The Importance of Legal Criteria for Statehood: A Rejoinder to Dapo Akande

I would like to thank Dapo for his response to a particular claim I make on the statehood criteria. It is a twofold claim that I make in the book. First, the emergence or non-emergence of states cannot be explained by the Montevideo criteria. Secondly, the Montevideo criteria should not be seen as a rule of customary international law. I sense that Dapo could partly and qualifiedly agree with the first part of the claim. He certainly disagrees with the second part.

Dapo’s proposition essentially preserves the centrality of Montevideo by accommodating the process of state creation within these criteria. In so doing the proposition overcomes the deficiencies of Montevideo and the solution indeed looks very appealing at first sight. But it is problematic, as it makes the relationship between state creation and statehood criteria circular.

Territorial integrity and Montevideo

In a world where virtually every territory is a state territory and thus subject to a legitimate claim to territorial integrity, this claim can only be overcome by a political process which creates a new legal status. I think that Dapo and I agree up to this point. We diverge on the question of the place of this process and its relationship to the statehood criteria. Dapo accommodates the process within Montevideo, I place it outside; Dapo subordinates the process to Montevideo, I subordinate Montevideo to the process.

Dapo’s explanation reconciles the traditional Montevideo-centric approach in the law of statehood with its main criticism – the inadequacy of the criteria. By incorporating the process of state creation within Montevideo, the criteria are no longer an inadequate static checklist and can actually answer difficult questions, such as why Somaliland is not a state. By holding that the fourth criterion may compensate for deficiency in meeting others (meaning that some Montevideo criteria may be more important than others), it can even be explained why Bosnia was a state in 1992. The trick that makes Montevideo work is to bring what I treat as extra-Montevideo within the ambit of Montevideo.

This approach is appealing and reminds me of some attempts that have been made before. For example, some have interpreted the fourth Montevideo criterion as a requirement for recognition. It seems reasonable to claim that by recognition an entity becomes capable of entering into relations with other states. But one should be careful with recognition. The inevitable question that always follows is: how many and whose recognitions? One can avoid this by interpreting the fourth criterion more broadly as either independence or absence of a competing claim to territorial integrity.

What such an interpretation of the fourth criterion essentially does is that it places the process of overcoming a claim to territorial integrity within Montevideo. At the outset, I have mixed feelings about this manoeuvre. Recognition, territorial integrity, independence; none of these concepts is mentioned in the fourth criterion. Interpreting them as a synonym for ‘the capacity to enter into relations with other states’ reminds me of fitting a person into a Procrustean bed. But let’s accept this exercise in order to proceed with the argument. And to make the reasoning less abstract, take Somaliland as an example.

There is a presumption of Somalia’s territorial integrity. If this is accommodated within the fourth criterion under the rubric of independence, the conclusion follows that Somaliland is not a state because it does not meet the Montevideo criteria – more precisely the fourth one. The legal status of Somaliland is thus explained; the Montevideo criteria saved; case closed; one could say at this point. But let’s dig deeper.

What was the trick we used to explain the legal status of Somaliland with the Montevideo criteria? Precisely what Dapo proposes: making Somalia’s claim to territorial integrity a matter of the fourth Montevideo criterion. The problem is that in so doing we bring circularity into the law of statehood. The fourth criterion can only be met if the process of state creation is successful, that is, if a state is created. At the same time it is claimed that states are created by meeting Montevideo – a perfectly circular argument. What advice can an international lawyer give to Somaliland on this basis? The advice would be: Somaliland can meet Montevideo and thus become a state by becoming a state. Why is Somaliland not a state? Because it does not meet Montevideo. But why does it not meet Montevideo? Because it is not a state. This is the problem one gets by bringing the political process of state creation within the fourth Montevideo criterion. The fulfilment of the Montevideo criteria then depends on state creation within the fourth criterion, while state creation depends on fulfilling Montevideo.

Essentially, I am afraid we are back to the problem in the writings of some German theorists of the late 19^th and early 20^th century which was probably best captured by Hersch Lauterpacht’s observation that according to them “a State exists in international law as soon as it exists.” The trick of bringing territorial integrity within Montevideo brings us back to precisely this circularity. If one reads the fourth criterion textually, it is circular anyway. And it is also circular in its non-textual interpretation as ‘independence’. In my view the statehood criteria are of little use if they tell us that states become states by becoming states.

How do we get out of this vicious circle? I propose taking territorial integrity out of Montevideo. Somaliland then meets the Montevideo criteria yet is not a state because the issue of a counterclaim to territorial integrity has not been resolved. This diminishes the importance of the Montevideo criteria in the law of statehood but perhaps we should simply utter this heresy instead of defending Montevideo at any price. These criteria may describe what core features most states have, but cannot explain how new states emerge.

Extra-Montevideo state creation: collective recognition and beyond

Dapo leaves a possibility of an exceptional extra-Montevideo state making through collective recognition. I agree in principle, although I do not see Bosnia (and Croatia) as instances of collective recognition. As Brad Roth correctly notes in his post, the most important development happened some five months before the recognition of Bosnia – the Badinter Commission held that the SFRY was in the process of dissolution. This made the SFRY’s claim for territorial integrity inapplicable. In this respect Macedonia was in a similar position but was a state in the period when it only had four recognitions. With this number Macedonia could not have been constituted by collective recognition (cf. Southern Ossetia, why is it not generally considered to be a state although the number of recognitions is similar to that of Macedonia in 1992?). Statehood of the former republics of the SFRY must have been created in some other way.

Unlike in the present situation of Kosovo, in the case of the dissolution of the SFRY the parent state ceased to exist, so there was no obstacle on the way to statehood. And not even the Montevideo criteria were an obstacle, as Bosnia and Croatia clearly did not meet them. In essence, they became states neither through collective recognition nor by meeting Montevideo. They became states by removal of the claim to territorial integrity. However, I am not trying to say that dissolution and removal of the claim to territorial integrity also identify the units that are going to become states. Dapo gives an example of Republika Srpska and suggests it did not become a state because it did not meet the statehood criteria. In fact, Bosnia did not meet them either. Where was the difference between Bosnia and Republika Srpska?

The former was a delimited constitutional republic within the SFRY, the latter was not; at the time it was not an entity either within the SFRY or Bosnia. So I am not trying to suggest that once the claim to territorial integrity is removed every self-proclaimed unit can become a state. For a more thorough answer to this point see my response to d’Aspremont and Roth. In short, this is where the pre-existing internal delimitation becomes important, although outside of colonialism it is wrong to term this uti possidetis. My argument is thus that as soon as dissolution occurs, a claim to territorial integrity is no longer applicable. The constitutive units of a former federal state then become states. Their previous internal boundaries are upgraded to the status of international borders. They become states even if they do not meet the statehood criteria, but their territories are indeed defined by the previous internal boundary arrangement.

Territories defined? This may look like a silent return to Montevideo and I am perfectly happy with that. These criteria relatively accurately describe a state, or most states, my claim is that they do not create a state simply by being met or prevent state creation if they are not met. This is due to the effect of the principle of territorial integrity. Above I made an argument why one should not see territorial integrity as a part of Montevideo. However, some have tried to interpret this principle as an absolute prohibition of unilateral secession. This is also incorrect. It is rather that the principle creates a zone of international legal neutrality: independence is not prohibited but neither is it an entitlement. The principle protects territorial status quo, but the status quo can be changed in a political process. As a consequence, an entity may meet the statehood criteria, but since independence is not an entitlement, this does not have any direct legal effects. The legal effects can only follow from a political process (if it happens) which is capable of creating a new legal status. Consequently, Montevideo does not have a direct bearing on legal status.

Montevideo as customary law: What exactly is the rule? Where is state practice?

If one accepts my proposition of territorial integrity being outside of Montevideo, I think little is left of the normative quality of the Montevideo criteria. What does state practice suggest that the Montevideo criteria can do? If they are met, do they create a state? No. Is an entity that does not meet them not a state? Not necessarily, it can still be a state. If they are met, do they create an obligation on either the parent state or third states to grant recognition? No. If they are not met, do they create a duty on third states to withhold recognition? This is a more complicated one.

Despite some historic references to the prohibition of premature recognition, in the book I argue that this concept is obsolete. Was recognition of Bosnia premature? In my view this is a pointless question. Again, apart from being a state, what else could Bosnia be after the SFRY no longer existed? Terra nullius? Probably not. Bosnia was a state within the confines of its previous internal boundary. It was a state although it did not meet Montevideo. And as it was a state, its recognition could not be premature, regardless of Montevideo. What created Bosnia was removal of the SFRY’s claim to territorial integrity. What confined Bosnian boundaries was the pre-existing internal boundary arrangement.

With such state practice, my question is quite simple: what precisely is the content of the putative customary legal norm reflected in Article 1 of the Montevideo Convention? In my view the provision is hollow in the normative sense. It describes a state but does not define it or separate a state from other territorial entities; it does not create any direct legal entitlements or duties for anyone in the international community; and most of all, it does not create the legal status of statehood. It is true, however, that once the process of state-making is completed, most states more or less fulfil these criteria. But this does not mean that Montevideo creates a state. This means that Montevideo relatively accurately describes most states, yet also some other territorial entities.