Understanding the Core Elements of a State
Elements of a State
- Elements of the State
- People, Population, and Electorate
- Territory
- Sovereignty
Elements of a State
Traditionally, it is said that there are three elements in the state: the people, who appear as the human element; the territory, the physical element; and sovereignty, recognized as the political element of the state.
People, Population, and Electorate
We will distinguish the population, the people, and the electorate. The population is, of course, the human element, the mass of individuals, that set of people indiscriminately, including domestic and foreign, fixed on a given territory. This is a demographic concept; behold, it does not take account of the distinction between nationals and foreigners. It is the sum of all people in a given area at a given time.
Nations can be nomadic. A nation can dispense with the lack of exercise, but no member is nomadic. The state, when it gets to that level of institutionalization, necessarily requires a seat, because without a permanent seat it is impossible that those elements come together to form one entity. A nation can be nomadic; those intangibles that constitute a nation may dispense with a seat, but the state requires the lack of exercise.
So, people in the broad sense (as distinct from the people and the electorate, as we will see) is the mass of humanity, is one set of persons, nationals or foreigners, whether able or disabled (including, therefore, minors), that reside in a given area and are given the jurisdiction of that state. In this broader sense, the population is all that body of persons over which the jurisdiction of the state extends.
We are studying the population first because all these elements have to be referred to the people.
Hans Kelsen says: “The population is one element of the state that is characterized as simply a personal sphere of validity of national law. The national legal system focuses on a community established in a particular territory.” We say that the population has a much broader concept than the people and electorate. Population comprises the whole mass of individuals, the mass of humanity, which is based on a certain territory.
But it is not the demographic study that interests us, really. The population is of interest here only as an element over which the jurisdiction of the state extends. The typical demographic aspect is the subject of other disciplines.
The population, then, in the broadest sense, covers all this mass of individuals, domestic or foreign.
The Constitution, particularly in the caput of art. 5, provides that there is equality of foreign and national civil rights. The right to life, liberty, and property are guaranteed without distinction to nationals and foreigners who are in a legal situation in the country.
“The people, in turn, comprises the sum of nationals, homeland and abroad,” as Reis Friede teaches in his Course of Political Science and General Theory of the State, 2nd ed., Ed Forense Universitária. And the author continues: “the people stand out as the basic premise and original (human element), without which even can be the primary conception of the nation to allow, ultimately, the political-legal concept of feature binding which reflects the transformation of that body, authentic state.”
The electorate comprises that portion of the people who are citizens in a technical legal sense, enabled to use universal suffrage. Those who are in the perfect use of their citizenship can vote and elect those who apply for public office and, given time, what happens in the Brazilian state, from 18 years old can apply for these same positions.
However, it is good to remember the individual’s nationality, and may not be a full citizen, or the mere fact of possessing the nationality does not enable the individual to exercise their civil rights. One example is the case for the disabled, and minors under 18 years, unable to exercise civil life, among others, who are national citizens have rights, but do not have them fully, behold, in many cases cannot vote and not vote for political office.
The Constitution says, and repeats the Electoral Code, that a sixteen-year-old, and meeting other legal requirements are met, the person may become a voter. There is a natural right of suffrage. (See Art. 14, § 1, clause II, item C, CR/88)
The individual, at 18, automatically acquires majority, under the Civil Code, art. 5, age from which it may even exert its full capacity of citizenship, because since then can be voted into public office. (See art. 14, § 3, Paragraph VI of CR/88)
Voters understand this mass politically active and passive, because it can receive the ballot too, and be invested in public office.
Finally, for a certain mass of humanity on a certain area as the people as part of a state, it is necessary that this mass is a community, there is much in common (according to the characterization of the Nation), among these people, because if not there is this bond, this bond, this bond that is imponderable, among all this mass, it will not constitute a people.
The concept of a nation requires a finding of common characteristics such as race, historical background, etc.
Territory
If this population needs to be based, then it is said that the state is inactive, and the territory will be set according to the design of Kelsen, as “the physical basis, the geographic scope of the Nation, which is the validity of his order Legal.”
The national legal system focuses on a community, but focuses on the community in a certain area, which is the territory.
Exceptionally, the individual can, in a territory, receive the jurisdiction of another state, and there is extra-territoriality, which will be studied in international law, but that is normal on the territory there is jurisdiction.
So, like the population is the personal sphere to which they relate to the jurisdiction of any State, the personal sphere of validity of national law, the territory is space on the ball which covers the national legal system, on which is valid national law.
The territory of interest as the area where people move with their interests, rights and obligations, and those persons in that area, that covers the jurisdiction of the state. The state has over its territory not dominium, has imperium, has jurisdiction. This does not prevent the State (whether or not a person) has assets, as we also have the Private Law heritage.
But as to the State, the area over which its population is headquartered, the state has jurisdiction, power to decide on people and property of those people.
However, it is assumed that on an international level, there may be availability of fractions of territory. Brazil has acquired, in 1903, Acre from Southern Bolivia (not to be confused with the set that was made diplomatic Acre North). South Acre was purchased by sterling and the promise of building the railroad.
Alaska was purchased by the United States from Russia, as was Louisiana from Napoleon, as First Consul. There may be territorial cessions (bringing problems of nationality, often), but normal is that the state has not on its territory that we have available in private law, although the State’s private domain, as there is also the field public, as we shall see later.
So, the importance of territory is in human function, is in the people who receive state jurisdiction. It is therefore of utmost importance to fix the State’s territory, which is important to set the area of jurisdiction. It is necessary to fix the State’s territory, to know how far the jurisdiction of that State and not know where to get the jurisdiction of a foreign state. Hence a positive character and a negative character in the jurisdiction exercised over a certain geographical area.
Positive character: a population based in that territory should receive the jurisdiction of the state that exists in that territory.
Negative character: it does not admit the jurisdiction of a foreign State over that area, as a foreign state will not allow our jurisdiction over your area, but there are agreements that allow extra-territoriality, allowing the individual, based on this territory, receive the jurisdiction of another State.
But this is not the object of our discipline. We’re just showing it can happen that on a certain area of law, certain people in your business receives the jurisdiction of a third state, but this jurisdiction is permitted, not violently. There will only be the jurisdiction of a third state on our constitutional area voluntarily accepted. So, there are these two characters just mentioned.
The State therefore has the territory as a fundamental element, the spatial area of validity of national law.
Reis Friede, in the work already cited, says that “the State, (…), including soil, subsoil, islands, sea, river and lake islands, the continental shelf (extending from sea to land the average depth of 200 meters), the territorial sea (projection of 12 nautical miles from the coast), the airspace and inland seas.” According to him, (known projection of 200 nautical miles from the coast corresponds, in particular, according to international agreements, to 12 nautical miles of territorial sea and 188 miles nautical exploitation exclusive economic zone not belonging directly to the territory”. The high seas are said to be “res nulius “is one thing.
Finally, he mentions the distinguished jurist, that “there is a limit, precisely, to the depth of the subsurface and the height (altitude) of airspace, with respect to the perfect setting the limits of the state.” Similarly, he stresses, “should be noted that the headquarters of diplomatic missions (embassies) and commercial (consulates) in the state on foreign soil, are not technically considered by most authors, as the territory of (…) state. It is (…) only reciprocal concessions (formalized through international treaties) between states.”
International law recognizes no state or territory with only a small joint planning. Among the authors who acknowledge the existence of a state without territory are Eduardo Meyer and D. Donati, who line up in support of his thesis, several examples: the Athenians, when their cities were occupied by the Persians, took refuge on the vessels of Miltiades, maintaining the survival of their states; Serbs, defeated by the Austro-Hungarian remained politically constituted, the Belgian Le Havre, the Serbian state of Corfu and Thessaloniki, the Czech-Slovak State. We cite, in addition, although recognized by the UN as states with territory: the Vatican City, the Consulate of Monaco, San Marino and Andorra.
Sovereignty
Sovereignty is the supreme power, is the power of powers, the full power of a State, is the power that shapes the self-determination of a State, is the fundamental assumption of the state, is the domain, the Empire State, which generates a corollary rights and obligations is the basic power of the state, held at the politico-legal and social issues.
According to Sahid Maluf, “it is the highest authority that cannot be limited by any other power.” Supreme power is independent of the state. Supreme, because it cannot be limited by any other power, in internal order. It is independent, because in the international order, the state does not have to follow rules that are not under their freedom of choice in accepting them or not, and that has saddled the state rules that modify the state of equality in relation to other States or other supreme power.
Sovereignty is the power of the state self-determination without interference from another state (foreign) or supreme power, and can thus create its own constitution. It is the power emanating internally, the people and is exercised through their representatives, recognized by international law and the remaining states.
Sovereignty has the following attributes:
- UNIT: there can be only one supreme power in the same territory, so in order to exclude the existence of similar power;
- Indivisibility: means that sovereignty cannot be discontinuous, otherwise not exist. This attribute has sovereignty as a whole, but it can be distributed among the various organs of state (financial);
- Imprescriptibility: means that sovereignty is endowed with permanence, ie can not have short duration;
- Inalienability: means that sovereignty cannot be transferred or moved. The consent must come from every nation, of all people. This attribute has even been drawn up from ideas issued by Rousseau in his Social Contract.