States in International Law

States in International Law

States are the primary subjects of international law. The principles of international law arise from relations between states, either through state practice forming customary international law or through international agreements and treaties. States may appear as parties to contentious proceedings before the International Court of Justice. A state may bring a claim on behalf of its national who alleges that he or she has suffered damage caused by another state. Once a state pursues such a claim, the dispute becomes international and transforms into a legal matter between two states. An individual cannot waive the right of his or her state to pursue a claim on the individual’s behalf. Moreover, when negotiating a treaty, a state does not act as a representative of its citizens.

Characteristics of a State as a Subject of International Law

What Is a State?

Under the principles of international law, a state is an entity possessing a defined territory, a permanent population, an effective government, and the capacity to establish formal relations with other entities. This definition reflects the criteria of statehood set out in the 1933 Convention on the Rights and Duties of States. The Convention establishes general standards that, based on customary international law, are necessary for the formation of a state. Adopted at the Seventh International Conference of American States, attended by fifteen Latin American countries and the United States, the Convention provides that:

A state, as a person of international law, must possess the following elements:

• A permanent population.
• A defined territory.
• A government.
• The capacity to enter into international relations with other states.

According to Opinion No. 1 of the Arbitration Commission of the European Conference concerning Yugoslavia, a state is generally understood as a community consisting of a territory and population subject to an organized political authority and characterized by sovereignty.

Permanent Population

States consist of communities of human beings. Therefore, the existence of a permanent population is a necessary condition for the formation of a state. However, international law does not prescribe a minimum population threshold. For example, countries such as Nauru, with a population of approximately twelve thousand, Liechtenstein, with a population of about thirty thousand, and Tuvalu, with a population of approximately ten thousand, are each recognized as sovereign states.

Defined Territory

States are territorial entities, and territorial sovereignty entails the exclusive right to exercise governmental authority within a defined geographical area. This right also imposes obligations on the state, including the duty to respect the rights of other states within its territory, particularly with respect to territorial integrity and immunity in times of peace and war.

In addition, a state is obligated to respect the rights that enable it to initiate legal proceedings abroad to protect its nationals. Without territorial sovereignty appropriate to its status, a state cannot effectively perform its functions. Territorial sovereignty is not limited to its restrictive dimension. For this reason, states are divided into separate territories within which human activities occur, thereby ensuring that individuals benefit from a minimum level of protection under international law.

Government

Statehood must be demonstrated through the existence of an effective government, meaning an authority that operates independently from other states and possesses legislative and administrative competence. The International Committee of Jurists, in its 1920 report concerning the status of Finland, emphasized the issue of independence and noted the difficulty in determining the exact date when Finland became a sovereign state under international law. The Committee concluded that:

A state cannot be regarded as having an effective government unless a stable political organization exists and public authorities possess sufficient power to exercise control within the territory without reliance on foreign military forces. It appears that, from May 1918, when the civil war ended, and foreign military forces began to withdraw, it became possible to restore order and gradually reestablish normal political and social life.

If a country temporarily lacks an effective government due to circumstances such as civil war, this does not necessarily deprive an established and recognized state of its legal status as a state. In other words, the temporary absence of an effective government does not result in the loss of statehood.

Frequently Asked Questions Regarding States in International Law