“AÑO DE LA UNIDAD, LA PAZ Y EL DESARROLLO”

UNIVERSIDAD SAN IGNACIO DE LOYOLA

SUBJECT:

DERECHO INTERNACIONAL

BLOCK:

FC-VIRINGIBS09A01T

TEACHER:

REYES TAGLE, YOVANA JANET

FINAL PROJECT:

THE STATE AS A SUBJECT OF INTERNATIONAL LAW

GROUP Nº 8:

Peña Córdova, Angie Geraldine 2011621

Galvez Munive, James Luis 1510650

Villa Cespedes, Armando Gianfranco 1920182

Lima – Perú

2023 - 02
 THE STATE AS A SUBJECT OF INTERNATIONAL LAW

STATE DEFINITION
States are primarily subjects of International Law. States have different meanings at different
times. In some cases it refers to countries.
A state is a community formed by people and exercising permanent power within a specified territory.
A society politically organized under a government, occupying a defined territory and enjoying
autonomy and independence.

Characteristics:
● It appears in its modern form in XIVth century Europe.
● Originary and principal actor in international law.
● Its existence is a question of fact.

Classics Requirements:
According to international law, a state is typically defined as being based on the 1933
Montevideo Convention. According to Article 1 of the Convention, the state as a person of
international law should posses the following qualifications:
1. Permanent population:
Population means a large number of people. Population is 1st essential to become a state. A
group of people who are living together is considered a population. People of different race,
different culture, different religion, different groups living together within the prescribed
boundary is considered as a population. No state can be formed without population.
2. Defined territory: To become a State it must have a territory. Territory means “Prescribed are
limit”. Territory may be small or large, Size of state is immaterial.
Macro or Mini State: Those states whose population is very low in the comparison of other
states are considered as Mini or Macro States. Microstates are those which are exceptionally
small in area, population, human and economic sources but they are independent therefore
they are called a state.
Landmark Cases: Deutsche Constitutional Gas Cesselshaft vs Polish state, in this case it was
stated to become a state that does not absolutely depend on the existence of rigidly fixed
boundaries.
International law always insists that a state should have possession and control over a
territory. In exceptional cases, if a state has lost control over the territory for a short time, it will be
deemed as possessing territory. If the territory of state has been forcibly occupied by a foreign state
the occupant is not entitled to treat it as its own territory.

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Like China has occupied the region Tibet forcibly, it does not mean that Tibet is part of China. Tibet
was an independent state for centuries but China has ousted the government of Tibet and occupied it.
3. Government: A state which doesn’t have a government is not regarded as a state. The people
and territory should be governed by a government. A state always acts as a government.
Government can be of following types:
- De facto government
- De jure government
- Military government
- Government in exile

4. Capacity to enter into relations with the other states.

The principle of equality of states means that every state is entitled to full respect as a
sovereign state by other states. All the sovereign states are equal in status irrespective of their size,
population, resources and other features. Article 1 of the Carter of The United Nations says that “the
organization is based on the principle of sovereign equality of all its members.”
Sovereign equality includes the following elements:
- States are judicially equal
- Each state enjoys the rights inherent in full sovereignty
- Each state has the duty to respect the personality of other states.
Within the General Assembly of the United Nations, the doctrine of equality is maintained by
the rule of one state, one vote, irrespective of realities of power.

KINDS OF STATE

In the field of International Law, States can have different types of status, which refer to their
legal status or status in relation to international recognition, their relations with other States and their
ability to participate in international affairs. Some of the most common status types include:

Recognized State: A state formally acknowledged by other states and international organizations as a
sovereign entity with effective governance and control over a defined territory. These states are full
members of the international community, with rights and obligations under international law.

Unrecognized or De Facto State: This type of state controls a territory and exercises governmental
functions but hasn't received universal recognition as an independent state by the international
community. An example might be a territory declaring independence but not being acknowledged by
other states.

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Failed or Fragile State: Refers to a state that has experienced a significant loss of governmental
authority and control over its territory, limiting its ability to provide basic services and maintain order.
These states may face internal conflicts, lack effective governance, or institutional collapse.

Revolutionary State: Established after a revolution or a radical change in a country's government

structure. In some instances, these states may not be immediately recognized by other countries.

Member State of International Organizations: Some states are members of international

organizations such as the United Nations, European Union, Organization of American States, among
others. These states have additional rights and responsibilities according to the norms and regulations
of these organizations.

Neutral State: States that remain neutral in international conflicts and do not actively participate in
them. Their neutrality is recognized by other states and might be a fundamental principle of their
foreign policy.

Titular or Nominal State: Refers to an entity claiming to be an independent state but lacking
effective control over a specific territory or population. This could result from territorial disputes or
situations where sovereignty is challenged by other states.

These terms describe different situations and conditions in which states can find themselves in
international law, each having specific legal and political implications regarding recognition,
sovereignty, and participation in international affairs.

CREATIONS OF STATES

The creation of states is a complex process in international law, where the relationship
between factual and legal criteria plays a crucial role. The Montevideo convention of 1933 has
established the most accepted criteria for statehood in international law: permanent population,
defined territory, government, and the ability to establish relations with other states, the existence of a
permanent population is essential, although a minimum number of inhabitants is not specified, for
examples like Nauru and Tuvalu demonstrate this. However, questions are raised about the minimum
acceptable in cases such as the Falkland Islands conflict, where self-determination is a relevant issue,
the need for a defined territory is fundamental, although precise and fixed borders are not required. A
state can be legally recognized even if it is in territorial dispute with its neighbors, as long as it has a
consistent territory under its control, for example, the case of the State of Palestine is mentioned,
which cannot be considered valid due to the lack of control over the claimed territory, the presence of

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a government is important for the functioning of a political society, although it is not a prerequisite for
recognition as an independent country, then what is essential is a coherent political structure and
control over the majority of the claimed territory.

On the other hand, the ability to establish relations with other states is essential for
independence and international recognition, however, this aspect is not limited only to sovereign
states, as international organizations, non-independent states and other entities can enter into legal
relations under international law. But to be an independent state, it must have the ability to establish
these legal relations at its own discretion. However, it is worth highlighting the case of the unilateral
declaration of independence of Lithuania, a state that had been illegally annexed by the Soviet Union
in 1940. Despite this annexation, which was not legally recognized by Western states, the declaration
of independence of Lithuania in 1990 was not recognized by any state at first. However, later, after a
series of political changes and the dissolution of the Soviet Union, Lithuania and the Baltic States
were recognized as independent states by several countries, including the Soviet Union. Exceptional
cases are discussed in which a state can be considered independent even though certain government
functions are under the control of an external body, for example, in Bosnia and Herzegovina
following the Dayton Peace Agreement in 1995, a High Representative was designated as the "final
authority on the ground" to implement the agreement, which was not considered an obstacle to its
recognition as an independent state.

On the other hand, the case of Kosovo, which after a period of international administration declared
its independence in 2008, however, this case is controversial since its independence included
international supervision and the prioritization of specific provisions over other legal frameworks.
There was an International Civil Representative with authority over civil aspects of a specific
agreement and a NATO-led international military presence to ensure a secure environment in Kosovo.

In summary, these cases show complex situations in which the independence and recognition of a
state may be subject to special circumstances, such as international interventions, specific peace
agreements, or external oversight in certain government areas.

RIGHTS AND DUTIES OF STATE

The evolution and complexity in the determination of statehood in international law. This
addresses how new states emerging from conflicts such as Yugoslavia (Croatia, Bosnia and
Herzegovina, Kosovo) or decolonization situations (Congo, Guinea-Bissau) have challenged and
modified some traditional criteria of statehood.

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 On the other hand, with respect to the specific rights and duties of a state, aspects such as the
government's capacity for effective control over its territory, the ability to establish relations with
other states and the importance of independence in determining status are addressed. of state, the
impact of self-determination is also mentioned as a factor in evaluating the effectiveness of
government in certain contexts, such as in situations of decolonization, on the other hand, specific
rights and duties address the complex conditions and situations that affect, the definition and
recognition of a state in international law, the effectiveness of the government, independence, self-
determination and international recognition are factors that influence the consideration of an entity as
a state in the international community. These are some key aspects about the rights and duties of a
state in the context of international law.

1. Autonomy and Sovereignty:

● Autonomy is fundamental for a state. It implies the capacity to self-govern without significant
external interference. This is closely linked to sovereignty, which is the supreme authority of
a state over its territory and population.
● Sovereignty also involves independence and the ability to make decisions without external
coercion. However, in an interconnected world, absolute sovereignty is often tempered by
international agreements and treaties.

2. Relations with Other States:

● The ability of a state to establish relations with other states is essential. This includes the
signing of treaties, trade agreements, strategic alliances, and diplomacy.
● International recognition is a crucial aspect. Being acknowledged by other states as a
legitimate actor in the international community is fundamental to gaining certain rights and
participating in global affairs.

3. Protection of Human Rights:

● States have the responsibility to protect and ensure the human rights of their citizens. This
includes security, justice, equality, and other fundamental rights. Additionally, on an
international level, states have the duty to respect universally recognized human rights and
work towards their global promotion.

4. Participation in International Organizations:

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 ● States can be part of international organizations such as the UN, the European Union, NATO,
among others. By doing so, they commit to following certain rules and regulations established
by these organizations.
● Participation in these organizations provides opportunities for international cooperation but
also implies certain obligations and responsibilities.

5. Conflict Resolution and Peace:

● States have the duty to seek peaceful resolution of conflicts, both internal and international.
This involves the use of diplomacy, negotiation, and cooperation with other nations and
organizations to maintain peace and stability.

● Each of these aspects has specific ramifications and complexities within international law.
The interaction between state autonomy, international obligations, and the protection of
human rights is a widely debated and constantly evolving topic within the realms of
international relations and international law.

REFERENCES:
● Damrosch, L. F. and Murphy, S. D. (2014). International law. Cases and materials (6th ed.).
American Casebook Series.
● Epps, V. and Graham, L. (2015). International law (2nd ed.). Wolters Kluwer.
● Shaw, M. (2013). International law (5.a ed.) (pp. 197-207). Cambridge University Press