State in International Law: Features, Territory, and
Jurisdiction
Synopsis:
F Introduction,
F State
in International Law
F Elements
of a State
F Types
of States
F Recognition
of States
F State
Territory
F Acquisition
and Loss of Territory
F State
Succession
F Theories of State
Succession:
F State
Jurisdiction
F
State Responsibility
F Conclusion
Introduction:
In Public International Law, a State is the most important legal body. To be called a state, it must have people, land, a working government, and the ability to talk and make deals with other countries. States can be recognized or unrecognized, and they may gain or lose land in different ways. When one state replaces another, it is called state succession. A state also has the power to make and enforce laws within its area, and sometimes even outside, depending on the situation. If a state breaks international rules, it must take responsibility and fix the harm caused. Overall, states play a major role in keeping order, peace, and cooperation between countries.
State in International Law:
In Public International Law, a State is the primary and most important subject. It is a sovereign legal entity that possesses full international personality, meaning it has rights and duties under international law, including the ability to enter into relations with other states and international bodies.
According to Article 1 of the Montevideo Convention (1933), a State must have four essential elements: a permanent population, a defined territory, a functioning government, and the capacity to enter into relations with other states. These elements form the legal foundation of statehood. A State also enjoys sovereignty, which grants it supreme authority within its territory and protects it from external interference. Once recognized as a State under these criteria, it gains the ability to participate in international treaties, assert territorial integrity, and uphold the right to self-determination. A State in International Law is a sovereign legal entity with a stable population, clear borders, an effective government, and independent international standing.
Elements of a State:
According to Article 1 of the Montevideo Convention (1933), a State must possess the following essential elements a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states. These elements, outlined in the Montevideo Convention (1933), establish the legal identity and sovereignty of a State in international law.
Ø Permanent Population:
A permanent population refers to a stable and
continuous group of people residing within a state's territory. It does not
require a fixed number or citizenship status, but there must be a community
that forms the human basis of the state. This population gives the state its
social identity and is essential for governance and international recognition.
Ø Defined Territory:
A defined territory is a clearly demarcated geographical area over which a state exercises sovereignty. It includes land, internal waters, airspace, and, in some cases, maritime zones. While exact borders may be disputed, the state must have a recognizable area under its effective control. This territorial basis is essential for jurisdiction, governance, and international legal recognition.
Ø Government:
A government is the political and
administrative authority of a state that exercises control over its territory
and population. It must be effective, capable of maintaining law and order,
conducting foreign relations, and fulfilling international obligations. The
form of government (democratic, monarchy, etc.) is not relevant in
international law, as long as it functions independently and has authority over
the state's affairs.
Ø Capacity to Enter into Relations
with Other States:
This refers to a state's ability to engage independently in diplomatic and international affairs. It must have the legal and practical competence to establish treaties, join international organizations, and maintain foreign relations. This capacity signifies the state's sovereignty and recognition as an independent entity in the international community.
These
elements collectively distinguish a state from other international actors like
international organizations or insurgent groups.
Types of States:
States
can be classified in different ways:
Ø Sovereign States:
Sovereign states are fully independent and have complete control over their internal and external affairs. They can make laws, form governments, and enter into international relations without outside interference.
Ø Non-Sovereign States:
Non-sovereign states or territories are under the authority or protection of another country. They may have limited self-rule but do not have full independence in international matters. For example, Greenland is a non-sovereign territory under Denmark.
Ø Recognized States:
Recognized
states
are those that are officially acknowledged by other countries and international
organizations. They can form diplomatic relations, sign treaties, and join
global bodies like the United Nations.
Ø Unrecognized States:
Unrecognized
states,
on the other hand, may have a functioning government and defined territory but
are not formally accepted by the international community. As a result, they
face difficulties in international dealings. For example, Taiwan functions like
an independent country but is not widely recognized as a sovereign state. Federal and Unitary States:
Recognition of States:
Recognition
of a state means other countries officially accept it as an independent
country. It helps the new state build diplomatic ties and join international
organizations. There are two types de jure recognition (full
and legal) and de facto recognition (temporary or limited).
Some believe a state exists once it meets basic requirements (declaratory
theory), while others think it becomes a state only when others recognize it
(constitutive theory). Recognition is not required to be a state, but it makes
international dealings easier.
Ø De Jure Recognition:
De
jure recognition
is the official and full legal acknowledgment of a state by other countries. It
means the recognizing state accepts that the new state permanently meets all
the legal requirements of statehood. This type of recognition is stable and
allows the new state to fully participate in international relations, such as
signing treaties and joining global organizations.
Ø De Facto Recognition:
De
facto recognition is a temporary or limited acknowledgment of a state
or government that has actual control over a territory but may not meet all
legal requirements for full recognition. It is often given when the situation
is still uncertain or unstable. While it allows some international dealings, it
does not carry the full legal weight of de jure recognition
and can be withdrawn if conditions change.
State Territory:
State
territory refers to the geographical area under the sovereign control of a
state. It includes land, internal waters, territorial sea, airspace above the
land and sea, and subsoil. A clearly defined territory is one of the essential
elements of State. While border disputes may exist, the state must exercise
effective authority over its area. The control over territory allows a state to
apply its laws, protect its borders, and manage resources. Territory is also
important for determining jurisdiction and international rights.
Territorial
sovereignty allows the state to make and enforce laws within this space,
subject to certain international limitations.
Acquisition and Loss of Territory:
F Acquisition:
Territory
may be acquired by:
Ø Occupation:
Occupation is a method of
acquiring territory by claiming land that belongs to no state (terra nullius).
It must be done peacefully and with the intention to exercise effective control
over the area. For occupation to be valid under international law, the state
must show continuous authority and actual settlement or administration of the
territory.
Ø Accretion:
Accretion is a natural
method of acquiring territory through the gradual buildup
of land. This can happen due to natural processes like river deposits, volcanic
eruptions, or shifting coastlines that create new land attached to a state's
existing territory. Since the land is formed naturally and slowly over time, it
becomes part of the state’s territory without conflict.
Ø Cession:
Cession is the transfer
of territory from one state to another through a formal agreement, usually a
treaty. It can occur voluntarily, such as after negotiations, or as part of a
peace settlement after a conflict. The transferring state gives up its
sovereignty over the land, and the receiving state gains full control.
Ø Conquest (now illegal under UN
Charter):
Conquest is the
acquisition of territory through the use of military force. In the past, it was
a common method of expanding state territory. However, under modern
international law especially after the establishment of the United Nations Charter in 1945
conquest is considered illegal and
unacceptable.
Ø Prescription:
Prescription is a method of
acquiring territory through long-term, peaceful, and continuous possession of
land that originally belonged to another state, without objection from the
original owner. If the occupying state exercises effective control and the
original state does not protest over a significant period, international law
may recognize the territory as lawfully transferred. This process must be peaceful
and based on open possession, not by force or secrecy. Prescription is similar
to the legal concept of adverse possession in property law.
F Loss:
Territory
may be lost through:
Ø Cession:
When a state voluntarily transfers part of its
territory to another state through a treaty or agreement.
Ø Annexation:
Annexation is the forcible
takeover of one state’s territory by another state, often through military
action or occupation.
It involves extending sovereignty over
land without the consent of the original state. Under modern international law, especially
after the adoption of the UN Charter in
1945, annexation is considered illegal,
as it violates the principles of sovereignty,
territorial integrity, and the prohibition on the use of force.
Ø Secession:
Secession is the process by
which a region or group within a state breaks away to form a new, independent
state.
It usually occurs due to cultural, ethnic,
political, or economic differences. Secession can be peaceful, through mutual agreement
or violent, involving conflict or
civil war. International law does not clearly grant a right to secession, but
in some cases, especially where there is oppression or denial of
self-determination, secession may gain support and recognition.
Ø Dereliction:
Dereliction is the voluntary
abandonment of a territory by a state, with no intention to return or exercise
sovereignty over it.
When a state gives up control in this way,
the land becomes terra
nullius (land belonging to no one) until another state lawfully
acquires it, usually through occupation. For dereliction to be valid under
international law, the abandonment must be clear,
deliberate, and permanent.
Ø Natural Causes:
A state may lose territory due to natural causes, such as erosion, rising
sea levels, earthquakes, volcanic activity, or river shifts that change national
boundaries.
State Succession:
State succession happens when one country
takes over the international responsibilities of another country for a specific
area. This can occur when a country splits,
joins with another, gains independence, or ceases to exist.
Types of State
Succession:
Ø Total (Universal) Succession:
Total or universal succession happens when
one state completely replaces another in both its territory and international
responsibilities. The old state ceases to exist, and the new state takes over
its rights and obligations, such as treaties, debts, and property. A common
example is Russia succeeding the USSR after its dissolution in 1991.
Ø Partial Succession:
Partial succession occurs when a part of a
state breaks away to form a new independent
state, while the original state
continues to exist. The new state may or may not inherit the treaties,
debts, and international responsibilities of the parent state, depending on
agreements and international recognition.
Ø Dissolution:
Dissolution occurs when a
state completely breaks up into two or more new independent states, and the
original state ceases
to exist. None of the new states is considered the legal successor;
instead, each is treated as a new entity under international law.
Ø Decolonization:
Decolonization is a type of
state succession that occurs when a colony gains independence and becomes a sovereign state. It was most common after
World War II, when many Asian and African countries achieved freedom from
European colonial powers. An example is India
gaining independence from British rule in 1947. In such cases, the new
state starts fresh, and its responsibility for treaties or debts of the
colonial power depends on agreements or international recognition.
Decolonization plays a key role in promoting the right to self-determination under international
law.
Theories of State Succession:
State succession
refers to the replacement of one state by another in the responsibility for the
international relations.
State Jurisdiction:
State jurisdiction refers to a
state's legal authority to make, apply, and enforce laws within its territory
and, in some cases, beyond.
Ø Territorial Jurisdiction:
The most common type a state has full
authority over acts, people, and property within its borders.
Ø Personal Jurisdiction:
Personal jurisdiction allows a state to
apply its laws to its citizens,
even when they are outside the country.
It is based on the person’s nationality,
meaning a state can hold its nationals accountable for their actions abroad
under certain laws.
Ø Protective Jurisdiction:
Protective jurisdiction lets a state apply
its laws to acts done outside its territory
by foreigners, if those acts threaten the state's security or key
interests—like terrorism, espionage, or counterfeiting.
Ø Universal Jurisdiction:
Universal jurisdiction lets any state
prosecute serious crimes like genocide,
war crimes, or piracy, no matter where they happened or who committed them. It ensures such crimes don’t go
unpunished, even if there's no direct link to the prosecuting state.
Ø Extraterritorial Jurisdiction:
Extraterritorial jurisdiction is when a
state applies its laws outside its own
territory. This can happen in special cases, such as when a crime
committed abroad harms the state’s
interests or its citizens.
Jurisdiction
can be limited by immunity, extradition laws, or international
agreements.
State Responsibility:
State
responsibility means a state is held legally accountable when it violates
international law. The wrongful act must be done by the state or its officials.
If found responsible, the state must provide reparation, such as restitution,
compensation, or apology. This ensures states follow their
international duties.
According
to the International Law Commission’s Draft Articles on State Responsibility
(2001):
F There must be a wrongful act
attributable to the State
F The act must breach an international
obligation
F There is a duty to make
reparations, which may be in the form of:
I.
Restitution
II.
Compensation
III.
Satisfaction
States
can also be held responsible for acts of omission or for internationally
wrongful acts committed by state organs or authorized individuals.
Conclusion:
In international law, the state is the main and most
important legal entity. It must have a permanent population, defined territory,
functioning government, and the ability to enter international relations. These
elements give a state full legal status and sovereignty. States can gain or
lose territory, succeed or be succeeded, and exercise jurisdiction within and
beyond their borders. Recognition by other countries helps in international
dealings but is not essential for statehood. States are also held responsible
for violating international laws and must provide reparation. Overall, the
state is the key actor in maintaining global legal order and cooperation.