The criteria which and entity needs to fulfill before it can be considered to a

“State” according to the provisions of Article 1 of the 1933 Montevideo

Convention on the Rights and Duties of States.

Hafidh Atsary

Introduction

The concept of statehood nowadays has transformed and evolved, as there is a lot of changes

and differences in the international historical events affecting the requirement for an entity to be

considered as a state overtime. Said as example of Cold War and decolonization which add the

self-determination as one of the requirement to be achieved by an entity. However, in the year

1933, there were a convention in which framing the basic requirement for an entity to be fulfill

first, before declared it as a state. The Montevideo convention in its provision of article 1 on the

Rights and Duties of States is basically mentioned four criteria to be fulfill, the permanent

population, the define territory, an effective government, and the capability to enter the

relationship in the international society. Regarding on these basic criteria, there is a question,

asking whether the criteria provided by Montevideo convention are exclusive or not? Look on

how the additional requirement is come in, as the customary international law is one example,

the recognition, democracy, sovereignty, self-determination and so on. As for that, I am going to

answer the question based on my understanding on how it works today.

For the first part of this essay, I am going to explain what the Montevideo convention with the

brief explanation is, and covering the explanation about the four criteria of article one, then the

second part will explain what does it mean by exclusive, after that, the next part will explain the

additional requirement after the Montevideo convention such as recognition, democracy and so

on. Then the fourth part will be discussing, whether the Montevideo convention’s criteria is

exclusively enough or not? Lastly, the last part will be conclusion of the discussion.
The four criteria of Montevideo convention 1933

The Montevideo convention is a treaty agreement held on Montevideo, Uruguay, the treaty itself

bond the sixteen states at the early stage. This treaty is consist of the right and duties of the

state, in which included the requirement that an entity have to fulfill as it is going to be

considered as a state officially. In fact, the stage in which this treaty agreed on is regionally on

American region only. However, it applicable universally and have a capability to consider

whether an entity is a state or not; as I am going to explain it later on.

In this part, I am going to explain further more on the provision of article one of Montevideo

convention 1993, the four criteria of a state. The permanent population, the define territory, an

effective government and capability to enter relation in the international society, it also cover

some matters and problems that regarding to me is being questionable.

The first criteria is the permanent population, means that state is having the people live on the

certain territory, it not just about the empty space with the animal live on, but the people stay on

the permanent basis. There are no specific explanation of minimum number of population to

meet this requirement. As example of the state of Tuvalu and Nauru with 12,000 and 10,000

inhabitant and officially recognized as a state under the international law.

Then the define territory, in fact, there is no state without any territory. Means, it is define

physical existence that marks it out clearly from its neighbors, the land we lived on, because we

live on it, neither on the water nor the air. There is no clear explanation about the size of

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territory, however it does not necessarily matter, because the matter is to control over the

certain territory. As example of the huge state as Russia and the micro state as Singapore.

Even though the size of territory does not matter, it nevertheless remain the main problem and

obsession of international law overtime. In fact, the issues have been existed up until today is

about the title to territory and border limitation among the states. As examples; dispute between

India and Pakistan over Jammu-Kashmir in the absence of precise line of frontier or the conflict

Israel in claiming over territory in Palestine.

The third notion of the article one is an effective government. Means, the people within the state

is govern and represent the authorities of the state, as it to be organizing over it territory and

people. The authorities itself should be independent and not under control by any of other

states. traditionally, Under the international law, the state has the right to take any form of

government they preferred, the democratic, federal government, or even the autocratic one, as

it has to be fulfilled their duty in running the country effectively.

The last criteria is the capability to enter relation in the international society. Although it being

said as the qualification, there were one of the scholar against it, and preferring it as an indicator

included in the third notion of article one rather being as criteria to be fulfilled. Crawford (1924)

identifies it as problematic and said “is not a criterion, but rather a consequence, of statehood,

and one which is not constant but depends on the status and situation of particular States."

Ingrid Detter (1994) also add the explanation, "It could be argued that [capacity] is, in effect, a

consequence, rather than a condition of statehood."

Some of anomaly or special cases regarding those four is occurred in the international event,

such as, the loss of effective government of both Germany and Somalia, the term of those

matters probably more known as the ‘failed states’. However, the state that have fulfilled the

criteria and somehow loss of control by the central government in an independent state has no

necessary effect upon the status of state as a state. In other words, the existence of state itself

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has been recognized universally as a state, even though the breakdown and fall of its

government. In the end, in my opinion, there are three element of statehood based on the

Montevideo convention, with the capacity to enter relation of another states included in the

notion number three, an effective government.

The exclusive means

According to Merriam-Webster this term means excluding or having the power to exclude, in

other words it means sufficient as to indicate that one is unwilling to tolerate any more. As for

that, I stated the exclusive here means as enough for the Montevideo convention with the

consideration restricted for or available to only few and any other characteristic.

The additional requirement

As the previous part I have explained the criteria of state according to the Montevideo

convention 1993, in this part I am going to cover the additional characteristic of statehood, as it

has been transforming, renewing and modifying overtime. There are four characteristic I

highlight, the recognition, democracy, sovereignty and self-determination.

First is the act of recognition, it actually the additional characteristic occurred post-cold-war. The

act of recognition is the acknowledgement of one state towards the existences of another state.

As the example of Palestine, which is being recognized as the country by the vote in the UN. In

fact, they were not fulfilled yet the four criteria. In contradictory, Taiwan as an entity that had

fulfilled the criteria but not recognized as the state. This criteria is politically rather juridical

movement. The detail and further explanation on how important it is will be discussed in the next

part.

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Democracy, the European community adopted the guidelines on recognition of the new states in

the Eastern Europe and the Soviet Union on 16th December 1991. The need to respect the rule

of law, democracy and human rights and mentioned specifically the requirement for guarantees

for the right of minorities.

Self-determination is a core principle of international law in the post of cold war 1990’s, because

it determined the will and right of people to determine themselves, as this principle has

successfully led to the succession of decolonization during and after World War One, World War

Two and Cold War. This principle came arise from the customary international law, as well as

regarded as general principle law. This also protected under the United Nation charter and

occurred precisely after the collapse of USSR and the breakdown of Yugoslavia. As example of

it was the independence of Kosovo from Serbia. Even the declaration of its independence just

held on 2008, but the length of the process to separate from the Serbia was occurred in the end

of 20th centuries. The right and will of Kosovo Liberation Army in gaining their independency and

dissolve the government from Serbia is achieved in 2008, even though the Serbia declared their

independence of Kosovo was illegal, supported by Russia agreeing on Serbian’s decision. The

whole point of principle is actually interrelated with the concept of sovereignty and

independence.

Last but not least is sovereignty, the basic principles of every states. The principle is known

divided into two, the internal sovereignty and the external sovereignty. The internal sovereignty

means as the state has supreme authority within their territory, in the other words is the fully

authorities of government in organizing the country. While the external is about the immunity of

the state from any other states intervention.

By looking on those four criteria, the next section will discuss whether it necessarily need in

putting them as the additional criteria after or might be more suitable than criteria that based on

Montevideo convention.

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Is the Montevideo convention criteria is exclusively enough?

In this part, I am going to answer the question based on the previous explanation. In my point of

view, the criteria that mentioned in the provisions of Article 1 of the 1933 Montevideo

Convention on the Rights and Duties of States is exclusively enough. Considering on how those

four criteria is actually a basic criteria to identify whether an entity as a state or not. As for that, it

being constitutively requirement of statehood. However, it does not necessarily mean that

criteria is ideally accepted without being any extent, revised and rationalized as the historical

event occurred overtime. For example, the end of cold war and the decolonization event is

affecting in the addition of certain criteria such as, self-determination, self-independent and

democratic government. Nevertheless, the nature of some additional requirement is an

extension of point number three of Montevideo convention article one, an effective government.

Subsequently, the question came up, how about the additional criteria like recognition and

democracy?

In my viewpoint, the recognition is needed to additional requirement of statehood, as if we

considering the Montevideo convention is not merely complete, yet it still exclusively enough.

But, there is some matters related the acts of recognition. It was unilateral act of one state to

another. State recognition is set to be declaratory, it simply declare that entity being recognize

as a state, without having the effect of creating that state as a factual entity or constituting it

international legal personality. In other words, the state recognition has no specific legal effect,

therefore it was a political rather than a juridical act. However such act has a great important in

international relation, and it is never done lightly. Moreover, the more one state is recognized,

the more it will enjoy some international effectivity such as enhancing the factual reality. Of

course, being recognized means the entity should be new and already existing state, but being

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recognized will gradually reinforce as matter of fact it status as a state. Recognition will not

make statehood, but consolidate the statehood.

On the other hand, democracy is not necessarily needed as the additional requirement,

because some reason. First, even though it is declared by some signatory state in the name of

respecting the value of political freedom, human right and so on, yet the level of the treaties is

regional and not universal. Second, there are some state still implying the autocratic

government, yet they build the strong and harmonize relationship with the most democratic

country, the Saudi Arabia and the U.S.A. Third, the democratic country is not merely needed

because the most need to be fulfilled is an effective government and it does not take into

account on what type of ideology they implied.

Subsequently, question came up, asking either the democracy treaties by the European country

and the Montevideo convention by the states of America are basically the treaties based on

regionally, but why the Montevideo convention seems more universally accepted rather than

democracy treaties? To answer this question, I addresses on unnecessarily thing to consider on

what type of state regime is, as long as that state has a capability to build relation of another

states and how effective government in ruling the country. In the other hand, the Montevideo

convention contains the necessary matters to identify an entity whether a state or not. In the

end, the international society accept this treaty and consider it as the law-making for every

state.

Conclusion

States are central to international law, as it is being created by state, in main objective to be

applied between themselves. The concept of statehood is transformed overtime as the process

of decolonization and cold war affecting on it. But still, the Montevideo convention is exclusively

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enough even though it was 1933 treaty (with the consideration of modified model and further

revised as this treaty is part and produce of olden time because the text does not explain the

origin and deeper explanation of the four elements), with the consideration of recognition as the

additional requirement, not to make a state, but to consolidate it in international society. In the

current event, the concept of statehood revolves around two theories, the declarative theory and

the constitutive theory.

In the end of the day, there are still discussion, if the state existence in the contemporary issues

is about politically rather than juridical, means the Montevideo convention is not necessarily

needed, while the other argued otherwise.

References

Frankopan, I. D. (2007). Extraordinary rendition and the law of war. NCJ Int'l L. & Com. Reg.,

33, 657.

Grant, T. D. (1998). Defining statehood: The Montevideo Convention and its discontents.

Colum. J. Trans Nat’l L., 37, 403.

Harris, D. J. (1998). Cases and materials on international law: Sweet & Maxwell.

Jusuiono. (2018). Jusuiono. Retrieved 10 April, 2018, from

http://www.jus.uio.no/english/services/library/treaties/01/1-02/

McWhinney, E. (2007). Self-determination of peoples and plural-ethnic states in contemporary

international law: failed states, nation-building and the alternative, federal option: Brill.

Youtube.com, .P.R. .P.I.E.R.R.E. .D.'.A.R.G.E.N.T. (2017). International Law MOOC. Retrieved

10 May, 2018, from https://www.youtube.com/watch?v=cj-Uvw4qEecShaw, M. N.

(2003). International law 5th Ed: Cambridge: Cambridge University Press.

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