Issues Home About Contact Us Issue 20 - August 2020 عربى
Terminology Corner
State

There is no text in international law that clarifies the definition of the state, but all the literature dealing with the concept of the state revolves around defining the political form or organization of the modern state, and what it represents of a certain central authority  that exercises political powers, and the legitimate use of executive power within the boundaries of a particular territorial jurisdiction.

However, a definition of the state is enshrined in the Montevideo Agreement on the Rights and Duties of States )1933(, a regional treaty that grounded the good neighbor policy among American states. It set clear legal criteria for the state, an assessment of those standards and determining their efficiency in acquiring the concept of the state. The Montevideo Agreement defines the concept of the state, that in order for the state to be a person of international law it possesses the following elements: (a) permanent residents (people / peoples), (b) specific territory, (c) effective government, (d) and eligibility to enter into Relationships with other countries.

Those criteria set by the Montevideo Agreement are closely related, and complement each other, so the government cannot exist without a territory, and without political and legal powers of the people under the constitution (or the Basic Law), which also defines هin law the sovereignty of the state within its borders The political interests of the region, and outside it in the conduct of diplomatic relations, joining international organizations, concluding treaties, and participating in international events on behalf of the people/peoples of the state.

With the development of the international system, obtaining recognition from other countries has become a contemporary requisite for qualifying a state as such. The foundational treaty for Member States of United Nations system, the United Nations Charter (1945), emphasizes that the fundamental basis of the international system is peoples, not governments or particular organizations of state institutions, The preamble to the Charter begins with the phrase “we are the peoples of the United Nations” and sets common measures for the legitimacy of states acquiring an international personality, drawing on the relationship between the government and the people within the state, the extent of protecting its people and future generations, preserving human dignity and the rights of all its members, and raising their standard of living and their advancement and respect the principles of international law.

In its preamble, the 1969 Vienna Convention on the Law of Treaties affirms the sovereign equality and independence of all states, which are duty bound to preserve justice and respect the obligations arising from the treaties, and to respect the principles of international law established in the United Nations Charter, These include, equal rights (nondiscrimination), self-determination of peoples, non-interference in their internal affairs, prevention of the threat or use of force, and universal respect for human rights and fundamental freedoms for all.

It also recognized as a general principle of international law, that the self-determination is a protected right of peoples and nations, and that the legitimacy of the state arises from its ability to fulfill the right to self-determination of its inhabitants/peoples. Therefore, states have sovereign rights vis-à-vis each other, at the international level. However, in the domestic or local sphere, states have only obligations toward their inhabitants / peoples.

In light of the foregoing, these instruments obviate any common confusion between the government and the state, as if they are one in the same. The government is complex of institutions that represent the three branches of authority within the state: executive, legislative and judicial. Among other state institutions are the military, public universities, public health facilities, and other institutions with specialized roles that are not functions of government.

According to the interpretation of the concept of a legal state, the government is a public authority that is predetermined in functions and powers in the constitution, and not as a privilege or a right for the practitioners of that authority. Consequently, the role of the population (people or peoples) cannot be overlooked as an integral part of the state, and as owners of its natural resources they have the right to manage and develop it. When the state, represented by its people or peoples, joins in a treaty with other countries, the corresponding obligations apply to all state organs and to its various departments, including the local areas of governments and other public institutions.



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