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CHAPTER 4
STATES AS INTERNATIONAL PERSONS
Contents

Pages

4. 1 Nature of a State under International Law

4. 2 Basic Rights and Duties of States

4. 3 Sovereignty

4. 4 Independence and Territorial and Personal Supremacy

4. 5 The Doctrine of Equality of States

4. 6 Intervention

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States as International Persons

4. 1 Nature of a State under International Law

States are the principal subjects of international law. According
to the "Motevideo Convention on Rights and Duties of States" 1933 the
state as a person of international law should possess the following
qualifications.

(a)a permanent population;

(b)a defined territory;

(c)a government; and

(d)a capacity to enter into relations with other states.

So far as international law is concerned, the fourth qualification is

the most important. A state must have the capacity to enter into relations
with other states.

4. 2

Basic Rights and Duties of States

Numerous writers have intended to formulate lists of so-called basic

or fundamental rights and duties of states. The doctrine of basic rights and
duties of state was favoured by certain of the naturalist writers, being
derived from the nation of the state as a creature of natural law.

Twentieth century formulation of the doctrine appears to be directed

towards the establishment of universal standards of law and justice in
international relations. This seems to be the object of the "Draft
Declaration on the Rights and Duties of States" drawn up by the
International Law Commission of the United Nations in 1949.

The rights listed in the Draft Declaration include:

(1) the right to independence;
(2) the right of territorial jurisdiction;
(3) the right to equality in law with other states; and
(4) the right of self-defence.

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The duties include:
(1) the duty to refrain from intervention in the affairs of other
states:
(2) the duty of settling disputes peacefully;
(3) the duty to refrain from resorting to war;
(4) the duty of carrying out in good faith treaty obligations;
(5) the duty of observing human rights.

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4. 3

Sovereignty

The term 'sovereignty' was introduced into political science by

Bodin in his celebrated work De la Republique. He defined sovereignty as
the absolute and perpectual power within a state. Hobbes went even
beyond Bodin, maintaining that a sovereign was not bound by anythings,
and had a right over everything, even over religion. However, Pufendorf
maintained that sovereignty is the supreme power in a state, but not
absolute power.

BodinDe la Republique

Hobbes

Pufendorf

Sovereignty has a much more restricted meaning today than in the

th

18

th

and 19

centuries. The very notion of international law as a body of

rules binding upon states implies the idea of their 'subjection to

international law, States now realize that partial surrender of their
sovereignty is inevitable.

4. 4 Independence and Territorial and Personal Supremacy

'Sovereignty' as supreme authority, which is independent of any

other earthly authority, may be said to have different aspects. Since it
excludes dependence upon any other authority, and in particular from the
authority of another state, sovereignty is 'independence'. Sovereignty is
'external independence' because it denotes the liberty of action of a state
outside its borders in the intercourse with other states. And sovereignty is

'internal independence' because it denotes the liberty of action of a state

inside its borders.

As sovereignty represents the power of a state to exercise supreme

authority over all person and things within its territory it is 'territorial
supremacy' (dominium, territorial sovereignty). As sovereignty represents
the power of a state to exercise supreme authority over its citizens at home
and abroad, it is 'personal supremacy' (imperium, political sovereignty).

For these reasons, a state as an international person possesses
independence and territorial and personal supremacy. These three qualities
are nothing else than three aspects of the very same sovereignty of a state,
and there is no sharp boundary line between them.

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In consequence of its external independence a state can, unless

restricted by treaty, manage its international affairs according to discretion.
In particular, it can enter into alliances and conclude treaties, send and
receive diplomatic envoys, acquire and cede territory, make war and
peace.

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In consequence of its 'internal independence' and 'territorial

supremacy', a state can adopt any constitution it likes, arrange its

administration in any way it thinks fit, enact such laws as it pleases adopt
any commercial policy it likes, and so on all individuals and all property
within the territory of a state are under its dominion and sway, and foreign
individuals and property fall at once under the territorial supremacy of a
state when they cross its frontier.

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In consequence of its 'personal supremacy', a state can treat its
subjects according to discretion, subject to minority treaties and other
international obligations, in particular the general obligations of the
Charter of the United Nations relating to human rights and fundamental
freedoms.

Restriction upon independence, territorial and personal supremacy

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Independence is not unlimited liberty for a state to do what it

likes without any restriction whatsoever. The mere fact that a state is a
member of the international community restricts its liberty of action with
regard to other states, because it is bound not to intervene in the affairs of
other states. And it is generally admitted that a state can through
conventions enter into many obligations which hamper it more or less in
the management of its international affairs.

Like independence, territorial supremacy does not give and

unlimited liberty of action. Thus, by custom try international law, every

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state has a right to demand that its merchant ships may pass through the
territorial waters of other states. Furthermore, a state is not allowed to
permit on its territory the preparation of a hostile expedition against
another country.

Personal supremacy does not give unlimited liberty of action either.

Although the citizens of a state remain under its power when abroad, such
state is restricted in the exercise of this power by the territorial supremacy
of the foreign state concerned. The reason lies in the fact that a state must
not perform acts of sovereignty in the territory of another state.

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4. 5

The Doctrine of Equality of States

The Doctrine of Equality of States was introduced early in the

history of international law by the naturalist writers. It subsists today with
important consequences for the international community.

Whatever inequality may exist between states as regards their size,

population, power, degree of civilization, wealth, or other qualities, they
are nevertheless equals as international persons. This legal equality
according to Oppenheim, has four important consequences.

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The first is that, whenever a question arises which has to be settled

by consent, every state has a right to a vote, but, unless it has agreed
otherwise, to one vote only.

The second consequence is that legally-although not politically-the

vote of the weakest and smallest state has as much weight as the vote of
the largest and most powerful.

The third consequence of state equality is that no state can claim
jurisdiction over another.

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A fourth consequence is that the courts of one state do not, as a rule,

question the validity or legality of the official acts of another sovereign
state or the official or officially avowed acts of its agents.

There is express recognition of the doctrine in the Charter of the

United Nations. Article (1) speaks of respect for the principle of equal
rights. Article 2 (1) says that "the Organization is based on the principle of
the sovereign equality of all its members".

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One exception to the doctrine of equality should be noted. Permanent
membership of the Security Council of the United Nations is confined to
five "Great Powers" only. These powers enjoy a 'right of veto' of the
Council's decisions in matters of substance. In fact, all members of a
political community ought to be equal before the law. Therefore, demands

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on the part of developing states to get rid of this right of veto are more and
more frequent.

4. 6

Intervention

It is a fundamental duty of a state to refrain from intervention in the

affairs of other states. International Law, generally, forbids intervention.

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Intervention means "dictatorial interference by a state in the affairs

of another state for the purpose of maintaining or altering the actual
conditions

of

things".

Intervention

proper

is

always

dictatorial

interference, not interference pure and simple. It is something more than

mere interference and much stronger than mediation or diplomatic
suggestion.

( )

()

A 'dictatorial interference' is an interference by the threat or use of
force, in opposition to the will of the particular state affected and almost
always serving to impair the political independence of that state. Therefore
it always concerns the external independence or the territorial or personal
supremacy of the state concerned. Anything which falls short of this is
strictly speaking not intervention, and is not forbidden by international
law.

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( )

()

Intervention is of three kinds:

(1)

Internal intervention

It is the intervention by one state between disputing sections of a

state, in favour either of the legitimate government or the insurgents.

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(2)

External intervention

It is the intervention by one state in the relations-generally the hostile

relations-of other states. The entry of Italy in the Second World War on
the side of Germany and against Great Britain is an example of external
intervention.

(3)

Punitive intervention

This is the case of a reprisal, short of war, for an injury suffered at

the hands of another state; for example a pacific blockade instituted
against this state in retaliation for a gross breach of treaty.

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There is no doubt that intervention is, as a rule, forbidden by

international law. But this rule has exceptions. The following are the
principal cases in which a state has, under international law, a "legitimate
right of intervention".

(1) 'Collective intervention' pursuant to the Charter of the
United Nations: (This would be by enforcement action
under Chapter VII of the Charter. Otherwise, the United
Nations is prevented by Article 2 (7) of the Charter from
intervening in matters essentially within the domestic
jurisdiction of any state.)

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(2) Self-defence,if intervention is necessary to meet a danger

of armed attack;
(3) To protect the rights and interests, and the personal safety
of its citizens abroad;
(4) In the affairs of a Protectorate under its dominion;
(5) If the state subject of the intervention has been guilty of a
gross breach of international law in regard to the
intervening state, for example if it is itself unlawfully
intervened.
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States must subordinate the exercise of any such exceptional rights
of intervention in their primary obligations under the United Nations
Charter.

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Monroe Doctrine

Monroe Doctrine has been originated from the announcement

of the United States President. Monroe in a Message to Congress in 1823.
It contains three branches:
(1) a declaration that the American Continent would no longer
be a subject for colonization by a European power.
(2) a declaration of absence of interest in European wars or
European affairs;
(3) a declaration that they could not allow the European Powers
to extend their political systems to any part of America, and
try to intervene in the independence of the South America
Republics.

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()

( )

()

Since the time of President Monroe, the Monroe Doctrine has

been gradually somewhat extended in so far as the United States claims a
kind of political hegemony over all the states of the American Continent.
Whenever a threat of interference from a European Power occurs or
wherever in such continent vital interests of the United States are
endangered the United States is ready to exercise intervention.

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Thus a doctrine originally directed against intervention was

converted into a theory justifying intervention by the state which has first
sponsored the doctrine.

Now, by reasons of inter-American regional security arrangements,

the Monroe Doctrine has been transformed a unilateral declaration into a
collective understanding of the American States, Possibly, to this extent,
the Doctrine may be referred to as a regional arrangement under the
charter of the United Nations.

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KEY TERMS
Motevideo Convention

Territorial jurisdiction

Self-defence

Personal superemacy

Interanl independence

Territorial supremacy

Intervention

Internal Intervention

External Intervention

Punitive Intervention

Monreo Doctrine

Sovereignty

Draft-Declaration

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EXERCISE QUESTIONS
Assignment Questions
1. Write a note on "Basic Right and Duties of States"
2. Enumerate characteristics of a state under international law and
define the term 'sovereignty'.
3. Explain independence and territorial and personal supremacy as
different aspects of sovereignty.
4. Elaborate the "Doctrine of Equality of States".
5. "International law forbids intervention " How do you understand this
statement? Comment.
6. Write a note on intervention, specially citing the Monroe Doctrine.

Short Questions
1. Write a note about the nature of a State under international law.
2. What is the term of sovereignty?

3. Write short notes on the following:

(a) Internal Intervention
(b)External Intervention
(c) Punitive Intervention