THECONCEPT

OFSTATE

WHAT IS A STATE?A STATE is a community of persons, more or less numerous, occupying a

definite territory, possessing an organized government, and enjoying independence from external control.

It is a people permanently occupying a fixed territory and bound by a common-law habits

and customs into one body politic, exercising through the medium of an organized government, independent

sovereignty and control over all persons and things within its boundaries, capable of

making war and peace and entering into international relations with other

communities of the globe.

STATE AND NATION NATION is defined as people, or aggregation of

men, existing in the form of an organized society, usually inhabiting a distinct portion of the earth, speaking the same language, using the same customs, possessing historic continuity, and disguised from other like groups of their racial origin and characteristics, and generally, but not necessarily, living under the same government and sovereignty.

STATE AND NATION STATE is more of a political concept while

NATION is racial or ethical. For example, the nations referred to in the

United Nations are actually state. The Arab Nation is not a state but a nation

which consists of several states, such as Saudi Arabia, Yemen, Egypt, etc.

On the other hand, USA is a state but it consists of several nations such as Caucasian, African, Chinese, Indian nations.

ELEMENTS OF STATEPeople

TerritoryGovernmentSovereignty

PEOPLE The entire body of those citizens of a state

who are invested with political power for political purposes.

It is necessary to the existence of the state. The number should be neither too small nor

too large. A casual gathering of individuals by chance,

a group of bandits or a society of pirates do not form people as an element of state.

Citizens are members of a political community who have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as collective rights.

Citizens owe allegiance to their government and exercise full civil and political rights subject to special disqualification such as minority, insanity, etc.

On the other hand, SUBJECTS owe allegiance to a sovereign and are governed by its laws but do not have full civil and political rights.

Citizenship is a membership in a political society implies a duty of allegiance on the part of the member and a duty of protection on the part of the society.

Allegiance is the obligation of fidelity and obedience, which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives.

A citizen or subject owes absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or sovereign.

An alien, while domiciled in a country, owes it temporary allegiance, which is continuous during his residence.

Allegiance of citizens and subjects to their legitimate governments is not suspended during enemy occupation.

TERRITORY It is a geographical area under the

jurisdiction of another country or sovereign power or state.

It must be a fixed territory which the inhabitants occupy.

A state must have a territory sufficient in extent to provide for its maintenance and growth.

FOUR MODES A STATE CANACQUIRE TERRITORY:

Discovery and occupation Prescription

Cession Subjugation and Annexation

DISCOVERY AND OCCUPATION

A state may acquire a territory by discovering a continent, an island or land with no inhabitants or occupied by uncivilized inhabitants, and thereafter, occupying it by placing it under its political administration.

Discovery will give the state inchoate title over the discovered land that will prevent others from acquiring it for a reasonable period of time until the inchoate title is transformed into a full title by administering it.

CONDITIONS FOR ANEFFECTIVE OCCUPATION1. That the parties occupying the territory

must have been authorized by the state for which they are acting

2. That the state must by formal evidence its intention acquire sovereignty over the new territory

3. That there must be established within a reasonable time after discovery some governmental authority.

LANDS THAT CAN BE SUBJECTS OF DISCOVERY AND OCCUPATION: Uninhabited lands Lands inhabited by uncivilized persons Lands discovered by a state but which it

failed to occupy for unreasonable length of time.

UNINHABITED LANDS The Philippnes acquired the Kalayaan Group

of Islands through discovery and occupation. Tomas Cloma, who actually discovered the uninhabited islands, ceded his right in favor of the Philippines. Thereafter, the Philippines occupied the islands by establishing a municipality therein.

LANDS INHABITED BY UNCIVILIZED PERSONS Ferdinand Magellan, in behalf of the Spanish

Crown, discovered the archipelago of the Philippines, although at that time the Negritos, Malays and Indones inhabited the islands.

Spanish authorities occupied the Philippines by establishing a government therein under its control making it a colony of Spain.

UNOCCUPIED DISCOVERED LANDS Failure to put the discovered land under the

administration of the discovering state for an unreasonable length of time will open the land for acquisition of other states through discovery and occupation.

PRESCRIPTION It is the mode of acquiring a territory through

continuous and undisputed exercise of sovereignty over it during such period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order.

CESSION It is the assignment, transfer, or yielding up

of territory by one state or government to another.

It may be in the form of sale or donation. An example of this is the TREATY OF PARIS.

SUBJUDATION AND ANNEXATION It is a mode of acquiring a territory belonging

to a state by occupation and conquest made by another state in the course of war and by annexation at the end of the war.

Conquest also gives the conqueror inchoate title that may be converted into a full title after annexation of the territory.

Subjugation differs from cession for the latter is a voluntary mode of acquisition while the former is not.

Conquest and annexation are also called involuntary cession.

ACCRETION is another mode of acquiring territory by addition of portions of soil, either artificial such as the reclamation area in Manila Bay, or natural by gradual deposition through the operation of natural causes such as the waves of the ocean.

GOVERNMENT Is the totality of authorities which rule a

society by prescribing and carrying out fundamental rules which regulate the freedom of its members.

It is a whole class of officeholders upon whom devolve the executive, judicial, and administrative functions of the State.

KINDS OF GOVERNMENT:

De Jure Government De Facto Government

DE JURE OR LEGITIMATE GOVERNMENT It is one established according to the

constitution of the nation, and lawfully entitled to recognition and supremacy and administration of the nation, but which is actually cut off from power or control.

It is a government deemed lawful or deemed rightful or just, but which, nevertheless, has been supplanted or displaced.

DE FACTO OR ILLEGITIMATE GOVERNMENT It is one that maintains itself by a display of

force against the will of the rightful legal government and is successful, at least temporarily, in overturning the institutions of the rightful legal government by setting its own in lieu thereof.

3 KINDS OF DE FACTO GOVERNMENT

1. Government by Revolution2. Government by Occupation3. Government by Secession

BY REVOLUTION Established by the inhabitants who rise in revolt

against and depose the legitimate regime. If the communist rebels successfully overthrow

the present government, the communist government to be formed by the rebels will be considered as de facto government by revolution while the status of the ousted capitalist government will remain legitimate.

BY SECESSION Established by the inhabitants of a state who

secede there from without overthrowing its government.

If the MILF would succeed in its armed and revolutionary campaign to make Mindanao a state separate and independent from the Philippines, the government to be established by the MILF will be classified as de facto gov’t by secession while the Phil. Gov’t will be considered as a de jure gov’t.

BY OCCUPATION Established in the course of war by the

invading forces of one aggressive country in the territory of another aggressive country, the government of which is also displaced.

Example of this is the Puppet Government by Japanese sovereign in the Philippines.

HOW TO DETERMINE THE STATUS OF A GOVERNMENT

If there is only one government in control of a country, there is no need to determine whether its status is de jure or de facto.

The necessity of assessing the status only arises when one government is in possession of power while another is not.

If the ousted government is established in accordance with the constitution, it will be treated as de jure.

On the other hand, the government which grabbed the power of the legitimate government will be designated as de facto.

However, in international law, the status does not depend on whether it is established constitutionally but rather on the recognition that the community of nations may extend to it.

FROM DE FACTO STATUS TO DE JURE A de facto government may transform into a

de jure government once the government in possession has organized a constitutional system of government.

EXAMPLE

The communist government of Mao Tse Tung which controlled the China mainland after the ouster of Chiang Kai Shek in 1949 was a de facto gov’t by revolution; while the former which was in control of Formosa Island(Taiwan) was a de jure gov’t. After the completion of local elections, the convocation of the National People’s Congress and the unanimous adoption of the Constitution in 1954, its de facto was changed to de jure.

However, under international law, the elevation of status of government from de facto to de jure will depend on the recognition of the international community.

FORMS OF GOV’T IN TERMS OF POLITICAL SYSTEM

Monarchial Aristocratic Democratic

-these three forms of government point to whom sovereign powers belong.

MONARCHIAL The sovereign power is vested in a single

person, the monarch, who has hereditary rights to rule as head of state.

A monarch may be a kingm queen, emperor, tsar, Kaiser, sultan, or pharoah.

The throne is usually passed on to the eldest son or the nearest male descendant.

ARISTOCRACY Sovereign power is vested in a class or

persons who are believed to be superior and best qualified to rule.

Aristocracy comes from the Greek word aristos or best and krutos or power.

Governmental power is wielded by a few, but theoretically the administration of government is carried on for the welfare of the many.