Act Sixteen – Part I: How Are New Nations Born?

What is the common link between the Turkish Cypriots, Bosnian Serbs, Kosovars, Iraqi Kurds, Abkhaz, South Ossetians and the Catalans? These constitute groups of people belonging to semi autonomous territories that harbor secessionist tendencies and aspire for statehood.

The process of state formation is very complex in nature. The act of granting statehood in the present day scenario is mired in a web of legal, political, economic and social obstacles. Despite these obstacles, the international legion of states welcomed the arrival of its newest member — South Sudan as recently as July, 2011.

The aim of this article is to first explore the existing frameworks that list the legal obligations which have to be undertaken in order to acquire statehood. It then looks into the addition of new parameters to this list of obligations that have become the norm in the present day process of state formation.

The Montevideo Convention

The Montevideo Convention is a treaty that defines the rights and duties of the modern state. This treaty was signed at the Seventh International Conference of American States in Montevideo, Uruguay on December 26, 1933. Article 1 of the convention lays down the criterion for statehood— a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.

So far, only the states limited to the Americas have ratified this convention. Although its ratification is limited to 16 states, the Montevideo convention has become a part of the Customary International Law and hence applies to all subjects of International Law. Hence, despite its low acceptance rate, this convention has assumed a lot of significance in the international legal arena. The 16 countries to have ratified the convention include: Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, United States of America and Venezuela.

The Doctrine of recognition

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The Montevideo Convention has laid down the groundwork with respect to defining parameters required for statehood. Yet, the four parameters listed by the convention are not exhaustive as several others (clean human rights record, prevalence of democracy, etc.) have emerged over the years. However, the doctrine of recognition has recently emerged as the most important parameter among these.

Articles 3 and 6 of the Montevideo convention do not identify the doctrine of recognition as a necessary prerequisite for statehood. While article 3 of the Montevideo Convention states that, “The political existence of the state is independent of recognition by the other states”, article 6 of the same convention states that, “The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable” (Montevideo Convention 1933).

However, in recent years, the doctrine of recognition has assumed increased significance in the international legal arena. So how does a budding state acquire international recognition?

The membership of the United Nations is the most important platform for aspiring states to garner recognition by other countries. In order to attain full membership of the United Nations an aspiring state has to undergo a multi stage process. To acquire the status of a full member state of the United Nations, an aspiring state requires a two-thirds majority vote of the members of the UN General Assembly and the Security Council. For that to happen, the approval of all the five veto bearing member countries of the Security Council is quintessential.

The case of Palestine

Take the case of Palestine for example. The Palestinians have been aspiring for statehood and permanent membership of the United Nations for more than half a century. On November 29, 2012, Resolution A/67/L.28 on the Status of Palestine was passed in the General Assembly by a vote of 138 in favor to nine against and forty one abstentions. The resolution upgraded the status of the Palestinian Authority from a “United Nations permanent observer entity to that of a non-member observer state”. Palestine could not acquire full UN membership as the United States of America stood firmly by the side of Israel and vetoed the proposal to grant it statehood in the Security Council.

However, the status of a non member observer state did grant the Palestinians the access to some of the United Nation’s specialized agencies such as the FAO, WHO, etc. It also passed a vote to become a member of UNESCO. Perhaps more importantly, this upgraded status would provide them access to pursue claims of violation of human rights by Israeli soldiers in the International Court of Justice.

Hence, recognition by other states through participation and acceptance in International organizations is a major component of the present day regime of state creation. In other words, according to William-Davids, “as the State is an entity that belongs to a wider community; it must be accepted, recognized at least to some extent, by that community” (William-Davids 2012).

In Part-II of this article, I lay down a hypothetical legal road-map that these aspiring states must follow in order to legally acquire nationhood. I also explore how the Right to Self-determination has recently emerged as a beacon of hope for these partially recognized states. Lastly, I trace the path to independence of the two newest members of the international order – South Sudan and Timor-Leste.

Also read: Act Eighteen – Part II: How Are New Nations Born?

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