Syria, Intervention, and Recognition

by Jens David Ohlin

Cross-posted at LieberCode.

It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not.  They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe.  And they definitely will veto any resolution that authorizes military action in Syria.

Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria.  That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument.  The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention.  True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires.  But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.

Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing.  If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty.  Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.

There are two options to this strategy.  Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory.  Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.

What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary?  In other words, can the recognition strategy be universalized?  Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all — and anoint them as legitimate rulers?  Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China?  (The ROC once ruled mainland China too but lost a civil war to the PRC).

Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here.  There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be.  With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible).  But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).

That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?

http://opiniojuris.org/2012/02/11/syria-intervention-and-recognition/

9 Responses

  1. Response…
    Another option is to recognize the rebels, later, as belligerents (as in the case of the U.s. Civil War).  However, aid to a belligerent is an act of war against the present regime.
    The Arab League could authorize force under Art. 52 of the U.N. Charter while the S.C. is veto-deadlocked, as in the case of NATO and Kosovo.
    And another option is the G.a. thru a Uniting for Peace resolution.

  2. Article 52 permits the existence of regional security arrangements, like NATO, but nothing in Article 52 permits those arrangements to exempt themselves from the Charter requirements of SC authorization or Article 51 legitimate defense for the exercise of force.

  3. I think the effective control test is becoming less and less dominant in such cases, considering the increasing predominance of the concept of the protection of civilians as an important component of sovereignty. Libya is one recent example but one can’t forget Somalia, and the ongoing recognition of the TFG despite its lack of effectiveness.
    Recognition followed by intervention upon consent is indeed a dangerous route to take because of the potential for abuse, but if there will be collective recognition, led by the relevant regional organization (The Arab League) I think such move might receive international acquiescence.

  4. I don’t think the recognition strategy can be universalized (and I suspect you don’t either).  It is certainly true that if you look hard enough you can probably always find some group willing to declare itself the “real” government of the people.  The problem is one of legitimacy (as you hint).  If the group you recognize doesn’t have legitimacy then everyone is going to realize that what you are really doing is just searching for a cynical justification for regime change.  If you can find a group that a majority of the international community will recognize as legitimate then I think the recognition strategy can work as a political justification (and the international community can worry about finding a post hoc legal justification later).  

    It reminds me a little of what the R2P report said about Kosovo – something like “it was necessary but not legal.”  If you can find a legitimate group to recognize then you might be able to cast your intervention as being necessary and perhaps even moral (and leave legal questions for afterwards).

  5. Response…
    Jens: article 52 expressly recognizes the possibility of “regional action” and Art. 53 only applies if the S.C. gets their act together.
    The S.C. engages in “enforcement action.”

  6. Response…
    Syria has been isolated by most of the international community for so long, how does the west expect to know what the best direction is for them? Anyone who has been on the ground in Syria and Lebanon would be quick to tell you that what Happens in Homs is very different to that in Damascus and Aleppo.  http://themostalive.com/8-things-you-should-know-about-syria-that-your-news-anchor-doesnt/ Syrian governance needs to be determined by Syrians, regardless of wether we agree with the path that is taken or not.

  7. Response…
    U.S. in Panama provides example of a shot-gun, or belt-suspenders, approach perhaps designed to bolster legitimacy (with questionable results): U.S. claimed both Art. 51 AND invitation to NIAC from “legitimate,” U.S.-recognized government in the form of a new “president” – who had no forces or control – sworn in on U.S. military base an hour before ops commenced. UN. G.A. protested the former and District Court rejected the latter. As of 2002 Executive Branch still rejected Court’s rejection, see Jan. 2002 OLC opinion re application of treaties to al Qaeda at n.101 (“By assuming the right to determine that the United States was engaged in an armed conflict with Panama – rather than with insurgent forces in rebellion against the recognized and legitimate Government of Panama – the district court impermissibly usurped the recognition power, a constitutional authority reserved to the President”).

  8. Response…
    Douglas: it is a little more complex because Noriega lost a general election and refused to step down.  President-elect Endara did come in with the U.S. 82nd Airborne, and was sworn in in Panama.  The Exec. does have the unilateral power to recognize (and de-recognize) a foreign govt. as far as the U.S. domestic legal process is (or should be) concerned.
    The U.S. did argue 51 self-defense because of attacks on a few U.S. nationals.

  9. Response…
    Let us not forget that way back when, during the Cuban Missile Crisis, the U.S. did not claim a right to interdict Soviet vessels heading to Cuba on the basis of U.N. 51 (which would not have been correct in any event because there had been no Soviet “armed attack” on the U.S.), but based the claim on the authorization from the O.A.S., a regional organization that had authorized what the U.N. Charter terms “regional action.”

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