Elements of the State

STATES INTERNATIONAL LAW

Alejandra Ramos Meza Public International Law Universidad Anáhuac Campus Querétaro

¡Vamos!

Introduction

States, as the primary subjects of international law, do not just exist and disapear, but rather have particular characteristics and elements to their creation. The Montevideo Convention (1933) set forth the accepted elements of States, including a territory, jurisdiction and sovereignty (Shawn, 2024). Furthermore, according to James Crawford, former professor at Cambridge University, independence of States "translates into a variety of principles" (Spiermann, 2015). In this presentation I will provide a brief explanation on the elements of the State: sovereignty, territory and jurisdiction, based on John P. Grant's book "International Law Essentials" pages 55 - 69 (2010).

Elements of the State

The following are the elements of the State

Jurisdiction

Territory

Sovereignty

The legal authority of a state to regulate conduct, enforce laws, and adjudicate matters within its territory

The authority of a state to govern itself, make its own laws, and conduct its own affairs independently without external interference

The defined geographical area over which a state exercises sovereignty and control, including its land, waters, and airspace

Internal or Territorial sovereignty

Encompanses both dominium and imperium.

• Dominium: ownership of the land.
• Imperium: supreme authority of the Government to make and enforce laws.

NOTE: Law-making and enforcement powers can be delegated to another state or even to an international organizaiton, an example of this is the European Court of Justice.

Sovereignty

There are 2 types of sovereignty: internal (or territorial) and external (or political) sovereignty.

'The right to exercise therein, to the exclusion ofany other State, the functions of a State'

- Max Hubber

External or Political sovereignty

In its external aspect, sovereignty comprises independence of action and equality with other States.

• Independence of action: the Government is the only one which conducts international relations. Note that States can also delegate the conduction of their foreign relations, such as Monaco who delegated this power to France.
• Equality: juridical equality among States. However, the UN applies the Orwellian principle (all States are equal, but the 5 major powers have permanent membership in the Security Council and a veto in substantive votes).

'A principle of international law'

- Max Hubber

Territory

• Essential prerequisite to statehood
• In the 'Island of Palmas Case' (1928), "Territory" was defined as "the space within which the State exercises its supreme authority"

Boundaries:

• There are no specific international laws for delimiting boundaries.

Acquisition:

• There are five traditional methods by which territory may be acquired.

Acquisition of territory

Conquest and subjugation

Cession

Occupation

Accretion and avulsion

Acquisitive prescription

Jurisdiction

Overall, jurisdiction is legal authority. However, as an element of the State in international law, it includes: legislative power and enforcement power. Specifically in enforcement power, each State has their own criminal jurisdiction, however to avoid more than one State having jurisdiction over the same person for the same offence, five principles are generally followed.

5 principles to limit Jurisdiction

Territoriality: jurisdiction is in the State in whose territory an offence is committed, meaning, such State has jurisdiction over a crime committed within its territory, by anyone (national or foreign), except for people with immunity (for example, diplomats). All other principles are extra-territorial (are subordinate to territoriality). Nationality: jurisdiction is located in a State for an offence commited by its nationals anywhere. This principle is more used on civil law countries than in common law countries, and is restricted to serious offenses. Security: this principle does not take into account the place or the nationality, but rather the interest injured (prosection may be made of a non-national for an offence committed abroad). Those interest must be: security, territorial integrity or political independence. Passive personality: simmilar to security principle, passive personality principle locates jurisdiction in the State whose nationals are injured by the act of a non-national committed abroad. It is more commonly used for terrorism. Universality: lastly universality contemplates jurisdiction of any State over crimes committed anywhere by anyone. Currently, for serious international crimes (war crimes, genocide and crimes against humanity), there is permissive and mandatory universal jurisdiction (States can and must prosecute or extradite).

Conclusion

Importance of the elements of the State The importance of knowing and understanding the elements of the State resides in the State being the main subject of international law, and thus in order to understand the functioning of this branch of law, we need to understand its basic element. Furthermore, international lawyers must understand these elements to ensure compliance with the legal norms mandatory for their existence, for understanding jurisdictional limits, and in general, to understand how to apply each element in real practice, like in the examples stated in Grant's book. How do you think that those elements should change in order to have a better government in the future? One of the main elements that I consider should change in order to have a better government in the future is sovereignty, since a lot of countries prefer strict non-interference, rather than having a broader view in allowing global cooperation, specially for addressing issues that transcend borders, such as climate change. Regarding territory and jurisdiction, I still don't have a clear idea on how they should change, but it will be interesting to see how those concepts evolve regarding digital spaces such as metaverse.

References

Grant, J. P. (2010). International Law Essentials. Edinburgh University Press. http://www.jstor.org/stable/10.3366/j.ctt1g0b3rw Shaw, M. (2024, September 13). international law. Encyclopedia Britannica. https://www.britannica.com/topic/international-law Spiermann, O. (2015). General legal characteristics of States: A view from the past of the Permanent Court of International Justice. In C. Chinkin & F. Baetens (Eds.), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (pp. 144–152). chapter, Cambridge: Cambridge University Press.

Acquisitive prescription

The requirements for acquisitive prescription are the same than those for title by occupation, but is used when the territory is not terra nullius, or otherwise to cure defects in a title. In acquisitive prescription, the State must occupy the territory as à titre de souverain (as sovereign). Simmilar to occupation, prescription is based on effective control, meaning the State must have activities in the territory.

Occupation

The Eritrea/Yemen Case (1998) described occupation as "the international display of power and authority over the territory, by the exercise of jurisdiction and State functions, on a continuous and preaceful basis" The Island of Palmas Case (1928) explains the "conditions of time and place" necessary for effective governmental authority:

• Inter-temporal law: a State must do in the territory being acquired what they typically do on their own therritory.
• Circumstances of the territory: the actions necessary to acquire the territory will depend on the territory being well settled or rather being unsettled.

Cession

Cession happens when a State transfers territory to another State. Historically, cession was the consequence for losing a war (e.g. Treaty of Versailles of 1919 ending WWI). In addition, cession may also be the result of a sale of territory (e.g. Alaskan Purchase of 1867, the US acquired 586,412 square miles from Russia, for $7.2 million).

Accretion and avulsion

Accretion and avulsion refers to changes in territory as a result of the forces of nature. For example:

• When alluvial deposits at the mouths of river form usable land, the new territory is accorded to the coastal State.
• Artificial accretions
• Avulsion, sudden or violent natural changes (like a river separating two States).

Conquest and subjugation

Historically, conquest and subjugation has been a used method for acquisition of territory. The requirements were: conquest, assuming the government (either through a peace treaty aka subjugation; or through wielding control). However, Art 2(4) of the UN Charter prohibits the use of force for gaining territory by conquest. NOTE: the Charter prohibition is not retroactive (it does not invalidate pre-1945 territorial acquisitions by conquest).