The future sovereign state

One of the longest-lasting artefacts of Franklin Roosevelt's Good Neighbor policy is the Montevideo Convention, which established the standard modern definition of statehood. The convention defined a state as an "international person" - i.e., an entity with the ability to conduct international affairs and represent itself in international organizations - and set four criteria that must be met by a political entity in order to qualify as a state. These are "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." It also made clear that the international personality of states existed independently of their recognition by other countries, and that unrecognized states have the legal right to defend themselves and conduct their own internal affairs.

While the Montevideo formula has wide currency in academia and the courts, it has been much criticized by those who favor the "constitutive theory" of statehood, under which a state is an entity recognized as such by other states. Recognition, however, is more a function of domestic politics in the recognizing state than the capacities of the state being recognized, and is often not universal. Taiwan and the People's Republic of China, for instance, are very clearly two political entities that can and do conduct international relations, but because they have mutually exclusive territorial claims, other nations can only recognize one of them. This makes recognition largely useless as a legal standard for determining the two Chinas' rights under international law; mainland China may have the greater number of recognitions at the moment, but few would argue that Taiwan's leaders are acting criminally by maintaining a national defense force and government. Recognition is best regarded as a political issue rather than a legal criterion for statehood.

The future geopolitical framework will involve several levels of international personality, and statehood will increasingly become a space on a continuum rather than a distinct status that marks the minimum qualification for participation in international politics. It is less clear, though, where that continuum will begin and end. Its upper bound is at the global level, at least until we start establishing space colonies, but the lower bound is uncertain and shifting. Currently, the lower limit of international personality is just below the level of traditional statehood; if the Montevideo Convention is converted into a four-point scale, subnational units like New Caledonia or the Canton of Zurich rate 3.5 with partial credit for their limited foreign relations authority. It is also possible, however, to conceive of international personality for units that score 3.0, or "Montevideo minus one."

There are four potential types of "Montevideo minus one" entity, two of which are well established in the current international order. The first such category consists of political units that have a population, a defined territory and a government but no capacity for foreign relations - in other words, traditional subnational units such as municipalities, counties and provinces. The second - entities with a population, a territory and the legal right to conduct foreign relations but no government - is the paradigm of the failed state. The former has no international personality because foreign relations are not within its competence, and the latter has international personality but is largely unable to exercise it.

The other two categories are less common, but either or both may come to play an increasing part in international affairs. One of these, consisting of entities with a government, a population and foreign relations power but not a defined territory, actually has very ancient roots. In many premodern societies, citizenship was a matter of tribal or personal allegiance, and people took their law and political representation with them when they traveled. By modern times, this had largely given way to the concept of territorial citizenship, and political institutions without territory largely ceased to exist. There have historically been special cases such as governments in exile or internationally-recognized liberation movements, but these all claimed title to defined territories; none, except possibly the Vatican, aspired to permanent status as a non-territorially-based government.

In recent years, though, non-territorial citizenship has been resurrected after a fashion by recent developments in Belgian federalism. The current Belgian political system has two parallel sets of subnational institutions, consisting of regions and linguistic communities. The communities have their own political institutions, constituencies that cross the territorial boundaries of regions, and power to make treaties on areas within their constitutional competence. In other words, these communities are international persons with a defined population based on language rather than geography. It is entirely possible, given recent demands for minority self-determination, that other political institutions based on linguistic, ethnic, religious, professional or other non-territorial allegiances might come into existence alongside geographic states, and that it will become the norm for individuals to hold multiple citizenships in territorial and non-territorial institutions.

The final "Montevideo minus one" entities are those with a territory, a government and the capacity to conduct foreign relations, but no permanent population. Low-lying countries like Tuvalu will become uninhabitable within the next century due to rising water levels but will continue to exist as legal entities. Even if Tuvalu sinks under the sea and its people move, there will still be a political entity with the exclusive right to Tuvaluan territorial waters and the power to make treaties. Such countries would, in essence, become the shell companies of international law.

A form of international personality may in fact be assumed by a special class of entities that belong in the "Montevideo minus two" category - those with governing institutions and legal capacity for foreign relations but no population and no defined territory. This class would include international regulatory institutions that are independent of multinational political groupings and can forge their own relationships with nation-states. As non-governmental organizations gain greater access to international fora and to the courts, they too could be recognized as international persons within the areas defined by their mission and competence. As regulation and commerce move into the international arena, so will trade unions and advocacy groups, and these will increasingly demand a direct voice in the places where regulatory policies are made.

All this may result in an international order that, in some ways, represents a return to medieval times. The players on the international scene a century from now could include a complex web of territorial and non-territorial units with varying degrees of power to conduct their own foreign affairs and to take part in international policymaking. The entities of these postmodern Middle Ages will interlock and overlap. This world will have tens of thousands of international actors rather than hundreds; with entities like the Vatican and Andorra seeming less like remnants than precursors.
It won't be utopia any more than it is now, but it isn't likely to be boring.

Jonathan Edelstein is an American lawyer who writes on issues of international law and justice. He practices law in New York at law firm Edelstein & Co. and has taught at John Jay College of Criminal Justice. This column is excerpted from his blog, the Head Heeb.

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