Keeping Perspective on the Law and Politics of Statehood

While I agree with Julian that the interplay of law and politics on questions of statehood can lead to difficult questions, I think his declaration that “we still don’t know when a state is a state,” does more to obscure the issues than actually give a clear picture as to how law and politics affect each other. First of all, Julian is really talking about one specific set of circumstances: contested secessions. I’d like to expand on his post a bit and consider some of the issues.

I think Julian started-off on the wrong foot by asking:

Are the two breakaway sections of Georgia (South Ossetia & Abhkazia) states? If not, why is Kosovo a state?

Formulating the question this way makes it seem that there is a single repository of what is or is not a state. But of course that is not the case: each existing state individually chooses to recognize (or not recognize) other entities as states. To the United States, Kosovo is a state. To Russia, it is not. To Russia, South Ossetia is a state. To the United States, it is not. (That’s the short answer to Julian’s questions.)

It is not that international law is unable to define what is or is not a state, it is that the process of whether or not a particular state actually chooses to recognize another entity as a state is intertwined with politics. This isn’t the conclusion, it’s just the starting point.

To say that the U.S. supports Kosovo’s independence (but not South Ossetia’s) due to political interests is obvious. But how do we explain Norway’s recognition of Kosovo? Or Peru’s? Or any other state that has at best a small interest in a specific secessionist conflict?  Especially since Norway and Peru (for example) have not also recognized the Georgia breakaway regions?

One resultant question is whether international legal norms affect patterns of state recognition. In my recent article, I argue that they do. (By the way, the question as to whether and how international norms affect state behavior and vice versa is actually what my article is about, not, as Julian implied, trying to find a definition of what is or is not a state. ) Without going into all the details in this blog post (read the article!), I argue that the case for recognizing South Ossetia and Abkhazia suffers from the criticism that they only exist as de facto separate entities due to (an arguably illegal) unilateral Russian intervention. If a state assesses the Russian intervention to have been illegal, then recognition of either South Ossetia or Abkhazia would run afoul of an international legal norm that a state should not extend state recognition to an entity when than recognition would perpetuate an international harm. The harm in the case of South Ossetia statehood would be Georgia’s loss of its territory due to illegal foreign military intervention. (See, for another example, the diplomatic isolation of Northern Cyprus.)

Some argue that the same essentially holds true for Kosovo. Others conclude that the cases are distinguishable since the Russian intervention into Georgia was unilateral, but NATO’s intervention in Kosovo was followed by a period of UN-sanctioned international administration in which the final status of Kosovo was in question. The South Ossetian and Abkhazian cases are, in my view, harder to justify under international law and they have received relatively little support from the international community—only Nicaragua and Venezuela recognize them, aside from Russia. By contrast, Kosovo has been recognized by 62 states. At the very least this is anecdotal evidence that where there is a relatively strong legal justification for nonrecognition, it is relatively difficult to secure recognition.

Russia’s diplomatic arguments in favor of its intervention and the recognition South Ossetia were spirited, but legally questionable.  These arguments have almost completely failed to persuade others, exemplifying the difficulty of trying to use international law as a “figleaf” to cover an action that would generally be considered illegal. Some people like to talk a lot about the limits of international law: but international law also limits diplomatic options. 

Nonetheless, as I argue elsewhere in my article, the process of making legal claims (especially if that claim is being made by a great power) may cause a change in how other states interpret international law. In this way diplomatic discourse may, over time, alter our understanding of international law– and, in effect, the law itself. 

In sum, I agree with Julian that where the issue is whether or not to recognize a secessionist entity, the mix of politics and law is complex. Each affects the other. But that does not mean international law is irrelevant. State practice, at least anecdotally, argues that it is not.

And it certainly does not mean that there is widespread confusion about what is, or is not, a state.