The State in International Law: Sovereignty and Recognition
The State as a Subject of International Law
The State remains the primary actor in international law, even though other subjects, such as international organizations and, to a lesser extent, individuals, also participate. These other actors have gained relevance due to the increase in international relations and the expansion of law to topics such as human rights. However, the State continues to be the fundamental subject, defined by its ability to create, enforce, and be the recipient of international norms, as well as to claim in cases of non-compliance. Historically, only States were considered subjects of international law, a concept derived from the system of sovereign States established by the Peace of Westphalia in 1648. This system, with its focus on the nation-state, laid the foundations of the contemporary international community.
Elements Defining a State
For an entity to be recognized as a State in the international arena, it must meet three essential elements:
- Territory: This is the physical space over which the State exercises sovereignty. This territory must be defined, although border disputes with neighboring States do not affect the existence of the State. Territorial stability is important, but fixed borders are not required in all cases; what matters is the existence of a space over which the State exercises authority.
- Population: The State must have a resident population within its territory. The composition of this population can be diverse in terms of ethnicity, culture, religion, and nationality. Population density or number of inhabitants is not relevant; the essential aspect is the existence of a community of people under the State’s jurisdiction.
- Government: The State must have a political organization that manages the territory and represents the State internationally. The specific type of government and election system are irrelevant; what matters is its capacity to exercise control over the territory and its population. The government must be able to fulfill both internal and international functions.
International Legal Personality and Sovereignty
A State that meets these three elements is considered a sovereign entity with international legal personality. This means that it is a subject of international law with the capacity to acquire rights and assume obligations, as well as to interact with other States on an equal footing. State sovereignty implies independence in its internal organization and decisions, but internationally it also means that States must respect each other’s sovereign equality. The United Nations Charter, in its Article 2.3, and General Assembly Resolution 2625, are two documents that reflect these principles of equality and non-intervention among States. This includes each State’s right to freely choose its political, economic, and cultural system without external interference, and the duty to fulfill its international obligations in good faith.
Principle of Non-Intervention
One of the essential principles of international law is non-intervention in the internal affairs of other States. This principle, derived from sovereign equality, prohibits one State from interfering in the decisions or internal issues of another, such as matters of government, political organization, or economy. The International Court of Justice reinforced this principle in its ruling on the case of Nicaragua v. United States in 1986, determining that intervention is illegal, especially if it involves coercive means. However, this principle has evolved in international practice, and some exceptions are allowed, such as humanitarian interventions. In cases of severe human rights violations, the international community may consider that respect for these rights overrides the principle of non-intervention. In this regard, the UN Security Council can authorize interventions to protect human rights or maintain peace, as established in Chapter VII of the UN Charter.
State Immunities
State immunity is based on the principle of sovereign equality and means that a State cannot be judged in the courts of another State. Immunity includes two aspects:
- Jurisdictional Immunity: A foreign State cannot be subjected to trial in the courts of another State.
- Execution Immunity: The assets of a State located outside its territory cannot be subject to enforcement measures by another State.
There are two main doctrines regarding this immunity:
- Absolute Immunity: This doctrine holds that the State cannot be subjected to trial in foreign courts under any circumstances.
- Relative Immunity: Over time, several countries adopted this position, especially due to States’ involvement in economic activities. Relative immunity states that States do not have immunity in cases where they act as private entities, for example, in commercial activities, but retain immunity in governmental activities.
In Spain, the Organic Law of the Judiciary and the Civil Procedure Law incorporate jurisdictional and execution immunity into the Spanish legal system, and case law has gradually adapted this doctrine towards a stance of relative immunity since 1986.
Recognition of States
Recognition of a State is a discretionary act by which one or more States accept the existence of a new entity with independent territory, population, and government. This act is generally declarative, but it has constitutive effects by allowing the new State to establish international relations and obtain certain rights and obligations. Although the recognition of a State is free, it is often influenced by political considerations. In 1991, the European Union adopted common criteria for recognizing new States following the dissolution of the Soviet Union and Eastern Europe. However, there are cases of irregular recognitions; for example, when a State denies recognition to another despite its consolidation or recognizes entities that do not fully meet the criteria of a State, as in the case of Kosovo in 2008.
Recognition of Governments
In addition to recognizing States, it is also common to recognize governments when internal changes or conflict situations arise. There are three main types of government recognition:
- Local Governments: Those that control only part of the State’s territory, as often happens in civil wars.
- Governments in Exile: These are governments that claim authority over a State while outside the territory, such as the Polish government in Britain during World War II.
- De Facto Governments: These are governments that arise in an unconstitutional manner, for example, after a coup. In these cases, theories such as the Tobar Doctrine, which proposes not recognizing provisional governments until they demonstrate popular support, and the Estrada Doctrine, which automatically recognizes any government regardless of its origin, are applied.
State Succession
State succession occurs when a State transfers part or all of its territory to another, resulting in the creation of new States or modifying its international relations. The main types of succession include:
- Territorial Cession: Transfer of a portion of territory to another State.
- Newly Independent States: These are States that emerged from decolonization, such as India’s independence in 1946.
- Unification of States: Occurs when two or more States unite, such as the two Germanies in 1989.
- Territorial Separation: When a region gains independence from a State.
- Dissolution of a State: This occurs when a State ceases to exist, and new States are created in its place, as in the dissolution of Yugoslavia.
Succession rules establish how to handle the predecessor States’ properties, debts, and archives. Generally, boundary treaties are not affected, as established by Article 2.4 of the United Nations Charter.
Effects of Succession in International Organizations
In cases of State succession, the relationship of the new States with international organizations must be defined. In cases of unification, the new State generally inherits the membership of the previous States. However, in cases of dissolution, successor States must apply for admission to organizations, as they do not automatically inherit the original State’s legal personality.
Transfer of Properties, Debts, and Archives in State Succession
Properties: Properties are transferred by agreement between the predecessor and successor State. In the absence of an agreement, the assets usually pass to the successor State.
Debts: In cases of partial succession, debts are distributed equitably or according to agreements. Newly independent States are generally exempt from the predecessor State’s debt unless otherwise agreed.
Archives: Archives essential for the administration of the new States must be transferred to the successor State.
The 1983 Vienna Convention establishes guidelines for these transfers and allows the States involved to reach specific agreements to adjust the terms of succession.