Individuals, communities and states.

Broadly defined, a state is a political community with a certain degree of power or authority. Public International law offers a definition in article 1 of the Montevideo Convention of Rights and Duties of States (1933) that declares: “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”[1] In short, the state has in principle three key elements: territory, population and government (or government and law).[2]

Consequently, territories without people, such as Antarctica, cannot be states; that people without territory, such as exiled Tibetans, cannot be a state; and that a group of people living in a territory without a government and independent from any other source of law, such as Catalonia, cannot be a state.

Individuals group together (for whatever reason) in what may be called aggregations[3] or, according to the previous paragraph, population. People that form the community or the nation are the subjective element of the state. Different disciplines refer to each element in different ways. From the legal science’s point of reference, the population of a state is determined by its law; e.g. the distinction between national citizens and foreigners and their respective legal rights and obligations. Worldwide, there are different legal principles that determine when an individual may be part of a given population; i.e. jus sanguinis or right of blood, jus soli or birthplace or residence.[4] The distinction between nationality and citizenship applies here.[5]

Political science, in turn, may offer a broader interpretation of the same term by using it to indicate all the inhabitants of a particular territory; e.g. a democratic state secures the same basic human rights to all the inhabitants within its borders regardless of their legal status as nationals or foreigners.

A sociological point of view offers a different angle. It is possible to identify communities within communities, sub-groups in the same legally defined and politically characterized population. Minorities, linguistic differences, socio-economic levels, class systems and many others are examples of different groups that may form the population that integrates the state. These different groups may have similar or different interests in relation to other groups of the same population and in relation to the state they are legally and politically part of. This includes different views about, for example, territorial disputes.

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Author of:

Territorial Disputes and State Sovereignty. International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020).

Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor and Francis Group, 2017).

Saturday 24th April 2021

Dr Jorge Emilio Núñez

Twitter: @DrJorge_World
https://drjorge.world

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[1] Complete text available from the United Nations Treaty Collection at https://treaties.un.org/pages/showDetails.aspx?objid=0800000280166aef accessed 08/May/2019.

[2] For a view of state as composed by population, territory, government and law see Alan James, Sovereign Statehood: the Basis of International Society (London: Allen & Unwin, 1986), in particular Chapter 2; John A. Hall and G. John Ikenberry, The State (Open University Press, 1989); Patrick Dunleavy and Brendan O’Leary, Theories of the State: the Politics of Liberal Democracy (McMillan, 1987); Malcom D. Evans, International Law (Oxford: Oxford University Press, 2010); Antonio Cassese, International Law (Oxford: Oxford University Press, 2001); Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2008); and many others.

[3] See Robert Nozick, Anarchy, State and Utopia (Basic Books, 1974), in particular Part I, Chapter 2.

[4] See T. Alexander Aleinkoff and Douglas Klusmeyer, eds., Citizenship Today. Global Perspectives and Practices (Washington, D.C.: Carnegie Endowment for International Peace, 2001), in particular chapter 1 in which the author compares several national legal orders.

[5] European Union law clearly distinguishes between citizenship and nationality. See, for example, art. 20 Treaty on the Functioning of the European Union in which citizenship has to do with the European Union while nationality is determined by each individual Member State. For more detail see Klaus Eder and Bernard Giesen, eds., European Citizenship between National Legacies and Postnational Projects (Oxford: Oxford University Press, 2003), in particular chapter 2.