The necessity of Govemment: –
An aggregation of people permanently resident on a given territory does not necessarily constitute a state. It is necessary that they should be politically organized they must have a government, through which the collective will may be formulated, expressed, and executed.
Government is the agency or machinery through which common policies are determined and by which common affairs are regulated and common interests promoted. Without a government, the population would be an incoherent, unorganized, anarchic mass with no means of collective action.
No particular type of government is essential. The government may be of a simple rudimentary type with few organs and few functionaries, on the other hand, it may be a very elaborate and complex organization Operated by an army of public officials and employees. It must, however, be so organized and must possess the power and resources necessary to enable it to enforce generally its commands and compel reSpect for its authority, otherwise, it will be unable to maintain internal peace and order or to perform the international obligations which international law imposes on a state as a condition of membership in the family of nations.
Independence of Foreign Control:-
But a people, inhabiting a definite portion of territory and having a government do not necessarily constitute a state. They must also be independent,or largely so, of foreign control. If they are subject to the control of another state which sets-limits to their power regulates their, affairs, and exercises the power of government over them generally, they do not constitute a state but are a part of the state which exercises control over them.
Nevertheless, if this control is only nominal or is exercised merely in respect to their foreign affairs, they may be regarded for all practical purposes as a state, even if in strict legal theory they are not. Thus the great self-governing dominions of Great Britain-such as Canada, Australia, and the Union of South Africa-may rightfully claim to be regarded as states in this sense.
They have acquired almost complete autonomy in respect to the determination of their forms of government and the administration of their own affairs they have recently been allowed to participate in international conferences on a footing of equality with the mother country, their representatives have signed the treaties concluded at such conferences they have been admitted to membership in the League of Nations and as such are also on a footing of equality with Great Britain and Canada, at least, has recently been permitted to exercise the power of negotiation in respect of matters affecting primarily her own interests, and is free to be represented in foreign countries by her own diplomatic representatives.
The Irish Free State is the British dominion which has most recently acquired the rank of a nearly independent state formerly a mere part of the kingdom of Great Britain and Ireland, it has recently acquired the same status as Canada, and is represented by a Minister at Washington.
Similarly, it may be said that so-called protected states over which the protecting state exercises control merely with respect to, foreign affairs, although not entirely independent, are entitled to be regarded as states.
Another characteristic or condition which is generally regarded as essential to the existence of a state is internal sovereignty. That is to say, there must be some person, assembly, or group which has the supreme, exclusive, and unlimited legal power of ultimate control over all persons and things within the territorial limits of the state. It is this power that distinguishes fundamentally the state from all other human organizations or associations. From this essential principle there follows as a corollary two other characteristics of the state, namely, the quality of all-comprehensiveness and exclusiveness-exclusive, as the French-call it.
That is to say, the sovereign jurisdiction of the state embraces, as has already been pointed out, authority over all persons and things within its territorial limits except those over whom it has waived its jurisdiction by treaty concessions, through considerations of international comity, or in pursuance of universally accepted rules of international law. Subject to these exceptions, the modern theory of sovereignty does not recognize the existence in the territory of a state of any “stateless” persons, that is, “stateless” in the sense of being exempt from its jurisdiction.
If a state were unable to exercise successfully or should refrain from exercising, jurisdiction over any considerable portion of its population, it would in all probability soon cease to be a state, through internal disintegration or conquest and absorption by another state.
By the principle of exclusiveness is meant the monopoly by the state alone of the right of political government within its own territories. It means that there can be but one state organization upon the same territory over the same people. It does not admit the right of another state to exercise jurisdiction within its territory nor does it permit any other association or organization domestic or foreign, to do so.
An imperium in imperio cannot be tolerated in the modern state. A state may, of course, for convenience or utility, divide the powers of government and confer some of them on a central government and others on a local government, both of which co-exist in the same territory, but this does not involve the existence of two different state organizations within the same territory.
The Element of Permanence:-
Another quality often attributed to the state is that of permanence. This means that a people once organized as a state remains always under some state organization. Additions or partial loss of territory resulting from cessions, conquest, or the Operation of natural forces do not affect the juridical existence of the state. This does not mean, of course, that the existence of the particular state may not be extinguished through annexation to another state, or by voluntary merger with other states to form a new state-history furnishes many such examples.
In such cases, there is merely a transfer of sovereignty from one state to another the people continue to remain under, some state organization, though a different one. They do not revert to a condition of anarchy. In this sense, therefore, the state is permanent and enduring.
Continuity of the State:
It is the same with changes in the form of the state or its government. Forms of government are frequently changed monarchies are transformed into republics or republics into monarchies, absolute systems are substituted for constitutional systems or the reverse, existing dynasties are replaced by others, new constitutional regimes displace old ones, etc, but ordinarily, such changes do not affect the -identity of the state of its international obligations.
This principle is known as the doctrine of the continuity of the state, and from it follows another principle known as the doctrine of state succession, according to which, when the sovereignty is transferred from one state to another or one government is replaced by another, the annexing state or the new government generally becomes the successor to the public property, the assets, the liabilities and the obligations of the old state or the government.
As to whether the successor state is bound by international law to take over the debts and other contractual obligations of the old state or government in all cases there is a difference of opinion.
In a famous case the King’s Bench Division of the British High Court of Justice denied that international law imposed on the successor state any such broad obligation and affirmed that in the absence of a conventional agreement to the contrary, the assumption of the obligation was entirely within the discretion of the succeeding state.
The American courts have also denied the existence of such an obligation with respect to certain contracts. Notwithstanding the opinion of the British court referred to above, however, the British government has generally assumed and executed the contractual obligations to which it succeeded, and this has been the usual practice of other states, especially where the contracts were made in the public interest and were not contrary to the public policy of the successor state.
As is well known, the refusal of the Russian Soviet government to assume the payment of the public debts incurred by the imperial and Kerensky governments has constituted one of the chief reasons for the refusal of the government of the United States to recognize the Soviet government as the de jure government of Russia. Treaties of peace, of annexation, and of partition usually make provision for the taking over of the public debts and other contractual obligations of annexed states.
The Equality of States:-
An attribute, right, or principle (all three terms have been used) which is commonly said by writers, especially on international law, to belong to the state is that of equality in relation to others states Thus Oppenheim, one of the most authoritative of them, says, The equality before international law of all member states of the family of nations is an invariable quality derived from their international personality.
Whatever inequality may exist between states as regards their size, population, power, degree of civilization, wealth, and other qualities, they nevertheless equal as international persons.
Unfortunately, the term has been used in various senses and has consequently led to much confusion of thought. Some Writers have employed it to mean equal protection of the law or equality before the law others, as equality in the sense of equal capacity for rights, or simply as equality of rights-two very different things. Most writers also fail to distinguish between political equality, that is, the right to an equal voice in international councils, and legal equality, or equality of standing and of protection before the law.
According to those Who assert the broad principle of equality it follows that in the determination of international questions each state has a right to one vote and one only the vote of each state should have the same weight as the vote of every other state and unanimity is necessary to an agreement.
Equality not only in the sense of equal protection of the law but equality of voice in international conferences and even equality of representation in international institutions was asserted as a right by the representatives of various small powers at the Second Hague Conference in 1907, and their insistence upon equal representation With the great powers on the proposed Court of Arbitral Justice made impossible an agreement upon the organization of the court, although The conference was unanimous in favor of its establishment.
The basis of the theory of equality, it may be remarked, had its origin in the theories of the purely natural law writers of the eighteenth century, such as Pufendorf, who argued from the analogy, which they drew between men in a state of nature and independent states which, having no common superior, were considered to be in a state of nature in their relations with one another. They concluded that as men are equal in a state of nature, states are similarly equal.
Criticism of the Doctrine of Equality:-
So far as equality of states before the law and the right of equality of protection by the law are concerned, there is little or no difference of opinion. But the claim that all states are equal in the sense of being entitled to an equal voice in the determination of international questions and to equality of representation in international organizations has been vigorously attacked in recent years.
The truth is, the doctrine, in this form, never has been much more than a legal theory and in the most recent of the great international conferences. In the Peace Conference of 1919, the theory was in practice virtually thrown overboard, important decisions being determined by the plenipotentiaries of the great powers. The theory was also abandoned in the organization of the Council of the League of Nations.
The theory had already ceased to be in accord with the facts of international practice. For many years the great powers of Europe-the European Concert-had assumed and exercised in the fact a large control over affairs of general European interest.
Without obtaining the consent of the smaller powers, they had created new states, established new dynasties, approved constitutions, fixed boundaries, intervened in the affairs of other states, and in general had exercised the power of guardians, trustees, and directors of European affairs.
In view of these facts some writers, such as T. J. Lawrence, have argued that the supremacy of the great powers in Europe must now be recognized as being an established principle of international law and that the old doctrine of absolute equality of states is dead and ought to be abandoned.
The doctrine of equality has been one of the chief obstacles to the organization of the world for the maintenance of international peace and the advancement of other common interests. It has therefore become a positive political danger.
Professor Brown of Princeton University justly remarked that:
If nations are not equal in moral, intellectual, or even material influence if they have not an equal concern in the adjustment of international interests if they have not an equal voice in the creation, the interpretation, and the enforcement of law if, in fact, they claim to equality stands squarely in the ways of world organization itself, then it is folly to insist on the concept of equality as a basic principle of the law on nations.