Introduction: From Rupture to Deliberate State Formation

From antiquity to the present, most new countries have emerged through rupture rather than design. Empires fractured, kingdoms collapsed, colonies revolted, federations dissolved. The international map has been reshaped more often by war, dynastic succession, revolution, or systemic breakdown than by intentional institutional planning.

Even in the modern era, state formation has tended to follow crisis: world wars, decolonization, or the disintegration of multinational unions. Violence is not universal in these transitions, but rupture often is. New states typically arise from instability rather than foresight.

Yet international law does not require crisis as a precondition for statehood. The Montevideo Convention sets out four criteria: defined territory, permanent population, government, and capacity to enter into relations with other states¹ None presuppose armed conflict.

This prompts a question insufficiently explored in contemporary policy discussions: can new countries be created through negotiated agreement with an existing United Nations member state, rather than through unilateral secession or systemic collapse?

Montenegro offers the closest recent benchmark. Its independence in 2006 followed a referendum conducted within a pre-negotiated constitutional framework, accepted by the parent state and structured in advance with international parameters² Consent fundamentally shaped its legitimacy and facilitated recognition. Where state formation proceeds with predecessor approval, the legal and diplomatic calculus changes materially.

If rupture is not required, then a further question emerges: can entirely new countries be intentionally built through negotiated agreement, structured from inception, and integrated into the international system by design rather than by accident?

I. How Treaty-Based State Formation Differs

Historically, new states have emerged through:

1. Decolonization under United Nations supervision

2. Dissolution of multinational federations

3. Unilateral secession

4. Revolutionary or civil conflict

5. External imposition or protectorate transition

Each pathway carries instability or ambiguity.

A treaty-based approach to state formation would differ in several respects:

• It would rest upon explicit bilateral consent.

• It would be formalized under the Vienna Convention on the Law of Treaties³

• Territory, succession, citizenship, defense, and diplomatic continuity would be clarified in advance.

• Recognition strategy would be structured rather than improvised.

International law has long accepted that territory may be transferred by agreement. The Island of Palmas arbitration confirmed that territorial authority can change through consensual legal acts between states.4 What is novel is not territorial adjustment, but the deliberate creation of a new country.

Montenegro illustrates how prior consent reduces recognition ambiguity.² When state formation occurs within a negotiated constitutional framework accepted by the predecessor state, prolonged diplomatic contestation becomes less likely.

II. Why Would an Existing State Agree?

Why would an established country permit part of its territory to become independent?

In most circumstances, it would not. However, incentives may align under carefully defined conditions.

A state may possess territory that is economically underdeveloped, geographically peripheral, or administratively burdensome. Rather than treating such land solely as a subnational unit, the host state could negotiate a structured transition to independence in exchange for defined reciprocal benefits.

These might include:

• Revenue alignment mechanisms

• Preferential trade or customs integration

• Security cooperation

• Long-term diplomatic partnership

• Structured economic participation resembling a joint venture

Such an arrangement need not be framed as loss. It may instead be understood as strategic restructuring combined with continued cooperation.

Constitutional validity and democratic legitimacy within the host state are indispensable. Without them, durability would be doubtful.

III. Treaty Architecture and Stability

The principal concern surrounding deliberate state formation is fragmentation. If new countries could be negotiated into existence, centrifugal pressures might increase elsewhere.

For this reason, treaty-based state formation must remain exceptional. Its architecture must be rigorous.

Article 26 of the Vienna Convention enshrines pacta sunt servanda, reinforcing the binding nature of treaties.³ Domestic constitutional procedures must be fully respected.

Territorial precision is essential. The International Court of Justice has emphasized stability and clarity in boundary arrangements, including in the North Sea Continental Shelf cases.5 Ambiguity invites dispute.

Citizenship provisions must prevent statelessness and ensure genuine connection, as highlighted in Nottebohm.6 Human rights continuity should be explicit and durable.

In short, legitimacy must be engineered into the founding framework.

IV. United Nations Qualification as a Baseline

A foundational benchmark for any new country formed by agreement should be straightforward: it should meet the objective criteria for admission to the United Nations under Article 4 of the Charter.7

Whether it ultimately seeks membership is secondary. The standard should be that it qualifies.

This implies:

• Clear statehood under international law

• Peaceful character

• Capacity to carry out Charter obligations

Where independence is achieved with full predecessor consent and constitutional validity, there is no inherent violation of Article 2(4) of the Charter.8 The absence of a competing territorial claimant significantly reduces structural obstacles.

The Kosovo advisory opinion confirmed that international law does not generally prohibit declarations of independence, but it also demonstrated that legality alone does not guarantee recognition.? Consent-based formation materially strengthens the diplomatic position.

A treaty-based new country should be capable of admission, without foreseeable structural impediment.

V. Risks and Constraints

Risks remain.

A newly formed country could become economically dependent on a dominant partner. Regulatory divergence could create regional tensions. Recognition may still be shaped by geopolitical rivalry. As Crawford observes, statehood in practice remains intertwined with political acceptance.¹°

These risks do not invalidate negotiated state formation, but they demand deliberate, disciplined, diplomatic realism

VI. State Formation as Institutional Design

The broader significance of this model lies not in multiplying flags, but in expanding the repertoire of lawful state formation.

Existing countries often struggle to implement structural reform due to entrenched systems and political inertia. A newly created state, intentionally designed from inception, can embed constitutional clarity, fiscal architecture, and regulatory coherence in ways difficult to retrofit.

This is not a call for fragmentation. It is an argument that under carefully defined conditions, building new countries through agreement may represent a structured form of institutional innovation within the existing international order.

The global system is itself treaty-based and adaptive.¹¹ It has accommodated unions, dissolutions, and negotiated transitions. It may also be capable, in certain carefully structured cases, of accommodating deliberately constructed new states.

Conclusion: Building Rather Than Breaking

For most of history, new countries often emerge in the wake of crisis.

Yet international law permits another path: agreement, negotiation, and deliberate state formation.

Such cases could be plausible, with constitutional legitimacy, diplomatic sophistication, and rigorous legal architecture. Montenegro demonstrates that consent changes the equation.²

The more ambitious question is whether new countries can be built intentionally, cooperatively, and lawfully, not in reaction to breakdown, but through careful, structured planning.

State formation need not always follow fracture. In certain circumstances, it may be possible to build rather than break.

Julien Andrew Starr is Founding Director of Startup States Society (Geneva)

Endnotes

¹ Montevideo Convention on the Rights and Duties of States, 26 December 1933, 165 LNTS 19, Art. 1.
 ² European Union, ‘Council Decision on Montenegro Referendum Standards’ (2006).
 ³ Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Art. 26.
 4 Island of Palmas (Netherlands v United States) (1928) 2 RIAA 829.
 5 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3.
 6 Nottebohm (Liechtenstein v Guatemala) [1955] ICJ Rep 4.
 7 Charter of the United Nations, 26 June 1945, 1 UNTS XVI, Art. 4.
 8 Ibid., Art. 2(4).
 ? Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.
 ¹° James Crawford, The Creation of States in International Law, 2nd edn (Oxford University Press 2006).
 ¹¹ Malcolm N Shaw, International Law, 8th edn (Cambridge University Press 2017) 344–372.