The Importance of Legal Criteria for Statehood: A Response to Jure Vidmar

Anyone who has studied a general course on international law will certainly be familiar with the criteria for Statehood contained in the Montevideo Convention on the Rights and Duties of States: permanent population; defined territory; government; and capacity to enter into relations with other States. In addition, they may have learned of the argument, put forward most prominently by James Crawford in The Creation of States in International Law, that there are additional criteria for the creation of states (e.g., the entity must not be created in violation of the right of self-determination or as a result of an unlawful use of force). But students of international law will also be well aware of the debate between those who hold the view that recognition by other States is simply declaratory of a Statehood (already achieved by fulfilling legal criteria) and those who take the view that it is recognition that constitutes new States as such.

Jure Vidmar’s recent book Democratic Statehood in International Law is an important contribution to these debates on what makes a State a State. One of the central points that runs through Jure’s book is that States do not emerge automatically from the application of legal criteria (the Montevideo criteria or additional criteria) (pp. 63; 137; 238-241). In his view States emerge out of a political process whereby a declaration of independence is accepted (p. 63 ;238). Jure claims that in that process fulfilment (or not) of legal criteria is neither here nor there. He says:

“What is, then, the normative value of the statehood criteria? It appears that they are, at best, policy guidelines rather than legal norms. Indeed, the fact that states grant recognition even when the statehood criteria are not met and withhold it where they are met indicates that state practice does not accept that statehood would depend on the Montevideo criteria. These criteria do not produce any direct legal effects. To some degree, they can only influence the international practice of acceptance or non-acceptance of claims for independence.” (p. 241)

On this analysis, an entity which fulfils the criteria does not automatically become a state (he would, I think point to Somaliland) and an entity which does not fulfil the criteria is not prevented from becoming a State (perhaps Bosnia Herzegovina would be his example). There is much to like about Jure’s work and his analysis. He provides us with a comprehensive analysis of State creation in the post-Cold War era. However, in this response to Jure, I aim to defend the view that criteria for Statehood (the Montevideo criteria and the additional criteria) are legal norms which do matter.

According to Jure, a principal obstacle to the creation of a new State is the principle of territorial integrity which protects their parent States. Thus, for a new State to be created, something needs to overcome the territorial integrity of that parent State. In Jure’s view it is the acceptance of the declaration of independence that does this. Such acceptance can happen in four ways (which he lists in his introductory post) – (i) consent by the parent state (ii) dissolution of the parent state; (iii) internationalised action; and (iv) constitutive recognition.

I agree with his point that claims to Statehood have to be accepted (by someone) to be effective. The question is by who? He suggest this must either be by the parent State or collectively by the international community. This argument does not necessarily place him (or me) in the camp of those who advocate the constitutive view of recognition. However, the argument certainly accepts that recognition can, at least in some cases, be constitutive. The argument suggests (and I accept) that collective recognition can be constitutive. How else can one explain the Statehood of Bosnia? That was a case where the international community chose, through acceptance of Bosnia’s UN membership, to accept Bosnia’s statehood despite strong evidence that Bosnia did not have a government in effective control of its territory (Vidmar, p. 98). But outside cases of collective recognition, the constitutive view has less force. This then leads to the question of what is collective recognition. Unfortunately, Jure does not, in his book, provide a detailed answer to this question. Is it just cases of UN membership or are there other examples of collective recognition?

Political Processes Within the Legal Criteria

Despite my agreement with Jure that the principle of territorial integrity of a parent State can be overcome in the four ways he indicates, I question his assertion that States do not emerge out of legal criteria. The suggestion that States emerge out of a process does not, in my view, undermine the argument that there are criteria to be fulfilled. After all, the existence and fulfilment of those criteria will only result from real world events, i.e from political processes.

As is well known, the most difficult of the Montevideo criteria to define and measure is the fourth: capacity to enter into legal relations with States. Without rerunning all the many arguments on what this means, I suggest that the best understanding of this criterion is that it means independence. It is that independence that provides a capacity to enter into relations with other States, as a State. But what does independence mean and how is it acquired? There are factual and legal aspects to independence. Factually it is about the physical ability to govern a territory without taking direction from another State. Legal independence means that there are no other valid claims by other States to govern that territory. When both legal and factual independence coincide the path to Statehood is easy. Problems emerge when they diverge. In particular problems arise when there is factual independence but claims of legal dependence. What is clear though is that the independence criterion is not fulfilled by factual independence alone.

It seems to me that the four processes that Jure describes are simply ways in which legal independence is acquired. These are processes that tell us when there are no valid claims by another State to govern the territory that is claimed by a newly emerged State. Therefore, they work within the legal criteria for Statehood and are not outside it. Consent by the parent State is the most straightforward way of proving legal independence and thus of showing fulfilment of the 4^th Montevideo criterion. Coupled with a sufficient degree of factual independence (and fulfilment of the other criteria), parental consent smoothes the path to Statehood. Most cases will fit into this category. At the other extreme, collective recognition is one way of resolving doubtful or difficult cases of legal independence. Where there is a claim of legal independence by an entity and claims of dependence by the parent State then the matter is ultimately resolved by collective recognition. Kosovo is this type of case. In this case, it is not clear that there has been collective recognition so the matter (the question of fulfilment of that fourth Montevideo criterion) remains unresolved.

To be sure, I agree with the view that collective recognition can also be used to constitute Statehood even if other criteria for Statehood are not present. In that sense, collective recognition can work outside the Statehood criteria and is itself probably sufficient to create Statehood. However, this proposition does not mean that the fulfilment of the Statehood criteria is neither here nor there for Statehood. Constitutive collective recognition is, I think, unique in its ability to override the other criteria for Statehood.

The Insufficiency of the Political Processes (Apart from Collective Recognition)

The importance of the legal criteria for Statehood can be demonstrated by thinking of the other 3 processes for Statehood that Jure outlines. I would suggest that other than in cases of collective constitutive recognition, and unlike collective recognition, those other three processes are not sufficient for State creation. They only work to create a State where the other legal criteria are fulfilled.

In the majority of cases of State creation (for example in the process of decolonization), the criteria for Statehood will be fulfilled and legal independence will be conferred by the consent of the parent State. However, consent by a parent State does not alone suffice to create a State if the entity in question turns out not to be factually independent or does not have a government in sufficient control of territory.  The South African Bantustans are probably an example of this (with or without collective recognition). Another similar, though not precisely analogous, example is the German Democratic Republic, which was created by the Soviet Union but which for a long time did not have general recognition because it was argued that it lacked independence from the USSR (see Crawford, Creation of States, 457). Other States would be within their rights to reject, unilaterally, claims of Statehood by an entity that is not factually independent but where the parent State claims that it is. They would have no obligation, for example, to accord the head of that entity, head of State immunity or to otherwise treat it as an independent State. Other States are entitled to (or may even be bound to) treat the putative State as part of the parent State.

Similarly, dissolution of a parent State does not, on its own, determine that a particular entity is a new State. Towns and municipalities in the dissolved State do not acquire Statehood as a result of dissolution. Republica Srpska did not become a State in January 1992 (when it declared independence) simply because the former Yugoslavia was in the process of disintegrating. Only entities that otherwise fulfil the Statehood criteria or will be States. Unless, of course, collective recognition is accorded.

The processes highlighted by Jure are important in that they tell us what is a valid claim of legal independence.  However, with the exception of constitutive collective recognition, these processes will not on their own lead to the creation of Statehood. They work with, and within, the legal criteria for Statehood. Where those processes suggest that an entity is legally independent and other criteria are fulfilled, other States are bound to treat the entity as a State – unless Statehood is specifically denied by overt collective non-recognition. However, where those processes are in play and the criteria are not fulfilled, there is no need for overt and specific collective non-recognition. Other States are free to deny Statehood. In these ways the criteria for Statehood are appropriately considered as legal norms of some importance.