What do unrecognized states tell us about sovereignty?: Stacy Closson
The politics of recognition Sovereignty is most often associated with the modern nation-state. In political terms, sovereignty refers to the political structures projecting power within and beyond boundaries, while legalistically the state is the sovereign source of political authority, establishing internal and external prerogatives (Adler-Nissen and Gammeltoft-Hansen 2008: 201). Conventional readings of sovereignty focus on a class of properties essential to statehood, qualifying differences that allow for the granting of sovereignty in certain cases. According to the practice of international law, a state has sovereignty through recognition by other states in the international community. Sovereignty is granted under customary international law, based upon the principles of the 1933 Montevideo Convention on the Rights and Duties of States. These four-fold principles require that a state has a permanent population, a defined territory, a government, and capacity to enter into relations with other states in the international community. Aalberts (2004: 250-1) argues that sovereign statehood does not exist independent of and prior to state practice and international law, and is, as such, the medium and outcome of the practices of states. At the same time, the classical notion of sovereignty accepts that empirical sovereignty exists before it is given. Thus, sovereign states are such because other states allow them to, and accept them as equals. This renders recognition a pivotal element for the existence of sovereign states within international society. In practice, recognizing an entity as a sovereign state is inherently political. The context in which the claim of sovereignty occurs, to whom the sovereignty claim is addressed, the normative structures used to determine the legitimacy of a claim to sovereignty, and the consequences following from acceptance of a sovereignty claim depend on individual cases (Werner and De Wilde 2001: 286). In particular, whose recognition is required to be a sovereign state and the criteria necessary for recognition have changed according to the historical context. It is unclear if it must be a majority of states, major powers, a core of elites, or a hegemonic power. The matter of criteria is also subjective. It is often written that states are recognized as sovereign when they can demonstrate the ability to defend their authority against domestic and international challengers. However, there are recognized states that cannot do this (e.g. Sudan, Somalia,
and Afghanistan), and there are states that can demonstrate their authority but have not been recognized (e.g. Somaliland). Likewise, there have been several instances in history when states met the Montevideo Convention criteria but they were in violation of the right to self-determination, or they violated some other norm of international relations (e.g. South Rhodesia), or recognition was politically too sensitive (e.g. Taiwan). The basis of recognition has evolved from self-determination of the postcolonial period to secession based on communal identity and historic continuity, often combined with allegations of human rights violations.1 However, territorial integrity of the state has almost always been upheld and there are very few successful cases of secession: Bangladesh, Eritrea, East Timor, and parts of the former Yugoslavia. Unsuccessful attempts at secession are more numerous: Tibet, Kashmir, Katanga/Shaba, Biafra, Karen and Shan States, Bougainville, Chechnya, and Republika Srpska. But secession has been deemed a final resort solution, followed only when federalism, autonomy, and minority rights cannot prevent injustice and the central government is deemed illegitimate due to its authoritarian and repressive nature. In this case, a group should have historic claims over a territory and should constitute a new state based on democratic norms. This has worked best when a state dissolves into several states, such as Czechoslovakia, the former Soviet Union, and Yugoslavia (see Geldenhuys 2009: Ch. 2). The 2008 recognition of Kosovo by mostly Western states is evidence of the political nature of upholding self-determination of peoples over the territorial integrity of states. It is unclear if this will become a precedent in international law due to its non-compliance with the previously stated reasons for secession, the limited number of states thus far to recognize Kosovo, and opposing countries affected by separatist movements themselves (Krueger 2009). Nonetheless, it was tested when Russia recognized Abkhazia and South Ossetia in the wake of the August 2008 war between it and Georgia. In Russia’s argument for recognition, it did not refer to a legal foundation, nor did any states other than Nicaragua initially join Russia in recognition. Instead Russia declared that, as Kosovo was an exception, so too were Abkhazia and South Ossetia. Prior to this, Russia’s official position on Kosovo and the unrecognized states had been based on the sovereignty of the parent states, the implementation of United Nations Security Council resolutions recognizing this fact, and deference to norms of international law. In response, the European Union report on the 2008 war between Georgia and Russia over South Ossetia made clear that self-determination was not recognized in international law as a basis for the unilateral creation of a new state ‘outside the colonial context and apartheid’, and that much of international state practice ‘and the explicit views of major powers such as Russia in the Kosovo case stand against it’. They concluded that Georgia, not its sub-units of Abkhazia and South Ossetia, was eligible for independence in case of dismemberment of a larger entity such as the former Soviet Union (European Union 2009: 18). For the Western states, Kosovo’s recognition was partly based on ‘earned sovereignty’, as per the EU and US foreign policy agendas promoting demo-
cratic principles (William and Pecci 2004). The European Community’s Badinter Commission on Yugoslavia emphasized the rule of law, democracy, and human rights in recognizing the former Yugoslav republics. The 1991 Recognition of New States in Eastern Europe and the Soviet Union of the European Community (European Community 1991) added to the Montevideo criteria the nature of their political structures and practices, including respecting established borders, observing human rights and democracy, upholding the rule of law, guaranteeing minority rights, committing to settle disputes peacefully, and accepting nuclear non-proliferation. This culminated in the 2003 ‘standards before status’ Western policy in Kosovo, suggesting that recognition could be awarded to entities that succeeded in building effective democratic institutions. Hence, the context for recognition has changed over time according to the political climate and has not always followed the original principles attributed to a sovereign. As Tozun Bahcheli et al. opine, in some cases recognition is granted or maintained in spite of the actual conditions within the state. In other cases, recognition is withheld even though the realities on the ground support the principle of territorial integrity (Bahcheli et al. 2004). They go on to write:
We are thus faced with an absurd combination of states and would-be states existing in a legal fog: some widely-recognized states can claim only the rudimentary conditions for statehood; indeed, in some instances, even those minimal conditions seem ephemeral and random. In other cases, fullfunctioning and self-contained states are guaranteed as pariahs, excluded form the mainstream channels of international diplomacy, existing in conditions beyond the pale of normal international intercourse.