STATE - ESSENTIAL OF STATE

• States are the primary subjects of International Law. A state may 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 relations with other entities.
• Montevideo Convention on the Rights and Duties of States of 1933 laid down
that the State as a person of International Law should possess the following
qualifications
• a) Permanent population
• b) A defined territory
• c) A Government
• d) Capacity to enter into relations with other states.
 STATE - ESSENTIAL OF STATE

(1) Permanent 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.
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.
 STATE - ESSENTIAL OF 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.
 Population of a State includes those who are staying in
other States as well as foreign nationals permanently
 STATE - ESSENTIAL OF 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 size of a State’s population.
Nauru,Nauru is a tiny island country in Micronesia, northeast of Australia, 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.
 STATE - ESSENTIAL OF STATE

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.
 STATE - ESSENTIAL OF STATE

On this proposition, Palestine 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 in 1947, on which the existence of the State
of Israel is based.
The resolution had mentioned the creation of an Arab 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 resolutions ‘1397 in 2002
specifically stated for the first time Palestine as a State.
 STATE - ESSENTIAL OF STATE

(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.
 STATE - ESSENTIAL OF STATE

(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 federated 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.
 STATE - ESSENTIAL OF 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 mini-States 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.
 Kinds of States
KINDS OF STATES
•All those entities which possess the 4 attributes are called States.
a) Permanent population
b) A defined territory
c) A Government
d) Capacity to enter into relations with other states.
•It may mean that it is not necessary for a State to be independent in order to 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.
 Kinds of States

For convenience States may be divided into three

categories. They are
1.Sovereign States
2.Not-fully sovereign States
3.Not-typical States.
 Kinds of States

1. Sovereign States :
By the term ‘sovereignty’ is meant the supreme authority,
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.
Sovereignty in the strict and narrowest sense of the term
implies, therefore, independence all round, within and
without the borders of the country.
 Kinds of States
The essential elements of sovereignty are
1. It is exercised within territorial limits
2. sovereignty is constituted by the independence of State power from
any other power, i.e., an authority over which there is no other authority.
3. 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 : independence
in internal affairs and independence in external or foreign affairs.
 Kinds of States
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.
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 remain subject to the authority of one or more other States.
 Kinds of States

Such states 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. - Sikkim
 Kinds of States

Treaty of protection need not be between the two States. A

protectorate “could be created under an international 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).
 Kinds of States

b. Vassal States
A State which remains under the dominion of another State is called vassal State.
Although vassal States do not have capacity to enter into relationship with other
States, they may be listed in the category of not-fully sovereign States in view of
their internal independence.
The position of the vassal State is different from the protectorate State. The two
differ on many grounds.
1. while in the case of the Protectorate State, the superior State protects the weak
State in accordance with the terms of treaty concluded between themselves, in
the case of vassal State, suzerain power absorbs foreign relations entirely. If they
have any international status, it is only because of their internal independence.
 Kinds of States

2. If a war is declared by the protecting State, protected State does not ipso
facto become a party to that war. However, in the case of vassal State, war of
the suzerain is ipso facto war of the vassal.’
3. While a treaty concluded by the protector State, is not ipso facto binding on
the protected State, all international treaties concluded by the suzerain State
are ipso facto concluded for the vassal, if an exception is not expressly
mentioned or is not self-evident.
4. While a protectorate State may become a member of the international
organisations including that of the United Nations Organisation, a vassal State
does not have capacity either to become a member of international
organisations or to establish relationship with other States.
 Kinds of States
C. Trust Territories
After the First World War, many territories came before the international scene
whose political institutions were not sufficiently developed so as to make them
independent. It was therefore decided under the League of Nations that such
territories should be placed under the administration of other States.
The system was termed as ‘mandate’ system. The territories in question were to
be administered by the designated allied nations, who were called ‘mandatory’
States, subject to considerations laid down in agreements made between these
States and the League of Nations.
When the League of Nations was dissolved, and the United Nations Organisation
was established, a provision was made for the improved mandate system to be
called the ‘Trusteeship System’, under which the mandatory States would
voluntarily place the territories under their control.
 Kinds of States

Thus, trust territories are the territories which have been placed under the
Trusteeship System (with the exception of South West Africa), or territories
detached from enemy States as a result of World War II, or territories voluntarily
placed under the system by State responsible for their administration.

Trusteeship Council,’ an organ of the United Nations was created to supervise

the administration of the territories placed under the system.
Trust territories are by no means sovereign States. On the one hand,
sovereignty over them is exercised by the administering authorities, that is,
effective sovereignty vests in the administering authorities
 Kinds of States

(3) NOT-TYPICAL STATES

A few States which are though sovereign, are not like
sovereign States as discussed above.
They have certain peculiarities of their own, and are therefore,
different from the typical sovereign States.
(a) Holy See
(b) Neutralized States
 Kinds of States
(a) Holy See:
The term ‘Holy See’ is used to refer to the supreme organ of the Catholic
Church, i.e. Bishop of Rome, commonly called the Pope, together with the offices
of the Roman Curia through which he governs the universal Church.
The term Vatican restricted to the Vatican City State, which is also ruled by the
Pope is though essentially distinct from the Holy See is also sometimes used for
Holy See.
Vatican City is the smallest country in the world. Encircled by a 2-mile border with
Italy, Vatican City is an independent city-state that covers just over 100 acres,
making it one-eighth the size of New York's Central Park
The Holy See is a small sovereign State having population of about 1000
composed of persons residing therein by virtue of their office.
 Kinds of States

The Head of the Catholic Christian Pope is the monarch of the Holy See. The
Holy See possesses an international personality despite being a very small
State. It has diplomatic relations with 166 nations, 69 of which have permanent
diplomatic missions in the Vatican.
The Vatican is represented at the United Nations as an Observer, though
it cannot vote. It is a party to many international treaties and is a member of the
Universal Postal Union, the International Telecommunication Union, Food and
Agriculture Organisation (FAO) and International Atomic Energy Agency.
It is a signatory to the Non-Proliferation Treaty, and since 1997, a member of
the World Trade Organisation.
 Kinds of States

(b) Neutralized States

When a State declares that it would never take up arms against any
other State except in the case of aggression, and it shall adopt the attitude of
impartiality in all the wars that may occur, the State is called neutralised State
If the declaration is guaranteed by other States in an international agreement,
Oppenheim says that a Neutralized State is a State whose independence and
integrity are guaranteed by treaty, on condition that such State binds itself not to
enter into military alliances (except for defence against attack) and not to enter
into such international obligations as could indirectly involve it in war.
 Kinds of States
Three elements are required to exist in order to call a State as
neutralized State.
1. State must abstain from offensive action. However, it may take up
arms in case of aggression.
2. State must remain neutral in all the wars in future
3. The above position of a State should be guaranteed collectively by
other States in an international convention.
 It is argued that the neutralised States are not sovereign
States since they have an obligation not to make war against any
other State, except when attacked.
Neutralised States are sovereign States like other States but they
are different because of their special status.
A neutralized State may cease to have that status either by
itself acting in violation of the condition on which its neutrality is
established and guaranteed, or by the consent of the guarantor
State.
Costa Rica (in central America) 1949–present
Finland 1935–1939 (to Winter War) 1956–present
Ireland 1939–present
Japan 1947–present
MODES OF ACQUISITION OF STATE TERRITORY
 MODES OF ACQUISITION OF STATE TERRITORY

The above two regimes are different from res communis, i.e., an area which legally
cannot be acquired, for example, the high seas and the outer-space. Such areas are
unownable.
Following are the different modes by which a State may acquire territory :
1. Occupation
2. Annexation
3. Accretion
4. Prescription
5. Cession
6. Award
7. Plebiscite
8. Lease
9. Pledge
 MODES OF ACQUISITION OF STATE TERRITORY

1. Occupation
The term ‘occupation’ has been derived from the Roman term occupatio
which means acquisition of res nullius - land not of any other country so far ie.,
a territory capable of being brought under territorial sovereignty but not yet so
brought.
In the same way, occupation in International Law means an act of
appropriation by a State over a territory which does not belong to any other
State.
Such territory may be uninhabited such as an island, or may be inhabited
by persons whose community is not considered as a State.’
 MODES OF ACQUISITION OF STATE TERRITORY

The Permanent Court of International Justice laid down that

occupation to be effective should be accompanied by two elements.
1. There should be an animus, i.e, intention on the part of the State
to appropriate the territory and to establish sovereignty over it.
2. The State acquiring territory should take the corpus i.e.,
possession.
The taking of possession consists in the act, of series of acts,
by which the occupying State reduces to its possession the territory
in question and takes steps to exercise authority there.
 MODES OF ACQUISITION OF STATE TERRITORY

Possession of whole or a part of the acquired territory depends upon the

circumstances of the case. Generally, possession of a part of the territory is
regarded as the possession of all the territories.
The above two conditions are required to be fulfilled in all the cases of
occupation.
As soon as a territory has been occupied by a State, it becomes a subject
of rules of International Law, in view of it being a portion of the territory of a
subject of International Law.
No other State can lawfully acquire the territory thereafter through
occupation unless the occupying State has either withdrawn from it or has
otherwise lost effective presence and control.
 MODES OF ACQUISITION OF STATE TERRITORY

2) Annexation
By the term ‘annexation’ is meant the forcible acquisition of territory by one
State at the expense of another.
When a State annexes the territory-either entire territory or a part of it, it
establishes its sovereignty over the annexed territory.  
An annexation can only be said to have taken place when not only the
territory in question has been occupied but also the intention to appropriate it
permanently has been shown. Intention may be indicated by making some
notification to annex the territory and the same must be recognized by several
other Powers. When the elements of occupation and intention are present,
annexation is said to have completed.
 MODES OF ACQUISITION OF STATE TERRITORY

• This mode of acquisition is illegal after the commencement of the

U.N Charter. A recent example of annexation is the annexation of
Kuwait by Iraq. After annexation Iraq declared Kuwait to be its
19th province.
• But the security council of U.N declared the annexation of Kuwait
as well as the said declaration of Iraq as null and void. Kuwait was
subsequently freed by collective action.
 MODES OF ACQUISITION OF STATE TERRITORY

3. Accretion
Accretion is the name for the increase of land through new
formations.
Such new formations may be only a modification of the
existing state territory, as, for instance, where an island rises within
a river, or a part of a river which is totally within the territory of one
and the same State; and in such case there is no increase of
territory to correspond with the increase of land.
 MODES OF ACQUISITION OF STATE TERRITORY

New formation through accretion may be artificial or natural.

They are artificial if they are the outcome of human work.
They are natural if they occur through the operation of nature, and
within the sphere of natural formations different kind must again be
distinguished-namely, alluvions, deltas, newborn islands and
abandoned river-beds.
 MODES OF ACQUISITION OF STATE TERRITORY

4) Prescription
Prescription is the acquisition of territory by an adverse
holding continued for a certain length of time peacefully.
If a State exercises control over a territory continuously for a long
time without any interruption and passesses it de facto, the
concerned territory becomes a part of that State.
The mode is known as prescription.
 MODES OF ACQUISITION OF STATE TERRITORY

Before acquisition of a territory could be made through prescription, four

conditions are required to be satisfied.
1. Possession of territory should be peaceful and without any interruption.
2. It should be continuous
3. Possession should be for a definte period
4. Sovereignty should be excercised openly
It should be noted that in the presence of some treaty or convention,
territory cannot be acquird by prescription throgh administrative acts only.
 MODES OF ACQUISITION OF STATE TERRITORY

5. Cession
When a state voluntarily gives its territory to another state the other
state becomes the sovereign of that territory.
In RE BERUBARY CASE, the Indian Government ceded its
territory to Pakistan and Pakistan had given some parts of its
territory to India.
 MODES OF ACQUISITION OF STATE TERRITORY

India-Bangladesh land boundary agreement - 2015

India and Bangladesh formally exchanged 162 enclaves on August 1,
2015, ending a centuries-old territorial anomaly and completing a process of
land and population exchange that began in the 1950s.
An enclave is the fragmented territory of one sovereign power located
inside another sovereign territory. Following decolonization from the British
Empire in 1947, both India and East Pakistan (later independent Bangladesh)
retained enclaves totalling about 119 square kilometers within the other’s newly
demarcated boundaries. 
 MODES OF ACQUISITION OF STATE TERRITORY

Bangladeshi Enclaves
51 Bangladeshi enclaves in India became Indian territory, a total area of 7,110
acres
14,863 residents remained in India and became Indian citizens
Indian Enclaves
111 Indian enclaves in Bangladesh became Bangladeshi territory, a total area of
17,161 acres
989 residents resettled to India
37,532 residents remained in Bangladesh and became Bangladeshi citizens
 MODES OF ACQUISITION OF STATE TERRITORY

(6) Award :
Territory may be acquired by a State through adjudication by a judicial
organ such as International Court of Justice, ad hoc arbitral tribunals or
conciliation commissions.
If a given territory, which is a part of one State, and later, after objection
is raised by another State, is submitted to the judicial organ for settlement which
gives award in favour of the latter, the title is regarded as to have passed
through award.
But where a part of the State is awarded to another State by the judicial
organ in pursuance of the adjustment or settlement of boundary dispute, that
does not amount to acquisition of territory.
 MODES OF ACQUISITION OF STATE TERRITORY

Thus, the transfer of 350 square miles of Rann of Kutch to Pakistan in

accordance with the Award of the Tribunal, commonly known as Kutch Award,
did not constitute the acquisition of territory by Pakistan.
While submitting the dispute to the Tribunal, both the parties had agreed
that the boundary line between India and Pakistan on this area is a adjacent,
and so the area transferred to Pakistan in pursuant to the award of the Tribunal
was due to settlement of boundary dispute.
The transfer did not require any amendment in the Indian Constitution.
 MODES OF ACQUISITION OF STATE TERRITORY

(7) Plebiscite
A State may also acquire territory if the inhabitants of a given territory wish
to merge it with another State.
It may be noted that the question of ascertaining the wishes of the people arises
where there is a dispute as to the status of a given territory.
After the First World War in pursuance of Articles 32-34 of the Versailles Treaty
of May 28, 1919, plebiscite took place in the regions of Eupen and Malmedy in
1920 and in 1935 in the Saar Basin wherein the majority of citizens voted in favour
of unification with Germany (which was done on March 1, 1935).
In pursuance of Article 88 of the Versailles Treaty, a plebiscite was held in Upper
Silesia on March 20, 1921.
Pakistan claims plebiscite in Kashmir so as to enable the people to decide
 MODES OF ACQUISITION OF STATE TERRITORY

8. Lease
A state may lease a part of its territory to another state for a
definite period.
During the lease period the lessee state can exercise
sovereignty over the leased territory.
9. Pledge
Sometimes a State may pledge a part of its territory to another
State in return of some money.
 MODES OF LOSS OF STATE TERRITORY

MODES OF LOSS OF STATE

TERRITORY 1. Annexation
Acquisition of a State territory 2. Prescription
by one State, except in the case of
3. Cession
occupation and accretion are loss
of State territory for another State. 4. Award
Thus, a State may lose territory by 5. Plebiscite
6. Lease
7. Pledge
 MODES OF LOSS OF STATE TERRITORY

In addition to these a State may also lose territory by the

following ways
(8) Secession :
In the case of secession a State loses a part of its territory to
which there is no corresponding acquisition of territory by another
State.
In such cases, losing part after severance acquires new and
separate international personality.
Secession may take place either peacefully or by revolt.
 MODES OF LOSS OF STATE TERRITORY

While secession of Estonia, Lativia and Lithuania in 1991 from

the U.S.S.R. and South Sudan from Sudan in 2011 are examples of
peaceful secession.
Secession of Bangladesh from Pakistan in 1971 was an
instance of secession by revolt.
In the above cases U.S.S.R. and Pakistan lost a part of the
territory but no State acquired them, Seceding parts of the existing
States became new States.
 MODES OF LOSS OF STATE TERRITORY

Secession may also take place by the unilateral

declaration of independence by a part of the territory of an
existing State.
In such cases while existing State loses the territory,
the part of the territory making declaration of independence
acquires new international personality.
Kosovo in the year 2008 seceded from Serbia and
declared its independence.
 MODES OF LOSS OF STATE TERRITORY

(9) Grant of Independence by the Metropolitan State

Grant of independence by the metropolitan State to its
colonies is another mode of losing territory, where a State loses the
territory but without acquisition by another State.
Colonies acquire new and separate international personality
after severance.
 MODES OF LOSS OF STATE TERRITORY
(10) Dereliction (or Abandonment or Relinquishment)
Dereliction frees a territory from the sovereignty of the present owner State. It
is effected when an owner State completely abandons a territory with the intention of
withdrawing from it for ever and relinquishes sovereignty over it.
Dereliction requires
(1) Actual abandonment of a territory
(2) The intention of giving up sovereignty over it.
When a State derelicts a territory that may be acquired by a State through
occupation. The cases of the Island of Santa Lucia and of Delagoa Bay are the
examples of such case.
When such occupation occurs, the former owner protects and tries to prevent
the new occupier from acquiring it. The cases of the Island of Santa Lucia and D.
Dilagoa Bay are examples of such cases.
 MODES OF LOSS OF STATE TERRITORY

(11) Vanishment (or Disappearance)

A State may lose territory when its territory, generally islands,
vanishes due to volcanic eruptions, land subsistence, soil erosion
and other natural calamities.
The earthquake may also result in the vanishment of an island.
A number of tiny-little islands have disappeared in last two
hundred years.
 MODES OF LOSS OF STATE TERRITORY

The Ghormara Island situated in West Bengal (India) and surrounded by

three rivers and a sea which once was a big island with a land-mass extending
a radius of 25 km. has now shrunk to a tiny radius of only 10 kms. The island
had once a population of 40000, but it was reduced to 5000 as per the 2001
Census of the Government of India. As of 2016, the island has 3000 residents.
New Moore Island (or South Talpatti) was a small uninhabitated Island in
the Bay of Bengal. It emerged in 1970 and was claimed by India and
Bangladesh. It disappeared later on due to sea-land rise caused by climate
change.