’s neutrality permanent through treaties, while neutrality can be temporary. (8) Neutralised State: It is a State whose independence & integrity are for all future time guaranteed by treaty, on condition that such State binds itself not to enter into military. (Int. agreement) E.g. Switzerland, Belgium, Luxemburg.
International Position of Bhutan, Tibet, and Commonwealth of Nations Bhutan.-Bhutan is a protectorate State of India. It is a hilly region in, North-East of Nepal. In 1949, through a treaty Bhutan entrusted the matter of foreign affairs and defence to India. It thus became a protectorate State of India. Since, a protectorate State retains a sufficient measure of sovereignty, Bhutan remains a State under international law. In 1971, Bhutan became a member of the United Nations. Tibet.- In Simla Conference, 1914, Tibet was declared a protectorate State of China. This was further confirmed by the Treaty of 1951. China accepted Dalai Lama as the spiritual head of Tibet. Tibet was autonomous in its internal matters, but China started interfering in the internal matters of Tibet. In 1959, the situation deteriorated so much that the conflict took the form of war between China and Tibet. China ruthlessly suppressed the movement of the people and Dalai Lama was compelled to leave Tibet. He fled away from Tibet and took asylum in India, China criticised action of India in granting asylum to Dalai Lama and claimed that it was an interference in her internal affairs, at its very face this argument is absurd because as a sovereign State, India was
Commonwealth of Nations.- Commonwealth of Nations is an association of those States (except Britain) which were at some time the colonies of the British Empire Britain, Canada, Austria, Cyprus, Nigeria, New Zealand, India, Pakistan, Ceylon, Malaysia, Singapore, etc. are its members, Before 1948 it was called the British Commonwealth of Nations. In 1948 the term 'British' was dropped. It is now called, the Commonwealth of Nations. All the members of the Commonwealth of Nations are now sovereign States. Under International-Law, Commonwealth of Nations is neither a State nor a federation. It is in fact a loose association of equal and sovereign States who are members of the United Nations and have agreed to follow certain general principles. Thus, under International Law, Commonwealth is not a separate independent entity.