International Law on Statehood and Recognition: Israeli-Palestinian Conflict and the South Caucasus

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

Over the past week, I had the honor of presenting at two different conferences on statehood and recognition issues: the first one was held at Hebrew University in Jerusalem, Israel, and its official title was “Recognition in the Context of the Israeli-Palestinian Conflict,” and the second one was held in Ankara, Turkey, and its focus was on “The Centennial of the Independence of the Three Caucasus States: Historical Background, Contemporary Developments and Prospects of Peace and Prosperity” (the conference was organized by the Center for Eurasian Studies, an independent think tank based in Ankara).  My role at each of these conferences was to discuss statehood and recognition issues under International Law – in the context of the Israeli-Palestinian conflict at the first conference, and in the context of the South Caucasus conflicts at the second conference (as most readers would know, there are ongoing separatist conflicts in Nagorno-Karabakh, South Ossetia, and Abkhazia). Although these conflicts present distinct factual issues, many legal issues pertain to all; this post will briefly discuss such common legal issues in an attempt to shed light on complex issues of statehood and recognition.

Jerusalem view

Jerusalem City View

Statehood and recognition are supposed to be distinct from one another.  The former is a legal theory enshrined in international treaty law: the Montevideo Convention on the Rights and Duties of States establishes four criteria of statehood, which include the presence of a defined territory, permanent population, government, and the capacity to enter into international relations.  The latter is a political act traditionally left to the sovereignty of already-existing states. International law scholars have described two different theories of recognition of states: the declaratory view and the constitutive view. Under the former, recognition is seen as a purely political act having no bearing on the legal elements of statehood. Under this view, outside states can choose to recognize the new state, or not, but that decision does not influence the legal determination of statehood.  Under the latter, recognition is seen as one of the main elements of statehood. Thus, an entity cannot achieve statehood unless it is recognized by outside actors as a state. Under the constitutive view, recognition and statehood go hand-in-hand: an entity vying for statehood must garner the support of other existing states, which must express their desire to formally recognize this entity as their sovereign sister state. In addition to the declaratory and constitutive views, scholars have advanced a third, intermediary view on recognition.  The intermediary view seeks to combine the declaratory and constitutive views while acknowledging what truly takes place in practice.  This view posits that recognition is a political act independent of statehood, but that outside states have a duty to recognize an aspiring state if that entity objectively satisfies the four criteria of statehood.  Upon a closer examination of statehood and recognition, it thus seems evident that the two are related on a theoretical level.  The fourth criterion of the Montevideo Convention establishes the capacity to enter into international relations as one of the fundamental criteria of statehood; an aspiring state cannot possibly enter into international relations unless existing states are willing to recognize the aspiring state as a sovereign partner.  In addition, unless one supports the declaratory view on recognition, it appears that recognition is one of the elements of statehood (under both the intermediary and constitutive views).  And, in practice, recognition and statehood are closely connected. Most aspiring states must garner the support of a sufficient number of existing states, and in reality, the support of most of the Great Powers, in order to be recognized as new sovereign states. Without such recognition, aspiring states remain that – entities aspiring to achieve the supreme status of statehood. To the contrary, recognition and support by the Great Power may elevate an aspiring state to the status of statehood, although such an aspiring state may not satisfy the legal requirements of statehood.

Ankara Conference

Conference on Recognition and Statehood Issues in the Caucasus in Ankara, Turkey 

 

Several historical examples support this argument. When Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and to form an independent state in 1965, most of the world, including the Great Powers, refused to recognize Southern Rhodesia as a state. Consequently, Southern Rhodesia remained isolated from the world and was unable to conduct international relations. The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood. In the context of the former Yugoslavia, European Great Powers as well as the United States decided to prematurely recognize Croatia and Bosnia and Herzegovina, although such recognition was granted at a time when the entities in question arguably did not exercise control over their territories or have effective governments, thereby not meeting the traditional requirement for statehood.  Moreover, the United States refused to recognize the Peoples’ Republic of China (PRC) until 1978, although the PRC satisfied the legal criteria of statehood. Turkey was isolated in its own recognition of the Turkish Republic of Northern Cyprus as a state, although this entity did not necessarily fulfill all the legal elements of statehood. Finally, whereas many Western Great Powers have recognized Kosovo, Russia has refused to entertain any possibility of recognizing Kosovo as a state, although Kosovo’s fulfillment of the legal criteria of statehood is at the very least open to reasonable debate. Thus, recognition, whether it is considered a political or legal act, has a direct impact on the pragmatic determination of statehood: whether an entity will be able to truly act as a state on the international scene.  It may be argued that important states, such as Great Powers, support the constitutive view, because they equate recognition with statehood. In other words, Great Powers, as well as other important states, may decide whether to treat an emerging entity as a state based on their own geo-political interests, and not based on whether the entity satisfies the legal criteria of statehood. Thus, Great Powers, as well as many other states, have demonstrated that in practice, recognition remains constitutive of statehood.

Ankara City View

Ankara City View

Another key ingredient in the process of state creation is United Nations’ membership.  Because United Nations’ membership depends on the Security Council, it is thus subject to the geo-political whims of the five veto-wielding Great Powers (United States, Russia, United Kingdom, France, and China).  United Nations’ membership is important because it de facto elevates an aspiring state into a state.  Conversely, the denial of United Nations’ membership prevents the attainment of full statehood by an aspiring entity.  United Nations’ membership is distinct from the legal criteria of statehood (although such membership arguably enables the entertainment of international relations) and distinct from each existing state’s sovereign decision to recognize or not recognize a newly emerging entity.  However, it may be argued that United Nations’ membership reflects the collective recognition practice of the five permanent members of the Security Council, and that, in order to become a state, any entity must garner the support of these Security Council members – because entering the United Nations signifies the international community’s approval of a new sovereign member.

How does all of the above apply to the Israeli-Palestinian conflict and to the South Caucasus? Although Palestine, Nagorno-Karabakh, South Ossetia and Abkahzia may or may not satisfy the four criteria of statehood, and although Palestine may be recognized by over a hundred existing states, each of these entities have been blocked from entering the United Nations because of Security Council veto – in the case of Palestine, the United States has vetoed the Palestinian application for full membership, and in the cases of Nagorno-Karabkah, South Ossetia and Abkahzia, it is likely that the United States would equally veto membership applications.  Thus, none of these entities stand a chance of attaining statehood at the present moment. It may be argued that the Palestinian case for statehood is much stronger, because Palestine has observer status in the United Nations, because the International Criminal Court has opened an investigation into Israel, at Palestine’s request, and because Palestine has been recognized by more than one hundred existing states.  In addition, Palestine has recently sued the United States in the International Court of Justice under the Vienna Convention on Diplomatic Relations; it will be interesting to find out whether the Court takes up the case on the merits and proclaims anything regarding Palestinian statehood issues. However, because of the United States’ veto in the Security Council, Palestine does not have access to the United Nations and has no prospects of attaining the status of a sovereign state.

In sum, unless one supports the declaratory view, recognition and statehood remain connected on the theoretical level, and recognition and statehood are almost always inter-linked in practice.  Although recognition and statehood are distinct processes, it is nearly impossible to analyze the recognition of new states without focusing on the legal theory of statehood.  In addition to the link between recognition and statehood, recognition is always a political process, dominated by global politics and the interests of the Great Powers.

 

‘Oslo Recommendations for Enhancing the Legitimacy of International Courts’: international judges take a stand on current challenges facing the international justice system

In collaboration with Andreas Føllesdal and Geir Ulfstein of PluriCourts

Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law.

OLYMPUS DIGITAL CAMERA

BIIJ 2018 participants

Over the course of the BIIJ, participants examined carefully how some international courts are currently experiencing ‘pushback’, be it from member states, civil society groups, or even their own parent bodies. The World Trade Organization (WTO) Appellate Body, for example, finds itself at a critical juncture. The United States has recently blocked all new appointments to its seven-member bench, which will soon bring its important trade dispute resolution work to a standstill. The International Criminal Court (ICC) has heard noise about withdrawal by some member states in response to action by its Prosecutor to examine crimes upon their territories.  More generally, international courts and tribunals feel a waning of the late 20th century enthusiasm and support for international justice institutions. BIIJ judges clearly realize that a proactive response on the part of institutions may help them to negotiate current conditions.

The Recommendations, which BIIJ participants drafted and endorsed in their personal capacities, articulate relevant policies and activities in five arenas: nomination and selection of international judges; ethics and judicial integrity; efficiency of proceedings; transparency of proceedings and access to judicial output; and role of judges in outreach and interactions with the public.

We find it first of all important that the fifteen international judges acknowledge the legitimacy challenges facing international courts. It is also significant that the judges believe that both courts and members of their benches have a responsibility to address these issues, and that such responsibility goes beyond what is the ‘primary work of international judges’, i.e. to ‘produce well-reasoned and timely judgments’.

In the section devoted to the nomination and selection of international judges, the Recommendations emphasize the importance of having multiple candidates for judicial vacancies and the need to consider diverse candidates. The document also broaches the question, perhaps publicly for the first time, of establishing age limits for judicial nominees to ensure the ongoing fitness of international judges over the length of their terms. A final provision in this section addresses the need for nomination and selection authorities to ensure that international judges may carry out their work with independence and in security.

The section on ethics and judicial integrity deals with judicial culture in the court as well as ethical issues. It is notable that the judges felt a need to emphasize that dissenting and separate opinions should ‘be delivered with restraint and formulated in respectful language so as not to undermine the authority of the court’.

The provision that ‘[e]ach international court should have a code of judicial ethics whose provisions are well known to judges’ would seem obvious and unnecessary to mention. Nevertheless, some BIIJ 2018 participants reported that while their institutions may have already formalized a set of ethical guidelines, new members of the bench may not be introduced to them nor even be aware of their existence. The guidelines then lose their positive potential.

OLYMPUS DIGITAL CAMERA

International judges drafting the Oslo Recommendations at BIIJ 2018

It is also unusual for international courts, faced with alleged ethical violations by a judge, to appoint ‘an external committee… composed of individuals with relevant knowledge and experience to conduct the investigation and make recommendations’. Some newer institutions have instituted such measures, and this inspired BIIJ 2018 participants to examine the benefits of such an approach. This provision of the Oslo Recommendations thus underscores the wisdom of not confining consideration of potentially serious ethical breaches to internal procedures behind closed doors.

Other provisions of the Recommendations address issues that not infrequently lead to public criticism of international courts. International judicial proceedings may be inefficient and overly lengthy; their judges may take on too much outside work to the detriment of their judicial responsibilities; proceedings cannot always be followed remotely by interested parties; judgments and other judicial output may not be posted or archived in such a manner as to be easily accessible by scholars, other courts, and the larger public; and messaging and outreach by international courts sometimes suffer from inaccuracy and inconsistency.

The Oslo Recommendations for Enhancing the Legitimacy of International Courts represent a first step toward initiating reforms in institutions of international justice that might help them to secure their standing on the world stage. Significantly, this first step has been made collectively by individuals whose positions serve as the fulcrum upon which the entire international justice system balances.

You may read the full text of the Oslo Recommendations here.

 

Human Rights and Lefts

If the left and the right support the right, who is then left to support the left?

The recent ousting of the Egyptian President has brought some noteworthy insights into the discussion about the academic right and left and their approach to human rights.

Before unearthing this insight, let’s take a step back and start with what is considered to be the normal perception of the left in academic discourse. We’ll stay in the region and take the scholarship on the Middle East and North Africa as a case.

In his book Ivory Towers on Sand: The Failure of Middle Eastern Studies in America (2011), Martin Kramer criticizes Middle Eastern studies in the United States for what he sees as left-wing biased scholarship. Inspired by that book, Norwegian editors Bernt Hagtvedt, Øystein Sørensen and Nik. Brandal published Venstreekstremisme (2012) which contains a similar criticism against Norwegian Middle Eastern scholarship. The essence of the criticism in both books is that leftist scholars have a tendency to romanticize the Third World and sympathize with political radicalism in the Middle East. In a human rights context, particularly when we find ourselves at the intersection of human rights and what is understood to be Islam or islamist actors, leftist scholars appear to defend the latter- sometimes with good intention- as a culturally appropriate alternative. Some of these scholars identify as left-wing, while others are deemed as such.

But does the identification of the scholar as left-wing, imply that the content of the scholarship also is left-wing?

Continue reading