Composites of State and their Legal framework | Essence of Sovereignty

Composites/Elements of State

Elements of State in Political Science are being discussed in this article. The element of the formation of a state consists of two parts, namely the principal (constitutive) and declarative elements. The principle element is the most important element, because it is a mandatory requirement that must be owned by prospective countries. Declarative element is an additional element that may not be owned by a country.

Composites of State and their Legal framework | Essence of Sovereignty

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Introduction 

The modern sovereign state arose from the break-up of European Christendom during the early sixteenth century. The Reformation instigated a century of religious wars between Catholics and Protestant powers. By the end of the century the modern sovereign state had been established in Western Europe: a centralized power with exclusive law-making and law-enforcing authority over a territory. Conventionally, however, the modern state and state system is dated from the Treaty of Westphalia, which ended both the Thirty Years’ War (1618–48) and the wars of religion. Westphalia established the key principle of modern statehood: sovereignty.

Sovereignty
“The distinguishing characteristic of the state. Sovereignty is the right to have absolute and unlimited power, either legal or political, within the territory of a state”

Sovereign state 
 A state with its own institutions and populations that has a permanent population, territory, and government. It must also have the right and capacity to make treaties and other agreements with other states.


Major essence of the sovereign state

Whatever the particular style of the state, its philosophical underpinnings, or the governmental system that directs it, a number of features common to all states can be identified:

  1. It has the control of an identifiable population;
  2. It has the control of an identifiable geographical territory;
  3. It has high degrees of longevity compared to other social institutions;
  4. It is a structure of law in society;
  5. It is characterized by sovereignty.
  6. Space or territory that has internationally recognized boundaries
  7. People who live there on an ongoing basis
  8. Regulations governing foreign and domestic trade
  9. The ability to issue legal tender that is recognized across boundaries
  10. An internationally recognized government that provides public services and police power and has the right to make treaties, wage war, and take other actions on behalf of its people

Sovereignty, meaning that no other state should have power over the country's territory


Composition of sovereign state 

Elements of State in Political Science are being discussed in this article. The element of the formation of a state consists of two parts, namely the principal (constitutive) and declarative elements. The principle element is the most important element, because it is a mandatory requirement that must be owned by prospective countries. Declarative element is an additional element that may not be owned by a country. 

According to this Convention, The Elements of the State establishment are as follows:

  1. People
  2. Permanent region
  3. Sovereign government 
  4. Ability to connect with other countries.
  5. Recognition.


People

The people are all the people in the territory of a country and obey the rules of the country. Based on this, the existence of the people is an important element for the formation of a country. The people are categorized into; residents and non-residents as well as citizens and non-nationals. Residents are people who are domiciled or settled within a country. Non-resident is a person temporarily living in a country. Citizens are persons who are legally members of a country. Non-citizens are persons living in a country, but not members of that country. So, the first element is that there must be people first.

Territory

 After the people, the next element that forms a country is territory. Area element is very important to support the formation of a country. Without territory, it is impossible for a country to form. This area will be occupied by the people and the administration. The territory of a country is a unity of space which includes land, sea, air, and extraterritorial territory.

Land: Land is the residence of a resident or resident of a State. Territory of a State, has certain limits set by the laws of the State and the treaty with neighboring States.

Oceans: Oceans are the territory of a State consisting of territorial sea, additional zones, ZEE, and continental bases. .

Air: Air is the whole space which is above the boundaries of the territory of a State, both land and sea.

Extraterritorial: An extraterritorial territory of a State is a place where international law is recognized as a territory of a State even if it is located in another State. For example, the Indonesian embassy offices abroad are referred to as the Indonesian extraterritorial territory.

Sovereign Government

The next element that forms the State is government. The government element is meant here a legitimate and sovereign government. A legitimate government means a government recognized by the people to run the wheels of government. Meanwhile, a sovereign government means having full power to regulate the course of the State.

State Declarative Elements

In addition to the basic elements, there are also other elements that form the state, namely the recognition of other countries. The recognition of other countries is a declarative element of the state. Recognition from other countries is necessary to ensure the implementation of international cooperation with other countries, there are two types of recognition from other countries that exist:

Here is an explanation.

De jure’s recognition
Is official recognition under international law, so that countries in the world recognize the existence of a state as a new state?


De facto Recognition
Is recognition according to the fact of the establishment of the state and has run the government as it should.

Ability to connect with other countries

A state respects and abides by international laws, treaties and the policies of the international organizations like the UN and its agencies. A number of writers who have attacked the concept of absolute sovereignty on theoretical grounds also hold that it is undesirable. H. J. Laski, for example, regards it as incompatible with the interests of humanity and world peace.  Absolute sovereignty is not feasible. A state needs to abide by international laws. Otherwise there will be international anarchy causing serious threats to international peace and security. Laski has rightly argued that unlimited sovereignty is a threat to world peace and humanity.

International Recognition:

In modern times relations among nations have grown and many international organizations and institutions have come into being. Therefore some scholars have argued that international recognition be an essential element of state. The recognition of the sovereign status of a new state by other states is called international recognition.

According to famous jurist, Oppenheim, “A state is and becomes an international person by recognition only and exclusively. But there is no agreement on how many countries would have to recognize a new state. China was already a full-fledged state for many years before the UN was established in 1945.

State legal framework

Legal sovereignty, meaning the power of government comes from the law.

In any state, sovereignty is assigned to the person, body, or institution that has the ultimate authority over other people in order to establish a law or change an existing law. In political theory, sovereignty is a substantive term designating supreme legitimate authority over some polity. The state can be seen as a system of laws. There is no legal authority above it either within its territory or in international society. It is sovereign within its territory, as the only law-making authority, and is bound only by those international treaties – international laws – it has agreed to accept.

A legal tradition shapes the legal order within a state. Order in society must be subject to law. Power must be constrained by law and law must be the basis for the transfer of power. Indeed appeals to the ‘common good’, the ‘general will’ of the people, and the needs of ‘absolute power’ to ensure the ‘higher goal’ of order without reference to law are arbitrary uses of power. Legal principles for the basis of the state are essentially a nineteenth-century development in the establishment of the rule of law.

Domestically, the state can give itself whatever constitutional and political system it likes. The principle assumes that no other state or international organization has the right under normal circumstances to determine the internal political arrangements of a state.

The Treaty of Westphalia established this principle. It is a key element of the legal basis for the modern state. Nevertheless, a major defeat in a foreign war, such as that of Germany after 1945, will involve massive changes in the internal political and legal arrangements of a state.

Over the last few decades the nature of some regimes – South Africa’s racist apartheid regime and the religious intolerance of the Taliban regime in Afghanistan – have been subject to considerable international pressure to reform in line with international moral principles. However, such pressure from other governments is likely to occur only when the internal regime affects the interests of other states.

International law is a law created by legally equal, coordinated bodies, not subordinated bodies. States are subject to law in international society, but are in a system where enforcement is only possible through states. Enforcement depends, therefore, very much on the power available to a state and on its calculations of self-interest. But it does not undermine the principle of state sovereignty as applied to law. Most international courts recognize the right of a state to refuse to attend a particular case when issues of national security are involved; and the state itself will. 

Composites of State and their Legal framework | Essence of Sovereignty


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