What exactly is a ” State”? It’s not the same as a country, or a nation, or a government. States do need a government to be recognised as a state, as well as a permanent population and territory, but it gets complicated. There are parts of the world, such as Northern Cyprus and Taiwan, that have territory and a government, but are not states.
It’s an important issue, and indeed a vital one at the moment in the Middle East. Is Palestine a state? Should it be recognised as one?
This episode describes the state as a political and legal construct. It isn’t a cultural or ethnic one. Most of the world’s land mass is within the state system. And who knows? Could the Moon be next?
TRANSCRIPT
STEPHEN PARKER
What is “a State”?
For over a century, most of the earth’s landmass has been controlled by states.
International waters, which are 43% of the Earth’s surface, and Antarctica, are not under the sovereignty of a specific state, but leaving aside some small areas and a few rocks in the sea, most of the dry land of the Earth – terra firma – is governed by a State.
STEPHEN BOTTOMLEY
It has taken thousands of years for us to reach this position; and it’s not a tidy system. There are disputed territories, and there are populations who believe they should be independent states.
STEPHEN PARKER
And of course humankind has set foot outside the Earth now.
STEPHEN BOTTOMLEY
Yes, the Outer Space Treaty of 1967, and a later Moon Agreement in 1979, declared that no state could claim sovereignty over the Moon, or appropriate the Moon’s resources.
STEPHEN PARKER
Somehow I wonder whether that will all stick, when it becomes feasible to exploit the Moon’s resources. I naively thought there was a World Trade Agreement regulating tariffs, but how’s that looking?
STEPHEN BOTTOMLEY
You’re such a cynic.
STEPHEN PARKER
The concept of a State is the primary building block of international law. States can be members of the United Nations. They make treaties. They are supposedly regulated by international customary law.
And within a country, it is the State which primarily regulates society. In fact, a feature of the modern state is that it has a near monopoly over the legitimate use of force. Only self-defence, and possibly a parent’s power to discipline a child, lie outside that monopoly.
STEPHEN BOTTOMLEY
The State, in the sense we are talking about it, is not the same as individual states that make up federations, such as in Australia or the USA. It is the United States of America that is “the State” for these purposes, not Texas, Alabama, Alaska and so on.
STEPHEN PARKER
It would be simpler if they used the word “Province” as in Canada.
STEPHEN BOTTOMLEY
I’m not sure that Americans would go for the initials UPA.
STEPHEN PARKER
A State is not actually the same as a Nation, although for shorthand people sometimes talk about the nation state. A State might comprise various peoples, all of whom regard themselves as separate nations.
In the United Kingdom (which is “the State”), many Scottish people see themselves as a nation. And in football, that most important litmus test, they are separately represented in the World Cup and other tournaments.
And of course there are countries where the original inhabitants of the land see themselves as a nation – and sometimes we describe them as First Nations People – but they are not a separate State.
STEPHEN BOTTOMLEY
The State is a mixed legal and political construct; not a cultural or ethnic one.
And it’s not the same thing as the Government. A modern state does need a government, in other words an executive bureaucracy that acts for the State, but governments can and do take different forms in different states.
And the Head of State can look different in different arrangements. In the USA, a republic, the President is the Head of State and leads the government. In the UK, Australia, Canada and New Zealand, all constitutional monarchies, the King is the Head of State but does not have an active role in government.
In fact, in these countries they often refer to “the Crown”, which is a legal concept that includes the monarch and the government in its three arms; executive, judicial and legislative.
The idea of the State remains constant, but the internal government arrangements can differ.
STEPHEN PARKER
So if a State has a government, it must also have a Constitution which describes how government works.
In most cases, this is a single document which requires a special type of voting arrangement or system to amend. We looked at constitutions in previous episodes on the Rule of Law, Where Law Comes From, and the idea of a federation.
STEPHEN BOTTOMLEY
A strange exception to this is the United Kingdom where there is no single document called a Constitution. The British Constitution is the product of various statutes, case law decisions and mere convention: everyone doing what is expected even if it isn’t mandated.
A small number of other countries, including Canada, Israel and New Zealand , also do not have fully codified constitutions.
STEPHEN PARKER
To make it even more confusing, although a State must have a government for it to be a state, there are territories which do have governments but which are not recognised as separate states.
I was recently in the island of Cyprus. In 1974 Turkish forces invaded the Republic of Cyprus after tensions between the Turkish and Greek Cypriot communities. Turkey still controls about one-third of the island. Only Turkey recognises Northern Cyprus as a State but it is definitely operating separately from, and to the exclusion of, the Republic of Cyprus. Northern Turkey has courts, a government, police, an international airport and thousands of tourists visiting each year, oblivious to the political and legal situation, but it isn’t a state.
STEPHEN BOTTOMLEY
Taiwan is another example of a grey area. Most of the world does not recognise it as a sovereign state out of deference to the People’s Republic of China and its “One China” policy. But Taiwan most definitely has a government, a technologically advanced society and a large military.
STEPHEN PARKER
And statehood can be a burning issue, as it is now in Palestine. At the time of this recording, 193 United Nations Member States, representing 75% of the global community, have recognised Palestine as a State, with other countries currently considering whether to do so.
STEPHEN BOTTOMLEY
So let’s look more closely at what international law says is required before the political decision is made by other states to recognise a state. It’s summarised in the Montevideo Convention on the Rights and Duties of States.
This Convention was agreed in 1933 although it largely follows the international customary law position that had lasted for centuries.
Under Article 1 of the Treaty, a state must possess:
- A permanent population
- A defined territory
- A government, and
- The capacity to enter into relations with other states.
STEPHEN PARKER
In theory, once these criteria are met, a state exists. But in practice it has to be widely recognised by other states before anything changes.
Membership of the United Nations is a separate decision, but if a state is not a Member State of the UN – for example it might only have observer status – its ability to be of influence in the world is limited.
STEPHEN BOTTOMLEY
But, Stevo, the idea of a state has been debated for centuries, including by the Ancient Greeks. What have all these philosophers and political theorists been talking about if it comes down to politics plus 4 simple criteria in the Montevideo Convention?
STEPHEN PARKER
Ah, Stevo, we common lawyers like to get straight to the practical point.
But let’s not overlook what has gone into the process of becoming a state, and which is still going on in troubled parts of the world.
Millions of lives have been lost through wars over territory, revolutions and conflict between ethnic and cultural groups, to reach today’s system of states.
STEPHEN BOTTOMLEY
And these contests have been driven by religious beliefs and conceptions of freedom, as well as by economic motives and pure greed.
There is a school of thought that States have come about through social contract – people voluntarily submitting to the authority of a government because this is the best way to protect liberty and property.
These schools of thought, whether they emphasise consensus or conflict, can lead to major shifts in law and political arrangements.
STEPHEN PARKER
Yes, the departure of the UK from the European Union – Brexit – was supported by some people as a way of regaining the independence of action that they thought membership of the EU was constraining. There were other factors, obviously, but Brexit is an example of beliefs about statehood and sovereignty contributing to huge upheaval, albeit peaceful upheaval.
STEPHEN BOTTOMLEY
In the next episode of Law in Context, we will look at international law; a body of law and thought that essentially uses the state as the main building block, and we will ask whether it is really “law”.
STEPHEN PARKER
I might have to be a cynic again in that one as well.