Sovereign state
A sovereign state is a state that has the highest authority over a territory. It is commonly understood that a sovereign state is independent. When referring to a specific polity, the term "country" may also refer to a constituent country, or a dependent territory.
A sovereign state is required to have a permanent population, defined territory, a government not under another, and the capacity to interact with other sovereign states. In actual practice, recognition or non-recognition by other states plays an important role in determining the status of a country. Although the political existence of the sovereign state is independent of recognition by the other states, Unrecognized states often have difficulty engaging in diplomatic relations with other sovereign states.
Westphalian sovereignty
Westphalian sovereignty is the concept of nation-state sovereignty based on territoriality and the absence of a role for external agents in domestic structures. It is an international system of states and organizations that began with the Peace of Westphalia in 1648.Sovereignty is a term that is frequently misused. Up until the 19th century, the radicalised concept of a "standard of civilization" was routinely deployed to determine that certain people in the world were "uncivilized", and lacking organised societies. That position was reflected and constituted in the notion that their "sovereignty" was either completely lacking or at least of an inferior character when compared to that of the "civilized" people". Lassa Oppenheim said, "There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning, which was universally agreed upon." In the opinion of H. V. Evatt of the High Court of Australia, "sovereignty is neither a question of fact, nor a question of law, but a question that does not arise at all".
Sovereignty has taken on a different meaning with the development of the principle of self-determination and the prohibition against the threat or use of force as jus cogens norms of modern international law. The United Nations Charter, the Draft Declaration on Rights and Duties of States, and the charters of regional international organizations express the view that all states are juridically equal and enjoy the same rights and duties based upon the mere fact of their existence as persons under international law. The right of nations to determine their own political status and exercise permanent sovereignty within the limits of their territorial jurisdictions is widely recognized.
In political science, sovereignty is usually defined as the most essential attribute of the state in the form of its complete self-sufficiency in the frames of a certain territory, that is its supremacy in the domestic policy and independence in the foreign one.
Named after the 1648 Treaty of Westphalia, the Westphalian System of state sovereignty, according to Bryan Turner, "made a more or less clear separation between religion and state, and recognized the right of princes "to confessionalize" the state, that is, to determine the religious affiliation of their kingdoms on the pragmatic principle of cuius regio eius religio."
Before 1900, sovereign states enjoyed absolute immunity from the judicial process, derived from the concepts of sovereignty and the Westphalian equality of states. First articulated by Jean Bodin, the powers of the state are considered to be suprema potestas within territorial boundaries. Based on this, the jurisprudence has developed along the lines of affording immunity from prosecution to foreign states in domestic courts. In The Schooner Exchange v. M'Faddon, Chief Justice John Marshall of the United States Supreme Court wrote that the "perfect equality and absolute independence of sovereigns" has created a class of cases where "every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation".
Absolute sovereign immunity is no longer as widely accepted as it has been in the past, and some countries, including Australia, Canada, Singapore, South Africa, Pakistan, and the United States, have introduced restrictive immunity by statute, which explicitly limits jurisdictional immunity to public acts, but not private or commercial ones, though there is no precise definition by which public acts can easily be distinguished from private ones.
Recognition
There are debates over whether states can exist as a fact independent of recognition or whether recognition is one of the facts necessary to bring states into being. No definition is binding on all the members of the community of nations on the criteria for statehood. Some argue that the criteria are mainly political, not legal. L.C. Green cited the recognition of the unborn Polish and Czechoslovak states in World War I and explained that "since recognition of statehood is a matter of discretion, it is open to any existing State to accept as a state any entity it wishes, regardless of the existence of territory or of an established government." International lawyer Hersch Lauterpacht states that recognition is not merely a formality but an active interpretation in support of any facts. Once made however it cannot be arbitrarily revoked on account of another state's own discretion or internal politics.Constitutive theory
The constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by at least one other state. This theory of recognition was developed in the 19th century. Under it, a state was sovereign if another sovereign state recognised it as such. Because of this, new states could not immediately become part of the international community or be bound by international law, and recognised nations did not have to respect international law in their dealings with them. In 1815, at the Congress of Vienna, the Final Act recognised only 39 sovereign states in the European diplomatic system, and as a result, it was firmly established that in the future new states would have to be recognised by other states, and that meant in practice recognition by one or more of the great powers.One of the major criticisms of this law is the confusion caused when some states recognise a new entity, but other states do not. Hersch Lauterpacht, one of the theory's main proponents, suggested that a state must grant recognition as a possible solution. However, a state may use any criteria when judging if they should give recognition and they have no obligation to use such criteria. Many states may only recognise another state if it is to their advantage.
In 1912, L. F. L. Oppenheim said the following, regarding constitutive theory:
Recognition or non-recognition by other states can override declarative theory criteria in cases such as Kosovo and Somaliland.
Declarative theory
By contrast, the declarative theory of statehood defines a state as a person in international law if it meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a government and 4) a capacity to enter into relations with other states. According to declarative theory, an entity's statehood is independent of its recognition by other states, as long as the sovereignty was not gained by military force. The declarative model was expressed in the 1933 Montevideo Convention.A "territory" in the international law context consists of land territory, internal waters, territorial sea, and air space above the territory. There is no requirement on strictly delimited borders or minimum size of the land, but artificial installations and uninhabitable territories cannot be considered territories sufficient for statehood. The term "permanent population" defines the community that has the intention to inhabit the territory permanently and is capable of supporting the superstructure of the State, though there is no requirement for a minimum population. The government must be capable of exercising effective control over a territory and population and guarantee the protection of basic human rights by legal methods and policies. The "capacity to enter into relations with other states" reflects the entity's degree of independence.
Article 3 of the Montevideo Convention declares that political statehood is independent of recognition by other states, and the state is not prohibited from defending itself.
A similar opinion about "the conditions on which an entity constitutes a state" is expressed by the European Economic Community Opinions of the Badinter Arbitration Committee, which found that a state was defined by having a territory, a population, government, and capacity to enter into relations with other states.
The Montevideo Convention criteria do not automatically create a state because additional requirements must be met. While they play an important role, they do not determine the status of a country in all cases, such as Kosovo, Rhodesia, and Somaliland.
In practice, international relations take into account the effect of recognition and non-recognition. It is the act of recognition that affirms whether a country meets the requirements for statehood and is now subject to international law in the same way that other sovereign states are.
State recognition
State practice relating to the recognition of states typically falls somewhere between the declaratory and constitutive approaches. International law does not require a state to recognise other states. Recognition is often withheld when a new state is seen as illegitimate or has come about in breach of international law. Almost universal non-recognition by the international community of Rhodesia and Northern Cyprus are good examples of this, the former only having been recognized by South Africa, and the latter only recognized by Turkey. In the case of Rhodesia, recognition was widely withheld when the white minority seized power and attempted to form a state along the lines of Apartheid South Africa, a move that the United Nations Security Council described as the creation of an "illegal racist minority régime".In the case of Northern Cyprus, recognition was withheld from a state, the Turkish Republic of Northern Cyprus, created in Northern Cyprus. International law contains no prohibition on declarations of independence, and the recognition of a country is a political issue. On 2 July 2013, the European Court of Human Rights decided that "notwithstanding the lack of international recognition of the regime in the northern area, a de facto recognition of its acts may be rendered necessary for practical purposes. Thus the adoption by the authorities of the "TRNC" of civil, administrative or criminal law measures, and their application or enforcement within that territory, may be regarded as having a legal basis in domestic law for the purposes of the Convention". On 9 October 2014, the US's Federal Court stated that "the TRNC purportedly operates as a democratic republic with a president, prime minister, legislature and judiciary". On 2 September 2015, ECtHR decided that "...the court system set up in the "TRNC" was to be considered to have been "established by law" with reference to the "constitutional and legal basis" on which it operated, and it has not accepted the allegation that the "TRNC" courts as a whole lacked independence and/or impartiality". On 3 February 2017, the United Kingdom's High Court stated "There was no duty in the United Kingdom law upon the Government to refrain from recognizing Northern Cyprus. The United Nations itself works with Northern Cyprus law enforcement agencies and facilitates co-operation between the two parts of the island". and revealed that the co-operation between the United Kingdom police and law agencies in Northern Cyprus is legal. Turkish Cypriots gained "observer status" in the Parliamentary Assembly of the Council of Europe, and their representatives are elected in the Assembly of Northern Cyprus. As a country, Northern Cyprus became an observer member in various international organizations, the Economic Cooperation Organization, the Organization of Turkic States, the Parliamentary Assembly of Turkic States.