The Nature And Basic Concept Of The State

THE NATURE AND BASIC CONCEPT OF THE STATE A. The Nature of the State 1. Definition of the State Etymologically, the word state comes from the word staat (Dutch and German); State (English); etat (French); Status or statuum (Latin). These words mean "to put in a standing state"; "to place"; or "to make stand". The state is a continuation of human desire to socialize with others in order to perfect all their life needs. The wider the human association, the more their needs, so that the greater the need for a state organization that will protect and maintain the safety of their lives. According to experts: • George Jellinek A state is an organization of power from a group of people who have lived in a certain area. • R. Djokosoetono A state is a human organization that is under the same government. • J.H.A Logemann A state is a power to be a social organization that has the purpose of regulating and organizing something (related to the function of state institutions, or employment) in society. From the various opinions above, the organization of a group or several groups of people is taken as an understanding that the state together inhabits a certain territory and recognizes the existence of a government that takes care of the order and safety of a group or several groups of people. The state is also an association that carries out a government through laws that bind society with the power to force for social order. This society is in a certain area that distinguishes it from the conditions of other societies outside it. 2. Characteristics of the State • Coercive nature, meaning that all applicable laws and regulations are expected to be obeyed so that the security and order of the state will be achieved. To achieve this, the state is equipped with legal physical strength such as the police, army, and other legal instruments (prosecutors, judges, courts). • Monopoly nature, meaning that the state has the right to determine the common goals of society, determine what is allowed and what is not allowed, what is good and what is contrary to the goals of the state and society. • All-encompassing nature, meaning that all applicable laws and regulations are for everyone, all citizens, without exception. 3. Elements that Form a State Based on the Montevideo (Uruguay) Convention in 1933, a country must have four elements, namely three constitutive elements (elements that must exist when the country is established) consisting of residents (people, residents, citizens) or nation, Territory, and supreme power (sovereign ruler). In addition, there is one declarative element, namely recognition from other countries. a. People The people of a country are all people who are actually in the territory or country who are subject to and obey the regulations in that country. Sociologically, the people are a group of people who are united by equality and who together inhabit a certain area. While in legal terms, the people are citizens of a country who have legal rights with the government. The people of a country can be distinguished as: 1) Residents, namely people who are permanently domiciled in the territory of a country for a long period of time. In Indonesia, residents who have citizenship status are called Indonesian Citizens. The population of a country can be distinguished between citizens and non-citizens. Citizens are those who are in Indonesia but according to law are not recognized as members of a country. With the citizenship status of native citizens or citizens of foreign descent. Non-citizens are those who are in Indonesia but according to law are not recognized as members of a country. They have the status of foreign citizens (WNA). 2) Non-residents, namely those who are in the territory of a country not permanently, only temporarily. Their citizenship status is foreign citizens. b. Territory Territory is one of the absolute elements for a country. If citizens are the personal basis of a country, then "territory" is the foundation or physical foundation of the country. A nomadic nation cannot have te even though they have their own citizens and rulers. The territory of a country usually consists of land, sea, air, and exterritorial areas. It is also possible that the territory of a country only consists of land, air, and exterritorial areas, without having a sea area. 1) The land area of a country is usually determined by an agreement between countries, either bilateral (two countries) or multilateral (more than two countries). As land boundaries, natural features such as mountains and rivers are usually determined, or artificial boundaries may be made in the form of boundary walls. 2) Ocean Area, the sea area that enters the territory of a particular country is called territorial sea. Based on the results of the Law of the Sea Convention III held by the UN on December 10, 1982 in Jamaica, it was determined that the sea area consists of: • Territorial Sea, which is 12 nautical miles wide measured from the baselines connecting the outermost islands of a country's archipelago measured at low tide. • Contiguous Zone, which is a sea area 12 miles wide from a country's territorial sea. • Exclusive Economic Zone (EEZ), which is a sea area of a country 200 miles wide into the open sea. In this zone, coastal countries have the right to explore and process all natural resources for the country's economic activities. In this zone, coastal countries have the right to arrest foreign vessels that are fishing. • Continental Shelf, which is land below sea level in territorial seas with a depth of 200 m or more. • Continental Shelf, which is a sea area of a country that is more than 200 nautical miles wide. In this place, countries may manage wealth with the obligation to share profits with the international community. 3) Airspace In the Paris Convention (1949) it is stated that sovereign countries have the right to explore and exploit their airspace, for example for radio, satellite, and aviation purposes. In Indonesia, provisions on airspace are regulated in Law No. 20 of 1982. Based on this law, the sovereignty of aerospace including Geostationary Orbit is as high as 35,761 km. However, Indonesia's claim to the airspace is contrary to the following theories: • Security Theory, which states that a country has sovereignty over its airspace to the extent necessary to maintain the security of the country. • Cooper's Control Theory, which states that state sovereignty is determined by the ability of the country concerned to control/supervise the airspace above its territory physically and scientifically. • Schacter's Air Theory, which states that airspace must reach a certain height, where the air is still capable of lifting (floating) air balloons and aircraft. 4) Extraterritorial Territory Exterritorial territory is the territory of a country that is outside the territory of that country. In other words, the territory of the country is in the territory of another country or outside the territory of a country. Examples of this are the embassy of a country in another country or foreign ships sailing on the high seas under the flag of a country. An ambassador has extraterritorial rights (in addition to diplomatic immunity rights), namely sovereign rights over buildings, buildings, embassy grounds up to the fence. No one may enter the embassy grounds without permission from the country or embassy concerned. c. Sovereign Government Sovereignty is the highest power in a country that applies to the entire territory and all the people of that country. The government can be distinguished in a narrow and broad sense. The government in the narrow sense includes all state apparatus that carry out government functions only, namely the executive (president and ministers) who carry out tasks made by the legislature (DPR). While the government in the broad sense is all state apparatus that holds state power which includes legislative, executive, judicial and other powers. The sovereign government has the following meanings: • sovereign internally means having the highest authority and running the applicable state organization. • sovereign externally, meaning the government has full power, is free, not bound and not subject to other powers. The government must also respect the sovereignty of other countries by not interfering in the internal affairs of other countries. d. Recognition from Other Countries Recognition by one country towards another country allows relations between those countries. These relations can be in the form of diplomatic relations, trade relations, culture and others. Recognition is not a determining factor in whether or not a country exists. Recognition only explains that the existing country is recognized by the country that recognizes it. This recognition is declarative, not constitutive. Recognition from other countries is divided into two, namely: 1) De facto recognition, which is based on existing reality or real facts about the establishment of a country. This recognition can be permanent and some are temporary. 2) De Jure recognition, which is recognition based on an official statement according to international law. De jure recognition is also permanent where the recognition from other countries is valid forever because of the fact that shows the existence of a stable government. In addition, there is also full de jure recognition where there is a relationship between countries that recognize and are recognized in trade and diplomatic relations. The recognizing country has the right to place a consulate or embassy in the recognized country.