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States

States are the primary subjects of International Law. They possess the totality of rights and
duties under International Law. However, it is difficult to define the term 'State' since it may
have different meanings. In constitutional law, it may mean something quite different from
what it means in International Law. From the International Law point of view, the term is
relevant because those communities which are not States, are excluded from having
capabilities in International Law. For the purpose of International Law, a State may, therefore,
be defined as a society of men occupying a territory, the members of which are bound
together by the tie of common subjection to a government and which has capacity to enter
into relations with other entities. Any entity which possesses even the smallest measure of
these attributes may be termed a State. Montevideo Convention on the Rights and Duties of
States of 1933 did not define the term 'State'. Instead, it laid down certain 'qualifications' of
States which are more or less identical with the definition given above. The Convention under
Article 1 , stipulated that
'The State as a person of International law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) a government; and
(d) capacity to enter into relations with other States'.
Attributes of statehood have been discussed with context to the above provisions of the
Montevideo Convention in view of the assumption that the Montevideo Convention merely
codified existing legal norms and is a restatement of customary international law and
therefore it does not apply merely to the signatories but to all subjects of international law.
(1) Population
By the term "population" is meant people. A people is an aggregate of individuals who live
together as a community though they may belong to different races or creeds or cultures, or
be of different colour.3 A territory where people have not settled down, that is, where there
exists a haphazard aggregation of individuals, that would not be regarded as a State. A
wandering people is not a State. Population must form itself into an organised society.
Montevideo Convention on the Rights and Duties of States of 1933 stated 'a permanent
population' instead of population as one of the qualifications of a State. It is not clear that
what is meant by 'a permanent population'. Obviously, it does not mean that there cannot be
migration of peoples across territorial boundaries. Perhaps, it seems to suggest that there must

be some population linked to a specific piece of territory on a more or less permanent basis
and who can be regarded, g general, inhabitants. Population of a State includes those who are
staying in other States m well as foreign nationals permanently residing in s State.
(2) Territory
A State must have a territory. It is immaterial whether the territory where the people have
settled down is small or large.' There is no lower limit to the State's population. Nauru, for
example, has less than 10,000 inhabitants. There are many other States which have
exceptionally small population, and are sometimes called micro-States or mini-States, but
they are States. They are eligible for membership of the United Nations if they satisfy the
conditions laid down under Article 4 of the U.N. Charter. It may consist, as in the case of city
States of one town only. It is not essential that the territory should be 'defined' as laid down
by the Montevideo Convention on Rights and Duties of States. The term defined does not
mean that there must be complete certainty over the extent of territory. Even at present a
number of States have border disputes over the precise line of the frontier, but it does not
mean that they are not States. Israel is a State but it does not have a defined territory. In
Deutsche Continental Gas Cesselshaft v. Polish State, the Tribunal held that statehood does not
absolutely depend on the existence of rigidly fixed boundaries. However, it is desirable that as
far as possible territory of a State should be fully determined in order to avoid complications.
It is to be noted that International Law always insists that a State should have possession and
control over a territory. However, in exceptional cases, if a State has lost control over the
territory for a short time, it will still be deemed to possess territory. For instance, if the
territory of a State has been forcibly occupied by a foreign State, the occupant is not entitled
to treat the occupied territory as its own territory. The ousted sovereign still retains all the
residue of legal authority not attributed to the occupant. On this proposition, Palestine
(proclaimed by PLO in 1988), whose territory has remained under occupation of Israel,
would be called to have possessed territory. The territory was given to it by the United
Nations through the adoption of a Resolution 181 by the General Assembly in 1947, on which
the existence of the State of Israel is based. The resolution had mentioned the creation of an
Arab State undoubtedly, i.e., Palestine State. It was only that reality of 1947 that has been
given an institutional form by the declaration of statehood in 1988. The Security Council by
adopting Resolution 1397 in 2002 specifically stated for the first time Palestine as a State.
Further, General Assembly on November 29, 2012 by adopting Resolution 67/19 accorded it
a non-member observer State which hitherto remained as an entity within the United Nations.

(3) Government
The people and the territory should be governed by a Government. A State always acts as a
government. A State which does not have a government (or to say anarchistic community) is
not regarded as a State. It is significant to note that the government in certain cases should not
necessarily be an effective government. Although, in traditional International Law a stable
and effective government was regarded as an essential element of statehood, at present this
requirement has become obsolete in view of its rigidity. The concept of effective government
is against the principle of self-determination, and therefore, it has ceased to be an attribute of
statehood.
There may be different types of government
(1) A de jure government whose origin or existence is In conformity with the constitutional
law of the State represented, and whose legality is uncontested in international law.
(2) A de facto government is a government whose origin and existence is contrary to the
constitutional law of the State concerned and legality is challenged in International Law. It
may be of a local nature when it controls only part of the population and territory of a State
and of a general nature when it has reached complete control, especially after revering the de
jure government In retrospect, it can be regarded as an interim government if it is defeated,
and as a provisional government if it becomes the new de jure government.
(3) A military government is the authority by which an occupying power exercises control
over a foreign State.
(4) A government-in-exile which has been forced to leave the territory of its State due to
enemy occupation or civil war and which claims governmental powers with the consent of
the State of residence and possibly other States, as long as there exists a genuine chance to
return.
The above forms of the government show that once a State is established, temporary
interruption of the effectiveness of its government, as in a civil war or as a result of
belligerent occupation is not inconsistent with the continued existence of the State. The
existence of a civil war may affect the continued effective existence of a government, the
State nevertheless continues to exist. In Afghanistan, Taliban regime emerged in 1994 and in
a short span of time it took the capital Kabul and later controlled 90 per cent of Afghanistan.
However, Afghanistan is still recognized by the international community and is a member of
the United Nations.

What form of government a State shall have is a question which is determined by the
municipal law. It is entirely within the jurisdiction of a State to choose the form of a
Government, and therefore, it is not necessary that the Government should always be the
representatives of the people. A State may be governed either by the representatives of the
people or by the monarchies or dynasties.
(4) Capacity to enter into Relations with Other States
A State must have the capacity to enter into relations with other States, in order to call it a
'State' in International Law. This qualification distinguishes the position of the Central
Government of a federal State and the position of the governments of the various parts of the
federation. Thus, in those States, for instance in India, where federal States do not possess a
capacity to enter into relations with other States, are not regarded as States when looked from
the International Law point of view. Similar is the case of the States of the United States of
America. However, if the national Constitution allows federated States the right to conduct
their own external relations, as it was with the Soviet Republics, their status under
International Law becomes similar to that of a State.
It is significant to note that even a very small principality may be a State for general purposes
of International Law provided the criteria of statehood is satisfied. Micro States or miniStates are those which are "exceptionally small in area, population and human and economic
resources", but they are independent and are called States in International Law.
An entity is treated as a State if the above attributes of statehood are possessed by it.
However, if a State possesses them by offending fundamental norms of the international legal
order, its statehood may be denied by the United Nations. A claimant new State emerging as a
result of aggression, the application of a system of racial discrimination, or the denial of the
right of self-determination is condemned by the United Nations. When territory is acquired
by the use of force contrary to the U.N. Charter, it is also condemned.
It is to be noted that the criteria of statehood is not linked with the membership of the United
Nations, and therefore membership of the United Nations is not a clear cut proof of
statehood. Ukraine and Byelorussia were members of the United Nations since 1945, but they
were undeniably part of the Soviet Union until 1991. Conversely, Switzerland was a State but
it was not a member of the United Nations until 2002. The same is true with Liechtenstein
and San Marino. However, if a State has been admitted into the United Nations as a member,
it must be treated as a sign that it has achieved statehood in International Law.

KINDS OF STATES
All those entities which possess the above attributes are called States. It may mean that it is
not necessary for a State to be independent in order to be a State in International Law, since a
few entities, other than independent States, are also clothed with these attributes in some
degrees, and therefore, they may be described as States in the international community. For
convenience, therefore, States may be divided into three categories. They are firstly,
sovereign States, secondly, not-fully sovereign States, and thirdly, not-typical States.
(1) Sovereign States:
By the term 'sovereignty is meant the supreme authority within the State which on the
international plane means not legal authority over all other States but rather legal authority
which is not in law dependent on any other earthly authority.' Thus, sovereign power is
perfectly or completely independent of other human power, in as much that its acts cannot be
annulled by any human will other than its own. Sovereignty in the strict and narrowest sense
of the term implies, therefore, independence all round, within and without the borders of the
country. Bodin defined the term sovereignty as the 'absolute and perpetual authority of a
State'. In Island of Palmas Arbitration, Max Huber stated that
'Sovereignty in the relations between States signifies independence. Independence in regard
to a portion of the globe is the right to exercise therein, to the exclusion of any other State
thus, the essential elements of sovereignty are firstly, that it is exercised within territorial
limits and, secondly, sovereignty is constituted by the independence of State power from any
other power, i.e., an authority over which there is no other authority. A sovereign State is as a
rule a single State in which one central political authority, the government, represents that
State internally and externally. A sovereign State is therefore independent in two ways
(1) independence in internal affairs
(2) independence in external or foreign affairs.
There is a considerable difference between these two aspects of State sovereignty. The State's
independence in its internal affairs presupposes full freedom in the socio-political
organisation of society, that is, in the establishment of the State's social and political system,
and law and order. Interference of one State in the affairs of another State in the internal
matters is unjustified. In consequence of its internal independence and territorial supremacy, a
State can adopt any constitution it likes, arrange its administration in any way it thinks fit,
enact such laws as it pleases, organise its forces on land and sea, build and pull down

fortresses, adopt any commercial policy it likes, and so on. A Sovereign State under its
Constitution may create rights, status and competence which, howsoever wide, operates
subjects to the limits of International Law. Further, it is required to enact the appropriate laws
to fulfil its international obligations. It cannot rely on its own legislation to limit the scope of
its international obligations.
A sovereign State is not free to do even in its internal affairs which is detrimental to the
freedom and independence of other States. Further, a State cannot pretend absolute
sovereignty without demonstrating a duty to protect people's right. A State has a duty to
protect human rights and fundamental freedoms of its citizens. If a government fails to
protect human rights, or to say, in cases when they deliberately engage in policies leading to
crime against humanity or where there is a mass violation of human rights, the international
community may intervene. Independence in external affairs means that a State is independent
to exercise its external functions, i.e., external affairs. Consequently, a State is free to frame
its foreign policy; it can establish relations with other States and it may decide itself on all
foreign issues affecting it. No other State can prescribe the rules of conduct which a
sovereign State should follow in international affairs. If the former does it, it would be
regarded interference in the external affairs of the latter, which again is not justified. Because
of the internal and external independence, sovereignty according to Hobbes, implied 'supreme
and absolute power
(2) NOT-FULLY SOVEREIGN STATES
It is not necessary that a State should be sovereign in order to be an international person. If
the attributes of statehood are possessed by the States other than sovereign States, even of the
smallest degree, they may be deemed international person. No doubt, they cannot be full,
perfect and normal subjects of International Law. But it is inaccurate to maintain that they
have no international position whatever. Once it is appreciated that it is not so much the
possession of sovereignty which determines the possession of international personality but
rather the possession of rights, duties and powers in International Law, it is apparent that a
State which possesses some, but not all, of those rights, duties and powers is nevertheless an
international person. In fact such States often enjoy in many respects rights, and fulfil in other
points duties, established by International Law. Such States are called not-fully sovereign
States. They are one or more other States. They are as follows:
(a) Protectorate States:

When one State surrenders itself, by an agreement embodied in a treaty, the administration of
certain important international affairs, to the protection of another State, a kind of relationship
is established between the two States known as protectorate. Fenwick defines the term
protectorate as a State which by formal treaty placed itself under the protection of a stronger
State, surrendering to the latter control over its foreign relations while retaining a large
measure of control over its domestic government. Treaty of protection need not be between
the two States. A protectorate could be created under an international treaty. For instance, the
Ionian Islands were British protectorate under an international treaty between Great Britain,
Russia, Austria and Prussia. There may be different shades of protection depending upon the
extent of the powers which are surrendered in favor of protecting States in the territory of
protected State. It all depends upon the terms of the treaty. In the case of Ionian Ships, the
Court observed that 'the Treaty is the sole guide; from this document must be derived all the
rights of the contracting parties, and all the rights and obligations of the Ionian States.
Questions such as whether the protected State can send and receive diplomatic envoys in
foreign countries or whether protected State can conclude treaties are decided by the treaties
themselves. In Nationality Decrees issued in Tunis and Morocco, the Permanent Court of
International Justice held that relationship between the protectorate and protecting State as
well as relations of these two States with rest of the world depend upon the terms of treaty.
Protected States are not sovereign States. However, they are prima facie independent and the
possessor of all rights which they have not surrendered. They are therefore international
persons and subjects of International Law (unless it is a colonial protectorate). They retain for
certain purposes, a position of their own as international persons and as such are subjects of
International Law. The International Court of Justice in Rights of Nationals of the United
States in Morocco stated that even under the protectorate 'Morocco remained a sovereign
State' subject to the terms of the Treaty of Fez of 1912. It retained its personality as a State in
International Law. Thus, when a sovereign State loses a part of its sovereignty though coming
under protection of another State, it does not lose its personality altogether. In such cases,
there occurs a succession of State in view of the transfer of a part of sovereignty in favor of
another State. Such cases are referred to partial succession. Protected States possess in most
cases, a distinct legal entity from the protecting State. The Anglo-Turkish Mixed Arbitral
Tribunal Award in Parounak and Bedros Parounakian v. Turkis Government said that 'the
effects of a protectorate varied, according to the provisions of the treaty of protectorate, the
relations between the two States and the policy of protecting State'. It is generally recognized

in International Law that there is no single and uniform type of protectorate, and that each
must be taken by itself.