RSS
Print This PageKeeping 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.
Related Posts
7 Responses
Trackbacks and Pingbacks
-
[...] Opinio Juris » Blog Archive » Keeping Perspective on the Law and … Comments [...]
-
[...] October 9, 2009 Although the definition of statehood under international law has not been definitively resolved, traditionally, per the Montevideo Convention, “The state as a person of international law [...]
“… 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.”
Yes, but surely juridical statehood is governed by objective criteria, as set out by international law. It is possible for a state to not recognize a state that legally does exist, and for a state to illegally recognize a territory that is not a state. If recognition can be done illegally or prematuraly, we shouldn’t rely on recognition as the mark of sovereign statehood.
at 1:24 am EST Oder
Being Peruvian, I can tell you Peru’s decision to back Kosovo was based mainly in staying on the US side of the equation, along with Colombia, in direct opposition with Venezuela and Bolivia (who firmly opposed Kosovo’s independence). So we may have had little interest in recognizing Kosovo as such, but we kinda did have an interest on the signal that sent to some of our populist neighbors… I think without that interest, we most likely would have simply remained neutral, like Chile.
at 2:08 am EST AGD
The issue, I think, could be reformulated in yet a different way. The question is whether Kosovo, South Ossetia or other similar entities are subjects of international law or not. If they are not, then whatever Kosovo does is imputable to somebody else (Serbia? UNMIK?) and whatever South Ossetia does is imputable to somebody else (Georgia? Russia?). Linking responsibility with subjectivity is not a way to solve statehood, but at least to hint to solutions as to subjectivity. And whether Kosovo or South Ossetia are independent subjects is really what we care about, not whether many or few States call them ‘State’. Being defined as a ‘State’ is indeed important to get UN membership or to join other such clubs, but is not pivotal to establish whether an entity has become an independent subject, as they used to say, superiorem non recognoscens. And this is really what the discussions are usually about: is Russia really in charge in South Ossetia? Is Turkey really calling the shots in Northern Cyprus? Is UNMIK really running the show in Kosovo?
I think that it is not so much an issue of recognition (almost exclusively a political process), but rather a factual matter, to be decided on the facts. Let’s assume that Kosovo was created by illegal international intervention. It should not be recognized as a State under international law for the reasons advanced by Chris – but this is not the end of the matter. If Kosovo tomorrow attacked Albania to annex a portion of the latter’s territory – would it be considered responsible under international law for aggression? Or would Serbia be considered responsible? Or would the UN or NATO be considered responsible? The answer to this question tells us a lot about on whether Kosovo is independent – regardless of how one calls it (State or not).
at 2:19 am EST Guido
Chris, thanks for an excellent post on a complex question.
However, if you believe that “state interest” is (or may not always be?) the key factor of recognition (to some extent within the confines of a reasonable interpretation of international law) I believe it is necessary to pack a rigorous analytical framework in order to define such interests.
If the only really important variable is Great Power power politics -and the only choice for all other States is to side with the great power that they believe protects them best against one threat or the other- then I believe the framework has limited explanatory power. It might explain why, Norway (for instance) decided that it was in their interest to take part in the NATO bombing campaign and why, according to Sky News, together with British special forces, Norwegian special forces were the first to cross over the border into Kosovo.
But does it explain subsequent participation in KFOR? (for an interesting case that arose out of the events in Kosovo, see the Behrami and Saramti judgment of the European Court of Human Rights, where one of the questions before the court was wether acts and omissions by a Norwegian KFOR commander should be attributed to Norway or to the United Nations.)
And if it does explain recognition, does it also explain, for instance, the voting pattern of small States in international organizations?
I believe it is fruitful in all contemporary “politics of international law”-analyses to assume that almost all developed States act in accordance with what they perceive to be their own interest almost all of the time, and that their conception of interest may include international trade, inflow and outflow of capital and competence, to minimize growth of transnational crime (including trafficking), to maximize regional peace and stability (and thereby, inter alia, prevent a “refugee inflow”), to increase their reputation in international relations and that it may have a value component as well.
And then: why a liberal democracy that borders with Russia should act in a way with respect to Russian behavior in Georgia that might be perceived from Moscow as encouraging, is beyond me.
The more enlightening question is perhaps why Spain and Romania have decided not to recognize Kosovo – and the answer seems obvious: they have their own, potentially secessionist regions, which are far more important than whatever Kosovo and related, regional questions might mean to them.
at 4:23 am EST Erlend
Thank you, all, for your comments. A few thoughts regarding the issues you have brought up:
Oder: I agree with you that a state’s recognition alone is not the whole story as to whether or not a recognized entity is or is not a state in the broadest sense of the word. That is why we have the criteria for statehood. So on that, we agree. I do think, though, that as a practical matter, recognition is hugely important even though, as a technical juridical matter, under the declaratory view, it is not.
AGD: Your point is well taken. I think my central argument remains though, that if it was clearly illegal to recognize Kosovo, Peru might have just stayed silent. Many states, including allies of the U.S., have done so. I think, in part, Peru and other states believe that there is at least a colorable argument in favor of Kosovo’s recognition, while being more skeptical regarding South Ossetia and Abkhazia. But, in sum, yes, I agree that the political interest in recognizing Kosovo may be for the signal that it sends to the U.S. I am just wondering if Peru would still want to send that signal if recognition would have been more clearly a violation fo international law.
I would also add, that aside from Peru, one may consider why some states are still adding themselves to the list of states recognizing Kosovo. The value of a signal to the U.S. at this point is probably relatively low. These states may be less influenced by wanting to bandwagon with the U.S. (though it may still be a consideration) than just doing something that they think is right, or at the very least, not illegal. Contrast this with the the continuing nonrecognition of the Georgian breakaways, Northern Cyprus, Transnistria, etc.
Guido: An interesting point, although I think it is dealing with a slightly different question. I belive that you are correct that the issue of international responsibility is different than that of recognifition. De facto regimes and insurgencies, for instance, are responible for respecting human rights within their areas of effective control. However, this in and of itself doesn’t tell us whether the entity should be considered a state. Here I return to Oder’s emphasis that there are some external juridical norms for that issue. While the consensus view of internatioanal lawyers is that secession itself is neither prohibited nor a remedy under international law (secession is merely a fact), external military intervention is prohbited (at least in most circumstances). I do think this prohibition affects when and hor states choose to recognize breakaway territories.
Erlend: I do think that states recognize other entities in part based on their calculation of their own interest. I do not mean this to be that their interest is merely their calculation as to what will or will not make a great power their friend, see my comments to AGD. Rather, my more general point, and where I take issue with Julian’s minimization of the role of international law is that I think calculation of state interests include issues such as (a) whether this recognition would be viewed as violative of international law, (b) whether this recognition could foster a rule to which I would not like, (c) would this recognition give poltical support to factions/greoups/ states that I do not agree with and, (d) would such a recognition weaken the foundations of other rules, which I would want upheld? (To give four possible examples.) I agree with you that taking ito account such considerations likely explains, among other things, Spain’s and Romania’s decisions not to recognize either Kosovo or the Georgia breakaways.
at 12:12 pm EST Chris Borgen