Statehood: Montevideo Criteria, Sovereignty and Equality

States are the principal subjects of international law, so the question of what counts as a state matters for treaties, UN membership, immunity and responsibility. The classic test is in the Montevideo Convention, 1933, but practice has added conditions based on legality and self-determination. This note covers the criteria, the hard cases, sovereignty and equality, the kinds of states and how states come to an end.

1. The Montevideo Criteria

Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933 provides that the state as a person of international law should possess a permanent population, a defined territory, a government, and capacity to enter into relations with other states. Article 3 adds that the political existence of the state is independent of recognition by other states.

Figure 1: Article 1 of the Montevideo Convention

• Permanent population. A stable community is required, but there is no minimum number; nationality is a consequence of statehood, not a condition of it.
• Defined territory. A state needs a reasonably stable territorial base, but disputed or undelimited borders do not prevent statehood; in North Sea Continental Shelf (1969), the Court said there is no rule that land frontiers must be fully delimited, and Albania (1920) and Israel (1949) were admitted to the League and the UN despite boundary disputes.
• Government. An effective government exercising control; the Aaland Islands Commission of Jurists (1920) held that Finland became a state only once a stable political organisation had been established; the test was relaxed in decolonisation, as with the Congo in 1960.
• Capacity for relations. In essence, independence: in Austro-German Customs Union (PCIJ, 1931), Judge Anzilotti described independence as the state having over it no other authority than that of international law; Island of Palmas (1928) equated sovereignty with independence.

2. Legality and Self-Determination

Figure 2: Hard cases

• Further conditions. An entity created by the unlawful use of force or in violation of self-determination is denied recognition even if it meets the factual criteria; Security Council resolutions called for non-recognition of Southern Rhodesia (1965) and Northern Cyprus (1983)
• Stimson doctrine. In 1932, the United States refused to recognise situations brought about contrary to the Pact of Paris, applied to Manchukuo.
• Kosovo advisory opinion, 2010. The ICJ held that Kosovo's declaration of independence of 2008 did not violate general international law or Security Council resolution 1244, but it did not decide whether Kosovo is a state.
• Continuity. Once established, a state is not extinguished by the collapse of its government, as Somalia shows.

3. Sovereignty and Equality

• Sovereignty. Internally, supreme authority over territory and people; externally, independence from other states, subject only to international law.
• Article 2(1), UN Charter. The Organization is based on the principle of the sovereign equality of all its members.
• Legal, not factual equality. Equality concerns legal capacity, not power; the veto of the permanent members and weighted voting in the IMF and World Bank are agreed exceptions.

Figure 3: Sovereign equality in the Friendly Relations Declaration

• Rights and duties. Rights of independence, equality, jurisdiction and self-defence; duties not to intervene in the affairs of others, not to use force (Article 2(4)) and to settle disputes peacefully (Article 2(3)); the ILC prepared a Draft Declaration on Rights and Duties of States in 1949.

4. Kinds of States and Extinction

• Unitary, federal and confederal. Federal states such as India act internationally as one person; members of a federation generally lack international personality.
• Protected states. A state that entrusts its foreign relations to another retains its statehood; Sikkim was an Indian protectorate under the treaty of 1950 until it became a state of India in 1975 by the Thirty-sixth Amendment; Bhutan's 1949 treaty with India, under which it agreed to be guided by India's advice in external relations, was replaced in 2007.
• Neutralised states. Switzerland has long been permanently neutral, and Austria declared permanent neutrality in 1955.
• Extinction. By merger, as with the unification of Germany in 1990; by dissolution, as with the USSR in 1991, Yugoslavia, and Czechoslovakia in 1993; or by absorption.

5. Frequently Asked Questions

Does a state need settled borders?

No. A reasonably defined territory is enough. In North Sea Continental Shelf (1969), the ICJ said there is no rule that the land frontiers of a state must be fully delimited.

Did the ICJ hold that Kosovo is a state?

No. In its 2010 advisory opinion, it held only that the declaration of independence did not violate international law. The question of statehood and recognition was left outside the opinion.

Does a protected state lose its statehood?

No. A state that entrusts the conduct of its foreign relations to another state by treaty remains a state, so long as it keeps its separate identity. Sikkim remained an Indian protectorate from 1950 until it became part of India in 1975.

What does sovereign equality mean?

That all states are equal in law and enjoy the same rights and duties, whatever their size or power. It does not mean factual equality, and agreed exceptions such as the Security Council veto exist under the Charter.

6. Related Topics

• Topic 18: Subjects of International Law. States as primary subjects.
• Topic 20: Recognition of States and Governments. Constitutive and declaratory theories.
• Topic 24: Self-Determination. Its role in statehood.