03 March 2012 Written by  Dagnachew Asrat and Sileshi Zeyohannes

State as a Juristic Person

Where a state is appreciated from historical point of view, we can spring from the postulate that it is a historical category a socio-economic construct. From this paradigm approach, a birds’ eye view of the growth of state is presented in Chapter II in the form of a proposition.

From the point of Political Science, the concept of state comprises three fundamental elements

  1. a community of people,
  2. with a definite territory, and
  3. a political power.

State, in Political Science, is a quality attached to a community of people(s) inhabiting a definite territory, under a political authority; i.e. a body politic. The term state is sometimes interchangeably used with nation. The term nation puts more emphasis on the quality of the community of people than on the politicality of the entity; i.e. the state.

The territory nexus, on the other hand, makes state much more concrete, because it presupposes authority exercised by an entity – government – over that limited territory. Government again is interchangeably used with state. Government, conceptually, is a sub-set of a state. Functionally, it is the motor, the machinery or the nucleus, wherein and by which political power is actualized. It is the use of legitimate force within the boundaries of a state that characterizes government, and the power is of a monopoly quality.

Power, as monopoly possessed by a state, is actually entrusted to and realized by and through the various agencies of government. Essentially these agencies or department of government, which can be categorized into three departments, namely: the Legislature (law making), the Executive and the Judiciary. In some systems, one may find organs of control placed aside from or infused with the executive, as a 4th governmental department.

It is the existence and the exercise of this legitimate monopoly power that places state in characteristically differentiated position from any association(s). Association(s) may make statutes (by-laws) and exercise limited power, while government power is of coercive nature (force). This is the very essence of political power exercised in the context of political culture.

Thus state is not a mere association of people, nor is it solely a territorial corporate sole, for U.N. is one, while the A.U. or the E.U is another.

Thus, the use of force through and by its instruments of coercion is the basis of and the bridge that connects both Political Science and Constitutional Law.

With regards to issues of the nature of state and power, some writers, by attributing government as qualifying characteristics of state, try to typify state in the following manner:

There are, therefore, four conditions which must be fulfilled for the existence of a state. There must first, be a people – an aggregate of individual who live together as a community, though they may belong to different ethnic, creed, cultures or be of different colors.

There must, second, be a territory on which the people are settled; although there is no strict rule that the frontiers of a state must be fully demarcated and defined; they may still be disputed. But it matters not whether the country is small or large, or may consist, as in the case of city-states, only the expanse of and by such cry.

Thirdly, there must be a government, which acts on behalf of the people and governs according to the law. A state calls for a community to be organized as a political unit – a distinguished polity from, say, a tribe. But, once a state is established as an entity, interruption of the effectiveness of its government temporarily, as in the cases such as a civil war or occupation, would not necessarily amount to the non-existence of the state.

Lastly, there must be a sovereign government. Sovereignty is supreme authority, which at the international plane means not legal authority over any other state, but rather legal authority which is not dependent on any other sovereignty; in the strict and narrowest sense of the term, it implies, therefore, independence all around, within and without the borders of the country.

 

Sovereignty

The capacity to monopolies on the use of force (state power) over a given political community of within a given territory is known as sovereignty.  Sovereign state is, therefore, defined by Blacks Law Dictionary, as a state whose citizens are in the habit of obedience to it and which is not itself subject to any other (or paramount) state in any aspect. These powers, seen from two perspectives – i.e. external and in internal – constitute sovereignty.   Sovereignty should, therefore, be appreciated as a cluster of power consisting of external and internal aspects; each aspect having multiple qualities and facets.

In respect of the external aspect of sovereignty, the basic principle was elaborated by the Charter of the UN in the following terms.

All states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community not withstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements:-

a. States are judicially equal;

b. Each state enjoys the rights inherent sovereignty in full;

c. Each state has the duty to respect the personality of other states;

d. The territorial integrity and political independence of the state are inviolable;

e. Each state has the right to freely to choose and develop its political, social, economic and cultural systems;

f. Each state has the duty to comply fully and in good fully with its international obligation and to live in peace with other states.

    State is an institution itself; and it is also a composite of institutions, which, in order to secure certain common purpose, unites under a single authority, the inhabitants of a clearly marked territorial area. The single authority pertains to sovereignty which can not be exercised until and unless it is related to the notion of jurisdiction, which may not, necessarily, be congruent with that of sovereignty. Although the relationship between them is close, state power to exercise jurisdiction rests in sovereignty; state jurisdiction, on the other hand, essentially concerns the extent of each state’s power to regulate conduct or the consequences of events. State territory is the space which is normally under the exclusive authority of the state. Territory is, therefore, that defined portion of the globe which is subject to sovereignty of a state. A state without territory is not conceivable. State territory is primarily an object of International Law. It is as well an object of Domestic Law, particularly that of constitutional, which can vividly be seen in Article 2 of the 1995 FDRE Constitution:

    “[t]he territorial jurisdiction of Ethiopia shall comprise the territory of the members of the federation and its boundaries shall be as determined by international agreement.”

    Are issues of border the primary concern of the member states of the federations of Ethiopia?

    The principle laid by International Law is that wherever a person or a thing is on or enters into that territory, the person or the thing is, ipso facto, subject to the jurisdictional authority of the state. Conversely, other state(s) may not exercise its (their) power within the boundaries of the home territory. International treaties may, however, restrict the jurisdictional sovereignty of a state in the exercise of its sovereignty. There should exist on one and the same territory only one, full sovereign state; i.e. the rule of the exclusiveness of a single sovereignty over the same territory. The first and perhaps the true exception in this respect is the so-called state-condominium, where more than one state exercises sovereignty conjointly.

    By consent, a territory may well be vested in and under the sovereign power of a state other than the home–state, as mandate trusteeship and the like do also fall in this bracket of exception.

    Federalism may seem to present a conflicting picture. On the one hand, the federal state (U.S.A) is itself a state side-by-side with each and every member state, while, on the other hand, competence is shared between member states and the federal state – but this is strictly on domestic matters or affairs. On international level, member states of a federation are not particularly singularly subject of International Law. A few federal state constitutions had by their constitution, allowed member states to sign international treaties and participate in the works of international organizations. This was the case with a few Republics of the former U.S.S.R.; and on permission, the former F.R. of Germany. The cantons of Switzerland’s federation do have such powers, even now.

    States may be linked together in various ways. This linkage may create one single international entity or, despite the linkage, the linked entities may still remain to be recognized as separate i.e. be considered as subjects of International Law. Typical points in this respect are unions/leagues and confederations. In all of them, the components maintain their international status of statehood. Thus, under International Law, confederations are separate entities.

    In federation the incidence of linkage is intense (and pervasive) when compared to confederation. On the other hand, the organ of power created to manage a union or confederation has no authority on the individual citizen of constituent/member states. Among other things, this seems to be the most important distinguishing feature between Federation and Confederation; in the former, the federal state has, in some aspect, authority over the individual on top, along or besides the government of the member state and, as such, a federal state is endowed with a legal personality in the eyes of International Law; whereas the general typology presents a different picture in the case of confederation.

    The fact that the laws made by member states can derogate the law made by the center is one other fact that generally characterizes confederation.

    Last modified on Wednesday, 02 May 2012 13:05