GENERAL THEORY of STATE COURSE

Week - 5
ELEMENTS OF THE STATE: - LAND / TERRITORY & - POPULATION
ENTRANCE
The state is a complex social, political, and legal structure.
“The state is nothing more than a mixed reality and a mythical abstraction”.
Although the state is an abstraction, it consists of concrete elements.
Opinions on the elements of the state are diverse and often contradictory.

DIFFERENT STATE PERCEPTIONS

 Marxist theory: The state is the instrument of oppression of the ruling classes in
class society. Sovereign powers derive their power from the means of production
they own.
 Classical French doctrine: The state is the legal personality of the nation. In this
view, the state was founded on the "nation", one of its elements.
 Pluralist view: The state is the most comprehensive of the communities that have
gained a political character and are equipped with the power of power.
 Kelsen (pure legal theory): The state is a system of legal norms in effect; it is a
system of rules.

ELEMENTS OF THE STATE ACCORDING TO TURKISH AUTHORS

STATE
Antecedent and Objective Elements
Land
Population / Human

Founding Elements
(Political) Power /Sovereignty
Legal Personality
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ELEMENTS OF THE STATE ACCORDING TO TURKISH AUTHORS
The existence of the others is not possible without the antecedent and objective
elements. (Land-population)

With the participation of the founding elements that emerge depending on the
antecedent and objective elements, the state emerges (power-personality).
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THREE-ELEMENT THEORY: JELLINEK
Jellinek's thesis that the state is formed by the combination of three elements.
Jellinek's definition of state is: “ a community of people who have a certain nation , live
in a certain country, and are endowed with a state power” .
Accordingly, the elements of the state are:
land-population-power

This definition has been called the three-element theory . All modern attempts to define
the state have been made with the interpretation of all or some of the elements in this
definition.

LAND
The first element of the state is the existence of a land with definite borders, in other
words, a country with definite borders, which will provide the material existence of the
community that constitutes the second element of the state .

Every state must have a country.

What matters is the existence of a physical space.
The territory of the state is not only a certain piece of land;
the bottom of this piece of land,
the air gap and
It also includes the maritime country (sea land).
Even its extension in the space.

Parts of the Country

Territory: is the piece of land under the sovereignty of the state.
It is made up of land and underground .
Water (Sea): A state's water area is the water area under its sovereignty.
the scope of the state’s land includes not only the surface of the water, but also the
bottom .
Air: Airspace includes all the airspace over the land territory of the state and its
territorial waters.
The outer boundary of the airspace is the line where the territorial waters end.
The state has full sovereignty over its airspace .
The issue of what the upper limit of the airspace is is still controversial.
BORDERS OF THE STATE
A very important issue in terms of the country element of the state is that the borders of
the state's country are clear .
Indeed, country refers to a territory with strictly defined borders.
This is also a feature that distinguishes the modern state from pre-modern formations.
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Pre-Modern State “borders of the country”
For pre-modern empires and earlier political forms there was also a landmass.
Not border, but FRONT!
In pre-modern formations, state power was concentrated in the capital. Today, it is
difficult to find even an unclaimed piece of rock on earth.
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Pre-Modern: Not a border; FRONT
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The source of the current situation
The idea of a bordered state emerged with the modern state type starting from the 16th
century.
The 17th century is the date of the officialization of this situation.
Peace Treaty of Westphalia of 1648, the understanding that states have absolute
dominance over a certain land was registered.
Determination of borders,
internal and external sovereignty,
The principles of non-interference in internal affairs were embodied in this agreement.
The issue of determining the borders, which has been carried since then, is a prominent
and indispensable feature of today's nation states .
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Size of State Country

The size of its area is not important in terms of being a state.

Ex: Vatican: 44 hectares = 440 acres
Island states seen in the oceans
Liechtenstein
Faroe Islands vs.
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An old debate: a state without a country?
While this was considered necessary in ancient times, it was then argued that there
could be a state without a land.
According to Léon DUGUIT, the land is not a necessary element for the state to exist.
According to him, the realization of political differentiation in a society, in other words ,
the emergence of the separation of ruler/ruled may occur even if this community is not
settled in a particular country.
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An old debate: a state without a country?
Duguit's objection is actually the existence of a fixed country.

Criticism: in social reality, the phenomenon of political differentiation that Duguit speaks
of has always emerged in communities located in a particular country.
The example put forward by those who advocated that there could be a state without a
country was the Papacy. However, such an example disappeared with the Papacy's
acquisition of 44 hectares (440 decares) of land in 1929.
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An old debate: a state without a country?
Q: what will happen if the state loses its country? / What are the legal implications of
this?

The answer to this is that a state that loses its territory will also lose its statehood.
The sovereignty of another state is now valid on the lands lost by the state and on the
population living in those lands.
The state, which loses all of its territory, disappears.
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the importance of the land in terms of the state (1)
It is important in determining the borders of the sovereignty area with other states .
Sovereignty dispositions on the territory of a foreign state are unlawful.
Likewise, every state is sovereign over its territory.
The sovereign authority is an authority that can impose its will on individuals,
communities of individuals and the whole nation within this geographical framework
(country) in which it is located.
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the importance of the land in terms of the state (2)
Where the authority of the state begins and ends is important in determining the law to
be applied.
The territory of the state is also of special importance for some branches of law.
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Degree of sovereignty over the country

Today, it should be known that the sovereignty of the state over its country is not
absolute as it used to be.
Legal obstacle: international conventions
The actual (de facto) obstacle: the globalization process.
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Legal Nature of the Country's Relationship with the State

Three Theories
Superior real right theory (property right theory)
Subject-element theory
Border-element theory

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The superior real right (property right) theory
Accordingly, the state's relationship with its country is a property relationship based on
sovereignty . The state has a superior real right over its territory.
This theory is also accepted in the field of Public International Law today.
For example, a state that abandons a part of her territory according to the result of a
war is deemed to have given up both her superior real right on this territory and
sovereignty over the people living there.
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subject-element theory
It cannot be said that the state has a property right over its territory; because the
country does not have a separate existence from the state .
Although the country is one of the basic elements of the state, it is now fused with it.
The country and the state have become one entity.
The state-country relationship is likened to the relationship between the human being
and his/her body.
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The subject-element theory: its critique
It is a more correct approach to consider the country element as the environment in
which the state is formed; perceiving this "environment" as the body is not the right
approach.

It has been said that it would not be possible with this theory to explain what would
happen if the state lost a part of its territory.
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Border-element theory
According to this view, the reason why the country is considered as one of the elements
of the state is as follows:
The existence of the country is necessary for the limits of the supreme commanding
power of the state to be clear.
State power will be valid within these borders.
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Border-element theory: Jellinek

According to Jellinek, the state has no direct sovereignty over its territory.
Because for him, sovereignty means «imperium», which means the power to command.
Imperium, on the other hand, can only be applied to people, not to a piece of territory.
Therefore, it cannot be argued that the "imperium" provides the state with a real right
over its territory.

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Border-element theory: its critique
This view has been criticized in that it cannot be claimed that the state does not have
the right to dispose of its territory.

When we adopt this theory, we are to say that the state has no right over her territory.
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The concept of "Homeland« (VATAN)
The nation-state carries integrity in two respects: territorial integrity and political
integrity.
The country, which is the subject of territorial integrity, is synonymous with the concept
of "homeland", which is highly valued.

Compared with «land» or «territory», homeland is almost seen a sacred concept.

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The concept of "Homeland« (vatan)
Homeland is a homogeneous geographical whole that includes a homogeneous human
community (nation) .
When the homeland is constructed in this way, it is ensured that the country element in
the nation-state construct is directly associated with the "nation" construct.
(In the nation-state fiction, an ideological relationship is constructed between the nation
and the country/homeland).

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Homeland = patria in the pre-modern era
In ancient Greek or Roman times, dying for the "homeland" (patria) was one of the ways
to gain honor.
At that time, homeland was seen as a religious and philosophical concept.
However, the main element in the Ancient Greek polis was not the homeland, but the
community of citizens.
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Homeland = patria in the pre-modern era
In the Middle Ages, loyalty changed in the feudal order. Loyalty in feudal relationship is
loyalty shown to people in the lord/vassal relationship.
According to Christianity, it is said that the real homeland of Christians is the land of the
heavens (St. Augustine), causing the concept of homeland to lose its religious meaning.
In the Middle Ages, the knights will be honored by sacrifising themselves for Jesus, the
holy land, the Church, or their lord.

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Transformation in concept
With the struggle of the kings with the church and feudal elements in the process of
establishing the monarchy, a change began to occur in the content of the concept of
«homeland».

With this change, the concept of «homeland» became sacred on the one hand and
gained a political content on the other.
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Transformation in concept
With this new way of understanding, the homeland has taken on the character of "the
geographical area where political power is exercised ".
In this process, nationals living in this geographical area began to be asked to make some
sacrifices "in the name of the homeland".
Desired sacrifices are also of two types:
The first is to be willing to fight for the defense of the homeland and die when
necessary.
The second is to bear financial obligations for the defense of the homeland.
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Transformation in concept
Now, dying for the country is just as sacred as dying for Jesus, the holy land, and the
church.

Another reflection of the transformation of the homeland into a form of political value
was seen in the field of tax collection (Pay your tax so that the homeland can be
protected).

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2) The second element of the state: The population
If there is no population, there is no state.
It has even been debated whether there can be a state without land; but this issue is not
debatable.
Discussion Topics:
The Quantity
The Quality
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The Problem of Quantity of the Population
Plato: He considered the existence of 5040 citizens necessary.
The economic autarky: An ideal state should have a population that is at least
economically self-sufficient.
From this viewpoint, it is very difficult to come across a self-sufficient state today.
Today, in addition to the states with a population exceeding one billion, there are also
states limited to a few thousand.
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The Main Problem: The Problem of the Quality of the Population
Q: Is the state simply a union of a random group of people?

«any human group that controls or inhabits a piece of land, be it a hunting tribe or an
empire, must be regarded as a state» (KOPPERS, Early State).
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The Problem of the Quality
Not every community can bring wealth to the state.
That group of people must be qualified as a "nation".
Today, when the human element of the state is mentioned, the nation should be
understood.
Even today, there is a tendency to identify some states or countries with their nations.
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Community-Society
Community (Gemeinschaft): A situation in which people who have transcended their
individuality are united around common beliefs and values.
Adherence to the «group values» is essential.
warm, sincere, sincere and emotional relations among the members of the community.
Bound by blood, such as family, kinship, clan; Communities that are connected to a
place, such as a village based on neighborhood, based on similarity of thought and
emotion can be given as an example.
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Community-SOCIETY
Society (Gesselschaft): refers to the looser group in which individualities are at the
forefront but held together by the consciousness of common interests.
Rational,
groups with which they have contractual interests.
It is based on impersonal, rational and free relationships.
Example: Industrial and commercial enterprises, pressure groups, cities…
According to Ferdinand Tönnies, social "progress" is from community to society, and it is
thus «society» that characterizes modernity.
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COMPARISON
common will
Members have no personality (personality)
Group interests take precedence
Belief
custom
natural solidarity
collective property

individual will
Members have personality (individual quality)
Individual interests matter
doctrine (doctrine)
Temporary pleasures, fashion
contractual solidarity
personal property
Community (Gemeinschaft)
Society (Gesselschaft)
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The reason for the identification of state-country, nation-country
It can be thought of as the country's preparation of a suitable ground for the
development and maturation (nationalization) of the human element to form a state in
the period coinciding with the formation of the state . (Ayferi Göze, Country Component
of the State)
such an identification is mentioned because some countries pave the way for the
nationalization of the societies living on them.

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Nation-Ethnic group
Nation, which constitutes the human (population) element of the state, is not an
ethnically defined concept.
In other words, a nation is not an ethnic unity.
National minorities are also included in the population element of the state.
Ethnic: belonging to a historical commonality that is self-conscious but not
internationally recognized as a sovereign political entity.
Ethnic group: It is a group that has different elements and practices from the others in
terms of living and cultural characteristics.
These differences need to be observed in a large part of the community in all areas of
life and culture and in an important historical process.

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The scope of the nation and the importance of the unity of the human element
The fact that a community does not consider itself a nation belonging to a state
eliminates the fact that the human element constitutes one of the foundations of the
state.

The survival of the state is at stake.

The «legitimacy» debate can be considered.
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What is a Nation?

Objective understanding of nation (common race-language-religion, etc.)

Subjective understanding of nation (subjective criteria)
In the modern sense, the nation emerged in connection with the centralization, social-
political integration and industrialization relations that started with the emergence of
monarchies.
However, what is meant by the word «nation»? This has remained a highly controversial
issue to this day.

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Common race
A nation can only be formed by persons of the same ancestry or race.
Race is usually a group of people with the same genetic characteristics (such as Slavic,
Germanic, Anglo-Saxon).
Therefore, the concept of race is based on a biological basis.
Race: In an ethnic sense, it refers to a human community that emerges with the innate
physical characteristics of a certain human height.
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Common religion
According to this view, people who believe in the same religion can establish a nation. It
brings people together and creates the nation.
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Common Language
Those who speak the same language form the nation.
The historical foundations of this view can be found in the immediate aftermath of the
French Revolution.
In the idea of "nation" that emerged after the revolution, it was argued that it was
necessary to gain the title of citizen in order to be included in the nation.
However, it has been argued that in order to become a citizen, it is necessary to speak
French language first, and that it is possible to benefit from citizenship rights only in this
case.
At the beginning of the 19th century, it is seen that the necessity of a common language
was emphasized in order to ensure the unity of the German and Italian peoples.
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Common Language

Another thought expressed at that time was that the speakers of the same language
should be gathered under a single state.

According to one view, it would be more appropriate to characterize this approach as an

imperialist or expansionist view, not a nationalist one.
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Common Language
Within the scope of language unity, speaking of some dialects different from the
"national language" was also not welcomed.
Language-Dialect Distinction;
Language is an upper formation of dialects and is a means of communication for people
in the upper strata.
Dialect, on the other hand, is more of a "local speech tool".
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Common Language
The claim of linguistic unity in practice gained meaning only when it was integrated with
a political project.
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Common Language
The judgment that everyone within a nation-state speaks the same language is a political
judgment that lacks an objective basis.
For example, when the Italian Republic was founded, the ratio of Italian speakers to the
total population was 2.5%.
It was also in 1920 that the French became popular throughout France.
In addition, many modern languages were created "artificially" after the formation of
nation-states and were raised to the level of "national languages" (such as Hebrew,
Greek, Finnish).

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The "achievement" of the Language Union

It has not been and is not possible to establish a «national language» and language unity
without establishing a general and monopolistic primary education system (Ozan
Erözden, Ulus-Devlet, XII Levha, Istanbul, 2008, pp. 109-110).
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Objective nationality
As a result, factors such as ancestry/race, religion and language unity only facilitate the
phenomenon of nationhood; however, it is not necessary that the phenomenon of
nation has emerged in the event of their existence.
Common race, religion and language try to explain the nation according to objective
criteria, and in this sense, it reflects what we call the objective understanding of the
nation . Accordingly, a nation is a community of people connected by some objective
ties.
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subjective understanding of nation (Ernest Renan)

According to this, people can form a nation by connecting to each other with subjective
ties.
“It is a community that has common pride in the past and a common will today, has
done great things together and feeds on the desire to do great things on this path again
”. A nation is a community of people who have a common past, who have spent and
shared pain-joy, bright-dark days together, are determined to convey the common
heritage inherited from the past to future generations, and want to live together in the
future.

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Subj. Nation Understanding = Ernest RENAN

What brings people together in Renan's subjective understanding of a nation is not

objective factors such as race, religion, or language, but a subjective bond, which can be
summarized as the existence of the will to live together.

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Nation
In the most general sense, the concept of nation emerged starting from the 17th
century.
With the spread of modernization, the emergence of the modern state as a structure,
the increase in population, the increase in literacy, the intensification of communication,
it is seen that the old (feudal) social ties and traditional social perceptions began to
change with the public sphere.

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Nation
The concept of "nation" has now begun to be used to express non-religious segments of
society, and the concept of nation has begun to be understood with secular content.
For example, JJ. Rousseau used the term popular sovereignty and the concept of nation
in the context of a segment of society that consists of individuals who are free,
dissociated from traditional aristocratic ties.
The will that he called the «general will» was the will of this community of free
individuals. Thus, the nation has now acquired political content.

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Nation
States existed before the emergence of the nation as a political concept.
Before nation-state was established in Europe, an understanding of sovereignty was
dominant based on class divisions. With centralization, absolute kingdoms were born
first.
With the French Revolution, the "nation" began to be seen as the owner of sovereignty
(French Declaration, art.3).
The concept of nation has gradually become the focal concept of politics.
First, it took over the sovereignty from the king, and at the same time, it gained a
decisive position in the capitalist mode of production.
In the 19th century, the nation began to be seen as the sole purpose of unity between
social classes and economic development.
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Next Topic...
Legal Relationship Between the State and the individual: “Citizenship”

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