1. Introduction
The body of international legal rules governing the process of state recognition finds itself in an existential crisis. Even though the applicability of a basic set of legal rules on the recognition of states remains the starting point of much legal scholarship,Footnote 1 the practice of the last few years seems to depict a different reality in which political convenience rather than legal norms plays the leading role.
Fundamental questions as to the role of law and politics in the recognition process were brought into particularly stark relief in the context of the international community's reactions to the dismemberment of Yugoslavia in the early 1990s and the ensuing creation of new states.Footnote 2 These reactions were characterized by inconsistency, obscurity, and an apparently declining role for international law.Footnote 3
But what started out as uncertainty culminated in mere disillusion in the aftermath of recent events in Kosovo, South Ossetia, and Abkhazia.Footnote 4 While the International Court of Justice's Kosovo Advisory Opinion does not purport to take a position on issues of recognition (as these would fall outside the scope of the narrow question posed by the UN General Assembly),Footnote 5 its opinion that international law contains no prohibition on declarations of independenceFootnote 6 creates the impression that international law remains silent in the face of state creation and its consequences, including recognition.
Fatalism and a declining relevance for international law also beset other areas of international relations: most notably, the international legal norms on the use of force are under mounting pressure, since recent developments in Kosovo and Iraq seem to have relegated the applicable rules to the realm of irrelevance in favour of a pure balance-of-power approach.Footnote 7 A critical reflection on the role of these legal norms and their distorted relation to political discretion forces itself upon legal scholars, in order to prevent the demotion of international law to a reservoir of arguments used to back up decisions based on purely political considerations.
As far as the use of force goes, there have already been some laudable attempts to regain legal ground from political discretion.Footnote 8 This article has the same goal concerning the legal rules governing recognition. It aims to analyse the current state practice and the way law and politics determine the process of state recognition, in order to shed light on how legal norms should be conceived to restore confidence in international law. That such a reflection is far from an abstract academic pastime is shown by the widely felt need to bring back some consistency in the practice of state recognition.Footnote 9 The current perception of unrestrained political arbitrariness leads to uncertainty and unrest, which threaten to undermine international stability.Footnote 10 An international legal framework, adjusted to recent evolutions and practices, is the best way to counter this threat.
The article starts out by discussing the concept of recognition from the angle of the constitutive and declaratory schools (section 2) and subsequently provides an overview of the traditional normative framework governing recognition, based on the ‘Montevideo’ factual criteria for statehood and the prohibition of recognizing entities that have come into being through a violation of jus cogens (section 3). As will be set out in section 4, this traditional framework was challenged during the Yugoslavia crisis. New recognition criteria, imbued with a measure of morality, saw the light, although practice was inconsistent. Inconsistency and politicization also remain prevalent after Yugoslavia, however, as recent recognition practice regarding Kosovo, South Ossetia, and Abkhazia testifies (section 5). In the final section, modest proposals are formulated to restore the balance between law and politics in international recognition law and practice.
2. Recognition: theory and practice
Before exploring the balance between law and politics in the process of state recognition, it might be useful to look more closely into the meaning of ‘state recognition’. The search for a definition gets bogged down almost immediately in a long-running debate that deeply divides the international legal scene: is recognition an essential requirement for statehood – the constitutive school – or rather a confirmation of a pre-existing factual situation – the declaratory school? Even though an exhaustive examination of this issue falls outside the scope of this article and, in fact, does not lead to satisfactory results, it may nevertheless be useful to revisit the basic arguments of each school.
According to the constitutive theory, an entity becomes a state only when it is recognized as such. Recognition is therefore a conditio sine qua non for statehood.Footnote 11 This theory is supported by the traditional positivist conception of international law as a consensual jus gentium voluntarium: an entity can only develop into a state with the agreement of other states.Footnote 12 As a practical side effect, the difficult and complex question of statehood is reduced to the more pragmatic question of whether the entity has been recognized by other states.Footnote 13 As is well known, the constitutive theory has some serious drawbacks, especially when an entity has been recognized only by part of the community of states. At a very concrete level, questions arise as to how many recognizing states are needed before an entity ‘transforms’ into a state and whether the decision to recognize should be based on facts, norms, geopolitical considerations, or a combination of factors. At a more fundamental level, the theory leads to the somewhat counterintuitive conclusion that statehood is a relative, rather than an absolute, concept.Footnote 14
According to the declaratory school, then, statehood is fully determined by a set of factual conditions, being a permanent population, a fixed territory, a government, and the ability to enter into relations with other states.Footnote 15 These criteria, which are commonly accepted to be customary international law, are listed in the Montevideo Convention on Rights and Duties of States and are further elaborated in doctrine and jurisprudence.Footnote 16 Once an entity fulfils these criteria, it is a state erga omnes. Recognition is, in this theory, nothing more than an official confirmation of a factual situation – a retroactive act that traces back to the moment at which the factual criteria were fulfilled and the entity became a state.Footnote 17 A formal recognition admittedly has some practical consequences as to the relations between the recognizing and the recognized state, yet it is not a necessary element of statehood.
In current doctrine and jurisprudence, the declaratory theory is the dominant theory.Footnote 18 An important aspect of its success lies in the fact that it deprives states of the prerogative of deciding on statehood based on political arbitrariness, in favour of objective legal norms.Footnote 19 And yet, this theory has its own discontents. First of all, it is often pointed out that non-recognized entities have no international legal personality and thus cannot be considered to be a state, even if they meet all the requirements outlined above.Footnote 20 Another problem is that the theory does not look at the way the entity has acquired the necessary requirements, as a result of which states can come into being through grave violations of international law.Footnote 21 State practice responds to such events by not granting recognition to these entities – a sanction that cannot be fitted into the pure declaratory theory.Footnote 22 More fundamentally, the problem seems to be reducible to the basic declaratory assumption that an entity can have the legal qualification ‘state’ as such. This idea of ‘statehood as a fact’ seems to confuse facts with law – ex factis jus non oritur.Footnote 23
The wide gap between the constitutive theory – in which recognition is fully normative – and its declaratory counterpart – in which recognition has no normative value at all – seems unbridgeable.Footnote 24 Some authors propose a ‘third way’ to bridge this gap, in which recognition is neither merely constitutive nor merely declaratory. In this view, statehood is seen in terms of effectiveness, with recognition as a political act that strengthens the international effectiveness of an entity. As such, recognition is both constitutive – since it creates stately relations between the recognizing and the recognized state – and declaratory – since it does not, by itself, bestow statehood on the entity.Footnote 25 However, instead of attempting to find a solution to this deadlock, one could question the practical relevance of this theoretical debate. Modern state practice indeed offers a plethora of ‘hard cases’ that, in their entirety, cannot be fitted into either one of the legal theories, but are somehow accommodated by the international legal order. Israel offers an excellent example: it has all attributes of statehood, yet it is not recognized as a state by some Arabic states. These states, however, have held Israel responsible for violations of international law. Such a practice, in which recognition is said to be normative without, however, blocking legal personality, cannot be explained fully by either the constitutive or the declaratory theory.Footnote 26
This is not to say that state practice should be the only norm when dealing with issues such as state recognition. International law is built upon the delicate balancing act between holding onto normative principles, embedded in theoretical frameworks – without which international law would lose its status as ‘law’ – and adapting to ever-changing state practice – without which international law would lose its effectiveness and, eventually, its legitimacy.Footnote 27 This is all the more true when it comes to state recognition, where political state practice and normative international law inevitably blend together.Footnote 28
The starting point of this article is the impression that this necessary balance between law and politics in the process of state recognition has been upset. Recent developments in Yugoslavia, Kosovo, and Georgia have put an end to a period during which state practice on recognition was relatively consistent. As a direct consequence, there is a growing uncertainty as to which norms regulate state recognition nowadays.Footnote 29 If international law wants to maintain its credibility and its role as a stabilizer of international relations, it needs to adapt itself to these recent developments, without, however, abandoning its normative aspirations.Footnote 30 Before looking ahead at a renewed international framework, it might be useful to first take a closer look at the traditional legal setting that still, at least in theory, governs the process of state recognition.
3. The traditional normative framework
When looking at the classical legal setting that regulated, or at least tried to regulate, the process of state recognition, one can see a fairly economical two-pillar framework, consisting of the Montevideo requirements on the one hand and the non-violation of jus cogens norms on the other.Footnote 31
The best-known and most cited legal document on state recognition is undoubtedly the Montevideo Convention on Rights and Duties of States. Article 1 reads as follows: ‘The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.’Footnote 32
If an entity is recognized as a state while not meeting these criteria, the premature recognition is seen as a violation of the principle of non-intervention and therefore an illegitimate act.Footnote 33
A striking characteristic of the Montevideo requirements is the central role of the principle of effectiveness: an entity is a state only when certain factual conditions are met – a purely empirical check.Footnote 34 This can be explained by the horizontal character of the state community: lacking a central organ that can bestow and withdraw rights and duties that come with being a state, those legal consequences are often created by the sheer effectualization of a claim.Footnote 35 Granting fait accomplis a legal base furthermore contributes to the stability of the international legal order. Of course, this brings us back to the inevitable tension between normativity and pragmatism that was briefly touched upon in the previous section.
Doctrine and jurisprudence have elaborated on the concise requirements in great detail and it would be beyond the scope of this article to delve deeper into the matter. After all, it is not so much the interpretation of the criteria that is important, but the mere fact that the criteria have been accepted as the normative starting point on state recognition, not only by legal scholars and lawyers, but also, and more importantly, by states.Footnote 36 One can remark that these criteria, whether laid down in formal policy rules or not, leave substantial room for interpretation, as a result of which states, at the end, reserve a lot of discretionary manoeuvring space for themselves. This elasticity does not, however, alter the fundamental fact that states consider themselves bound by these criteria and use them to account for their recognition practice. The Montevideo requirements therefore constitute a first normative pillar on which state practice has rested for the past few decennia. The second pillar is much more recent and relates to violations of jus cogens.
The prohibition of recognizing entities as states when they have come into being through violation of a jus cogens norm originates from the non-recognition of Manchukuo by the United States in 1931. This refusal to recognize that Japanese satellite state in what is now the People's Republic of China led to the so-called Stimson doctrine, which was later taken over by the League of Nations and its successor, the United Nations, to become a universal norm that seriously limits state discretion in the process of state recognition.Footnote 37 The fact that this duty of non-recognition now has universal validity is highlighted by its insertion in Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts: ‘No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation.’Footnote 38
One should note the fundamental difference from the Montevideo requirements: whereas the latter base recognition in essence on the effectiveness of an entity, the duty of non-recognition envisages the nullity of the consequences that a grave violation of international law might have regardless of the effectiveness of the entity emerging from such a violation.Footnote 39
The traditional legal framework governing state recognition appeared to be clear and concise, and thus led to a relatively consistent state practice.Footnote 40 Since international law contained no obligation to recognize an entity when it met all criteria, but only a negative duty not to recognize when not all criteria were met, the applicable legal rules could be described as an outer limit on state discretion.Footnote 41 A concise yet clear normative framework, with a consistent state practice as its corollary, thus added to a stable international order, in which dubious claims were faced with rejection and straightforward criteria prevented a pandemic of seceding entities claiming statehood.Footnote 42
The dissolution of Yugoslavia, however, marked the beginning of a fundamental evolution within international law in general and state recognition in particular, the results of which are still not fully crystallized – witness recent developments in Kosovo and Georgia. This diverging state practice, together with the underlying reasons and the consequences for the normative framework and for the fragile balance between law and politics, will be discussed below.
4. Yugoslavia: a new legal framework in theory and practice
The chain of events that threw the Balkans into turmoil in the early 1990s constituted, in retrospect, a catalyst for fundamental changes in international law. The nationalistic tensions that had mounted steadily since Tito's death in 1980 were putting the federal constellation of the Socialist Federal Republic of Yugoslavia under severe pressure, leading to outbursts of violence and growing calls for independence, most notably in Croatia and Slovenia. During this process of increasing tension, the international community stood on the sideline, too occupied by events in the Gulf and the implosion of the USSR to meddle in what seemed to be a domestic quarrel. The few statements that were made on the issue excelled in ambiguity, for, even though both the United States and the European Community subscribed to the territorial integrity of Yugoslavia and rejected any form of secession, they also made clear that there would be no external intervention when secession took place.Footnote 43 This half-hearted attitude only accelerated the process of dissolution: on 25 June 1991, both Slovenia and Croatia declared independence, thereby not only starting a bloody civil war that only lasted for 10 days in Slovenia, but dragged on until January 1992 in Croatia, but also opening Pandora's box in the region, since, within a time frame of months, a multitude of other entities declared independence, including Bosnia and Herzegovina, Macedonia, Serbian Krajina, Republika Srpska, and Western Bosnia. The laws on state recognition were suddenly facing an enormous challenge.
4.1. New norms
It was the European Community that, by tacit agreement, took the lead in dealing with the crisis that was occurring in its own back garden.Footnote 44 A first delicate issue that needed to be dealt with swiftly was the stand to be taken concerning the recognition of the new republics – a matter on which Europe quickly proved to be deeply divided. France, amongst others, supported a federal Yugoslavia, whereas the likes of Germany and Belgium wanted to leave the door open to recognition of Slovenia and Croatia.Footnote 45
The European Community, however, assisted by the EC Arbitration Commission on Yugoslavia (‘the Badinter Commission’), which dealt with legal issues such as sovereignty, state recognition, the right to self-determination, and state succession, issued rather swiftly a Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, on 23 December 1991. This declaration listed the conditions that entities had to fulfil before they could be recognized. As such, it provided the normative ground for European state practice vis-à-vis the new Balkan republics.Footnote 46
The differences from the traditional framework were striking. The right to self-determination was mentioned as an important principle that would be taken into consideration by the European Community and its member states in their recognition practice, even though that right was traditionally confined to colonial contexts. Another remarkable condition mentioned was the democratic commitment that the new entities had to show before recognition could be granted. The traditional legal framework had never concerned itself with the internal organization of a would-be state, as this would have been considered an unlawful interference in this state's internal affairs. The absence of democratic governance therefore never stood in the way of recognizing a state – witness the universal recognition of new and often far-from-democratically-organized states during and after the wave of decolonization.Footnote 47 The EC guidelines, however, explicitly required the new republics to ‘constitute themselves on a democratic basis’, in the same breath demanding respect for human rights and minority rights as well – a remarkable addition to the traditional framework that confined itself to racial discrimination and apartheid. Finally, note should be taken of the required commitments with regard to disarmament and nuclear non-proliferation.
At first sight, these new criteria show international law gaining ground on political discretion in the process of state recognition, since the fairly concise body of rules on state recognition seems to be extended with an impressive list of new, far-reaching criteria.Footnote 48 What remained unchanged was the function of international law as the outer limit on state discretion.Footnote 49 That said, although the European Council, supported by the Badinter Commission, did its best to create a sound, exhaustive, and coherent normative system with regard to recognition of the new republics, state practice quickly proved to be not very strict in adhering to this framework.
4.2. The new law on recognition brought into practice
On 15 January 1992, the European Community, positively advised by the Badinter Commission, decided to recognize Slovenia and Croatia as new, independent states. In so doing, it made clear that the promising new criteria could indeed be applied in a very flexible way.
Croatia, for its part, did not have a stable government able to control the whole of its territory at that time.Footnote 50 The decision to grant recognition therefore explicitly deviated from an essential traditional requirement. In addition, that same decision to recognize Croatia departed from one of the newly created norms as well, since the Badinter Commission had noted that the Croatian constitution did not fully meet the requirements on minority protection.Footnote 51 The recognition of Bosnia and Herzegovina on 7 April 1992 shows the same free interpretation of the legal framework on state recognition. Bosnia and Herzegovina did not have an effective government able to control even a substantial part of its territory – something even its president had to admit by stating that his country could not protect its independence without foreign military aid.Footnote 52 The bloody civil war that had resulted from this state of affairs furthermore did not provide an environment in which human rights were adequately protected.Footnote 53
Whereas two of the three recognized republics did not fully meet the normative framework, either the traditional or the new one, Macedonia became the victim of an opposite phenomenon: even though the entity fulfilled all possible criteria, it was initially only recognized by a handful of states.Footnote 54 Although the Badinter Commission had given positive advice on the matter, recognition was vetoed by Greece – a deadlock that was only broken in 1993.Footnote 55
Interestingly, non-European states responded quite differently to the events in the Balkans in terms of recognition. The United States felt no need whatsoever to justify its policy of recognizing the former Yugoslav republics within a broader normative framework.Footnote 56
The same holds true for other Western states such as Australia and Canada.Footnote 57 It was therefore mainly because of the European Community's actions that the international rules on state recognition evolved during the Yugoslav crisis. This evolution led to a somewhat paradoxical situation. On the one hand, the set of rules governing state recognition appeared to be considerably extended. On the other, however, the rules were not applied in a very consistent manner. This paradox cast a shadow over the binding character of these rules and over how the international law on recognition was to develop further.
4.3. International law on state recognition: fundamental uncertainty
In the aftermath of Yugoslavia's dissolution, a fierce debate has erupted over the effect of the European Community's recognition policy on the crisis in the Balkans.Footnote 58 One glance at legal doctrine on the matter shows that the sudden creation of a completely new normative framework, together with the way in which state practice has interpreted these norms, has created a lot of confusion. A first source of uncertainty is the concrete content of the new criteria, particularly of the right to self-determination. While state practice in Yugoslavia has shown that this right is no longer confined to colonial situations, the new scope remains very unclear.Footnote 59 And, unfortunately, the International Court of Justice has not provided any guidance on the matter in its Kosovo opinion.
A second point of confusion that has arisen is the relationship between the new requirements and the traditional criteria. More specifically, the state practice mentioned above raises the question of the relevance of the Montevideo requirements as a limit on state discretion.Footnote 60 Have the new criteria replaced the traditional requirements?Footnote 61 Or do the new criteria merely add to the traditional framework instead of replacing it?Footnote 62
A third and final issue touches upon the very foundations of international law and its uneasy relation to political discretion: to what extent can the criteria for state recognition still be considered to be normative rules, when, apparently, these criteria can be readily set aside for the entity that should or should not be recognized, depending on the political situation? Therefore, it may seem that the new rules that the European Community has created are mainly, or even entirely, political criteria, notwithstanding the legal discourse and the interventions of the Badinter Commission.Footnote 63 Especially the requirements of human-rights protection and democracy are considered to be political guidelines more than anything else, and the recognition of Croatia and of Bosnia and Herzegovina is often brought forward as an argument in support of this interpretation.Footnote 64 Another line of reasoning is based on the EC Declaration itself, where ‘the political realities in each case’ are mentioned as a factor to be taken into account.Footnote 65
Accordingly, there is little doubt that, as a result of the striking discrepancy between the objectivity of the norms on the one hand and the inconsistency of state practice on the other, the dissolution of Yugoslavia created a lot of uncertainty and confusion as to the set of norms governing state recognition.Footnote 66 The outcome of this evolution remained highly uncertain in the years following Yugoslavia's dissolution and it remained to be seen whether and how subsequent state practice would clear things up.
5. State practice after Yugoslavia: Kosovo, South Ossetia, and AbkhaziaFootnote 67
When Kosovo declared its independence from Serbia on 17 February 2008, it marked the beginning of a year in which the international community would find itself faced with a series of very delicate cases with regard to state recognition. These events also provided an opportunity for state practice to bring some sort of order out of the chaos in which the norms on state recognition had found themselves since the dissolution of Yugoslavia, almost 20 years earlier.
5.1. Kosovo
As is well known, Kosovo unilaterally declared its independence from Serbia on 17 February 2008. This caused the UN General Assembly, at the behest of Serbia, to request the International Court of Justice to give an advisory opinion on the legality of this declaration under international law. Controversially, in its 22 June 2010 opinion, the International Court of Justice held this declaration to be not incompatible with UN Security Council Resolution 1244 (1999), which established the UN Mission in Kosovo, with the Constitutional Framework for Kosovo (2001), or with general international law. But, more importantly for our purposes, the International Court of Justice kept silent about the consequences of the declaration of independence, including on the recognition of Kosovo. In fact, it is not impossible that the declaration itself is lawful (which it was, according to the Court), while the recognition of Kosovo as a state is unlawful. Indeed, with respect to Kosovo's purported right to secession, the Court stated that ‘it is entirely possible for a particular act – such as a unilateral declaration of independence – not to be in violation of international law without necessarily constituting the exercise of a right conferred by it’.Footnote 68 In any event, under the traditional model, as discussed above, international law only prohibits recognition as lawful of a situation created by a serious breach of an obligation arising under a peremptory norm of general international law.Footnote 69 It is open to doubt whether a secession amounts to a serious breach of norms of jus cogens. In fact, if one reads the International Court of Justice's Kosovo Opinion carefully, it is even open to doubt whether a secession is a breach of international law in the first place. According to the Court, ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States’.Footnote 70 This seems to imply that a unilateral secession, which belongs to the sphere of intra-state relations (a sub-state entity separating from the mother state), does not violate the principle of territorial integrity. Either way, recognition of Kosovo would not be unlawful under international law, except, of course, if one believes that the presumably illegal use of force by NATO against Serbia in 1999, which led to the creation of a UN transitional administration and ultimately to the independence of Kosovo, has a bearing on the argument: such use of force might violate a norm of jus cogens and, arguendo, prohibit states from recognizing the ensuing situation, namely Kosovo's statehood.
In practical terms, however, the law has taken a back seat in the process of recognizing Kosovo. To be true, upon learning of Kosovo's declaration of independence, the EC Council has noted ‘that Member States will decide, in accordance with national practice and international law, on their relations with Kosovo’.Footnote 71 In reality, ‘national practice’ – this is diplomatic parlance for political expediency – has sidelined the role of international law in the recognition process. This made a uniform EC recognition practice a non-starter. An exhaustive and elaborate normative framework, as used by the European Community to deal with the dissolution of Yugoslavia a decade ago, was nowhere to be seen.
When browsing through the international reactions to Kosovo's declaration of independence, both European and non-European, the scarcity of references to international law is striking. References are often limited to a mere mentioning of ‘international law’, ‘the rule of law’, or a vague reference to the right to self-determination or the protection of minorities.Footnote 72 States that recognized Kosovo have almost invariably justified their decision to grant recognition – if such a justification was given at all – by referring to political considerations, most notably the need for stability, peace, and security in the region, and the positive effect recognition would have on these parameters.Footnote 73
Conspicuously, however, states that refused to grant recognition relied to a much greater extent, and in much greater detail, on international law in their line of reasoning. More specifically, the notions of state sovereignty and territorial integrity – core principles of the Westphalian legal order – were often mentioned as reasons not to recognize Kosovo.Footnote 74 Nonetheless, international law quite probably does not prohibit the recognition of a secession, since a secession does not rise to the level of a violation of a peremptory norm of international law. Therefore, the main reason for non-recognition is not so much situated in the sphere of international law as in the sphere of domestic politics, taking into account that a substantial number of these states have to deal with minorities and secessionist claims themselves.Footnote 75 They were indeed quick to point out the dangers of a precedent-setting recognition of a breakaway region such as Kosovo for international and domestic stability.Footnote 76
Several recognizing states acknowledged this danger and explicitly stressed the ‘unique character’ of Kosovo in their declarations of recognition, anxious to refute the claim that a dangerous precedent was being set.Footnote 77 Obviously, this emphasis on the sui generis character of the recognition of Kosovo diminishes the international-law relevance of such a recognition.
In an awkward statement of 18 February 2008, the Council of the European Union, for instance, stressed the fundamental importance of the international principles of sovereignty and territorial integrity, while at the same time arguing that these principles would not fully apply to the sui generis case of Kosovo:
The Council reiterates the EU's adherence to the principles of the UN Charter and the Helsinki Final Act, inter alia the principles of sovereignty and territorial integrity and all UN Security Council resolutions. It underlines its conviction that in view of the conflict of the 1990s and the extended period of international administration under SCR 1244, Kosovo constitutes a sui generis case which does not call into question these principles and resolutions.Footnote 78
The events in Kosovo made it painfully clear that the international community of states was seriously divided on the issue of state recognition and that international law played only a minor role in the process of recognition. This uneasy state of affairs would be emphasized again by the events in Georgia, only a few months later.
5.2. South Ossetia and Abkhazia
After a period of civil war in the early 1990s, the republic of Georgia reached an uneasy coexistence with two of its ethnic regions, South Ossetia and Abkhazia, which had organized themselves as de facto autonomous entities, supported by Russia.Footnote 79 Underlying tensions escalated in the summer of 2008, when Georgian troops launched an offensive against the South Ossetian capital, Tsinvali. Russia reacted immediately with a fierce counteroffensive, officially in response to the killing of Russian peacekeeping forces by Georgian troops. A second front was opened when Abkhazia, again with Russian support, joined the offensive and it did not take long before Georgia had to admit defeat and a peace agreement was concluded under international auspices.Footnote 80
On 26 August 2008, a few weeks after the cessation of hostilities, Russia formally recognized South Ossetia and Abkhazia as independent states.Footnote 81 The formal declaration mainly refers to political motives, such as Georgian provocations and failed negotiations, but contains a legal line of reasoning as well:
Making this decision, Russia was guided by the provisions of the Charter of the United Nations, the Helsinki Final Act and other fundamental international instruments, including the 1970 Declaration on Principles of International Law concerning Friendly Relations among States. It should be noted that in accordance with the Declaration, every State has the duty to refrain from any forcible action which deprives peoples of their right to self-determination and freedom and independence, to adhere in their activities to the principle of equal rights and self-determination of peoples, and to possess a government representing the whole people belonging to the territory. There is no doubt that Mikhail Saakashvili's regime is far from meeting those high standards set by the international community.Footnote 82
Once again, the right to self-determination was used in a non-colonial context and was seen as the basis for South Ossetia's and Abkhazia's remedial secession claims. The right to remedial secession – that is, a secession that derives its lawfulness from the illegitimate character of the governing regime – is arguably codified in the Friendly Relations Declaration, which, in the International Court of Justice's view, constitutes customary international law.Footnote 83 This document, however, also stresses the principles of sovereignty and territorial integrity,Footnote 84 which the non-recognizing states readily relied on to condemn Russia's recognition.Footnote 85 This position was shared by NATO – an attitude that Russia regarded to be ‘a politically motivated, selective interpretation of international law, based on double standards’, in view of NATO's earlier involvement in Kosovo.Footnote 86 At the same time, the double-standards criticism can apply with equal force to Russia, which recognized South Ossetia and Abkhazia, but not Kosovo. Ultimately, whether or not the circumstances of a given case warrant remedial secession and, in particular, whether or not a regime is legitimate and sufficiently protective of minority rights are in the eye of the beholder.Footnote 87 Accordingly, the vagueness of the applicable legal standard serves all protagonists well to claim the moral high ground and, as the case may be, to vindicate or reject the lawfulness of the secession and their subsequent (non-)recognition.
As in the Kosovo crisis, legal discourse on the recognition of South Ossetia and Abkhazia could be reduced to playing off the right to self-determination against the principle of territorial integrity. This account exposes once more the fundamental uncertainty on the role, content, and scope of the legal norms on state recognition. It should be noted, however, that the final report of the Independent International Fact-Finding Commission does contain a rather elaborate legal argumentation in which both traditional and post-Yugoslavian criteria are used to evaluate whether or not the entities should be recognized.Footnote 88 Unfortunately, this nuanced legal discourse was not taken up by the community of states, much unlike the impact that the Badinter Commission had on the state and institutional discourse and practice during the dissolution of Yugoslavia. An important reason for this might be the fact that the report of the Fact-Finding Commission was only published almost a year after the events in Georgia took place.
5.3. Conclusion
Earlier in this article, it was established that legal doctrine was sharply divided as to the new normative framework on recognition after the events in Yugoslavia. This division was situated on three levels: the content and scope of the applicable norms, especially the right to self-determination; the relationship between the traditional framework and the new conditions developed during the Yugoslavia crisis; and the legal or political nature of the applicable normative framework. Recent state practice shows that the international state community currently finds itself confronted with the very same uncertainties.
On the conceptual level, state practice reveals a state of fundamental confusion as to the concrete content of the right to self-determination and its relation to the principle of territorial integrity, now that the former concept appears to have broadened in scope to include non-colonial contexts as well. The case studies of Kosovo, South Ossetia, and Abkhazia show that these concepts are played out against each other. There is no further elaboration on their respective content or mutual relation. This ultimately leads to a legal stalemate and allows political expediency to carry the day.
To what extent does the current discourse apply the traditional norms and the more modern criteria regarding human rights, democracy, and minority protection? As far as the traditional criteria are concerned, it is striking that the Montevideo requirements are almost entirely absent in the – limited – legal discourse of states. Nevertheless, even though the impact of the traditional criteria appears to be diminishing, it is probably a bridge too far to state that the traditional criteria have become entirely obsolete in the process of state recognition. After all, legal doctrine – and, for that matter, the Georgia Fact-Finding Commission – do remain faithful to the traditional criteria.Footnote 89 As far as the modern criteria of human rights, democracy, and minority protection are concerned, it is noted that the Ahtisaari plan – a proposal launched during the Kosovar negotiations that was abandoned eventually – referred to the need for Kosovo to respect human rights, develop democratic institutions, and protect minorities before it could be granted independence.Footnote 90 Also, some official state declarations refer to human rights and minority protection.Footnote 91
Indeed, recognition of secession sometimes hinges on the insufficient realization of the right to self-determination by a mother state. This remedial-secession discourse arguably undergirds Western recognition of Kosovo and Russian recognition of the Georgian breakaway regions. At the same time, this apparently legal discourse may serve as a Trojan Horse to reintroduce all sorts of political considerations into the recognition process.
This point brings us to the more fundamental question as to the extent to which state recognition is determined by political or legal factors. In the final analysis, the desired result informs various types of legal argumentation, based on the Montevideo criteria, human rights and democracy, territorial integrity, remedial secession, etc. As a result, international law seems to have become unable to fulfil its traditional role as an outer limit on state discretion.Footnote 92
In conclusion, it can be stated that the fog banks surrounding the process of state recognition, created during the dissolution of Yugoslavia, still remain. The lack of a clear-cut normative framework gives way to uncertainty and incoherent policies based on ‘unique cases’.Footnote 93 The case studies furthermore sharply reveal the potential threats of these inconsistencies for international stability, as Worster aptly states:
It may be that the widespread recognition of Kosovo has spurned a ‘war of recognitions’, the latest salvo of which is the movement within Russia to recognize the independence of South Ossetia and Abkhazia, a diplomatic attack on Georgia's territorial integrity.Footnote 94
Bearing this in mind, it may seem to be regrettable that the International Court of Justice let slip a great opportunity to clear things up when it was asked to give an advisory opinion on the accordance of Kosovo's unilateral declaration of independence with international law. As already noted, instead of giving guidance on the content, scope, and status of the norms that govern the process of state recognition, the Court refused to touch upon the matter and limited itself to answering the narrowly framed question of whether the declaration of independence itself was lawful, irrespective of its consequences. That said, it is not unusual for the Court to live up to some judicial economy and to refuse to give answers to questions that are only implied in, or bear only an indirect relationship with, the question submitted to it.
6. Quo vadis?
Since the International Court of Justice has failed to shed more light on the uncertainties as to recognition described above, the final part of this article takes a closer look at those incertitudes in a careful attempt to answer some of the questions that have arisen over the last two decades. These questions are the following: (i) How can a balance be struck between the principle of territorial integrity and the right to (external) self-determination and what are, or should be, the consequences for the practice of recognition? (ii) How much morality can this process bear for the effectiveness of the legal system not to suffer? (iii) How can the law accommodate political expediency?
6.1. Right to self-determination versus territorial integrity
The scope of the right to self-determination was traditionally limited to colonial situations. During the dissolution of Yugoslavia, the right to self-determination was, however, extended to a clearly non-colonial context.Footnote 95 Since it was evident that an unrestricted right to self-determination would soon lead to fragmentation and chaos, especially if it were given an external dimension (secession), the question arose as to the new limits of this right.Footnote 96
One possible and promising approach to answering this question starts from the distinction between internal and external self-determination. Even though several definitions still exist, the internal dimension essentially encompasses the right to gain autonomy within the state, whereas the external dimension constitutes the right to organize oneself as a state – the right of secession.Footnote 97 The internal right to self-determination, it is argued, should be seen as a universal right, and support for this statement is sought in the universal formulation of the right to self-determination in official documents such as UN Resolution 1514.Footnote 98 The scope of the right to external self-determination needs to be construed more narrowly in light of its uneasy coexistence with the principle of territorial integrity.Footnote 99 This right therefore only comes into being in exceptional situations. Frequently cited criteria in this regard are grave and repeated violations of human rights and the continuous negation of the right to internal self-determination.Footnote 100 Secession then ‘remedies’ such violations.Footnote 101 The criteria of remedial secession are sometimes complemented by requirements of effectiveness, such as the territorial concentration of the affected people.Footnote 102
It is certainly true that the distinction between internal and external self-determination is far from a new phenomenon.Footnote 103 The true novelty lies in the fact that this distinction is gaining widespread attention as a way to redefine the right to self-determination in a manner compatible with the modern, post-colonial context. This is underlined by the fact that the theory is being put into practice as a framework to solve real-life cases, as shown by the oft-cited opinion of the Supreme Court of Canada in the Québec case.Footnote 104
This adaptation by legal practice is an important step towards a renewed normative framework able to bring back a degree of consistency to state practice, since it may bar recognition of an entity that has seceded without a – clearly definable – right of external self-determination. De lege lata, as noted, such recognition is presumably not illegal, as a secession may not qualify as a violation of a peremptory norm, if a violation of an international legal norm at all.
Another point of attention is the principle of uti possidetis. This principle played an important role in the decolonization era: it was considered to be the only workable solution to protect the stability of administrative or colonial borders during the process of decolonization.Footnote 105 Interestingly, it was used to evaluate the seceding territories during the crisis in Yugoslavia, which resulted in the recognition of the federal entities and the non-recognition of other entities such as the Republic of Serbian Krajina, even though these entities fulfilled all conditions for statehood.Footnote 106 By considering uti possidetis to be a general principle of international law, the Badinter Commission provided doctrinal support for this practice.Footnote 107
The assumption that the principle of uti possidetis enjoys universal validity is, however, contested by some authors, who opine that the principle can only be considered to be normative in colonial contexts.Footnote 108 In fact, all too strict an adherence to the principle of inviolability of borders rules out negotiated solutions to territorial issues. This can ultimately undermine the chances of a peaceful outcome for a dispute.Footnote 109 The use of uti possidetis outside colonial contexts furthermore seems to seriously disadvantage federal states, since federal sub-entities, as shown by the dissolution of Yugoslavia, seem to have a stronger claim to external self-determination. This appears to be particularly unfair, as it paradoxically ‘punishes’ federal states for having granted some form of federal autonomy to their ethnic or cultural regions.Footnote 110 The recognition of Kosovo suggests an even wider interpretation of uti possidetis to include all administrative borders (Kosovo being a province and not a federal entity of Serbia or the former Yugoslavia). That said, as Lalonde rightly observes, although uti possidetis is not, and should not be, binding custom that applies to all territorial disputes, it can represent a valid option or a guiding principle in resolving such disputes.Footnote 111
6.2. Effectiveness versus morality
The blurred relationship between the traditional Montevideo requirements and a new generation of criteria for recognition, such as respect for human rights, minority protection, and democracy, originates from the field of tension between statehood as a factual given and statehood as a moral engagement. The Montevideo requirements only deal with the presence or lack of certain attributes of statehood. In so doing, they ignore the entity's internal organization or the way those attributes have been acquired, save for a rather marginal check on whether or not such violations as apartheid or aggression have occurred in the process of state formation. In this view, statehood and recognition are, in essence, amoral.Footnote 112 In contrast, the new criteria are predicated upon a value system; as such, they have a considerable moral dimension.Footnote 113 The entry of this moral dimension into the process of state recognition may possibly be attributed to the rising influence of non-state actors and public opinion on state practice.Footnote 114
The use of criteria with a significant moral dimension can be welcomed as an important correction to the amoral Montevideo requirements.Footnote 115 This being said, it should be well understood that the Montevideo requirements should remain the basis of any normative framework on state recognition. After all, the principle of effectiveness (effectivité) on which those criteria are based plays an abiding key role in the functioning of the decentralized international community of states.Footnote 116 Entities that are unable to assume the rights and duties that come with statehood cannot be admitted to the international community.Footnote 117
The principle of effectiveness therefore constitutes a vital threshold. That being said, it should be noted that the fulfilment of moral criteria, most notably the presence of democratic institutions, adds to the effectiveness of a new entity and thus strengthens this entity's position as being ‘recognizable’.Footnote 118 Moral criteria can therefore be seen as useful value-oriented corrections to the inherently amoral core principle of effectiveness and, at the same time, as a successful means to foster that very same effectiveness.
Nevertheless, some caveats should be kept in mind when applying moral criteria. First, some consideration should be given to the fact that a considerable number of generally recognized states do not meet some or all of the second-generation criteria. In theory, one could argue that, for this reason, the recognition of those existing states should be withdrawn.Footnote 119 However, such a conclusion seems a bit hasty. In the interest of international stability, it is desirable that a high threshold is set before a state loses its statehood – witness cases such as Sudan and Somalia, entities still recognized as states notwithstanding their continuing lack of effective governments.Footnote 120 Moreover, imposing such criteria as human-rights protection or democratic institutions on existing states would probably be perceived as a flagrant violation of the well-established prohibition of intervention in internal affairs.Footnote 121
For an existing state, this hardly rebuttable ‘presumption of statehood’ entails that when it does not meet some of the criteria, whether of the first or the second generation, such does not bring about an end to its statehood.Footnote 122 Incidentally, it means that higher standards are used for new states than for existing states. This being so, an existing state's meeting the moral criteria plays an important part in occupying the moral high ground when recognizing another entity; this may increase the credibility and leverage of the recognizing state.
Second, and more fundamentally, the use of moral criteria increases the risk of inconsistency in the process of state recognition: after all, such criteria lack a clear and unambiguous definition.Footnote 123 The way the criteria were put into practice during the dissolution of Yugoslavia indeed shows their potential for arbitrariness,Footnote 124 as does the application of too-loosely defined criteria for remedial secession. In this respect, we should remind ourselves of Lauterpacht's warning so many years ago:
Once considerations of that [moral] nature are introduced as a condition of recognition, the clear path of law is abandoned and the door wide open to arbitrariness, to attempts at extortion and to intervention, at the very threshold of statehood.Footnote 125
It is therefore necessary to define these moral criteria as far as possible, while leaving room for taking into account the situation in the field and the entity that may be in need of recognition. Evidently, compliance with these criteria must be closely monitored during the evaluation period, and no recognition can occur when the criteria are not met. The duration of this evaluation period should be well defined and reasonable. Otherwise, an entity claiming statehood would find itself in legal purgatory for too long, which could negatively affect international stability.Footnote 126 Finally, as far as remedial secession is concerned, states may want to clarify the precise circumstances under which they would lose a moral right to portions of their territory: at what point can they be considered to insufficiently protect a people's right to internal self-determination and at what point can other states recognize a territorial entity that has seceded on moral grounds?
6.3. Law versus politics
State recognition is a process in which the spheres of law and politics are closely intertwined. One major reason for this is the key role recognition plays in the Westphalian state system: as the system lacks a central authority, an entity can only fully enter it by explicit or tacit consent of other system participants: states.Footnote 127 This means that states play a dual role in the international legal system: they protect their own interests and act as gatekeepers of the system. A fundamental tension thus ensues between recognition as a legal act allowing an entity entry into the community of states and recognition as a political act advancing the interests of the recognizing state.Footnote 128
In this context, it is not desirable, even from a state perspective, that the process of state recognition should belong in its entirety to the realm of political discretion and thus subjective appreciation.Footnote 129 The importance of the principle of effectiveness, and of the attendant objective criteria for statehood derived from the Montevideo Convention, for the functioning of the decentralized international community has already been pointed out. Complementary moral criteria, for their part, may feed into the legal system and thereby increase the legitimacy of the process vis-à-vis public opinion.Footnote 130 Legal norms furthermore reduce the complexity of the choices with which states are confronted, thus further adding to international stability.Footnote 131 The cases of Kosovo and Georgia have indeed shown the consequences of normative uncertainty for international relations.
6.4. Conclusion
This article started from the distorted relationship between law and politics in the process of state recognition and the way this was reflected in recent state practice. It was stated that the dissolution of Yugoslavia marked the beginning of a fundamental evolution in the normative framework governing recognition, giving way to uncertainty and incoherence that, in turn, led to increased political tension. A new coherent normative framework, leaving enough room for political considerations while avoiding arbitrariness, is still in the process of being shaped.
If the state community is to accept a new normative framework regulating the process of state recognition to a minimal yet necessary extent – as indeed it should – there must first be a consensus on the content and scope of the norms making up this framework.Footnote 132 The uncertainties that have arisen during the last few decades are closely intertwined: the balance between law and politics in the process of state recognition has been distorted by the confusion about the nature and content of the post-Yugoslavian normative framework. This balance can therefore only be restored when the clouds surrounding these new norms have finally disappeared.
This being said, one should bear in mind that, despite efforts from scholars, judges, and diplomats, the issue of state recognition remains – and will remain – a much-debated issue. This article only aspires to offer one possible approach, keeping in mind the modest wisdom of Kelsen: ‘The problem of recognition of states and governments has neither in theory nor in practice been solved satisfactorily. Hardly any other question is more controversial, or leads in the practice of states to such paradoxical situations.’Footnote 133
