Sovereign state

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Not to be confused with Federated state.
Sovereign states in Europe

A sovereign state (or simply state) is classically defined as a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states.[1] It is also normally understood to be a state which is neither dependent on nor subject to any other power or state.[2] The existence or disappearance of a state is a question of fact.[3] While in abstract terms a sovereign state can exist without being recognised by other sovereign states,[citation needed] unrecognised states will often find it hard to exercise full treaty-making powers and engage in diplomatic relations with other sovereign states.[citation needed]

The word "country" is often colloquially used to refer to sovereign states, although it means, originally, only a geographic region, and subsequently its meaning became extended to the sovereign polity which controls the geographic region.

Contents

[edit] Definition

Sovereignty is a term that is frequently misused.[4] Up until the 19th century, the radicalised concept of a "standard of civilisation" was routinely deployed to determine that certain peoples in the world were "uncivilised", 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 "civilised" people."[5] 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."[6] In the opinion of Justice 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." [7]

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 Declaration on Rights and Duties of States, and the charters of regional international organisations 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.[8][9] The right of nations to determine their own political status and exercise permanent sovereignty within the limits of their territorial jurisdictions is widely recognised.[10][11][12]

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.[13]

In casual usage, the terms "country", "nation", and "state" are often used as if they were synonymous; but in a more strict usage they can be distinguished:[citation needed]

  • Nation denotes a people who are believed to or deemed to share common customs, religion, language, origins, ancestry or history. However, the adjectives national and international are frequently used to refer to matters pertaining to what are strictly sovereign states, as in national capital, international law.

[edit] Recognition

State recognition signifies the decision of a sovereign state to treat another entity as also being a sovereign state.[14] Recognition can be either express or implied and is usually retroactive in its effects. It doesn't necessarily signify a desire to establish or maintain diplomatic relations.

There is no definition that is binding on all the members of the community of nations on the criteria for statehood. In actual practice, the criteria are mainly political, not legal.[15] L.C. Green cited the recognition of the unborn Polish and Czech 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."[16]

In international law, however, there are several theories of when a state should be recognized as sovereign.[17]

[edit] Constitutive theory

The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognized as sovereign by other states. This theory of recognition was developed in the 19th century. Under it, a state was sovereign if another sovereign state recognized it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognized nations did not have to respect international law in their dealings with them.[18] In 1815 at the Congress of Vienna the Final Act only recognised 39 sovereign states in the European diplomatic system, and as a result it was firmly established that in future new states would have to be recognized by other states, and that meant in practice recognition by one or more of the great powers.[19]

One of the major criticisms of this law is the confusion caused when some states recognize a new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents, suggested that it is a state's duty to 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 recognize another state if it is to their advantage.[18]

In 1912, L. F. L. Oppenheim had the following to say on 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.[20]

[edit] Declarative theory

By contrast, the "declarative" theory 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. The declarative model was most famously expressed in the 1933 Montevideo Convention.

Article 3 of the Convention declares that statehood is independent of recognition by other states. In contrast, recognition is considered a requirement for statehood by the constitutive theory of statehood.

A similar opinion about "the conditions on which an entity constitutes a state" is expressed by the European Economic Community Opinions of the Badinter Arbitration Committee, which found that a state was defined by having a territory, a population, and a political authority.

[edit] State practice

State practice relating the recognition states typically falls somewhere between the declaratory and constitutive approaches.[21] International law does not require a state to recognise other states.[22]

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. In the former case, 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".[23] In the latter case, recognition was widely withheld from a state created in Northern Cyprus on land illegally invaded by Turkey in 1974.[24]

[edit] De facto and de jure states

Most sovereign states are states de jure and de facto (i.e. they exist both in law and in reality). However, sometimes states exist only as de jure states in that an organisation is recognised as having sovereignty over and being the legitimate government of a territory over which they have no actual control. Many continental European states maintained governments-in-exile during the Second World War which continued to enjoy diplomatic relations with the Allies, notwithstanding that their countries were under Nazi occupation. A present day example is the State of Palestine, which is recognized by multiple states, but doesn't have control over any of its claimed territory in Palestine[25][39] and possess only extraterritorial areas (i.e. embassies and consulates). Other states may have sovereignty over a territory but lack international recognition; these are considered by the international community to be only de facto states (they are considered de jure states only according to their own Law and by states that recognize them). Somaliland is commonly considered to be such a state.[40][41][42][43] For a list of entities that wish to be universally recognized as sovereign states, but do not have complete worldwide diplomatic recognition, see the list of states with limited recognition.

[edit] See also

[edit] References

  1. ^ See the following:
    • Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. "Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 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." 
  2. ^ See the following:
    • 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 (Houghton Mifflin Company), 2004, http://dictionary.reference.com/browse/sovereign, retrieved 21 February 2010, "adj. 1. Self-governing; independent: a sovereign state." 
    • "sovereign", The New Oxford American Dictionary (Oxford: Oxford University Press), ISBN 0195170776, "adjective ... [ attrib. ] (of a nation or state) fully independent and determining its own affairs." 
  3. ^ Lalonde, Suzanne (2002). "Notes to pages". Determining boundaries in a conflicted world: the role of uti possidetis. McGill-Queen's Press - MQUP. p. 181. ISBN 9780773524248. http://books.google.com/books?id=x7qEqVpq9poC. 
  4. ^ See "Sovereignty: organized hypocrisy, Stephen D. Krasner, Princeton University Press, 1999, ISBN 069100711X
  5. ^ Ralph Wilde, '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,' Fall, 2009, 31 Loy. L.A. Int'l & Comp. L. Rev. 85, page 94, [1]
  6. ^ 1 Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)
  7. ^ See Sovereignty in cases of Mandated Territories, in "International law and the protection of Namibia's territorial integrity", By S. Akweenda, Martinus Nijhoff Publishers, 1997, ISBN 9041104127, page 40
  8. ^ "Chapter IV Fundamental Rights and Duties of States". Charter of the Organization of American States. Secretariat of The Organization of American States. http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_States.htm#ch4. Retrieved 21 November 2010. 
  9. ^ "Draft Declaration on Rights and Duties of States". UN Treaty Organization. 1949. http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/2_1_1949.pdf. Retrieved 21 November 2010. 
  10. ^ "General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"". United Nations. http://www2.ohchr.org/english/law/resources.htm. Retrieved 21 November 2010. 
  11. ^ Schwebel, Stephen M., The Story of the U.N.'s Declaration on Permanent Sovereignty over Natural Resources, 49 A.B.A. J. 463 (1963)
  12. ^ "International Covenant on Civil and Political Rights". United Nations. http://www2.ohchr.org/english/law/ccpr.htm. Retrieved 21 November 2010. 
  13. ^ Grinin L. E. Globalization and Sovereignty: Why do States Abandon their Sovereign Prerogatives? Age of Globalization. Number 1 / 2008 [2]
  14. ^ "Recognition", Encyclopedia of American Foreign Policy.
  15. ^ 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, ISBN 9231027166 [3]
  16. ^ See Israel Yearbook on Human Rights, 1989, Yoram Dinstein, Mala Tabory eds., Martinus Nijhoff Publishers, 1990, ISBN 0-7923-0450-0, page 135-136 [4]
  17. ^ Thomas D. Grant, The recognition of states: law and practice in debate and evolution (Westport, Connecticut: Praeger, 1999), chapter 1.
  18. ^ a b Hillier, Tim (1998). Sourcebook on Public International Law. Routledge. pp. 201–2. ISBN 1859410502. http://books.google.com/books?id=Kr0sOuIx8q8C. 
  19. ^ Kalevi Jaakko Holsti Taming the Sovereigns p. 128.
  20. ^ Lassa Oppenheim, Ronald Roxburgh (2005). International Law: A Treatise. The Lawbook Exchange, Ltd.. pp. 135. ISBN 1584776099, 9781584776093. http://books.google.com/books?id=vxJ1Jwmyw0EC&pg=PA135. 
  21. ^ Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 369. 
  22. ^ Opinion No. 10. of the Arbitration Commission of the Conference on Yugoslavia.
  23. ^ s:United Nations Security Council Resolution 216
  24. ^ s:United Nations Security Council Resolution 541
  25. ^ a b Staff writers (20 February 2008). "Palestinians 'may declare state'". BBC News (British Broadcasting Corporation). http://news.bbc.co.uk/2/hi/7254434.stm. Retrieved 2011-01-22. :"Saeb Erekat, disagreed arguing that the Palestine Liberation Organisation had already declared independence in 1988. "Now we need real independence, not a declaration. We need real independence by ending the occupation. We are not Kosovo. We are under Israeli occupation and for independence we need to acquire independence".
  26. ^ a b B'Tselem - The Israeli Information Center for Human Rights in the Occupied Territories: Israel's control of the airspace and the territorial waters of the Gaza Strip, Retrieved 2012-03-24.
  27. ^ Map of Gaza fishing limits, "security zones"
  28. ^ Israel's Disengagement Plan: Renewing the Peace Process: "Israel will guard the perimeter of the Gaza Strip, continue to control Gaza air space, and continue to patrol the sea off the Gaza coast. ... Israel will continue to maintain its essential military presence to prevent arms smuggling along the border between the Gaza Strip and Egypt (Philadelphi Route), until the security situation and cooperation with Egypt permit an alternative security arrangement."
  29. ^ Gold, Dore; Institute for Contemporary Affairs (26 August 2005). "Legal Acrobatics: The Palestinian Claim that Gaza is Still "Occupied" Even After Israel Withdraws". Jerusalem Issue Brief, Vol. 5, No. 3. Jerusalem Center for Public Affairs. http://www.jcpa.org/brief/brief005-3.htm. Retrieved 2010-07-16. 
  30. ^ Bell, Abraham (28 January 2008). "International Law and Gaza: The Assault on Israel's Right to Self-Defense". Jerusalem Issue Brief, Vol. 7, No. 29. Jerusalem Center for Public Affairs. http://www.jcpa.org/brief/brief005-3.htm. Retrieved 2010-07-16. 
  31. ^ "Address by Foreign Minister Livni to the 8th Herzliya Conference" (Press release). Ministry of Foreign Affairs of Israel. 22 January 2008. http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2008/Address+by+FM+Livni+to+the+8th+Herzliya+Conference+22-Jan-2008.htm?DisplayMode=print. Retrieved 2010-07-16. 
  32. ^ Salih, Zak M. (17 November 2005). "Panelists Disagree Over Gaza’s Occupation Status". University of Virginia School of Law. http://www.law.virginia.edu/html/news/2005_fall/gaza.htm. Retrieved 2010-07-16. 
  33. ^ "Israel: 'Disengagement' Will Not End Gaza Occupation". Human Rights Watch. 29 October 2004. http://www.hrw.org/english/docs/2004/10/29/isrlpa9577.htm. Retrieved 2010-07-16. 
  34. ^ Gold, Dore; Institute for Contemporary Affairs (26 August 2005). "Legal Acrobatics: The Palestinian Claim that Gaza is Still "Occupied" Even After Israel Withdraws". Jerusalem Issue Brief, Vol. 5, No. 3. Jerusalem Center for Public Affairs. http://www.jcpa.org/brief/brief005-3.htm. Retrieved 2010-07-16. 
  35. ^ Bell, Abraham (28 January 2008). "International Law and Gaza: The Assault on Israel's Right to Self-Defense". Jerusalem Issue Brief, Vol. 7, No. 29. Jerusalem Center for Public Affairs. http://www.jcpa.org/brief/brief005-3.htm. Retrieved 2010-07-16. 
  36. ^ "Address by Foreign Minister Livni to the 8th Herzliya Conference" (Press release). Ministry of Foreign Affairs of Israel. 22 January 2008. http://www.mfa.gov.il/MFA/Government/Speeches+by+Israeli+leaders/2008/Address+by+FM+Livni+to+the+8th+Herzliya+Conference+22-Jan-2008.htm?DisplayMode=print. Retrieved 2010-07-16. 
  37. ^ Salih, Zak M. (17 November 2005). "Panelists Disagree Over Gaza’s Occupation Status". University of Virginia School of Law. http://www.law.virginia.edu/html/news/2005_fall/gaza.htm. Retrieved 2010-07-16. 
  38. ^ "Israel: 'Disengagement' Will Not End Gaza Occupation". Human Rights Watch. 29 October 2004. http://www.hrw.org/english/docs/2004/10/29/isrlpa9577.htm. Retrieved 2010-07-16. 
  39. ^ Israel allows the PNA to execute some functions in the Palestinian territories, depending on special area classification. Israel maintains minimal interference (retaining control of borders: air,[26] sea beyond internal waters,[26][27] land[28]) in the Gaza strip and maximum in "Area C".[29][30][31][32][33] See also Israeli-occupied territories.
    [25][34][35][36][37][38]
  40. ^ Arieff, Alexis (November 2008). "De facto Statehood? The Strange Case of Somaliland". Yale Journal of International Affairs. http://yalejournal.org/article/de-facto-statehood-strange-case-somaliland. Retrieved 2010-01-04. [dead link]
  41. ^ "The List: Six Reasons You May Need A New Atlas Soon". Foreign Policy Magazine. July 2007. http://www.foreignpolicy.com/story/cms.php?story_id=3903. Retrieved 2010-01-04. 
  42. ^ "Overview of De-facto States". Unrepresented Nations and Peoples Organization. July 2008. http://www.unpo.org/content/view/8418/244/. Retrieved 2010-01-04. 
  43. ^ Wiren, Robert (April 2008). "France recognizes de facto Somaliland". Les Nouvelles d'Addis Magazine. http://www.lesnouvelles.org/P10_magazine/15_grandentretien/15055_mahamudsalahnur_eng.html. Retrieved 2010-01-04. 


[edit] Further reading

  • Chen, Ti-chiang. The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States. London, 1951.
  • Crawford, James. The Creation of States in International Law. Oxford University Press, 2005. ISBN 0-19-825402-4, pp. 15–24.
  • Lauterpacht, Sir Hersch. Recognition in International Law. Cambridge, U.K., 1947.
  • Raič, D. Statehood and the Law of Self-determination. Martinus Nijhoff Publishers, 2002. ISBN 9789041118905. p 29 (with reference to Oppenheim in International Law Vol. 1 1905 p110)

[edit] External links

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