|
The term state has several meanings in law: Every state within meaning (2) above is a state within meaning (1) above, but the reverse does not hold. For example, the United States is a state under both definitions, but California is a state only under the first. This article is primarily about the first definition. For the purposes of Public International Law and Private International Law, a state is a defined group of people, living within defined territorial boundaries and more or less subject to an autonomous legal system exercising jurisdiction through properly constituted courts. The usage of the term "state" rather than nation and country is to refer unambiguously to the legal government of a territory, rather than to its people or culture. However, the term "country" is still sometimes used in this way; see for example section 4 of Domicile Act 1982 (Cth.), which defines "country" as "includes any state, province or other territory that is one of 2 or more territories that together form a country." (see domicile (law)).
Examples In the majority of cases, countries are unitary, i.e. like Italy and Sweden, they only have one legal system and no problem will arise. In the case of countries electing to assume or retain composite or federated status, the extent to which each separated regional unit will constitute a state will be determined by whether that unit has a sufficiently significant volume of laws distinguishable from those applied in other units. Hence, in the territorially separated states constituting the United States, the laws are sufficiently distinctive to elevate them to states for this purpose. However, the use of federal law-making powers means that countries may be single units for some purposes, and constituent states for others. Thus, the fact that Australia, Canada, the United Kingdom, and the United States can and do produce uniform legislation on some topics, does not change the separate status of the states, Canadian provinces, and U.S. states. Dicey and Morris (p26) list the separate states comprising the British Islands: "England, Scotland, Northern Ireland, the Isle of Man, Jersey, Guernsey, Alderney, Hern and Sark. . . is a separate country in the sense of the conflict of laws, though not one of them is a State known to public international law." But this may be varied by statute. The United Kingdom is one state for the purposes of the Bills of Exchange Act 1882, and Great Britain is a single state for the purposes of the Companies Act 1985. Beale defines "state" as follows (at § 2.1/2.5) The civilized portion of the earth is divided up into certain units of territory in each of which a particular law proper to that territory alone prevails, and that territory is for legal purposes a unit. § 2.2. What Determines the State. — It has been seen that the existence of separate legal units within the dominions of a single sovereign is a fact, the result of historical accidents. The use of the word "state" for this purpose is not universally accepted. Some countries and individual authors use "country", "territorial unit", "law unit" or "law district", e.g. in the Australian federation, each state and territory is a law district (see Laurie v Carroll (1958) 98 CLR 310 at 331, per Dixon CJ.. Williams and Webb JJ. Because the lex patriae choice of law rule may select the law of a country that contains more than one legal system, there must be rules to determine which of the several possible laws might apply (e.g. a reference to the law of the United States is actually a reference to one of the U.S. states). A suparanational example of an approach to this situation is contained in Article 19 of the Rome Convention on Contractual Obligations: States with more than one legal system Discussion For the purposes of disciplines such as geography, politics, economics and sociology, it is appropriate to consider the world as divided into countries and, because it is of little significance in those disciplines, simply to add that some of these countries may be federated or otherwise divided into regions or provinces. The focus is on the broad cultural patterns of political allegiance that arise by virtue of citizenship and nationality, e.g. the so-called social contract is that the state, in its nontechnical sense, will defend the interests of its citizens in return for the loyalty of its citizens. The power to make law is an aspect of sovereignty, but it does not follow that the law is the same throughout a single sovereign's territory. Differences may arise in two ways: "...when Hawaii was annexed to the United States it remained a separate legal unit; but when Wales was conquered by England it became a part of the new legal unit, England"; and But in these more modern times, it is highly relevant to consider the significance of separate legal systems, particularly if the application of those systems would produce different results on the same set of facts. For example, in some parts of the world, one person may acquire multiple spouses or a spouse of the same biological sex. If such a marriage is validly created in one state, should it cease to be valid if the family travel to another state on holiday? Similarly, if a company is created with certain capacities under one law, should its capacities change if it seeks to trade in another law area? Social mobility is now the norm and trade across different markets is a vital part of the world's economic system. These and many other questions can only be answered by recognising the potential conflicts between state laws, and producing formalised systems to reconcile them. The issue is where these systems should be located. Public International Law exists to provide a framework within which the relationship between sovereign nation states can be regulated. It provides a system of contract called treaties and offers systems to resolve disputes over territorial boundaries, access to the high seas, etc. But, it is a supranational system and, as such, it has no direct effect on the municipal laws unless each nation waives its sovereignty. Hence, although the Hague Conference on Private International Law makes recommendations, it is for each state to develop its own laws to address and resolve actual conflicts of outcome (although, in the U.S., it is acknowledged that the American Law Institute has devised federal guidelines covering some aspects of the subject). These municipal law systems are termed Private International Law or Conflict of Laws, and fall into four sections: See also | ||||||||
|
| |||||||||
 |
|
| |