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.

 

New Vote in Kosovo

On November 17, Serbs in the northern Kosovar political-map-of-Kosovocity of Mitrovica cast their ballots under tight security.  They are seeking to elect a mayor for the northern part of the city (presumably a Serb), whereas the southern portion of the city, under Kosovar Albanian control, will elect a counter-part (presumably Kosovar Albanian) mayor.  The vote is a redo from a failed November 3 election, when masked gunmen interrupted the voting process.  By most accounts, the gunmen were sent by hardline Serbs, seeking to thwart the de facto secession process of Kosovo from Serbia.  Kosovo unilaterally declared independence from Serbia in 2008, and the International Court of Justice refused to pronounce this type of declaration illegal, thereby implicitly confirming the legality of the separation process. The Serbian government has for years refused to acknowledge the loss of Kosovo, and has until recently continued to lay territorial claims on this southern region.  Serbia however has had to renounce this claim, because its accession procedure to the European Union has been conditioned upon letting go of Kosovo.  For hardline Serbs living in Mitrovica this idea might seem unimaginable.  Thus, voter turn-out at yesterday’s elections was low – only 22 per cent of the Serbs showed up to the polls.  The low voter turn-out most likely reflects a lack of confidence by Serbian voters in an integrated Kosovar state.  The situation on the ground, in Mitrovica and in other parts of Kosovo where Serbs may still be found, confirms this state of affairs  – the Serbian and the Albanian populations seem to be co-existing under total segregation, with occasional outbursts of violence.

(photo credit: http://www.ezilon.com/maps/images/europe/political-map-of-Kosovo.gif)

The European Union authorities have been pressuring Serbia to accept a deal which would normalize Serb-Albanian relations by encouraging the Serbian government to entice Serbs living in Kosovo to participate in democratic elections in Kosovo, thereby accepting a majority Kosovar-Albanian government over the entire region.  Under this deal, Serbs in Kosovo could potentially elect Serbian local majors and township leaders, and could send their representatives to the Kosovar parliament.  Under this deal, however, Serbia and Serbs living in Kosovo would have to renounce any desire for a separation of northern Kosovo and its reunification with Serbia, and would have to accept political participation in a majority-led Kosovar Albanian state.  Much scholarship so far has focused on the issue of the Kosovar declaration of independence, and on issues of statehood and secession, but relatively little has ben written on the issue of de facto states – entities which exist de facto separately, but which de jure belong to a larger mother state, which for political, military, or other reasons does not exercise effective control over such an entity.  Examples of de facto states include Republika Srpska (existing de facto separately from the Bosnian Federation), Taiwan, Nagorno-Karabakh (existing de facto separately from Azerbaijan), Northern Cyprus, Palestine, South Ossetia and Abkhazia (the latter two existing de facto separately from Georgia).  Will northern Kosovo turn into a de facto state, an entity which legally belongs to the larger state of Kosovo, but which for complex reasons cannot be truly integrated into Kosovo and continues to function distinctly, as its own “selfistan”?

When Kosovo declared independence from Serbia in February 2008, the issue of minority Serbs living in Kosovo was left untouched.  The expectation may have been that they would move away to Serbia (for many Kosovar Serbs, this option was not available because of a lack of housing, educational or professional opportunities away from their homeland in Kosovo), or that they would accept a majority Albanian rule and participate democratically in this newly created state.  Because of deep animosity existing for decades, if not centuries, between the Serbian and the Albanian communities in Kosovo, the latter should not have seemed as a plausible solution – without some exceptional accommodations and assurances.  The last mayor election in Mitrovica may represent such an attempt to entice local Serbs to participate in Kosovar political life, by allowing them to elect a Serbian mayor for the northern, Serb-dominated part of town.  While this solution appears politically sound, it further deepens the rift existing between the Serbian and the Albanian communities and it further promotes the de facto segregation within Kosovo.  This is what essentially took place in Bosnia, where Serbs congregated to the eastern part of the country and formed their own de facto state, Republika Srpska.  This is equally what took place in South Ossetia and Abkhazia, which now function de facto separately from the official Georgian government, and this has been the state of affairs in Cyprus, where the northern part has operated as a de facto separate entity, led by Turkish Cypriots, for several decades.  The Taiwanese and the Palestinians have formed their own almost-states, and Nagorno-Karabakh, although it officially belongs to Azerbaijan, has very little to do with the Azeri government.  This state of affairs is far from ideal for the de facto states and their populations.  Because they lack the official label of statehood, these entities are not able to participate in international affairs, lack membership in the United Nations and other most important international organizations, and cannot attract advantageous international investments.  Thus, they remain (except perhaps Taiwan) isolated, under-developed, poor, and prone to further violence.  They may also become puppets in the hands of more powerful states, which may use them to gain political advantage and which may, because of complex geo-political reasons, forever deny them statehood.

Only time will tell how the situation in Kosovo will develop.  As of now, the state of Kosovo remains dependent on the international community for the safekeeping of its borders, its ethnic balance, its politics, and its development.  If Kosovar Serbs accept this state of affairs, they may attempt to broker a deal for themselves – a sort of provincial autonomy within the larger Kosovar state.  If they do not and if they keep refusing to participate in the life of the new state of Kosovo, they may become a de facto state, hoping that some day they could be allowed to rejoin Serbia.  The European Union authorities have as of now convinced the Serbian government in Belgrade to support a single Kosovar state, but it appears that Serbs in Kosovo remain unconvinced that their future should lie within such a single, Albanian-dominated state.  As of now, meaningful integration between the two communities seems impossible, and at best, we can all hope for the preservation of peace and stability.