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Chris Borgen

Welcome to Guest Blogger Jens David Ohlin

by Chris Borgen

Professor Jens David Ohlin of Cornell Law School will be guest blogging with us over the next two weeks. Many readers may know Jens from his blogging at Lieber Code and from his many articles on international criminal law, the laws of war, cyberwar, and comparative criminal law, among other topics.

Jens is also the author or editor of four books, including his forthcoming The Assault on International Law (Oxford) and Targeted Killings: Law and Morality in an Asymmetrical World (Oxford 2012), for which he was a co-editor.

We are very happy to have Jens participating on Opinio Juris for the next couple of weeks and look forward to the conversation!

The Man Who Would Be King, Daddy’s Little Princess, and their Territorial Claim

by Chris Borgen

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter’s princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:

Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess.

Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes.

“As a parent you sometimes go down paths you never thought you would,” Heaton said.

Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.”

There, Heaton is the self-described king and Emily is his princess.

Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:

Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love.

“I founded the nation in love for my daughter,” Heaton said.

That’s sweet. Really. But let’s turn to the international legal argument… (more…)

For Unrecognized Entities and Would-Be States, the World Cup is Already Over

by Chris Borgen

While awaiting the FIFA World Cup quarterfinal matches to begin, and U.S. Secretary of Defense Tim Howard taking a well-deserved rest, I thought it might be useful to check-in on the status of the ConIFA World Cup, the tournament among teams from unrecognized entities and would-be states.  The New York Times has just published a great pictorial of that tournament, which was held in June.

ConIFA, the Confederation of Independent Football Associations, explains on its website that it:

… is a global umbrella organization for all the football teams outside FIFA. There are more than 5 500 ethnicities around the world and hundreds of sportingly isolated regions that doesn´t have an international arena to play international football.

CONIFA welcome all registered Football Associations and teams to play. We organize the official World Championship for teams outside FIFA, Continental Championships, International tournament and Cups combined with Cultural Events and Youth Exchanges. The Football World outside FIFA is fast growing and millions of dedicated fans follow the scene – this is happening now…

Why aren’t these teams in FIFA, the international federation of football associations? Membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, England and Wales are separate associations, and thus separate World Cup teams. However, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Once a member of a confederation, an association may then apply for FIFA membership. Admission is based on a vote of the FIFA Congress, which is comprised of a representative of each member association. Article 10 of FIFA’s Statutes states:

Any Association which is responsible for organising and supervising football in all of its forms in its Country may become a Member of FIFA. Consequently, it is recommended that all Members of FIFA involve all relevant stakeholders in football in their own structure. Subject to par.5 and par.6 below, only one Association shall be recognised in each Country.

Paragraph 5 allows for separate membership for the British associations and paragraph 6 explains:

An Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.

Thus, although membership in FIFA is technically not based on statehood, the process is based on statehood and defers to recognized national organizations. Consequently, unrecognized secessionist entities such as South Ossetia and Nagorno Karabakh have no real chance of having their football associations become part of a confederation, let alone FIFA. The New York Times further describes some of the results of FIFA’s membership process:

For many teams, membership confers legitimacy and a shot at reaching the World Cup finals, a huge stage from which to wave their nation’s flag.

Palestine — recognized as a “nonmember observer state” by the United Nations and a member of FIFA since 1998 — now has a national stadium near Ramallah and has attempted to qualify for four World Cup finals. Other teams, like Kosovo, have been unable to join European soccer’s governing body, UEFA, because of political lobbying from Serbia. When Gibraltar, a British overseas territory on the Iberian Peninsula claimed by Spain, tried to join FIFA, Spain threatened to pull all of its teams — including the powerhouses of Barcelona and Real Madrid — from the European Champions League and international football. Despite the political pressure, Gibraltar became a member of UEFA in 2013 and hopes to join FIFA next.

While not all the associations in the ConIFA World Cup are from entities that are attempting to become states, the politics of statehood nonetheless is one of the variables defining this World Cup among the unrecognized. If statehood is the gold standard of the international system, then being accepted by such a state-centric organization as FIFA is viewed by some as a mark of legitimacy. At the very least, it is a benefit that existing states may wish to deny to unrecognized separatists.

And so we get the ConIFA World Cup, which gets into the legitimacy game by calling itself the “official” tournament of associations not in FIFA.

Some results of note: South Ossetia beat Abkhazia on penalties in quarterfinals. Nice beat defending Padania (the defending champs, I believe)  in quarterfinals and then the Isle of Man in the finals. You can see the full ConIFA tournament results here. You can also read more about a previous World Cup among unrecognized entities in this post.

 

Milestone: The EU Signs Association Agreements with Ukraine, Moldova, and Georgia

by Chris Borgen

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia.

After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states.

What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider… (more…)

Andreas Lowenfeld: A Life Illuminating the Path

by Chris Borgen

lowenfeld

photo: NYU Law School

I am sad to mark the passing of one of the giants of international law, and one of my teachers, Professor Andreas Lowenfeld of NYU Law School. His career was exemplary; Andy operated at the highest levels of practice and academia. In an era when so many scholars and practitioners become hyper-focused on one or two specific areas, Andy not only had incredible depth and precision, but also brought the panoramic view and sweeping vision of an earlier generation of international lawyers. Though perhaps best known for his work in international litigation and arbitration, that description does not capture his career. Consider this excerpt from his New York Times obituary:

Professor Lowenfeld was a towering figure in the fields of public international law, trade and economic law, private international law, and international arbitration. He served on the NYU Law faculty for 47 years, influencing generations of lawyers, and continued to teach International Litigation and Arbitration and International Monetary System among other courses until as recently as Spring 2013. Professor Lowenfeld wrote more than 18 books and authoritative legal treatises and over 115 law review articles and argued before the United States Supreme Court, the Iran-U.S. Claims Tribunal, and the International Court of Justice in the Hague. He made landmark contributions to legal scholarship and practice on issues as varied as extraterritorial jurisdiction, international arbitration, international monetary transactions, trans-border child abduction, international monetary law, investor-state dispute settlement, economic sanctions, enforcement of foreign judgments, aviation law, sovereign immunity, international trade, and civil procedure. His most recent work was a comprehensive treatise on International Economic Law. An avid supporter of the interaction between academics and practitioners, he was frequently an arbitrator in international disputes, public and private. He served as a Reporter on two major projects of the American Law Institute and was a lecturer twice at the Hague Academy, first in 1979 and later in 1994. In the 1994 lectures, he proposed criteria for a global community free of strict legal rules and based instead upon what he termed “reasonableness, not certainty.” One of the hallmarks of his work was his commitment to eliminating what he viewed as an unnecessary divide between public and private international law. In 2007, he was awarded the Manley O. Hudson Medal of the American Society of International Law for his lifelong achievements in the field of international law.

(Read the rest of the obituary here. See also this tribute from 2009.)

And that doesn’t even cover his years in the State Department’s Office of the Legal Adviser during the Kennedy and Johnson Administrations where:

[h]e provided strategic counsel to those presidents during the Cuban Missile Crisis; the Nuclear Test Ban Treaty; the so-called “Chicken War,” in which the U.S. and the European Common Market sparred over poultry tariffs; and the U.S. invasion of the Dominican Republic.

Andy Lowenfeld’s scholarship and his career argued against the “unnecessary divide of public and private international law,” setting the stage (along with Philip Jessup) for the current focus on  complex regulation, transnational law, and dispute resolution. He taught us how public and private international law interact in an interconnected system and, by his example, he showed us how diverse aspects of the international legal profession could be integrated into a coherent career.

I have the great fortune of having been one of Andy’s students. My second year at NYU, I took the general course in international law, which was then team-taught by Andy Lowenfeld and Theodor Meron. Learning international law from “Ted and Andy” as we affectionately referred to them (behind their backs, that is) was everything you would expect from such lawyers: a lively dialogue interweaving law, history, politics, and economics.  I was also Andy’ s student in what was perhaps his signature course, his International Litigation and Arbitration seminar. Here he paired each JD student with a foreign LL.M. to brief and argue an issue in a case, before a bench made up of 3 of our classmates. It was a wonderful bit of experiential learning that has stayed with me and taught me as much about how to be a good teacher as to how to be a good litigator.

In the years since I graduated from law school, Andy Lowenfeld remained generous with his time and wise counsel. I may have become a professor, but he never stopped being my teacher.

But perhaps my favorite memory of Andy was from when I was the Director of Research and Outreach at the ASIL. Andy was a panelist on an international arbitration panel we organized for a Fifth Circuit judicial conference in San Antonio. After the panel, he told me we should go visit the Alamo. So, one hot summer afternoon we toured the Alamo together; I will always remember his enthusiasm in examining the exhibits, especially anything having to do with the deeds, land grants, and international agreements concerning the disposition of territory. He interspersed our conversation about the history of the U.S.-Mexico border with reminiscences from the State Department, career advice, some thoughts on scholarly projects I was considering, and anecdotes from his incredible career. At one point there was a boy, who was maybe seven years old, standing near us and holding a large faux-parchment facsimile of a document, probably recently acquired from the gift shop.  Andy started questioning the boy about the topic of the text on his souvenir, whether or not the reproduction was accurate, and so on. (The boy stared, then shrugged; Andy walked on.) It made me smile watching Andy attempting a Socratic dialogue with a first grader. Even while walking around the Alamo, Andy Lowenfeld was first and foremost an educator and a mentor.

I want to close with a few of Andy’s own words, taken from his magisterial International Economic Law (Oxford, 2d. ed 2008). In the preface, he argues against the skeptics and describes (with perhaps a wink to Louis Henkin) a realistic appreciation of international economic law:

This book is not founded on a claim that all states and all economic enterprises behave at all times according to all the rules, nor that the rules are clear and universally agreed at all levels. But one would not say that there is no criminal law because crimes continue to be committed and are not always punished, or that there is no family law because marriages break up, husbands beat their wives, and children are abused. In fact international conventions, collaborative arrangements, roughly uniform national laws, and customary laws apply to much of the international economy; while there is no global sheriff, and the system of remedies does not reach as far as the system of rules, there are a surprising number of consequences of deviant behavior, and a growing number of fora for resolving disputes among states and between states and private participants in the international economy.

Almost 1,000 pages later, the closing passage puts more than his treatise into perspective: :

It is evident that this book has made more use of narrative and illustration, and less of flat normative statements than might have been expected from a treatise. This approach reflects my belief that the answers cannot be understood without the question, and that abstract statements cannot be comprehended without awareness of the underlying facts and continuing controversies.

This is not to deny the normative character of international economic law. But international economic law—like all law but perhaps more so—is a process. Any attempt to define the law as of a given moment cannot help but distort. The process continues, and the hope is that this book has illuminated the path.

[Emphasis added.]

It has. And so has Andreas Lowenfeld’s life.

 

 

Human Rights Watch Film Festival–New York Starts Next Week

by Chris Borgen

The New York iteration of the Human Rights Watch Film Festival will be held June 12-22. A list of films to be screened in New York is available here. HRW explains the goal of the festival:

Through our Human Rights Watch Film Festival we bear witness to human rights violations and create a forum for courageous individuals on both sides of the lens to empower audiences with the knowledge that personal commitment can make a difference. The film festival brings to life human rights abuses through storytelling in a way that challenges each individual to empathize and demand justice for all people.

In selecting films for the festival, Human Rights Watch concentrates equally on artistic merit and human rights content. The festival encourages filmmakers around the world to address human rights subject matter in their work and presents films from both new and established international filmmakers.

A trailer for the festival is on Youtube. I have not yet looked through all of the film and event descriptions, but four that that caught my attention include the screening of collection of short films from Syria, followed by a discussion of “emergency cinema;” E-Team, about HRW’s war crimes investigations team; Watchers of the Sky, tracing responses to genocide from Nuremberg to the Hague; and Sepideh–Reaching for the Stars, the story of a young Iranian woman who wants to become an astronaut. Every film description I looked at, though, seemed very interesting. Check out the whole list.

Unfortunately, the Human Rights Watch Film Festival is coming to the end of its 2014 tour but here is a listing of cities where it has played. Dates/ locations of the 2015 festival to be announced.

Executive Director Search at the American Society of International Law

by Chris Borgen

As many readers of this blog know, Elizabeth Andersen, the  Executive Director of the American Society of International Law, has been named the new director of the American Bar Association’s Rule of Law Initiative. Consequently, the ASIL has a search underway for a new Executive Director. The search announcement states, in part:

The American Society of International Law (“ASIL” or “the Society”) seeks an accomplished leader with vision, proficiency in international law, and proven management abilities to serve as its next Executive Director, starting in the second half of 2014…

…The Executive Director works closely with an active Executive Council and President (the latter is elected every two years). The successful candidate for the Executive Director post will be proficient in international law, and demonstrate strong administrative ability and experience, effective fundraising capacity, and an ability to relate to and represent the diverse and multinational membership of academics, private practitioners, jurists, government officials, and students in their various endeavors relating to all facets of international law. In addition to coordinating with Society leaders, the Executive Director manages an annual budget in excess of $3 million; supervises a staff of 17 (14 of whom are full-time employees) in planning and executing day-to-day operations; facilitates the dissemination of scholarly and informational output in print, electronic, and conference settings; raises funds for the Society by seeking grants and other contributions from foundations, corporations, law firms, individuals, and other sources; implements outreach programs to a variety of external constituencies including the U.S. Congress, the judiciary, the media, law-making bodies, think tanks, international organizations, academia and others; and administers programs outside as well as within the United States.

Please see the full text of the announcement for further  details about the ASIL, the position, and the application process.  Please note that that applications should be received by June 15, 2014.

Having been the Society’s Director of Research and Outreach from 1999-2002, I can say that serving on the ASIL’s staff is an incredible experience. Although running any NGO is a demanding task (more accurately, it is a conglomeration of many, many, demanding tasks…), there are few positions in the international law that place one at such a nexus in the profession as being the Executive Director of the ASIL.

My best wishes to the applicants and to the the Search Committee.

 

 

Roundtable at the NY City Bar on International Law and the Crisis in Ukraine

by Chris Borgen

For those in the New York City area who may be interested, tomorrow (June 4th) I will be participating in a roundtable discussion with Ambassador Yuriy Sergeyev, Ukraine’s Ambassador to the United Nations, concerning the crisis in Ukraine.   Mark Meyer, Moldova’s Honorary Consul in New York (and a member of the law firm Herzfeld & Rubin), will moderate the discussion.

The roundtable will take place at the New York City Bar on June 4th from 6:00 pm to 7:30 pm, with a reception to follow. Full details are available here.

For some of my recent posts on this topic, please see: 1, 2, and 3.

Constructing the Eurasian Economic Union

by Chris Borgen

The New York Times reports that:

The presidents of Russia, Kazakhstan and Belarus formally signed an agreement on Thursday to create a limited economic union — an alliance hobbled by the absence of Ukraine but one long pursued by President Vladimir V. Putin of Russia to confirm his country as a global economic force.

“Today we are creating a powerful, attractive center of economic development, a big regional market that unites more than 170 million people,” Mr. Putin said during the ceremonies. He underscored the significant energy resources, work force and cultural heritage of the combined nations.

This treaty, which was signed this past week but is not expected to come into force until January 2015, marks the next step in transforming the still-nascent Eurasian Customs Union (ECU) into the Eurasian Union (EEU). Russian pressure for Ukraine to turn away from association with the European Union and towards Moscow-led Eurasian integration was one of the roots of the current crisis.

As the Shanghai Cooperation Organization (SCO) with China and the Central Asian states is Russia’s answer to U.S. military alliances, Eurasian economic integration is meant to be Russia’s response to EU and U.S. economic power.  According to a chronology in a report by the Centre for European Policy Studies, the creation of the EEU was first suggested by the President of Kazakhstan, Nursultan Nazarbayev, in 1994. There was not much movement until the negotiation and signing of a customs union treaty among Russia, Belarus, and Kazakhstan in 2007. The basic requirements of the Eurasian Customs Union came into force in 2010, which were essentially trade policy coordination measures establishing a common external tariff among its members. However, the deepening Eurasian economic integration was given a boost by an op-ed by Russian President Vladimir Putin in October 2011.

In early 2012, the member states deepened ECU’s institutions by starting the operations of the Eurasian Economic Commission, a supranational entity that was contemplated in the 2007 treaty,  to manage the external trade regulations of the member states, including relations with the WTO. That also marked the establishment of  the “single economic space” (SES) among the member countries which, in the words of the Centre for European Policy Studies paper, “envision[ed] further regulatory convergence and harmonisation of national laws” in particular economic sectors.

The treaty that was signed on May 29th is ostensibly to move from customs union towards a full economic union, with free movement of goods, capital, and people among the member states, but reality has so far proven to be less sweeping and heroic than the rhetoric that marked the occasion. The most obvious issue is that the EEU was originally envisioned to include not only Russia, Belarus, and Kazakhstan, but also Kyrgyzstan, Armenia, and especially Ukraine. Ukraine would have added  a populous country with  economic potential and an an economy that (unlike Russia and Kazakhstan) was not based on natural resource exploitation. But Russia’s intervention in Ukraine  backfired: not only did it fail to bring Ukraine into the EEU fold but, according to a Radio Free Europe report, it has weakened the EEU by having: (more…)

Kosovo, South Ossetia, and Crimea: the Legal Rhetoric of Intervention, Recognition, and Annexation

by Chris Borgen

Following up on my previous post, I want to look at Russia’s rhetoric regarding Crimea and how it relates to its rhetoric regarding intervention and recognition in Kosovo and South Ossetia. While countries may use arguments that start to seem inconsistent, Russia’s use of “law talk” is especially striking because it uses legal rhetoric so often, even when it has rather weak arguments. While Russia deploys legal language, increasingly they are not the concepts of international law as generally accepted. Rather, Russia is building a revisionist conception of international law to serve its foreign policy needs regarding the states of the former Soviet Union.

But, first, let’s take a few steps back. For President Putin, the situation in Crimea has its roots in Kosovo. Kremlin watchers have argued that the loss of Kosovo was a traumatic experience for President Putin and Foreign Minister Sergei Lavrov. (For some background on the run-up to Kosovo’s declaring independence, please see this post.)

In his speech of March 18, President Putin revisited the disagreements Kosovo declaration of independence, even quoting the U.S.’s argument before the ICJ:

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

This idea that the residents of Crimea just want the same ability to become a country that those in Kosovo had is rhetorically appealing. (And keep in mind the combination of legal rhetoric with ethnic grievance in his quote, I want to come back to that.) But wanting to be a country does not mean you have the right to become a country. As discussed before, there is no general right to secession, regardless of referendum results.

However, there are many differences between the two cases: Kosovo had been under international administration for close to a decade, its final status was left open in the UN Security Council Resolutions, it was the site of significant ethnic violence. None of that is true in Crimea.

But what is especially interesting is how Russia has changed what it is describing as the lesson of Kosovo. In 2008, Russian Foreign Minister Lavrov called Kosovo’s potential separation from Serbia a “subversion of all the foundations of international law, . . . [a] subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.”

In his March 18 speech, though, President Putin took a different tack. While (Serbia’s) sovereignty and territorial integrity were the focus of Russian diplomacy concerning Kosovo, there is little talk now about protecting Ukraine’s sovereignty. Rather, President Putin spent the opening sections of his speech decrying the historical mistake of handing Crimea over to Ukraine “like a sack of potatoes.” And what of agreements, such as the Budapest Memorandum, recognizing the “existing borders of Ukraine,” respecting Ukraine’s territorial integrity, and reaffirming the obligation not to use or threaten to use force? President Putin explained “Russia seemed to have recognized Crimea as part of Ukraine, but there were no negotiations to limit borders.” (Emphasis added.) That is contradicted by the text they actually signed. What about sovereignty? “It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to.” (Perhaps he was confusing change of government with dissolution of a state.) And then “the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and their lives…”

Once again, this is an argument based on irredentism and a sense that borders and sovereignty can become rather wispy and insubstantial when you hear the call of people of the same ethnicity or who speak the same language as you do. (Not necessarily the same citizenship, mind you: ethnicity and/or language.)

From here, he opens his view to the state of international law… (Continue Reading)

Welcome to the Blogosphere “Internationally Wrongful Memes” (!?)

by Chris Borgen

A tumblr of international law humor. No, not “International law is a joke.” Jokes about international law. Seriously.

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)