What makes a state? Under the Montevideo Convention, a prospective state must meet four criteria. It must have a territory, with a permanent population, subject to the control of a government, and the capacity to conduct international relations (sovereignty). Of these requirements, territory presents the major obstacle. Although the world has no shortage of groups seeking independence (who would gladly form governments and relations with other states), it does have a shortage of real estate. A new state necessarily takes territory from an existing state.
Since existing states make international law, it is no surprise that the law is designed to make it very difficult for a new state to form out of an existing state's territory. Territorial integrity, along with sovereignty and political independence, form the "triumvirate of rights" that states enjoy under international law. From these rights, the notion has emerged that new states can only be formed with the consent of the existing state where the territory lies.
The triumvirate of rights has long been the standard lens through which the international community views self-determination and the creation of new states. It has become increasingly clear, however, that rigid adherence to these principles can lengthen conflict and create negative incentives. If consent is required and not forthcoming from the state--and it usually is not--independence groups are forced onto the path of obtaining consent by force. States, meanwhile, feel secure in their territorial integrity, which more often than not puts them on the path of the violent suppression of independence movements.
This cycle feeds upon itself, with devastating consequences. Too often, states respond to independence movements with atrocities, as in Sri Lanka, in Sudan--first Darfur and now South Kordofan and Blue Nile States--in Burma, and now in Syria. In the former Yugoslavia, the international community's rigid adherence to traditional notions of state creation wasted precious time and allowed momentum for genocide to build.
In reality, international law's elaborate framework for self-determination and statehood provides independence-seeking groups with only two options. They can fight their way out, as South Sudan did, and obtain "consent" at gunpoint. Alternatively, they can suffer so many human rights violations that democratic states are forced by their constituents to intervene and essentially extract the new state from the predecessor state, as with the case of Kosovo. Either way, the likely result is more violence.
As scholars and practitioners of international law, our efforts to deal with this problem are clouded by a false notion of consent. Although genuine consent exists in some rare cases, as in Czechoslovakia, most of the time "consent" is a misnomer because it occurs at gunpoint. Consent for the independence of South Sudan cost millions of lives and decades of war. In Northern Ireland, consent was achieved only after a long, bloody terrorism campaign. In Bougainville, consent was extracted only after a decades-long conflict.
Now for the good news: recent developments in international law are providing new pathways for the international community to conceptualize and manage self-determination and the creation of states.
First, under the responsibility to protect (R2P) doctrine, sovereignty is no longer absolute. …