The Gujarat police reported last month that Nithyananda had fled from India. The latest string of charges made against the godman includes abduction, child labour, criminal intimidation and causing hurt, adding to the already long list of alarming crimes. Adding another layer of absurdity it was recently discovered that Nithyananda has set up his own Hindu nation. Kailaasa, located off the coast of Ecuador, has its own flag, recognised a set of official languages and even set up a department for homeland security and defence. To all appearances, it seems like a legitimate country and may inspire more to establish their own. But creating a new country is not as easy as you would think.
Just like a wavin’ flag
Nithyananda and his team probably took the same first step as I did and Googled their way to a step-by-step guide on how to create a country. Turns out there are certain eligibility criteria to become a country — you must have defined territory, a permanent population and a government that is capable of cultivating and maintaining diplomatic relations with other countries. This qualification was laid out in the Montevideo Convention on the Rights and Duties of States, a treaty signed during the Seventh International Conference of American States in 1993. According to the 16 articles listed in the treaty, Kailaasa passes the litmus test and has successfully joined the ranks of Transnistria, Sealand, Somaliland, and a host of other countries. Unfortunately, it won’t see its flag waving at the Olympic Games any time soon.
If Team Nithyananda had not skipped the fine print like most us do when it comes to agreeing to terms and conditions before a software update, it would realise that establishing a country requires more than creating a website. There are two competing international law theories on state recognition. The declaratory theory, on which the Montevideo Convention is based, holds that recognition by other countries is irrelevant because the status of statehood is based on fact and not on discretion. Diametrically opposing the declaratory theory is the constitutive theory that postulates that recognition of an entity as a country is not based on the declaration. A state is only a state when it is recognised as such and other states. This assumes that existing countries have considerable discretion to recognise other claimants of statehood.
The declaratory view is currently in prominence. However, it is probably just beginning its decline in favour of the constitutive view. A popular argument that favours international recognition to be a necessary condition is that it provides legitimacy to a country. Bosnia and Herzegovina’s claim to statehood was buttressed by widespread recognition despite not having met the criteria perfectly. Recognition, however, is complicated.
During the Cold War, for instance, the legitimacy of both North and South Vietnam depended on which side was asked. Even today Palestine, Taiwan, Tibet lie within a category of entities that are recognised by some but not by others. With strong arguments on both sides, the struggle between the two theories for one to emerge superior will not end soon.
The International Club of Countries
For a state to be initiated into the international community at present, it must have some degree of recognition at least. There is no better, more significant stamp of international legitimacy than United Nations membership. Admittance to the UN is a form of approval as a full member of the international club of countries. While the process for gaining membership is fairly simple to follow — only requiring a letter addressed to the Secretary-General, the biggest obstacle to UN membership is power politics. Upon nomination of the applicant by the UN Security Council to the UN General Assembly, it has to determine (by a two-thirds majority) that the applicant is a peace-loving country and can carry out the duties stated in the UN Charter. The Taiwanese government has sent a membership request every year since 1993 to no avail. Kosovo, too, is unlikely to gain membership as long as Russia is a Security Council member.
Kailaasa, as it is today, is an imagined community with the skeleton of a state. It is not a country yet.
Anyone planning world domination must remember: norm-based international laws evolve over time so starting one’s own country is not impossible. It requires a lot of patience and friends in the right places....