Becoming a Country Under International Law

For most people, especially in the West, the legal existence of their country is beyond dispute.  Whatever gives their country this status is scarcely relevant, for the reality of their country proves itself.

For those in places of war and civil strife, however, a country’s existence may be openly questioned.  Claims to country status by South Korea, Kosovo, and Catalonia, for example, are not universally recognised. Whether their claims are valid is a question of serious political (and emotional) consequences in areas like diplomacy, identity, and access to international systems ¹.  If the rule of law is to exist for such an important concept then international law should answer these questions clearly and consistently.

So how does international law decide when a country is created?

Where to find the international law of statehood

Today’s legal system of determining statehood (‘state’ being the legal term for ‘country’) primarily stems, like nearly all existing current international law, from the actions of the United Nations and its members.   Virtually every national government on Earth is (or desires to be) a member of the United Nations, which gives the United Nations a ‘supreme’ ² legitimacy in fulfilling its chartered roles of encouraging the development of international law, giving advisory legal opinions, and make legally binding decisions on its members.

To simplify, the ‘actions’ of United Nations that most shape the international law of statehood are:

• the resolutions passed by its Security Council and (to a lesser extent) its General Assembly;

• the decisions of the International Court of Justice (ICJ);

• the law-recording (‘codification’) efforts of the International Law Commission; and

• the decisions by members to enter treaties and recognise (or not recognise) purported states.

Similar actions by other intergovernmental organisations (like the European Union or the Organization of American States) also shape international law but, given their smaller membership and purpose, to a lesser degree than the United Nations ³.

Taken together, these actions have formed a pattern through which scholars (and sometimes states and international organisations themselves) have identified the ‘rules’ of the international law of statehood.  These rules are not fully settled and are often applied in highly political contexts but, nonetheless, a rough legal consensus can be said to exist.

The current law

Essentially, the international law of statehood is a basic ‘checklist’ of features that an entity should have before it can be legally considered a state (assuming it wants to be a state4).

By and large, the most important items on this checklist relate to the actual features of the state itself, but some relevance is given to the legal and diplomatic opinion of other states and judicial bodies.

So what are the items on this checklist?

The three ‘traditional’ criteria – population, territory, and government

The three most basic (and least controversial) criteria of statehood come from Article 1 of the Montevideo Convention of 1933. Although the treaty itself has never been officially adopted outside of the Americas, Article 1 remains highly influential and is generally considered a reflection of the most fundamental criteria of statehood.5

Population

The first fundamental criterion is a permanent population. Simply put, the population of a potential state cannot be entirely composed of nomads6 or travellers based elsewhere.

Territory

The second is a defined territory.  The borders do not need to be fully defined or undisputed7 8-there just needs to be an identifiable location.9

Government

The third is an effective, independent government with the capacity to enter into relations with other states.  This is the trickiest of the three to elaborate (and actually forms two parts in the Montevideo Convention) but essentially it requires a state to have a structured, legally independent administration that controls at least some of its claimed territory and population.10  Some additional points to note are:

• a state does not have to have actual diplomatic relations (it could be under diplomatic boycott)-it just needs to have the capacity to have them;11 and

• a state can voluntarily outsource governmental and diplomatic functions to another state or organisation (e.g. Liechtenstein to Switzerland12) or have a foreign head of state (e.g. Australia), provided it has a separate internal legal order (respected as statehood by the foreign state/organisation) with the legal right to end or change the outsourcing arrangement.13

It should also be noted that there is no minimum population14 or territory size requirement.15  Nauru and Monaco, for example, are independent states (and United Nations members) of 10,000 people and 2km2 respectively.  On multiple occasions the UN General Assembly has even recognised the theoretical right of the UK territory of the Pitcairn Islands (population of 54 people over 47km2) to claim statehood.16  Logically speaking though, having a tiny population and/or territory makes it difficult to actually sustain a fully functional government.17

The ‘modern’ additional criteria – the grey areas

Beginning in the early 1960s (with some isolated examples beforehand), the traditional picture above began to change.18The international community began determining statehood on the Montevideo Convention checklist plus certain additional criteria.19 

There is no universally-accepted list of these additional criteria (and their relative importance is heavily debated), but the major ones are:

• widespread recognition;

• fundamental illegality of creation; and

• the right to self-determination.

Crucially, these additional criteria do not replace the Montevideo Convention checklist.  Instead, these additional criteria can push a potential state ‘over the line’ if it is close to satisfying the Montevideo Convention checklist or, conversely, cancel out its illegitimate satisfaction of the Montevideo Convention checklist.20

Widespread recognition

If an entity is widely recognised as a state by the international community, this can help it legally achieve statehood.21

One common manifestation of widespread recognition is United Nations membership, which is only given upon the combined recommendation of the UN Security Council and approval of the UN General Assembly 22(in other words, with the consent of the majority of the international community).  Accordingly, an entity becoming a United Nations member is strong evidence of statehood.23

State recognition should not be confused, though, with government recognition.24  The governments of PR China and Taiwan compete for diplomatic recognition, for example, but both do so on the claim that they represent the one Chinese state (not two states).25  Similarly, during South African apartheid, most states boycotted the apartheid government whilst still considering South Africa itself to be a state.26

Fundamental illegality of creation

If an entity is created in an act (or for a purpose) that breaches fundamental international law-regardless of whether it satisfies the Montevideo Convention checklist-that entity cannot legally be a state.27The types of breaches considered ‘fundamental’ are acts such as invasion and racial oppression.28Recent historical examples include:

• Rhodesia–a white-minority rule entity that declared independence from the UK in 1965 in order to avoid the indigenous majority being decolonised.29 Rhodesia was not recognised by any state and the UN Security Council and UN General Assembly both passed multiple resolutions affirming the indigenous majority’s right to self-determination and declaring Rhodesia an illegal racist minority regime with no valid independence.30 Rhodesia (briefly reformulated into Zimbabwe-Rhodesia) ceased to exist after indigenous resistance to Rhodesia allowed the UK to regain control, shortly after which the territory legally gained independence as the state of Zimbabwe.31

• The Bantustans of Transkei, Bophuthatswana, Venda, and Ciskei-a collection of four entities created by the apartheid government of South Africa between 1976 and 1981 from South African territory and used by the apartheid regime to remove indigenous South Africans from South Africa.32 Recognised as states only by South Africa, these entities were declared by the UN Security Council and UN General Assembly as being legally invalid manifestations of apartheid.33 The Bantustans were all dissolved after South African apartheid ended in 1994.34 

• Northern Cyprus / Turkish Cyprus–an entity created several years after Turkey’s took occupation of northern Cyprus in 1974. Recognised as a state only by Turkey, this entity (which still exists) has been declared by the UN Security Council to be a legally invalid entity created in contravention of the Republic of Cyprus’ sovereignty.35 36

Indeed, other states have a legal duty not to recognise such illegally-created ‘states’.37

Right to self-determination

If an entity’s right to self-determination is not being respected by the status quo (e.g. by an oppressive coloniser), this can help the entity achieve statehood.38

Internal vs External  Self-Determination

The first thing to note is that there is ‘internal’ self-determination (having political rights and cultural autonomy within a foreign state) and there is ‘external’ self-determination (having one’s own independent state).39  Every ethnic/cultural community has a legal right to internal self-determination,40 but only certain ethnic/cultural communities in certain circumstances have a legal right to external self-determination–and it is external self-determination that matters in creating statehood.

External Self-Determination

So when does an ethnic/cultural community gain the right to external self-determination?

Firstly, as mentioned above, the ethnic/cultural community must form an entity that is at least close to satisfying the Montevideo Convention principles.

Secondly, the occupying foreign state has to be failing to honour the entity’s internal self-determination (through neglect or repression).41  This is especially necessary if the foreign state is refusing to consent to the entity becoming an independent state.542

Thirdly, although not expressly stated in a United Nations resolution or ruling,43 legal scholars have noticed that the international community has allowed self-determination to aid statehood creation so far only in situations of ‘salt-water’ decolonisation (that is, in situations where the colonised entity is geographically separated from the occupying foreign state by an ocean or sea).44 Recently there has been debate about broadening external self-determination to ‘freshwater’ decolonisation (i.e. where the entity and occupying foreign state are separated only by rivers or lakes) in certain circumstances, but such ‘remedial secession’ is still legally contentious.45 46

Finally, even in situations of saltwater decolonisation, once an ex-colony has gained statehood (thus achieving its own external self-determination), secessionists cannot then use self-determination against the ex-colony.  This is because, legally speaking, at the moment of independence, the ex-colony’s colonial borders (set by the departing colonists) get automatically ‘upgraded’ into being its international borders, no matter how many ethnic/cultural communities get divided or arbitrarily positioned in the process. These new international borders then take legal priority over the self-determination of those ethnic/cultural communities inside the new state (unless the new state’s government agrees otherwise).47 48  Whilst this result may seem odd at first, the stated logic is to prevent established outside powers from exploiting tensions to carve up ex-colonial states during early vulnerability.49

All of this is not to say that certain ethnic/cultural communities are somehow morally ‘undeserving’ of statehood, or that they won’t become states in the future (especially if remedial secession gains traction).  It is simply to say that the current international law of self-determination weighs against their legal cause.

Conclusion

As all of the above shows, the legal creation of a country is a value judgement based on shifting qualitative measures–in short, an ambiguous yardstick.

Indeed, this in-built ambiguity may actually be deliberate.  For, whilst ‘greyness’ is problematic for the rule of law, it gives existing countries the (politically useful) ability to control the creation of new countries under the guise of international law. Existing countries have this self-interest because, with all the Earth’s land now completely discovered by humanity, the emergence of a new country invariably shrinks at least one existing country.50

As a result, the international law of statehood rarely develops unless a political crisis challenges the status quo and forces existing states to justify a response.  These responses (when they occur) can then lead to new practices and doctrines, like the ‘modern’ criteria added to the Montevideo Convention principles during the latter half of the 20th century.  Yet, with the United Nations currently undergoing its longest period without a new member, the inherent inertia of statehood creation is unlikely to disappear any time soon.