In the book Democratic Statehood in International Law, I develop an argument that state creation is a political process of overcoming a competing claim to territorial integrity. The emergence of a new state is not an automatic or factual occurrence upon meeting the statehood criteria. The process requires some democratic procedures to be followed. It often also runs in parallel with an internationalised attempt at imposition of a democratic political system.
The post-Cold War practice and the effects of the right of self-determination have led some writers to proclaim that under contemporary international law a newly-emerged state needs to be democratic. Others have rejected this view by holding that democracy has not become a statehood criterion. My argument is that the first statement is exaggerated and the second one wrongly-focused. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria.
In the process of state creation, the adoption of democratic institutions is equally as relevant or irrelevant as ‘Montevideo’. Considerations for democracy may impact state practice in relation to claims for independence but do not have any direct legal effects. The same can be said of the Montevideo criteria. Via the right of self-determination, state-creation nevertheless does require a democratic process. This is a requirement for independence referenda, not a requirement for a particular political system. The right of self-determination should not be conflated with democracy.
State creation as a political process of overcoming a counterclaim to territorial integrity
Acquiring statehood is not an international legal entitlement. Existing states are protected by the principle of territorial integrity. While this principle does not generate an absolute prohibition of secession, the consequence of its operation is that states cannot emerge automatically, as a matter of objective fact. States can only emerge in the legal circumstances where the claim to territorial integrity is either overcome or becomes inapplicable. [I develop this argument further in a separate article].
An effect of the principle of territorial integrity is that the burden of moving the territorial status quo lies on the independence-seeking entity. This is a rather difficult task and only very rarely is it successful. The emergence of new states in contemporary international law is thus a political process of overcoming the hurdle of a counterclaim to territorial integrity.
The book identifies the following modes of overcoming this hurdle: (i) waiver of the claim by the parent state; (ii) consensual extinction of the parent state; (iii) international involvement which either procures a waiver or leads to a non-consensual extinction of the parent state; and (iv) ‘constitutive recognition’ of unilateral secession. All of these modes require a political process which can be either primarily domestic, internationalised or a combination of both.
The least controversial modes are the parent state’s waiver and consensual extinction. International involvement leading to non-consensual dissolution is more controversial than consensually-achieved statehood. In principle, where dissolution occurs, the legal personality of the predecessor state is extinguished and, as a result, there is no applicable counterclaim for territorial integrity.
The situation is relatively clear where dissolution is consensual (e.g. Czechoslovakia). Where it is not, the outcome becomes dependent on international responses. The only clear example of non-consensual dissolution is the SFRY, where the Badinter Commission interpreted the situation as dissolution rather than attempts at unilateral secession. This position was subsequently universally adopted through practice of states and UN organs.
The emergence of states through unilateral secession is very unlikely but it is not illegal. Further, international law does not prohibit granting recognition to an entity which declares independence unilaterally. Despite the general perception in contemporary international law of recognition being a declaratory rather than constitutive act, it is doctrinally accepted that in a case of unilateral secession a state may be constituted via recognition. This was indeed confirmed in paragraph 155 of the Quebec case, where the Supreme Court of Canada held that the ultimate success of unilateral secession would depend on international recognition [I elaborate on this in more detail in a separate article]. This conclusion needs to be accompanied with a caveat: it is unclear how many and whose recognitions are necessary for successful state creation in such circumstances.
Recognition which is widespread yet not virtually universal creates an ambiguity with regard to the legal status of a territory – an ambiguity which can sometimes only be clarified over time (e.g. historically Bangladesh, presently Kosovo). The possibility of such an ambiguity is no surprise; it is a consequence of the concept of the state in international law. Statehood is not an objective natural fact, it is legal status of a territory. And legal status can sometimes be ambiguous.
How does democracy relate to contemporary theory of statehood?
Practice shows that circumstances of state creation upon a domestic consensus are relatively rare. In most cases state creation is an internationalised political process, sometimes even within the framework of a peace settlement. In such circumstances the internationalised process of state-making becomes entangled with the internationalised process of democracy-making.
At the same time, nothing in this practice indicates that emergence of a non-democratic state would be prohibited, that is, illegal, in the same way as states may not emerge in violation of certain fundamental norms of international law, in particular jus cogens (cf. Southern Rhodesia, the Homelands, and Northern Cyprus). After the Minsk Agreement and Alma Ata Protocol, former Soviet republics emerged as independent states, regardless of how undemocratic governments many (or most) of them had. Further, when Eritrea consensually seceded from Ethiopia, there was no international enquiry into its governing methods.
Democracy is not a legality requirement for state creation and neither is it an addition to ‘Montevideo’. But despite not being on the ‘Montevideo list’, democracy should not be labelled as irrelevant. Namely, not even the Montevideo criteria are a ‘legal checklist’ that would tell whether or not an entity is a state. These criteria only influence the political process leading toward statehood. In practice, an international attempt is made that a new state would at least roughly meet the Montevideo criteria, although this does not always happen. The same can be said of democracy: an international attempt is commonly made that a new state would at least roughly implement democratic institutions, although this does not always happen.
Democracy, self-determination and state creation
As stated by the ICJ in Western Sahara, any change of the legal status of a territory requires a popular consultation and support of the will of the people. However, a democratically-expressed will of the people in favour of independence does not create a new state; it is only a necessary but not a sufficient requirement. As suggested by the Supreme Court of Canada, a democratically-expressed popular support for independence may put an obligation on both sides to negotiate a future territorial arrangement, but does not predetermine an outcome. This further affirms the premise that state creation is a political process which potentially (but not necessarily) leads to a new legal status of a territory.
Save for exceptional circumstances, the will of the people in favour of independence is expressed by democratic vote at referenda. International law prescribes no universal referenda rules. Within the legal framework where an expression of the will of the people does not automatically create a new state but merely adds to the legitimacy of a claim to independence, precise regulation of referenda rules is not necessary. There is a general requirement that the referendum question and winning majority need to be unambiguous. The qualification of ‘unambiguous’ remains situation specific and depends on political and social factors. In practice, a simple majority of all votes cast is most commonly prescribed as a threshold for the success of a referendum, though more qualified majorities are often achieved.
Thus, a state cannot be created against the wishes of the people populating the territory. At the same time, a democratically-expressed will of the people does not create a right to independence. Popular support adds to the legitimacy of a claim to independence and may initiate a political process which can potentially (though not necessarily or automatically) lead to the creation of a new state.
State creation in contemporary international law is not a factual occurrence on the basis of meeting the statehood criteria. It is a political process that changes the territorial status quo and alters the legal status of a territory. Statehood is a politically-created international legal status. The process leading to it is governed by a legal framework. A state may not emerge in violation of some fundamental norms of international law, in particular those of jus cogens character. And the right of self-determination requires for state creation to be a democratic process.
In the post-Cold War period, practice has emerged not only of creating new states democratically (support of the will of the people for independence) but also of creating new democratic states (in terms of the political system). However, democracy is not a requirement for statehood. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria. Ultimately, this poses doubts as to whether the Montevideo criteria can really be seen as having the status of customary international law. State practice indeed demonstrates that meeting or non-meeting of these criteria has no direct bearing for an entity’s legal status.
This is my brief introduction of Democratic Statehood in International Law and some principal arguments developed in the book. Two eminent experts in the field, Prof Jean d’Aspremont and Prof Brad Roth, have kindly agreed to provide their comments. I am most grateful to both of them for taking the time and am looking forward to having a good discussion.