1. What is International Law?

International Law is a set of rules and norms that are recognized by nations and binds the nation
together. It establishes a common conceptual framework for dealing with various domains, such
as war, diplomacy, and trade. Unlike state-based legal systems, international law is primarily
applicable to countries and operates through consent. If states violate international law, they
can be subjected to coercive actions, such as military intervention and diplomatic pressure.

2. What/ Who are the subjects of International Law?

The 7 main subjects of International Law; States, International Organizations, Non-State Entities,
Special Case Entities, Individuals, Minorities and Indigenous People. All these are explained,
what are these subjects and why it is considered as subjects of International law.

 States are considered as the original and major subject of International law and their
legal personality derived from the international system structure. And one good thing is
that all the states enjoy equal rights and international legal personalities. The
International organization is mainly concerned with the rights, duties of each state and
due to which the International organization lays down rules which every state observes
and follows.
 International Organizations are an association of different states which are formed with
the help of a treaty or agreement between different nations and its function goes
beyond the states and deals with the conflict of nations. With the establishment and rise
of international organizations in the early 19 th century, the legal status of international
organizations in International law is questioned. But, the status of international
organizations is determined to be a convention among the states.
 Non-State entities are those types of entities that are not registered as an independent
state and also not have a legal status like the states have. The Non-State entities have a
special type of personality in International law.
 As they have not been registered as an independent state yet the Non-State entities
have the right to participate in international conferences and in every treaty. But one
thing more that differs it from the states is that the Non-State entities the rights and
duties of Non-State entities are not similar to the state and their functions and power
were also limited as compared to the state. Non-State entities existed for a particular
function and this reason is considered for the limitation of rights and duties of Non-State
entities. These entities fall into different categories i.e. Member of the Composed States
or federal states, Insurgents and Belligerents, National Liberation movements,
International territories.
 Special Case entities are the subjects of International law and Special case entities are
classified into two categories which are granted special unique status under
International law and they are the Sovereign Order of Malta, and the Holy See and the
Vatican City.
 The Sovereign Order of Malta was established during the time of Crusades as a military
and medical association. In 1834 order established its headquarters in Rome as a
Humanitarian organization. At the time of taking control of Malta, Order already had an
international personality and even after leaving the island he continued to exchange
 diplomatic legations with most of the European states and currently maintains
diplomatic relationships with more than 40 states.
 The Holy See and the Vatican City is the international legal person of the Roman Catholic
Church and its location is set in the Vatican City in Rome. It is considered as the most
unique person of International law and the reason behind why it is considered as the
most unique person of International law is that it combines the feature of the
personality of the Holy see with its location in the Vatican city, Rome.
 Individuals are always the main concern of International law and the growth of positivist
theories of law darkens the concern for human beings but in the 20 th century again the
International law became concerned for the individuals. During the Second world war,
the trend which up comes in international law had been towards blaming or attaching
direct responsibilities to the individuals for crimes committed against the peace and
security.
 Minorities are the next concern along with the concern of individuals during the 20 th
century. The serious and major problem which comes out after the first world war is to
protect the minorities in Europe. The League of Nations assumed its responsibilities in
the field of treaty-based protection of minorities in Europe in social aspects such as
education, health, and fair labor standards.
 Indigenous Peoples a special issue that came under International law. Despite so many
attempts of the United Nations to recognize group rights to Indigenous peoples but
nothing changed and it is still considered as a specific category of minorities with special
needs.

3. What are the fundamental rights of States?

Fundamental rights and duties of States

By resolution 178 (II) of 21 November 1947, the General Assembly instructed the International Law Commission to
prepare a draft declaration on the rights and duties of States, taking as a basis of discussion the draft declaration on
this subject presented by Panama1 and certain other related documents.

At its first session, in 1949, the Commission examined article by article the Panamanian draft. It also had before it a
memorandum by the Secretary-General, which reproduced inter alia comments and observations of Member States
on the Panamanian draft and a detailed analysis of the United Nations discussions on the subject.2

At the same session, the Commission, after three readings, adopted a final draft Declaration on Rights and Duties
of States in the form of fourteen articles with commentaries.3 It decided to transmit the draft to the General Assembly
with its conclusion that it was for the General Assembly to decide what further course of action should be taken in
relation to the draft Declaration.4 The Commission also observed that:

“the rights and duties set forth in the draft Declaration are formulated in general terms, without restriction or
exception, as befits a declaration of basic rights and duties. The articles of the draft Declaration enunciate general
principles of international law, the extent and the modalities of the application of which are to be determined by more
precise rules. Article 14 of the draft Declaration is a recognition of this fact. It is, indeed, a global provision which
dominates the whole draft and, in the view of the Commission, it appropriately serves as a key to other provisions of
the draft Declaration in proclaiming ‘the supremacy of international law”.
By resolution 375 (IV) of 6 December 1949, the General Assembly commended the draft Declaration to the
continuing attention of Member States and of jurists of all nations and requested Member States to furnish their
comments on the draft. It also invited the suggestions of Member States on: (1) “whether any further action should be
taken by the General Assembly on the draft Declaration”; and (2) “if so, the exact nature of the document to be aimed
at and the future procedure to be adopted in relation to it”.

As the number of States which had given their comments and suggestions was considered too small to form the
basis of any definite decision regarding the draft Declaration on Rights and Duties of States, the General
Assembly, in resolution 596 (VI) of 7 December 1951, decided to postpone consideration of the matter “until a
sufficient number of States have transmitted their comments and suggestions, and in any case to undertake
consideration as soon as a majority of the Member States have transmitted such replies”.

Draft Declaration on Rights and Duties of States

Whereas the States of the world form a community governed by international law,
Whereas the progressive development of international law requires effective organization of the
community of States,
Whereas a great majority of the States of the world have accordingly established a new
international order under the Charter of the United Nations, and most of the other States of the world
have declared their desire to live within this order,
Whereas a primary purpose of the United Nations is to maintain international peace and
security, and the reign of law and justice is essential to the realization of this purpose, and
Whereas it is therefore desirable to formulate certain basic rights and duties of States in the
light of new developments of international law and in harmony with the Charter of the United Nations,

The General Assembly of the United Nations adopts and proclaims this Declaration on Rights
and Duties of States:

Article 1
Every State has the right to independence and hence to exercise freely, without dictation by any
other State, all its legal powers, including the choice of its own form of government.

Article 2
Every State has the right to exercise jurisdiction over its territory and over all persons and
things therein, subject to the immunities recognized by international law.

Article 3
Every State has the duty to refrain from intervention in the internal or external affairs of any
other State.

Article 4
Every State has the duty to refrain from fomenting civil strife in the territory of another State,
and to prevent the organization within its territory of activities calculated to foment such civil strife.

Article 5
Every State has the right to equality in law with every other State.

Article 6
Every State has the duty to treat all persons under its jurisdiction with respect for human rights
and fundamental freedoms, without distinction as to race, sex, language, or religion.

Article 7
Every State has the duty to ensure that conditions prevailing in its territory do not menace
International peace and order.
 Article 8
Every State has the duty to settle its disputes with other States by peaceful means in such a
manner that international peace and security, and justice, are not endangered.

Article 9
Every State has the duty to refrain from resorting to war as an instrument of national policy, and
to refrain from the threat or use of force against the territorial integrity or political independence of
another State, or in any other manner inconsistent with international law and order.

Article 10
Every State has the duty to refrain from giving assistance to any State which is acting in
violation of article 9, or against which the United Nations is taking preventive or enforcement action.

Article 11
Every State has the duty to refrain from recognizing any territorial acquisition by another State
acting in violation of article 9.

Article 12
Every State has the right of individual or collective self-defence against armed attack.

Article 13
Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse
for failure to perform this duty.

Article 14
Every State has the duty to conduct its relations with other States in accordance with
international law and with the principle that the sovereignty of each State is subject to the supremacy of
international law.

4. What are the elements of a State?

Elements of State:
A State stands identified with its four absolutely essential elements:

1. Population:
State is a community of persons. It is a human political institution. Without a population there
can be no State. Population can be more or less but it has to be there. There are States with very
small populations like Switzerland, Canada and others, and there are States like China, India and
others, with very large populations.

The people living in the State are the citizens of the State. They enjoy rights and freedom as
citizens as well as perform several duties towards the State. When citizens of another State are
living in the territory of the State, they are called aliens. All the persons, citizens as well as
aliens, who are living in the territory of the State are duty bound to obey the state laws and
policies. The State exercises supreme authority over them through its government.

There is no definite limit for the size of population essential for a State. However, it is recognised
that the population should be neither too large nor very small. It has to be within a reasonable
limit. It should be determined on the basis of the size of the territory of the State, the available
resources, the standard of living expected and needs of defence, production of goods and
supplies. India has a very large and fast growing population and there is every need to check
population growth. It is essential for enhancing the ability of India to register a high level of
sustainable development.

2. Territory:
Territory is the second essential element of the State. State is a territorial unit. Definite territory
is its essential component. A State cannot exist in the air or at sea. It is essentially a territorial
State. The size of the territory of a State can be big or small; nevertheless it has to be a definite,
well-marked portion of territory.

States like Russia, Canada, U.S.A., India, China, Brazil and some others are large sized states
whereas Nepal, Bhutan, Sri Lanka, Maldivies, Switzerland, Togo, Brundi and many others are
States with small territories. The whole territory of the state is under the sovereignty or
supreme power of the State. All persons, organisations, associations, institutions and places
located within its territory are under the sovereign jurisdiction of the State.

Further, it must be noted that the territory of the state includes not only the land but also,
rivers, lakes, canals inland seas if any, a portion of coastal sea—territorial waters or maritime
belt, continental shelf, mountains, hills and all other land features along with the air space
above the territory.

The territory of the state can also include some islands located in the sea. For example
Anadaman & Nicobar and Daman and Diu are parts of India. State exercises sovereignty over all
parts of its territory. Ships of the State are its floating parts and Aero-planes are its flying parts.
Even a States can lease out its territory to another State e.g. India has given on lease the Teen
Bigha corridor to Bangladesh.

3. Government:
Government is the organisation or machinery or agency or magistracy of the State which makes,
implements, enforces and adjudicates the laws of the state. Government is the third essential
element of the State. The state exercises its sovereign power through its government.

This sometimes creates the impression that there is no difference between the State and
Government. However it must be clearly noted that government is just one element of the
State. It is the agent or the working agency of the State. Sovereignty belongs to the State; the
government only uses it on behalf of the State.:

Each government has three organs:

(1) Legislature—which formulates the will of State i.e. performs law-making functions;

(2) Executive— enforces and implements the laws i.e. performs the law-application functions;
and
 (3) Judiciary—which applies the laws to specific cases and settles the disputes i.e. performs
adjudication functions.:

Government as a whole is the instrument through which the sovereign power of the State gets
used.

In ancient times, the King used to perform all functions of the government and all powers of
governance stood centralized in his hands. Gradually, however, the powers of King got
decentralized and these came to be exercised by these three organs of the government:
Legislature, Executive and Judiciary.

Each of these three organs of the government carries out its assigned functions. Independence
of Judiciary is also a settled rule. The relationship between the Legislature and Executive is
defined by law and it corresponds to the adopted form of government. In a Parliamentary form
of government, like the one which is working in India and Britain, the legislature and executive
are closely related and the latter is collectively responsible before the former.

In the Presidential form, as is in operation in the U.S.A., the legislature and executive are two
independent and separate organs with stable and fixed tenures, and the executive is not
responsible to legislature. It is directly responsible to the people.

Government is an essential element of State. However it keeps on changing after regular

intervals. Further, Government can be of any form—Monarchy or Aristocracy or Dictatorship or
Democracy. It can be either Parliamentary or Presidential or both. It can be Unitary or Federal or
of mixture of these two in its organisation and working. In contemporary times every civilized
State has a democratic representative, responsible transparent and accountable government.

4. Sovereignty
Sovereignty is the most exclusive element of State. State alone posses sovereignty. Without
sovereignty no state can exit. Some institutions can have the first three elements (Population
Territory and Government) but not sovereignty.

State has the exclusive title and prerogative to exercise supreme power over all its people and
territory. In fact, Sovereignty is the basis on which the State regulates all aspects of the life of
the people living in its territory.

As the supreme power of the State, Sovereignty has two dimensions:

Internal Sovereignty and External Sovereignty.

(i) Internal Sovereignty:

It means the power of the State to order and regulate the activities of all the people, groups and
institutions which are at work within its territory. All these institutions always act in accordance
with the laws of the State. The State can punish them for every violation of any of its laws.

(ii) External Sovereignty:

It means complete independence of the State from external control. It also means the full
freedom of the State to participate in the activities of the community of nations. Each state has
the sovereign power to formulate and act on the basis of its independent foreign policy.

We can define external sovereignty of the State as its sovereign equality with every other state.
State voluntarily accepts rules of international law. These cannot be forced upon the State. India
is free to sign or not to sign any treaty with any other state. No state can force it to do so.

No State can really become a State without sovereignty. India became a State in 1947 when it
got independence and sovereignty. After her independence, India got the power to exercise
both internal and external Sovereignty. Sovereignty permanently, exclusively and absolutely
belongs to the State. End of sovereignty means end of the State. That is why sovereignty is
accepted as the exclusive property and hallmark of the State.

These are the four essential elements of a State. A State comes to be a state only when it has all
these elements. Out of these four elements, Sovereignty stands accepted as the most important
and exclusive element of the State.

No other organisation or institution can claim sovereignty. An institution can have population,
territory and government but not sovereignty. Andhra Pradesh, Tamil Nadu, Orissa, Punjab,
Sikkim, in fact all states of the Indian Union have their populations, territories and governments.

These are also loosely called states. Yet these are not really states. These are integral parts of
the Indian State. Sovereignty belongs to India. Sikkim was a state before it joined India in 1975.
Now it is one of the 28 states of India. UNO is not a state and so is the case of the
Commonwealth of Nations, because these do not possess sovereignty. SAARC is not a state. It is
only a regional association of sovereign states of South Asia.

India, China, U.S.A., U.K., France, Germany, Japan, Australia, Egypt, South Africa, Brazil,
Argentina and others such countries are States because each of these possesses all the four
essential elements of state. The presence of all these four elements alone vests a State with real
statehood.