according to Oppenheim-Lauterpacht, the elements of the state are:
- State-forming elements (constitutive): region/region, people, sovereign government
- Declarative element: recognition by other countries
As an organization, the state has elements that are not owned by any organization in society. In general, some elements of the state are constitutive and some are declarative. Constitutive elements mean elements that are absolute or must exist in a country. While the declarative element only explains the existence of a state.
The constitutive elements of the state are that there must be a people, a certain area, and a sovereign government. These three elements are constitutive because they are an absolute requirement for the formation of a state. If one of these elements is missing or incomplete, then it cannot be called a state.
In addition, there is also a declarative element, namely that there must be recognition from other countries. This declarative element is very important because recognition from other countries is a form of trust from other countries to establish relations, both bilateral and multilateral.
The people are all the people who are residents of a country. Without the people, it is impossible for a state to be formed. Leacock said that, “The country will not exist without a group of people who inhabit this earth.”. This raises the question, what is the population to form a country? Plato said that to form a country, the region needs 5040 inhabitants. This opinion of course does not apply in modern times, just look at the population of India, the United States, China, Russia, where these countries have hundreds of millions of people.
The people consist of residents and non-residents. Residents are all people who aim to settle in the territory of a certain country. Those who are in the territory of a country but do not aim to settle, cannot be called residents. For example, people who visit for tourism.
Residents of a country can be divided into citizens and non-citizens. Citizens are those who by law are citizens of a country, while those who are not citizens are foreigners or also called foreign nationals (WNA).
Territory is the second element, because with the territory inhabited by humans, the state will be formed. If the territory is not permanently occupied by humans, it is impossible to form a state. The Jews for example, where they do not inhabit a place permanently. As a result they do not have a clear land to live in, but with UN intelligence, Israel is given as a state so that they feel they have land.
Territory is the area boundary where the power of the state applies. The territory of a country includes the following.
2.2.1. Wland area, which covers the entire mainland with certain boundaries with other countries.
2.2.2. Ocean area, namely covering the entire territorial waters of the sea with the boundaries determined according to international law. The boundaries of the sea area are as follows.
• Territorial sea boundary, is an imaginary line within 12 nautical miles from the baseline to the high seas. If there are two or more countries that control an ocean, while the width of the sea is less than 24 nautical miles, then the territorial line is drawn equidistant from the line of each of these countries. The sea that lies between the line and the territorial boundary line is called the territorial sea. The sea that lies within the baseline is called the internal sea.
• The boundary of the contiguous zone, defined as 12 nautical miles beyond the territorial sea limit, or 24 nautical miles when measured from a straight line drawn from the coast of the outermost point.
• The boundary of the Exclusive Economic Zone (EEZ) is the sea measured from a straight line drawn from the coast of the outermost point as far as 200 nautical miles. Within this territory, the country concerned has the right to manage and utilize the wealth in it. However, this area is free to be navigable by foreign ships just passing through.
• The boundary of the continental shelf is the ocean area of a country whose boundaries are more than 200 nautical miles. If there are two or more countries that control the sea above the continental shelf, then the borders of those countries are drawn equidistant from the baseline of each country. In this sea area the country concerned can manage and utilize the sea area but is obliged to share the profits with the international community.
2.2.3. Airspace or aerospace, namely covering the area above the land and sea of the country concerned.
2.3. Sovereign Government
Sovereign government is a government that has power both internally and externally to carry out its duties and authorities to regulate the economy, social and politics of a country or its parts in accordance with a predetermined system.
Government is indispensable in the establishment of a country, it is impossible if the state appears without being followed by the establishment of the government.
The government system of each country is different. The grouping of the government system, namely:
2.3.1. Parliamentary Government System
The parliamentary system is a system of government in which the parliament has an important role in government. In this case the parliament has the authority to appoint the prime minister and parliament can overthrow the government, namely by issuing a motion of no confidence. In contrast to the presidential system, where the parliamentary system can have a president and a prime minister, who is authorized to run the government. In a presidential system, the president has the authority to run the government, but in a parliamentary system the president is only a symbol of the head of state.
2.3.2. Presidential System of Government
In this presidential system, the president has strong power because apart from being the head of state, he is also the head of government who presides over the cabinet (Dewan of Ministers).
One example of a country that uses this system of government is the United States, where ministers are responsible to the president, because the president is the head of state and head of government.
In order to balance the power of government, the parliament (legislative) is really given the right to protest, such as the right to refuse, both treaties and declarations of war against other countries.
The characteristics of presidential government are:
• Headed by a president as head of government as well as head of state.
• The executive power of the president is appointed based on the people’s democracy and is elected directly by them or through the people’s representative body.
• The President has the prerogative (privilege) to appoint and dismiss ministers who lead departments and non-departments.
• Ministers are only accountable to the executive power of the president, not to the legislative power.
• The president is not accountable to the legislative power.
2.3.3. Mixed Government System
This system of government, in addition to having a president as head of state, also has a prime minister as head of government to lead a cabinet that is responsible to parliament.
The president is not given a dominant position in the government system.
2.3.4. The Proletarian System of Government
In this system, the government’s first effort was actually also aimed at the interests of the people (the proletariat), the people were then gathered into a single party organization (farmers, workers, youth, and women) which eventually became the domination of the single party. The single party is the communist party.
2.4. Recognition from Other Countries
Recognition from other countries of a newly established state is not an absolute factor or element forming a new state, but rather is an explanation or declaration of the birth of a new state.
We take as an example, the independent State of Indonesia on August 17, 1945 was only recognized by the Dutch on December 27, 1949.
Recognition from other countries is the basic capital for a country concerned to be recognized as an independent and independent country. Recognition of a state can be divided into two groups, namely de facto recognition and de jure recognition.
2.4.1. De facto confession
De facto recognition is an acknowledgment of the fact that a country can enter into relations with other countries that recognize it. De facto recognition is given when a new country has fulfilled the constitutive elements. De facto recognition according to its nature can be divided into two, namely:
• Permanent de facto recognition. That is, the recognition of another country against a country only creates a relationship in the field of trade and economy (consul). Meanwhile, the ambassador level has not yet been implemented.
• De facto recognition is temporary. That is, the recognition given by other countries by not looking far in the future, whether that country will die or will continue. If the new country falls or is destroyed, other countries will withdraw their recognition.
2.4.2. De Jure Confession
Recognition by de jure is an official recognition under the law by another country with all the consequences.
According to its nature, de jure recognition can be distinguished as follows:
• De jure recognition is permanent. That is, the recognition of other countries is valid forever after seeing the fact that the new country has shown a stable government for some time.
• The de jure acknowledgment is full. This means that there is a relationship between countries that recognize and are recognized, which includes trade, economic and diplomatic relations.
In reality, each country has a different view on de facto and de jure recognition. For example, the Indonesian state still views recognition from other countries as only a declarative element. Therefore, although the Republic of Indonesia has not been recognized at the time of its birth, Indonesia still stands as a new country with the same rights and dignity as other countries. The state of Indonesia became independent on August 17, 1945 and was only recognized by other countries a few years later (Egypt in 1947, the Netherlands in 1949, the United Nations in 1950).