The possession of international personality forms the primary basis of establishing the power of a state.
With the increase in collective activities among states, this has prompted the recognition of states as being powerful and sovereign. States therefore remain to be the primary subjects in international law. This thesis therefore shall examine the types of power that are exhibited by states in the international plane and determine what then makes this states powerful. But before examining the foregoing it is imperative to examine the characteristics of states that make it recognizable in the international plane.Characteristics of statesThe attributes of a state were specified in the 1933 Montevideo convention on Rights and Duties of states, which was adopted by the seventh International conference of American states. Article 1 established that a state as a person of international law should constitute of a permanent population; a defined territory; legal relating with other states.
(a) Permanent population; States are composed of aggregates of people and accordingly a permanent population is a prerequisite to statehood. However no minimum population is required. Nauru with a population of 6,500 is considered as a state.(b) Defined territory; A defined territory is necessary since territorial sovereignty must be exercised within given geographical area.
(c) A government; statehood must be evidenced by the establishment of an alternative government; one which is independent of any other authority and which enjoys legislative and administrative competence. Non-dependence was stressed by the international committee of Jurists established by the league of Nations in 1920 concluded that in establishing statehood;“Until a stable political organization has been created and until the public authorities had become strong enough to assert themselves through out the territories of foreign troops” (League of Nation’s Official Journal Special Supp. No 3.)It is imperative to note that a states-hood will not be nullified if it stays for a period of time without effective government.
(d) Capacity to enter into legal Relations; the realization of this principle is dependant on the response of other stakes to enter into relations with it. It is imperative to note that the establishment of the first three criteria is essentially fact while the fulfillment of this criterion is essentially political. For example, the establishment of the Bantustans such as Transkei and Ciskei by the government of South Africa in implementation of the apartheid policy was denied recognition by the states and the UN.Existing states may therefore deny statehood to an entity, which has attained characteristic of statehood if such states violate international principles in acquisition of the foregoing provisions. Example the acquisition of territory through the use of force (Article 2(4) of UN Charter) or when the state violates the principles of non-interference (Resolution 2625 (XXV). Subsequent to the adoption of the “Declaration on the Granting of Independence to Colonial Territories and people, colonial territories are now recognized as having some parts of colonial territories (Resol: 1514 (XV) of Dec 14 1960). This then brings us to examination of the impact of recognition.Recognition of states and governmentRecognition as established from the foregoing discussion denotes the willingness of a state to enter into relations with the entity being recognized.
Recognition is of essence as it is concerned with the status of the entity in question both in the international scene and within the municipal legal system. The executive arm of the government normally grants the recognition and it is a matter of policy in which the recognizing state has discretion. It comprises of the formal acknowledgement by the recognizing state that the recognized states possess the attributed of statehood and signify willingness to treat the entity as a state. (Bowen; 2003)Recognition of a government on the other hand constitutes a formal acknowledgement by the recognizing state that the regimes in question which may either have come into existence legitimately or illegitimately is the effective government and signifies a willingness to treat it as such.
The question of recognition of a government however arises when the regime in question has come to power through undemocratic means. There may be refusal to recognize such a regime but according to Lawrence 1885 such refusal does not affect the statehood. It is therefore possible for an entity to be recognized as a state while the governmental regime is not accorded such recognition (Neff; 2005). This position follows the preposition promulgated by Gramsci’s in the Marxists theory, which establishes the rule that for a government to be recognized as being legitimate such government should be grounded on the consent as well as coercion of the people. But consent should form the fundamental prerequisite (Bowen; 1885). This therefore leads us to examination of the theories of recognition.
The constructive school of thoughtThis school of thought maintains that the presence of recognition of states is the foundation of international personality (Foulke; 1920) thus it can be stated that recognition is a precondition to the entities legal status. It is the recognition which creates a state and determines the legal personality of the government and the regime (Fouke; 1920)The Declaratory TheoryThis school of thought downplays the importance of recognition regarding it only as the formal acknowledgment of already existing circumstances (Westlake; 1910). This approach fosters the concept of state practice. This concept of recognition through state practice should however be noted as having a retroactive effect. (Weff; 2005) for example when Britain recognized the Soviet regime in 1921 it was backdated to 1917 when the regime took over power.It can therefore be concluded that it is the responsibility of states to award recognition to any entity which fulfills the formal requirements for recognition of states and government.
Types of Powers Exhibited by GovernmentUpon recognition of states following the fulfillments of the Monrovian requirements carries the issue of the existence of particular power regimes that result from such recognition.Defactor and De-Jure powersIf a government appears effective and stable then recognition will normally be accorded. (Neff; 2005) Effectiveness in this case referring to the physical control over the territory. (Lawrence; 1885) while stability on the other hand referring to political independence of the regime (Westlake 1910).
However failure of recognition of a government normally arises when the regime has assumed power by unconstitutional (means the practice of differentiating the recognition accorded to government as either being defactor or de-jure is based on the circumstances in which such a government came into existence.De-facto power denotes the government that has effective control and would likely be permanent. (Neff; 2005) that such a government displayed most of the attributes of sovereignty (Bowen; 2003) but however the recognition of such a state in the international realm had some reservation. For example the state of Israel was initially recognized by several states as defacto.
The dejure power on the other hand promulgates for a government effective control and firm establishment (Neff; 2005). This type of government displayed all the characteristic requirements of sovereignty and as such constituted of no reservations of recognition under the international scene. (Bowen; 2003)The classification of these powers is on the premise of taking cognizance of the factual circumstances and acknowledging de-jure governments even if such government is not in physical control of the state (Bower; 2003). The practice of recognition of government which has assumed power unconstitutionally is therefore ineffective in the de jure regimes as the new regime recognizes the effectiveness and stability of a particular government.The Ramifications of De-Jure Recognition.The power of self-determinationAll people have a right to self-determination by virtue of such right; they are empowered to freely determine their political status and their economic social and cultural development.
(Declaration on the Granting of independence to Colonial Territories and people; paragraph 2)Similarly this declaration has been upheld in the decisions of various international courts. The international court of Justice in the Western Sahara case acknowledged that the application of the right of self-determination had the right to choose their means to political development as well as the social and economic development. The principle of self-determination has assumed the nature of Jus Cogens implying that it is a principle of law form, which states cannot derogate from (Lawrence 1885).The concept of self-determination raises with it certain responsibilities that states must take into consideration so as to uphold the economic political social and cultural independence of each other. They are thus required to observe certain obligation so as to uphold the sovereignty of states.
(Westlake; 1910). As a result a state may incur injury to a claimant state for breach of a treaty obligation, injury to the claimant’s states naturals or to its property. A state is thus responsible for acts or omissions, which are attributed to it for the actions of the government; political subdivisions and any organ, agency, official employee or other agents of the government. Thus in Yeoman’s claim Mexico was held liable for the conduct of certain members of the militia who acted in defiance of orders. Instead of affording protection to a group of Americans the militia opened fire on the home where the Americans were seeking refuge (R.I.A.A; 110; 1926)In examining the territorial sovereignty of a state reference is made to environmental protection.
Thus international co-operation and responsibility is normally examined in such instances. The Stockholm Declaration on Human environment imposes certain restrictions on the states right in the enjoyment of their territory in exercise of their rights. The guiding principle is that states should ensure that activities within their Jurisdiction cause no harm or and/or damage to the environments of other states.
(Principle 21; Stockholm Declaration). Similarly other charters provide for the protection preservation and enhancement of the environment for the present and future generations as a primary obligation of states (Art. 30 ;of the Charter of Economic Rights and Duties of States). Thus all states in consideration of the foregoing mandatory neighborly principles should enact legislations and policies within their territories that foster self-determination of other states.In instances where states violate such duty, the question of reparation has to be determined with the aim of such action being to wipe out all consequences of illegal act and establish situations which would otherwise have been in existence (Chor20w Factory Case P.G. I.
J. No 17)Expropriation powerThe expropriation power of a state also exhibited its sovereignty within the international realm. Expropriation constitutes of the compulsory taking of private property by the state, which include both movable and immovable property. Tangible or intangible; for utility, security or national interest which are individuals of other states or private persons (Art.4.
Harvard Draft convention on International Responsibility of states)ConclusionThe foregoing delimination of powers form the guiding key points of establishing the types of powers and the sovereignty or power of a state