•The State, its elements, its organs • •Concept of State

 

•The State, its elements, its organs

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•Concept of  State

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• The State is a historic phenomenon or event that characterizes the modern era. The current international community presents a plurality of society organized, independent of one another and coordinated for mutual relations, which are called States.

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•From the legal point of view, the State can be defined: the political organization adopted by a people allocated on a given territory. With this, the three elements that constitute of the State: the people, the land (territory), the political organization (or government).

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•The individuality of the State is characterized, the attribution to it of the status of legal person; this happens for example in the Italian system, in which not only the Italian State have this qualification, but foreigner States have also this qualification.

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•Cont.

•In most legal systems, explicitly or implicitly recognized the State the status of legal person, that is the entity having rights and duties, both in relation to other States, both in respect of individuals or other entities.

• The legal personality in the State assumes various characteristics:

•-there is  international legal personality according to which the State is having rights and duties into the international legal system example, State A has the right to claim compensation to the State B; State C has the duty to give favorable tariff treatment to goods of the State D;

•-and there is internal legal personality, for which the State is having rights and duties in the internal. This personality can take in turn, two aspects: that of public legal personality and private legal personality, depending on the rights and duties that the State belong are governed by rules of a public or private.

• Thus, when the State requires its citizens to pay taxes or to fulfill military service, or must provide or pay the salary to its employees will have legal relationships in which the State is manifested as public legal person;

•When, however, the State requires from a private buyer price of a property sold or must pay the rent for a rented apartment, we will have the relationships in which the State appears as a private entity, the same way as any individual.

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•Cont.

•The legal personality resulting attributed to the State, it follows that all the acts done by the officials in the name and on behalf of the State are attributed to the State, so we say that the State legislates, judges, administering, collecting taxes, desire its own loans, pay off debt, etc; it is also said that the State is 'responsible for the acts done by its officials and is' liable to compensate the damages suffered by third parties. 

•As a public body, the State is a corporation, as it has a constitutive element of plurality  of individuals and is formed for the fulfillment of their interests; and it is also a territorial corporation, for the part of the earth's surface that forms the base. 

•Compared to other public entities (regions, provinces, municipalities, public institutions or charitable assistance, etc.), the State is differentiated by its sovereignty ': while those are holders of public powers conferred by the State and enjoy it only to the extent that it is allowed, the State has the sum of all the powers, any other entity will depend on.

•Therefore, the State is defined as a territorial legal person and  sovereign.  A final consequence of the fact that the State is considered as a legal person is given by the name of which each State is distinguished from other similar bodies: so, the names of Italy, Germany, France, UK etc., are used to designate certain States in their individuality when they operate in the field of international relations.  

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•State and legal system 

•Each state constitute or form a legal system. The State in its quality of corporate, organized society , manifests as a legal system. This legal system is formed from the first constitution of the State, and through this, it determines , also , the process for the production of legal norms, and therefore , it is the rule base to achieve any other norm that the State emanates to adjust the social relations .

•So, we talk ,, the Somali legal system, Italian legal system, German legal system, French legal system and English legal system etc . , Each of these systems is to be considered original , because' it is not deduced its legitimacy from other legal systems ( countries or international legal systems) .  

•Each legal system includes two large groups of norms: 

•1)-the norms of public law governing or administering the constitution and the activities of the State or the relations between the State and citizens; and

•2)-the norms of private law governing or administering the various reports of social life between individuals. 

•The State legal system does not consist only of rules, but rather also a complex of institutions, bodies, offices that characterize the structure of each State. The systems of the States, while being independent of one another, are in relation to each other; may thus be formed of references by the norms of a legal system to the norms of other legal system, such reference, is called referral  (formal referral) 

•The elements of the State

•The People:

• The constituent parts of the State are three: the people, the land (territory) and the political organization . 

•It is defined as the people of the State, the set of individuals that belong to the State , that are linked to the State by the bond of citizenship .

•The bond of nationality has a different content in the various States, as each State stipulates or specifies in its sole discretion what are the rights and obligations that exist between the State and the citizen ; you can assert  or affirm, in general , that the citizen has an obligation of obedience (un obbligo di ubbidienza) and loyalty (fedelta’) to the State and this has an obligation of protection (un obbligo di protezione) toward the citizen. 

•Citizenship is legally a STATUS , that is an individual condition from which they derive in chief to subject certain powers , individual rights , duties and charges .

•The status of citizens oppose the status of foreign and status of stateless persons The concept of people is linked to the concept of population , which from the first has to differentiate. While people is all citizens , the population is the whole of the persons that , at any given time , are established in the State territory. It follows that it is included in the people the citizens who live abroad , while these are not part of the population ; foreign residents in the State should be included in the population of this , although not part of the people ; and so ' stateless persons  

•Cont.

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•A distinction should also be made for the concept of nation.

•The nation comprises all individuals that have the same ethnic origin, and they have commonality of race, language, and, mostly, of religion, history;

•so there are:

      a)-national States when the people of these State is formed for the greater part of individuals having a united ethnic (example, Somalia, Italy, Spain, Germany, France, etc.);

      b)-and non-national States when the people of these State include individuals of different nationality (example, Yugoslavia, Switzerland) each State determines its own rules of the acquisition and the loss of citizenship;

•Since States do not have uniform systems, so, often happens that the same person has actually a duplicate or multiple citizenship or even no citizenship (stateless). Example, the individual from Somali parents born in Italy is Somali citizen for the Somali legal system and Italian for the Italian system. These are cases of dual citizenship.