Concept and Components of a State in International Law
Concept and Component Parts of the State
The state is an entity possessing territory, population, and political organization (government), which is also characterized because it is sovereign and independent. It is an entity that is not subordinate to another State.
Elements of a State
- Territory
- Population
- Political Organization
A) Land
Land is the geographical area in which the organization conducts its business, status, and powers. It differs from international organizations because the latter have no territory but operate within the territory of a state (host state).
The size of a state’s territory is relevant to the government and the international character of that fragmentation. Territory forms the basis of land area, airspace, and sea when the State exercises sovereignty.
Maritime Zones
In the maritime area, the delimitation of maritime zones establishes specific spaces:
- Territorial Sea: Covering 12 nautical miles (total sovereignty with the exception of navigation).
- Contiguous Zone: Covering 24 nautical miles (does not have full sovereignty). Fiscal and customs control occurs in these waters.
- Exclusive Economic Zone (EEZ): Covering 200 nautical miles (does not have full sovereignty). The coastal state has the competence to regulate economic exploitation.
- Deep Sea and Continental Shelf: Beyond 200 nautical miles from the baseline (no sovereignty). Governed by international agreements like UNCLOS.
Airspace
Airspace overlaps the ground. Full sovereignty is exercised:
- In airspace (although there may be limitations on freedom of flight).
- In Inland Waters.
- In the Territorial Sea.
Control and Administration of Territory
Each State has the power to demarcate its territory, but it can happen that the limits are not determined when the state emerges and allows further delineation. It requires the effective control of territory.
There are territories that are administered by States without being part of the state (i.e., Antarctica, governed by an international convention to prevent claims of sovereignty by States, and colonies, where the administering state acts on behalf of the colony).
The effective control of territory by governments allows for the establishment of a State. However, some entities, which may not be recognized by the United Nations (e.g., Western Sahara and Palestine), have claimed the formation of separate States but are not universally recognized.
Economic Dimension
The principle of State Sovereignty over natural resources is enshrined in the Charter of Rights and Duties of States. This is the case for the Exclusive Economic Zones and Continental Shelf, where there is freedom of flight, navigation, and undersea cable installation by third countries, but activity cannot be performed on natural resources without the consent of the coastal state.
B) Political Organization
State Power
State power must be formed by the three branches of government (legislative, executive, and judicial), which constitute the state organization within the territory. These branches must be institutional and effective in relation to their functions.
State power is manifested by these three bodies within its territory and outside its territory through embassies and consulates. It exercises authority over people who conform to its nationality and also foreigners residing regularly or temporarily within the State.
C) The Population
The population comprises the group of people who are permanently or habitually resident in the State. However, the state also exercises jurisdiction over its nationals who are not in its territory and those who are in its territory but are not nationals.
The state’s authority extends to:
- Natural Persons
- Legal Persons
- Things (e.g., ships and aircraft)
1) Natural Persons
For individuals, the link that binds them to the State is nationality. The nationality of individuals is determined by each State (e.g., Art. 17 of the Spanish Civil Code). Diplomatic protection is given when the following requirements are met:
- Nationality
- Exhaustion of local remedies
- Clean hands doctrine (the individual seeking protection has not acted illegally or improperly)
2) Legal Persons
The link between legal persons and the state is typically their registered office. In the case of legal persons, it is usually the place of incorporation of the company, which often coincides with its headquarters. However, it is always the state that determines the link.
3) Things
In the case of things such as ships or aircraft, their link with the state is the flag. The act of linking vessels and aircraft to a state is called flagging.
Jurisdiction
The State exercises its jurisdiction over its nationals and foreigners within its territory. There are several principles governing jurisdiction:
- Principle of Equal Treatment (enshrined in the European Convention on Human Rights)
- Principle of Minimum Treatment (foreigners are entitled to a minimum standard of treatment)
- Principle of Reciprocity (states treat each other’s nationals in the same way)
Stateless Persons and Refugees
Stateless persons are individuals without citizenship.
Refugees are persons who flee their country to escape serious danger if they remain there.
Spaniards Abroad
A Spanish-flagged ship with Spaniards onboard falls under the jurisdiction of Spain. Spain has jurisdiction over the vessel and crew if it is not in foreign territory.
Additionally, the State may exercise jurisdiction over its nationals in the territory of another State where appropriate, such as in cases of:
- Criminal prosecution
- Prosecution for breach of military service
- Crimes committed by diplomatic personnel
Sovereignty and International Legal Status of the State
The State is original and has not been created by a body having full international legal personality.
The State has the following principles:
– Principle of Sovereignty.
– Principle of Independence.
The states are sovereign, that is not dependent on another State. Sovereignty is an essential attribute of State gathered in Art – 2.1 of the UN Charter.
This principle will lead to two principles:
– Principle of Equality.
– Principle of non-intervention.
All states are equal in international law and may not be seized by other States.
Art – 2 UN Charter sets out the principles that underlie the States but does not define the sovereign equality is defined in Resolution 2625 (XXV this is no sessions have been conducted since its inception and found to correspond with 1970 ), which develops the principles of Art 2 CNU and was adopted in 1970.
When referring to independence is in relation to exercise its powers with exclusive and full.