The Importance of Legal Criteria for Statehood: A Sur-Rejoinder to Jure Vidmar

Jure Vidmar and I are in agreement about the processes by which new States are created. Indeed, I think his book makes a really valuable contribution in setting out those processes of State creation. As Jure notes in his rejoinder, the difference between us is that he places these processes outside the Montevideo (and additional) criteria for Statehood and I argue that they are within the criteria. In particular, I argue that those processes help us in assessing fulfilment of the fourth Montevideo criteria of “capacity to enter into legal relations.” I argue that this criterion simply means independence (legal and factual).

Although Jure is willing, for the purposes of argument, to go along with interpreting the 4^th criterion to mean independence, he has “mixed feelings” about this claims. He thinks considering the two to be the same is trying to fit concepts that don’t quite fit. In my view, the 4^th criterion is about something more than its plain words indicate. It speaks about a “capacity” to enter into legal relations but it does not tell us precisely what confers this capacity. So we have to imply something that confers this capacity. This interpretive exercise is required by the very wording of the criterion and should not be seen as illegitimate. I suggest it is independence that confers this capacity as the “capacity” referred to is to a formal capacity and not a functional capacity.

Jure’s main argument with regard to fitting the political processes he identifies into the independence criterion is that it would lead to a problem of circularity. He says that argument would essentially be that a State would be a State because it is a State. I disagree. He uses the example of Somaliland (which I do not consider to be a State, yet). Jure says that on my argument, Somaliland is a state because it is a State. No, if I considered Somaliland to be a State, it would be a State because it is independent. Why would it be independent? Because the claim to territorial integrity of Somalia (the parent State) can be overcome. How is the claim overcome? It would have to be by parental consent, collective recognition or some other process. There would be no circularity here.

Jure is right that the Statehood criteria are of little use if they tell us that States become States by becoming States. My argument is that States become States when they become, or are deemed to be, independent from other States (as well as fulfilling other criteria). Jure’s critical contribution is in helping us to identify the processes by which this independence is achieved (or deemed to exist). With collective recognition, a State is a State because other States say it is a State. Arguably there is a circularity here: the State is actually a State because it is said to be a State. But note that the reason it is a State is not because it is a State but because other States deem it to be such. A subtle difference perhaps, but an important one. It is the process of collective recognition that is important here. Thus there is really no circularity even in that particular instance. We have a concrete condition to look for – collective recognition.

Although Jure agrees, in principle that collective recognition can constitute a State, he disagrees that this is the explanation for the Statehood of Bosnia and Croatia. He argues that their Statehood arose because of the removal of the territorial integrity of the SFRY. The Badinter Commission’s Opinion No. 1 might have been the most important opinion in determining the direction of travel by saying that the SFRY was in the process of dissolution. However, it did not claim that the process had ended, nor did it say that Bosnia was then a State.  In mv view, the Statehood of Bosnia came later than Opinion No. 1. Even the Badinter Commission only concluded later that the SFRY had disintegrated. Even on Jure’s theory it is only when that dissolution occurred that the constituent republics became States. But on my view, even then what determined their Statehood was collective recognition (in the case of Bosnia & Croatia) or fulfilment of the criteria (Macedonia).  If dissolution of a parent state and loss of territorial integrity is enough to constitute Statehood, why was Kosovo not a State in 1992, Republika Srpska (both of which declared independence) , Krajina or Sarejevo? In my view the difference is collective recognition and only that. Jure says the difference between Bosnia and Republika Srpska is that pre-existing internal delimitation becomes important. Though I disagree that this was all that was going on, if Jure is right, we do have criteria for Statehood. The criteria in this circumstance would be parental dissolution coupled with being a an internal territorial entity. So though Jure disagrees with the Montevideo criteria what he is really doing is setting up alternative ones.

Finally, Jure argues that the Montevideo criteria do not create duties for anyone in the international community or direct legal entitlements. Jure is thus arguing that where the criteria are met, other States are not bound to treat the entity as a State or as a separate State. But if the political processes he describes are met then I suppose Jure would agree that there are duties and entitlements. That then takes us back to whether the processes are within or outside the criteria. As I think I show in this post and my previous one those processes go to claims of independence which is the same as Jure’s point that the territorial integrity of the parent State must be overcome.