Now it is very evident that anything that we consider as a recognised international system has been derived from international treaties and the international customs. Thus, if we are to find out the criteria of establishing statehood under the umbrella of the existing international system, it needs to be derived from historical customary practices by state and treaties defining it.
So, if we follow a particular timeline to identify the criteria to establishing statehood, one of the firsts to be brought in was the idea of de facto jurisdiction or complete sovereignty over one’s territory through the Westphalian Treaty of 1648. The treaty not only is regarded as successful mechanism that ended the brutal 30 years war in Europe, but also as a symbol of what we today know as a sovereign state. The treaty allowed head of states the right to determine the religion that their state wishes to adopt which was previously decided by the religious power and thus, giving birth to complete sovereignty that a state is entitled to. But the Westphalian Treaty solely cannot be given credit to establishing a criterion for statehood as it only establishes internal jurisdiction. Thus, what was further required was the necessity of establishing the criteria that gives the state a separate identity that was recognisable under the international system. This is what further gave birth to the idea of constitutive theory of statehood.
The constitutive theory of statehood, developed in the19th Century, put forth the idea of achieving statehood by recognition where a state would become an independent sovereign state under the international forum only if it is recognised by another sovereign state. However, the idea of just mere recognition to establishing statehood would further create confusion amidst the constant international politics. For example, a state A which sides with any one of the great powers would not be recognised by the blocs of the rivalling great power nation. This would create confusion over the universal existence and non-existence of the state under the international system.
Thus, the Declarative Theory of Statehood, which was brought in to solve the problems that arose from the former, argues that statehood is independent of recognition and that it becomes an independent identity recognisable under the international system when it reaches certain criteria. These certain criteria were solidified as a treaty law with the introduction of the Montevideo Convention where Article 1 defines the criteria as:
1. Permanent Population
2. Defined Territory
3. Government
4. Capacity to enter into relations with the other states.
Further, Article 3 clarifies that the political existence of state is independent of recognition and Article 6 defines the purpose of this recognition as to just accept the personality of the state as with the rights and duties determined under the international system.
Now one might argue the relevance of this codified document that determined statehood in 1933, when the number of states were at the minimum, in the year of 2020 when there are 193 nations around us with proto states of their own. It is true, the de facto provisions of the texts have been quite modified with changing state practice and a post-colonial era to formalise what we know as the de jure criteria for statehood which are:
1. Permanent Population – Now it is very natural that permanent population is a natural necessity but there is no set minimum criterion for permanent population. Thus, states with less than even 50000 population like Tuvalu, Nauru and San Marino are now regarded as independent states. Most importantly, it is that idea of self determination in this permanent population is what has helped in achieving statehood during post-colonial era. Self Determination is defined in Article1(1) of the ICCPR as the right to freely determine one’s political status while paragraph 4 of the 1970 Declaration on Principles of International law further quantifies this right to self-determination as a model for establishing a sovereign and independent State. It is on this model that the UNGA 15/1514mandated the principle of self determination for colonised nation in the Africa region. An exercise of this right to self determination as for creating a new state under the international law through any forms of declaration is also acceptable under the International Law as pointed out by the International Court of Justice in the Kosovo Case. Thus, we can say that one of our main criteria for establishing statehood in the 21stcentury world is the idea of self determination creating the permanent population of the state.
2. Defined Territory – Now even though territory is a natural obligation in the existence of a state, the word “defined” adds the legal element. It effectively creates what we call as legal boundary which defines the extent to which the country enjoys sovereignty. However, there is no absolute necessity for a defined boundary, Deutsche Continental Gas-Gessellschaft v Polish State (1929) opined that “in order to say that a State exists and can be recognised as such…it is enough that…[its] territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited”. The North Sea Continental Shelf (1969) ICJ judgement paragraph 46 also puts forth the opinion that there exists no rule that the land frontiers of a State must be fully delimited and defined. In current state practice, Israel continues to exist as a state even when there is an issue with a perfect definition of its boundaries. Thus, the idea behind defined territory is that states must control some territory, if not a defined legal boundary, in order to claim statehood. But in that case, what exactly does control mean in establishing sovereignty statehood? The Island of Palmas Case(United States v. The Netherlands), the Permanent of Court of Arbitration put forth the opinion that this legal boundary serves as an exclusive right to display the activity of the state. It continued to propose that it has a corollary duty which is to protect This right has as corollary a duty which is the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war. It is this principle of continuous and peaceful display of sovereignty that continues to act as principle for exercising control over territory.
3. Government – Now it is indeed necessary for a state to have a political structure to govern itself independently. But the type of formation of this political structure was never pre-defined. The advisory opinion on the Western Sahara Case in ICJ paragraph 94 clearly ruled out that there exists no rule of law defining the political structure of the state to follow a pattern and the Judgement of 1986 for Nicaragua Case puts forth that “Every State possesses a fundamental right to choose and implement its own political, economic and social systems”. This is what gives the world a unique diversity of different forms of democracy, autocracy and monarchy. Yet that does not give complete independence, for example UNSC 216 condemned and enforced a non-recognition of Southern Rhodesia because of its racist regime structure. Similarly, the European Community Guideline on the Recognition of New States in the USSR and Yugoslavia establishes a guideline which ensures equal rights of minorities and indigenous population of the state by the government for recognition. Further one might also argue that it is not the formation of the government but its effectiveness in exercising control over territory. The Report of the International Commission of Jurists over the Aaland Islands Case of 1920, put forth the observation that it was difficult to determine when Finland became a sovereign state however it certainly did not take place at a until a stable political organisation had been created, and until the public authorities had become strong enough to assert themselves throughout the territories of the state without the assistance of the foreign troops. Further, it should also be noted that that Croatia and Bosnia and Herzegovina where given recognition during the breakdown of Yugoslavia even when most of their territory was under the control of non-state forces. Thus, we could agree that there does exists jus cogen norms which continues to give basic fundamental guidelines for forming and exercising the government of the state.
4. Capacity to enter into relations with the other states – It is very natural that sovereignty to decide one’s relationship with the outside world and the nature of that relationship should be the last step to achieving statehood. However, it is not the capacity but the nature of the relation that looks to define statehood. If we look at the example of a dependent state proposed in the separate Judgement by M. Anzilotti in the Austro-German Customs Union Case, Series A/B, No. 4, it is that Dependent States subject to the authority of one or more other States and that the idea of dependence therefore necessarily implies a relation between a superior State and an inferior or subject State. This in turn undermines the entire necessity of state sovereignty. Thus, the capacity to enter into relation with other states should be such that it safeguards the sovereignty of the aspiring state.
As we come to the end of this, I truly believe that such a complex idea, yet so simplified over time holds a key value in understanding the basics of geopolitics in every aspect that you can think of. If not very talked about, Statehood has been a centre of debate for most scholars that look to conclude to what exactly should be an ideal transformation process. Although my essay does not actually draw perspectives from this debate, I intend to leave you with this question. When you do hear of Palestine, Kurdistan or any self determination claim for that matter, is statehood really complex in practice or is it even simpler than what we think it is?
