In 1933, the traditional criteria for statehood were articulated by the 1933 Montevideo Convention on the Rights and Duties of States. The Montevideo criteria have never been formalized into a treaty, but are broadly recognized as having become part of customary international law. The criteria defined were that, to become a state, a territory should have:
- A permanent population - a population that is settled, not transitory;
- A defined territory - there are no size requirements, with nations potentially being as small as a city state;
- A government that has effective control of the territory - no particular form of government is required; and
- Capacity to enter into diplomatic relations.
The criteria for statehood were intended to apply only to the recognition of a new state. Once established, a state may fail to meet the Montevideo criteria without losing its status as an independent state.
The criteria are somewhat problematic, in that they reflect a post-colonial mindset in which former colonies that were establishing independence sought to reassure the developed world that they were developed to the point that they should be free of any remaining claims of their former colonial masters. The application of the criteria is easier in a context in which a colonial power is departing from a territory with boundaries it defined, as opposed to within the context of secession or belligerent occupation.
Establishing Statehood by Secession
Secession is the process though which a portion of the territory of an existing state splits from that state to become an independent nation. Save for cases involving serious human rights abuses by the government of a state, secession requires the consent of the parent state. This approach may deter secessionist movements and discourage civil war, in favor of the peaceful resolution of a state's internal conflicts. At the same time, nations have at times been exceptionally brutal and oppressive with minority populations, with those populations having little to no ability to protect themselves or to establish self-government.
Establishing Statehood to End Belligerent Occupation
The traditional criteria for establishing statehood are a poor fit for a territory that is the subject of belligerent occupation, as the occupying power has considerable ability to prevent the territory from being able to satisfy the Montevideo criteria. It is relatively simple for an occupying power to prevent or limit self-government by an occupied population, and to dispute territorial boundaries so as to cloud the issue of territory. In some cases the occupying power may insist that the territory falls within its own territorial boundaries, with the goal of annexation. A nation under occupation is unlikely to have any significant control of its borders or of immigration and emigration. Its lack of government, or limited government, can place it in a poor position to enter into diplomatic relations. Although prohibited by international law, an occupying power may engage in population transfers into an occupied territory in order to try to maintain long-term claims to the territory or to lay the groundwork for annexation.
It is possible for the international community to help an occupied territory establish its independence, or to continue its assertion of independence even as occupation continues. For example, a territory that is under foreign occupation may have internationally recognized boundaries, even if the occupying power disputes those boundaries. Even within the context of territorial disputes, the international community can recognize control of a defined territory within an occupied region. The international community has at times been willing to recognize a limited government, or even a government in exile, as the legitimate government of an occupied territory. At times the international community has been willing to recognize independent statehood of a territory with only the most rudimentary ability to self-govern, with the understanding that it would develop self-governance subsequent to its independence.
The international community recognizes the right of self-determination, recognizing that people should have the right to freely determine their political status and freely pursue their economic, social and cultural development. Particularly in the case of belligerent occupation, that right may be in conflict with the rigid application of the Montevideo criteria. Some international law scholars argue that self-determination warrants a more flexible application of the traditional criteria, and in some cases they argue that self-determination should be the predominant consideration when evaluating claims of statehood.
It is generally recognized that the principal of self-determination can create expectations and goals that can lead to conflict, including armed conflict, within a nation state. The general preference is to view the concept in a broad sense, with the goal of allowing self-determination as appropriate within a given context based upon the needs, interests and conditions of the parties. Even if you accept the continuing applicability of the Montevideo criteria, those criteria should not be applied in a rigid, formulaic manner that undermines the right of an oppressed or occupied population to self-determination.
Despite the limited contexts in which a nation was internationally recognized before it had a viable government, it is important that the word community can reasonably expect that the government that forms for a new state will act as a responsible member of the community of nations. Concerns that the nation state will eschew its duties under international law, internally or externally, or will collapse into an ungoverned territory should weigh heavily against the recognition of a territory as a nation state. Those concerns must be balanced against the danger of maintaining a stateless territory, a context in which different groups and factions are apt to compete for power, and which may attract criminal and terrorist factions who want to engage in activities that would be prevented in a well-governed state.