Second Section : Subjects of the International Community

2- The State: The state is viewed from several aspects, as a historical, political, social,
and legal phenomenon. Some see it as an organizational phenomenon, defining it as
an organized human entity or an organized nation. Others perceive it as a power-based
phenomenon, grounded in the existence of rulers and the ruled. From a historical
perspective, some consider the state a class-based phenomenon tied to the existence of
class struggle over control of the means of production. Others view it from a social
standpoint, seeing it as based on certain social bonds. Finally, from a legal angle, the
state is seen as the legal personification of a nation.

The State as a Social and Political Phenomenon: According to this perspective, the
state as a social phenomenon rests on three key elements:

The Human Element: This refers to the human population that permanently and
continuously resides in a specific territory. A state cannot exist without this element,
which refers to the natural individuals who inhabit the state's territory or form its
population, and are subject to its authority and sovereignty, whether they hold its
nationality or not. There is no required population size for a state to acquire legal
personality. For example, states can have populations exceeding 1.4 billion, such as
India or China, or be home to just a few thousand, like Qatar. However, the
population size plays a role in the state's economic, organizational, and military power.
The population is divided into two concepts:

The Political Concept of the People: This refers to all individuals in the state who
exercise political rights, such as the right to vote or hold high office. Certain groups
may be excluded from political rights, such as prisoners, individuals stripped of
political rights, or those under the age of majority. Different political and electoral
systems around the world determine the specifics of this category.

The Social Concept of the People: This includes all individuals who hold the state's
nationality and are subject to its authority, regardless of their age, origin, gender, or
health and mental status. This concept pertains to individuals who enjoy the status of
citizenship. Nationality plays a crucial role in distinguishing between citizens and
foreigners. National legislation, in line with principles of international private law,
determines the ways of acquiring nationality, and the reasons for losing or being
stripped of it. Nationality is generally acquired either through birth or residency under
conditions determined by the state. International law requires that every individual has
a nationality and has the freedom to renounce it in order to acquire another nationality,
subject to the laws of the state they wish to leave and the state they wish to join, as
indicated in Article 15 of the Universal Declaration of Human Rights.
The Territory: The second pillar of the state is its territory, the geographical area
where the state is established. A state cannot exist without this element, which refers
to a specific portion of the Earth's surface that falls under the state's sovereignty.

Territory Characteristics: The territory must be clearly defined, and its borders need
to be established so that the state can extend its sovereignty over it. It must also be
fixed and immovable. The borders of a territory can be defined by natural landmarks,
artificial markers, or imaginary lines, such as mountains, rivers, barbed wire, or
imaginary lines. A state's territory does not have to be contiguous; it can be
fragmented, like Japan, the Philippines, or Indonesia, and may be separated by
another state, like Alaska, which is separated from the rest of the U.S. by Canada. The
size of the territory does not matter either; some states cover millions of square
kilometers, like Russia, China, and the United States, while others, like Nauru Island,
cover only 21 square kilometers. Additionally, the territory does not need to be
entirely populated, as seen in desert states.

Types of Territory:

Land Territory: Composed of the land area, including rivers, lakes, plains, valleys,
deserts, and hills, which may be defined by natural or artificial boundaries. The
important thing is that the borders are known, allowing the state to exercise its rights
over it and utilize it as it wishes. The state also exercises its authority over the land
beneath its territory.

Maritime Territory: Includes the bodies of water that are part of the state's territory,
such as internal waters and the territorial sea. Not all states have maritime borders, as
some, like Hungary, Chad, and Niger, are landlocked. The territorial sea is defined by
a distance of 12 miles from the furthest point, or by straight lines connecting various
headlands in the case of indented coastlines, in accordance with the 1982 United
Nations Convention on the Law of the Sea. The state exercises sovereignty over its
territorial waters, which includes the airspace above, the seabed, and the subsoil. This
means the state has general jurisdiction over these areas, allowing it to exploit their
resources and regulate air traffic above them, with the only limitation being the
guarantee of passage for foreign vessels.

Air Territory: The space above the land and maritime territory of the state. In the
past, the principle that "he who owns the land owns what is beneath it and what is
above it" prevailed. However, the development of aviation and the beginning of space
exploration in the 20th century, for both peaceful and military purposes, necessitated
the regulation of airspace. The 1919 Paris Conference established the principle of
state sovereignty over the airspace above its territory. States also have the right to
allow foreign aircraft to transit through their airspace under certain conditions, as per
the 1944 Chicago Convention, which regulates civil aviation and includes key
principles like recognizing full sovereignty over a state's airspace.
The Governing Political Authority in the State
The governing authority of the state refers to the body that exercises the state’s
functions with various powers. The most important characteristic of the government,
or public authority, is that it represents the state both domestically and internationally.
It is capable of exercising all its functions effectively, and international law does not
concern itself with the type of political, economic, or social system of states. This
principle of non-interference in the nature of the existing regime within the state has
become an established international legal principle, enshrined in several international
agreements, such as Article 82, Paragraph 80 of the United Nations Charter.

Principles Governing the Government's Exercise of State Powers:

Principle of Government Effectiveness: This means that the governing body must
exercise actual and effective powers within the territory of the state in relation to its
inhabitants. The government must carry out its powers effectively, performing its
duties both within and outside the state. The importance of this principle lies in the
ability to impose its orders through coercion when necessary.

Principle of State Continuity: This principle holds that any succeeding government
must honor the treaties and commitments made by the state during the tenure of a
previous government. The government acts on behalf of the state, meaning it is the
state that binds itself to these obligations, not the individual members of the
government. Thus, these obligations remain binding as long as the state exists,
regardless of changes in government. The three elements that constitute the state—
people, territory, and public authority—are essential and necessary but not sufficient
on their own. Sovereignty is required, as understood in international law.

Sovereignty:

Jean Bodin defined sovereignty as:

• Supreme authority within the territory.

• Absolute independence from any external power.
• An essential element of the state, which disappears with the state’s dissolution.
• The main factor distinguishing the state from other entities.
• The political aggregation and powers of the governing body over all aspects of authority,
both domestically and internationally, with no power above it. In other words, the state’s
ability to determine what it wants both internally and externally.

Dr. Al-'Anani defined sovereignty as:

• The state's supreme authority over its territory and citizens, its independence from any
foreign authority, and its full freedom in organizing its legislative, administrative, and
 judicial powers. It also includes complete freedom in establishing international relations
on the basis of equality with other states.

Characteristics of Sovereignty:

• Sovereignty is an exclusive and absolute mandate of the state over its territory. This was
affirmed by the International Court of Justice in its ruling in the Corfu Channel case in
1898, stating that respect for territorial sovereignty among independent states is a
fundamental principle of international relations.
• Indivisibility of Sovereignty: This means that there cannot be more than one sovereignty
within the state; the division of sovereignty would nullify it. While the exercise of
authority may be distributed among various governmental bodies, sovereignty remains
unified.
• Inalienability of Sovereignty: Sovereignty cannot be ceded, as a state that gives up its
sovereignty loses one of its essential components, thereby terminating its international
legal personality. This does not mean, however, that the state is not bound by
international treaties, where it may agree to perform or refrain from certain acts unless
such treaties limit its sovereignty.

Aspects of Sovereignty:

• Internal Aspect: Refers to the state's control over individuals and territory, known as
territorial and personal sovereignty.
• External Aspect: Refers to the state's right to engage in international relations, including
entering into treaties, joining international organizations, recognizing or not recognizing
other states, and generally managing its external affairs independently.

The Nature of Sovereignty:

The concept of sovereignty has evolved over time. In the 11th century, sovereignty
was understood as absolute, meaning the state had complete freedom in managing its
internal and external affairs without restrictions. Over time, especially with the
growth of international cooperation and the necessity for security and peace, the
concept of relative or limited sovereignty emerged, where states are bound by
international rules that they help establish. Today, sovereignty is restricted by the
demands of international cooperation and the requirements for maintaining
international peace and security. As the international community has become more
interconnected, absolute sovereignty has diminished, with a greater emphasis on the
common good.

Legal Effects of Sovereignty:

 1. Full International Legal Personality: This is one of the primary characteristics that
distinguish the state. Unlike international organizations, which enjoy a limited form of
international legal personality, states possess full international legal personality, meaning
they enjoy all rights and responsibilities recognized by international law.
2. Independence in International Relations: Sovereignty grants states the freedom to
conduct their internal and external affairs without interference from other states.

Recognition of States:

The Institute of International Law defines the recognition of a state as an independent

act by one or more states acknowledging the existence of a human community over a
defined territory, enjoying political organization and full independence, capable of
fulfilling its international obligations. Recognition is a political act that produces legal
effects. It signifies the acknowledgment of a new entity that has met the criteria of
statehood, allowing it to interact with the international community.

Forms of Recognition:

• Explicit Recognition: Issued when a state formally announces its recognition of a new
state.
• Implicit Recognition: Occurs when a state engages in diplomatic relations or official
contacts with the new state.
• Individual or Collective Recognition: While recognition is typically individual, it can also
be collective, such as the collective recognition of Greece in 1802.

Forms of States:

It is important to differentiate between forms of government and forms of states. A

form of government refers to the internal system of governance (e.g., monarchy,
republic, dictatorship, democracy), which is classified according to constitutional law.
A form of state refers to its structure in the international community and its
effectiveness within it. States can be classified into various forms based on different
criteria.

The Composite State: A composite state is composed of several states, where aspects
of sovereignty are distributed among more than one authority in both domestic and
international law.

Personal Union: This is a union between two or more states where the union is based
on a shared head of state, while each state retains its internal and external sovereignty.
This union typically arises from marriages between royal families. Key characteristics
of a personal union include:
 • The unification of the head of state, with the president or monarch of the union also
serving as the head of state for each internal state.
• Despite the shared leadership, each state maintains full internal and external
independence, including the right to diplomatic representation and treaty-making.
• Wars between member states of the union are considered international wars under
international law, not civil wars, and each state is independently responsible for any
conflict with the others.

Real Union: This union involves two or more states uniting under a single head of
state, with shared foreign policy and military affairs, and possibly other interests. In
this type of union, the legal personalities of the member states dissolve, forming a
new legal entity—the union state. The union state exercises external sovereignty on
behalf of its member states, and any war against the union is considered a war against
all its members. Internal conflicts are treated as civil wars subject to domestic law.
Examples include:

• The union between Sweden and Norway (1814–1905).

• The union between Austria and Hungary (1867–1918).

Confederation: A confederation is formed through a treaty between two or more

sovereign states aiming to achieve common objectives while preserving the
sovereignty of its member states. Characteristics of a confederation include:

• It is established by sovereign states, each retaining its legal personality, diplomatic

relations, and remaining subject to international law.
• Member states maintain their own political systems, constitutions, and executive,
judicial, and legislative powers.
• Each state has the right to withdraw from the confederation at any time.
• Citizens of one member state are considered foreigners in other member states.
Examples include:

o The Swiss Confederation formed in 1291.

o The German Confederation (1815–1866).

Federation: This form of state, also called a federal or central state, is widespread,
with examples such as the United States, Canada, Venezuela, Argentina, Brazil,
Nigeria, South Africa, and the United Arab Emirates. A federal state is a legal entity
formed by the union of two or more states, where sovereignty and powers are divided
between the member states and the federal government. In such a system:

• Supreme legislative, executive, and judicial authorities operate across all member states,
while individual states retain some level of autonomy, particularly in internal affairs.
• Citizens hold a single federal nationality, and the federal state is the only recognized
international entity with full legal personality.
 • The federal state is established based on a constitution, not a treaty, outlining the rights
and duties of both the member states and the federal government.

Rights and Duties of States: States possess rights and are bound by duties as defined
in numerous international treaties, including:

• The Hague Conventions of 1899–1907.

• The 1920 Arbitration Treaty.
• The Covenant of the League of Nations.
• The United Nations Charter.
• The 1955 Bandung Conference resolutions.
• The Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States, as adopted by the UN General Assembly in Resolution 2625.

These agreements outline various principles, both explicitly and implicitly,

establishing states’ rights and responsibilities. Among the rights are:

The right to existence: States have the right to ensure their survival and safeguard
their sovereignty. This includes measures such as:

o Enforcing laws and regulations to preserve national integrity.

o Establishing military forces and defense schools.
o Forming alliances and defense pacts.
o Repelling threats to their existence and sovereignty.
o Engaging in self-defense as outlined in Article 51 of the UN Charter, though this
must remain proportional and cannot justify preemptive wars.
o Other states, especially neighboring ones, are obligated not to incite internal
disturbances in another state’s territory.
o The principle of non-interference in the internal affairs of states is enshrined in
Article 2, Paragraph 7 of the UN Charter.

The right to independence: States have the right to freely exercise their sovereignty
and independence in both domestic and foreign affairs, including the right to:

o Choose their political, economic, social, and cultural systems in line with their
people's will.
o Manage their natural resources and assets.
o Engage in international treaties, join international organizations, and engage in
diplomatic representation.
The right to equality: States, regardless of size, are equal in international law,
enjoying the same rights and obligations. This includes respect for territorial integrity
and airspace, as enshrined in the UN Charter and other legal documents.

Judicial Immunity of States: A state cannot be sued in another country's courts

without its consent, and this immunity can only be waived if the state explicitly agrees
to submit to foreign jurisdiction.

Duties of States: Alongside rights, states have duties, some of which are moral and
others legal. Legal obligations, which are binding, include:

• Respecting treaties and conducting international relations in good faith.

• Settling disputes peacefully.
• Upholding arbitration and judicial decisions.
• Refraining from supporting war or terrorism.
• Not interfering in the internal or external affairs of other states.
• Protecting the environment.
• Promoting decolonization and eliminating racial discrimination.