Reading Material 1

Atty Reyaine Mendoza-Clavano

THE HISTORICAL BASIS OF THE MODERN STATES

There are five (5) different kinds of states. They are presented below according to the order of their
development:

1. The Primitive state The first state formed by primitive men. It first developed in the orient (Asia).
States characterized by:
(i.) The presence of centralized organization under one military supreme ruler.
(ii.) The absolute rule of the authorities, there being no political freedom and no citizenship
in the modern sense of the terms.
2. The City-State Made its first appearance in the Balkan and Italian peninsula (e.g. Athens, Sparta,
etc.) these are states in small units. In the city-state of Rome, it already possesses a three Fold
division of government:
(i.) The King
(ii.) The council (i.e. comitis curiatia)
(iii.) The Senate

The Roman City-state, because of its more complex and effective organization, has proved to be
more powerful than the Greek City-states. It is also important to take note that the contribution
of Rome to the modern political Thought is more on its legal institution rather than its political
theories.

The Roman Imperial State

The Roman City-State has grown to become one of the leading military superpower. Through its
impressive and many successful military conquests, the Roman City-state gradually became an
empire.
Because of its huge territory (covering almost all of Europe and a part of Africa and Middle East)
and because of its growing population, the empire necessarily required a system that could assure
Unity, Organization and Law and Order.

The Romans had been successful in developing efficient system of governance and it maintained
this for many centuries. The Empire lasted for 500 years (5 centuries) in the west and for 1,500
years (15 centuries) in the East. When the Romans Empire fell, out from its ashes arose the feudal
states of medieval Europe.

The Feudal States

After the Teutonic Tribes defeated the Romans and became the uncontested lords of Europe, they
introduced a new Political innovation based on the combination of the Teutonic concept of the
relation of the individual to the local chief and the Romans concept of control over a definite
portion of the territory. Later on, these political units became under heavy influence of Papal
authority. This political concept became the foundation of Feudalism.

The modern State

The first appearance of the modern States could generally be traced back to the Peace of
Westphalia of 1648. The old system crumbled and a new system is born. The former as the subject

1
 of Papal authority and the latter as an independent political entity and accepts no higher authority
than themselves. States are now in control of their own destinies. Thus, modern states are built
on the concept of nationalism and state sovereignty. The following are the concepts of
Westphalian international law:
(i.) Legitimacy – “All states have the right to exist.”
(ii.) Sovereignty – “No authority higher than the state exists.”
(iii.) Duties – “States must observe certain rules of behavior in their interactions with
other state, respecting, among many other things, the sovereignty of other
States.”
These concepts were widely accepted and paved the way for the first proliferation on Nation-States.
Colonies adopted these concepts and broke away from the traditional empires (e.g. the case of America,
formerly known as the “New World”, from Great Britain) and small territorial units were also transformed
into Nations-States.

The growing consciousness of men about Self-Determination further accelerated the growth of new
nation-states. The second proliferation of states occurred after World War II when European states
gradually granted the independence of their former colonial territories. It is important to take note that
the 3rd World countries, which include the Philippines, are former colonial territories. Thus, it is not only
Nationalism but also Colonialism that led to the proliferation of States.

POLITICAL BASIS OF STATE

The most important concept here is “Sovereignty”. Sovereignty refers to the full and exclusive power of
the state to determine the course of its destiny. It also refers to the right of states for self-determination,
the supreme power of the state to enforce obedience among its people. Its external manifestation is
States Independence.

Two Types of Sovereignty

Sovereignty is of two types:
(a.)Legal sovereignty – refers t6o the power of the state to enact laws.
(b.)Political Sovereignty – refers to the supreme power of the people to determine or to elect the persons
who will be in power.

Essentials of Sovereignty
The following are the essentials of Sovereignty:
(a.) Perpetuity – it claims that sovereignty is inherent in state – sovereignty last as the state last.
(b.) Comprehensiveness – it claims the inclusion of all elements within the jurisdiction of states.
(c.) Exclusiveness – it claims that sovereignty is enjoyable only by a state – it is something which cannot
be shared. In short, sovereignty is monopolized only by a single state.
(d.) Absoluteness – the sovereignty or the supreme power or authority is totally assumed by state.
Sovereignty follows the principle of all or Non Principle – all of sovereignty or none of it.
(e.) Inalienability – it claims that sovereignty cannot be transferred. (f.) Unity – it claims that sovereignty
is characterized by only one will. This one or general will of the people as expressed by the State

Acquisition of Sovereignty
There are two important things that we need to consider when a state receives or acquire sovereignty:
(1.) Sovereignty is not a gift. It is not something which other state gives and can Retrieve whenever they
desire. Sovereignty starts to exist the moment a state is born. Thus, sovereignty is not given or can be
taken away by other states.

2
(2.) When people declares war for independence, sovereignty starts not on the moment of revolutionary
success but on the moment of declaration. Once people resist foreign control or colonial authority and
declare the birth of a new state, sovereignty starts to exist until their victory or up to the moment they
are subdued.

Location of Sovereignty
Most political Scientists usually claim that political sovereignty rest in the people while Legal Sovereignty
rest in the government specifically in the legislature. But it is more correct to consider the nature of
ideology which a state holds before we can address the problem of locating sovereignty. In a Totalitarian
Regimes like that of former USSR and dictatorial regime like the Peoples Republic of China, political and
legal Sovereignty rest entirely in the government. But in a Democratic States like the United States of
America, Political Sovereignty rests in the People and legal Sovereignty rest in the government. But since
the people elect their representatives in their government (in a democratic states of course) and can
participate directly in law making processes, we can say that in the final analysis sovereignty, be it legal
or political, entirely rest in the people.

THE RIGHTS OF STATES

Modern State is cloaked with the following rights, which as we have previously noted somewhere, began
in the Westphalian international law.
(i.) Right of Existence
(ii.) Right of Independence
(iii.) Right of Equality (that nation states are presumed to have equal status, and thus expects
equal treatment in the community of nations)
(iv.) Right of Property (that states is a legal entity that has a right to own particular things within
its territories, if such ownership further the reasons for it existence)
(v.) Right of Jurisdiction (that states has the right to exercise its authority within its territories)
(vi.) Right of Intercourse (that states has the right to initiate diplomatic communications with
other states)
TYPES OF STATES
There are 2 general types of state.
(i.) Dynastic – Different nationalities, which remain, assimilated or unassimilated.
(ii.) National – Different races acquired a community of cultural and economic interest.

THE WORLD STATE

It is also called International Governmental Organization (IGO). It is Organization creates by two or
more sovereign states Although this organization is not and should not properly called “World State”
(basing from the strict definition of the phrase “World State”), it provide us with the preview of the
form of the World State may take in the future.

There are several purposes of IGO’s

(i.) As forum for communications among states (e.g. UN’s General Assembly)
(ii.) As regulator of certain activities or undertakings which involve two or more states (e.g. World
Trade Organization, etc.)
(iii.) As regulator of scarce financial resources (e.g. IMF, etc.)
(iv.) As a means for collective Security (e.g. North Atlantic Treaty Organization NATO).
(v.) As a peacekeeper (United Nations). Thus, the World State was established to provide
mechanism for international cooperation and for the protection of National Sovereignty of

3
 individual States. The World State promises a better way of settling international disputes and
the avoidance of a new and probably the last World war.

RECOGNITION OF STATES
Recognition is an act by the family of nations giving States an international status. It is an act by the
people of a particular territory giving their government the legitimacy of governance or their polity or
association (the state) the right to exist.

Some Differences Between Recognizing a State and a Government

Recognition of States refers to recognition of all the essential elements of state for its existence (e.g.
People. Territory, Government, sovereignty, independence). Once a state is recognized, recognizing
states can no longer withdraw such recognition. Recognition of Government, on the other hand, refers
to a recognition given to the government of the recognized state. Unlike Recognition of States,
Recognition of Government can be withdrawn by recognizing states. But withdrawal of such
recognition will not hinder the continuity of statehood.

Two General Types of States Based on Recognition

(1) De Facto States – Refers to all the requirements of statehood except recognition from the
international family of nations.
(2) De Jure States – Refers to all states possessing all the requirements of statehood including
recognition from the international family of nations. Thus, a de facto state becomes a de jure state
once it is recognized by the family of nations.

The term de facto means “by fact” and the terms de jure means “ by law”. De facto recognition is less
formal or an indirect recognition while de jure recognition is formal and direct or recognition done
with the power of a law, which means binding to all concerned nations or recognizing states.

The Family of Nations

The Family of Nations refers to an international community composed by different nation-states
interacting with each other following a set of rules or is regulated by known and accepted set of
international laws. Originally, the Family of Nations is composed by European nation-states. But
gradually, after some colonial territories declared their independence (and won their independence)
like the case of the United States of America, the Family of Nations started to accept non-European
States. The Family of Nations can be traced in the Peace of Westphalia. After World War I, the Family
of Nations was known as the League of Nations and after the Second World War, it was known as the
United Nations.

Importance of Recognition
Recognition is important because of the following:
(1.)Trade and commerce
(2.)Information exchange in terms of Research and Development, Science and Technology.
(3.) Industrialization and Modernization of States.
(4.)Security and protection.

Circumstances under which Recognition is Sought

(1.)De facto state long before recognition by other states.(e.g. China which is a de facto state long
before its recognition in 1907).
(2.) Recognition carved out by other state(s) either:

4
 (a.)Peacefully – e.g. US recognition to Philippines after WW II (1946)
(b.)Forcefully – e.g. USA war for independence against Great Britain in 1776.
(3.) Recognition given to states formed by the union of two or more states already members of the
family of nations.(e.g. the formation of the German Empire in 1871).
(4.) Recognition given to two or more states separating to become a separate entities.(e.g. the
separation of Norway and Sweden, the separation and division of Germany after WW II becoming the
East and west Germany, etc.)

Recognition of revolting Territories

Recognition of revolting territories is delicate case. Nation-States go to war once a State recognition
of revolting territory is prematurely given.
One of the classic examples to prove this assertion is the war between Great Britain and France after
the latter prematurely recognized USA in 1778. Thus, the question is when must recognizing states
give their recognition to a revolting territory which claims statehood.
(1.) The conflict between the parent sate is practically decided or established as a matter of fact.
(2.) When it is at the interest of the recognizing party to recognize the revolting territory.
(3.) Necessity of recognition because of humanitarian reasons. (e.g. the International Community
recognizing East Timor as an independent state from Indonesia.)

After considering all these, the question now becomes, Who recognize State? For most scholars of
politics, the formal answer is the Chief Executive in behalf of the people of the recognizing state.

Number of recognizing States

There is no prescribed numbers of recognizing state for “recognition” to take place. But recognition
may be:
(a) General, or a collective act of the family of nations (e.g. a resolution passed and adopted in the UN
General Assembly recognizing the existence of a particular State).
(b) Provided or given by at least one leading or super power (e.g United State of America, Russia, etc.)
(c) Provided or given by the sate which the neophyte sate is planning to have some dealings.

Legal Right or Duty of Recognition

Is there such a thing as a legal right or duty of recognition? The answer, as shown in the following,
depends on many factors:
(1.) There is no legal Right of de facto state to be recognized.
(2.) There is no legal duty to recognize de facto state. However,
(3.) There is a moral right of a de facto state to be recognized.
(4.) There is a moral duty to recognize de facto sate.

The question thus becomes: in international law – do moral prescriptions have the force of a law?

Methods of Recognizing States

There are two (2) general method of recognition:
(1.) Formal – When recognition is made by or through a treaty, Proclamation or official declaration by
recognizing state.
(2.) Informal – When recognition is implied (e.g. reception, Sending of Diplomatic agents, or official
salute of the flag.

5
Effects Of Recognition
Once a state is recognized, it implies recognition of its essential elements (i.e. the people, its
government, sovereignty and independence). It gives the recognized state the right and duties equally
enjoyed by other state before the International law.