What Makes a State?

The issue of Statehood has been the focus, or at least central to, a series of posts here on TNIL over the past month or so. The subject of Statehood was the focus of a panel we covered at the American Society of International Law’s Annual Meeting. The issue of Statehood also played a central role in the decisionof the Prosecutor at the International Criminal Court to not open an investigation into allegations of crimes in the Palestinian Territories. I will try to briefly frame the issue in this post and suggest a way to view the legal criteria for the creation of a new State.

The Montevideo Convention on Statehood of 1933 sets out several requirements for Statehood. The criteria of the convention are: (1) a permanent population, (2) a defined territory, (3) government and (4) the capacity to entire into relations with other States.[1] The Convention, and prevailing law at the time, viewed States as a kind of sui generis legal entity operating and existing under its own authority and power. Article 3 provides,

The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

Article 6 then goes on to state,

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

The criteria of the Montevideo convention are for the most part good black letter law. Modern debate looks more to the pronouncements of Articles 3 and 6.

There is a debate taking place in the international legal world over whether or not satisfying the Montevideo criteria alone is enough to be a State or if recognition is also necessary. The two main doctrinal views are known as the declaratory and constitutive theories of Statehood.

The declaratory theory provides that the moment in which an entity satisfies all the conditions set out in the Montevideo convention the entity is a State.[2] This theory is close in line with the convention itself and the pronouncements of Articles 3 and 6. It however fails to adequately describe the creation of “States” in international practice. There are entities in the world that de facto satisfy the criteria of the Montevideo convention but do not as a general matter benefit from being “States” and do not receive or benefit form the rights that come with such a status. One example that comes to mind is the nominally Moldovan territory of “Transnistria”.[3] This non-State entity has essentially been independent since the collapse of the Soviet Union. It has a territory, a permanent population, a government and has engaged in relations with other States.[4] Notwithstanding its meeting the Montevideo criteria, it does not participate in international affairs as such because it lacks recognition. The lack of empirical validity to the declaratory theory might lead one to believe that the constitutive theory explains State formation, however, like the declaratory theory, it fails to explain the actual formation of States.

The constitutive theory sets out that it is the recognition of an entity as a State that makes it so. This theory would explain why “Transnistria” and other similarly situated entities[5] are not considered to be States. This theory, however, fails to explain why certain entities that have received numerous recognitions as such are not in fact States. It also raises the question of how many recognitions are necessary in order for an entity to become a State. One clear example of this problem is the “State of Palestine”. As of July 2011, the Palestinian Liberation Organization (PLO) was reporting that it had received at least 122 recognitions of its “Statehood”.[6] To put things in perspective, there are currently 193 members of the UN.[7] That means over half, 63%, of the United Nations recognizes Palestine as a State. However, not even the PLO’s negotiator’s website discusses Palestine as if it were already a State.[8] One simple reason for this might be that States serve a regulatory function in the world. Their function is to administer a portion of the planet where people live. If they cannot serve that function because they lack authority over a territory or people on the territory, no matter what you call them, they are not States. This is the case of Palestine: it has no effective control[9] of which to speak and therefore cannot, even with recognition, be a new State. The constitutive theory, like the declaratory theory, therefore would seem to provide little useful information standing alone on whether an entity is or is not a State.

Arguments can go round and around about the importance of recognition over fulfilling the Montevideo elements. The question still remains: what is it that makes a State? Articles 3 and 6 of the Montevideo convention make it clear that the recognition of an entity of as a State is not what makes it a State. However, even that convention makes room for recognition as an element in its requirement that the new State be able to enter into international relations. I propose that “Statehood” is the product of a balance between the Montevideo criteria and recognition. The more you have of one (criteria or recognition) the less you need of the other. However, in all cases, you need a little of both to be a State.

One example of the curative effect of recognition is the Vatican City State. This State was created in 1929 as a result of the Lateran Pacts between the Catholic Church and the Kingdom of Italy. The State is exceedingly small, only about 110 acres, and has a population just over 800, which is not permanent as it is not self-replenishing.[10] The recognition of the Vatican City State as a State, especially by Italy that surrounds it, allows it to operate as such even though it does not completely satisfy the Montevideo criteria. In other words, an entity with a government and a territory that can interact with other States does not need a permanent self-perpetuating population (as long as it has some form of population) in order to be a State if it is recognized as such.

Another example of slight deficiency in the Montevideo criteria that has been cured by recognition is the State of Israel. It would be hard to argue that Israel does not have a government or a population. However, its territory has been in dispute since the country declared its existence in 1948. International recognition of the State as such though has “cured” this defect in the criteria for Statehood and Israel has been allowed to join the United Nations and participate in other international institutions.

Where does all this leave us? Quite simply, it is necessary that a State have certain characteristics. It must have a territory, population, government and the ability to interact with other States. In addition, because the State is an entity that belongs to a wider community, it must be accepted, recognized at least to some extent, by that community. Recognition can also cure certain defects in the characteristics of a State as long as they are not too serious to prevent that entity from fulfilling its purpose. Having a two-tier system like this is to the benefit of the international community. If all that mattered were the Montevideo criteria, any warlord or group that could assemble enough force could carve out a new State simply by controlling a territory and nothing else. This would encourage any group that wanted their own State to simply take up arms instead of encouraging democratic compromise by requiring individuals and groups to work within the States they find themselves. On the other hand, if all that was required were recognition, the politics of State creation could easily leave the world of reality behind. States would be able to preclude new States from forming not because they are insufficient in some manner, but based entirely on politics without regard for how things are actually on the ground. By requiring a mixture of both the constitutive and declaratory theories, the international community created a system for membership that is self-regulating in the absence of a non-partisan/apolitical administrative body.

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[1] Article 1, Montevideo Convention.

[2] One of the most prominent examples of this theory being accepted in practice comes from the Badinter Commission opinion number 1 dealing with the formation of States out of the disintegration of the Former Yugoslavia.

[3] See, http://en.wikipedia.org/wiki/Transnistria, citing, Jos Boonstra, Senior Researcher, Democratisation Programme, FRIDE. Moldova, Transnistria and European Democracy Policies, 2007; Gerald Hinteregger, Hans-Georg Heinrich (editors), Russia — Continuity and Change, Hinteregger, Gerald; Heinrich Hans-Georg (2004). Russia — Continuity and Change. (editors). Springer. p. 174; Rosenstiel, Francis; Edith Lejard, Jean Boutsavath, Jacques Martz (2002). Annuaire Europeen 2000/European Yearbook 2000. Martinus Nijhoff Publishers.

[4] By “States”, we essentially mean Russia in this specific case.

[5] A brief list includes, the Republic of Abkhazia, The Independent State of Azawad, Nagorno-Karabakh Republic, Turkish Republic of Northern Cyprus and the Republic of Somaliland. They are also all claimed by one or more other States.

[6] http://en.wikipedia.org/wiki/International_recognition_of_the_State_of_Palestine#cite_note-roadmap-19.

[7] http://www.un.org/News/Press/docs/2006/org1469.doc.htm lists 192, but does not include South Sudan which joined in 2011.

[8] http://www.nad-plo.org/etemplate.php?id=119&more=1#1, accessed 29 April 2012.

[9] Effective control in this sense means, inter alia, the ability to exclude others from using coercion on its territory.

[10] The population is made up of celibate church figures all of whom are from somewhere else.