De Facto States

The Quest for Sovereignty

Tozun Bahcheli, Barry Bartmann, Henry Srebrnik, Tozun Bahcheli, Barry Bartmann, Henry Srebrnik

• Publisher: Taylor & Francis
• Year: 2004
• eBook ISBN: 9781135771201
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

In this new century, the relentless appeal of national self-determination has moved beyond decolonisation. A large group of de facto states, would-be sovereignties, now seek international recognition. In some cases these 'nations in waiting' have already established the exclusivity of their writ on the ground and wait only for the outside world to come to terms with the realities of their existence. In others, there are powerful external players who could undermine their claims on one hand or ensure their success on the other.The cases described in this book are to be found throughout the world: Abkhazia and Chechnya in the Caucasus; Kosovo, Montenegro, Republika Srpska, and Transnistria in eastern Europe; Palestine and the Turkish Republic of Northern Cyprus in the Middle East; Somaliland in Africa; and Bougainville in the Pacific.Are these isolated voices or a harbinger of things to come? Their demands for separate statehood have breached the orthodoxies of territorial integrity and eroded the taboos of secession. Other large states, such as Indonesia, Nigeria, and the Sudan, also teeter on the brink of disintegration.

1 Political realities and legal anomalies

Revisiting the politics of international recognition

Barry Bartmann

The decade since the end of the Cold War witnessed a number of developments that challenge conventional norms concerning the nature and legitimacy of contemporary states. Those developments speak directly to the core assumptions and practices of international recognition. In some cases recognition is granted readily or, more typically, persistently maintained in spite of conditions on the ground which are tantamount to legal fiction. In other cases, recognition is stubbornly withheld even though the realities on the ground themselves expose the legal fictions which the international community supports in the defence of the principle of territorial integrity. 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, fullyfunctioning and self-contained states are quarantined as pariahs, excluded from the mainstream channels of international diplomacy, existing in conditions beyond the pale of normal international intercourse. In short, they have been ‘sent to Coventry’!

In reviewing the developments of the late twentieth century which have raised questions about the contemporary nature of statehood, two can be said to have reinforced trends to greater universality and inclusiveness, while suggesting new perspectives on those waiting in the wings for their opportunity to be accepted as normal states in the ever-expanding network of global diplomacy. First, the process of decolonization, and particularly its extension in the late 1960s to even the smallest and most fragmentary of colonial territories, has most altered the complexion of the international system. The United Nations system is itself the most obvious and dramatic example of that change. From its beginnings in 1945, with 51 members to its present membership of 191, with the recent accession of East Timor and Switzerland, the UN reflects a dramatic shift from a largely Euro-centred state system to a genuinely universal community of states, engaged in a vast range of obligations and commitments that touch upon nearly every facet of their sovereign authority. Of course, these ties are reinforced further and often with greater depth in an astonishing number of regional agreements and institutions.

The second sea-change, as it is often cited, came in the aftermath of the collapse of communism, the end of the Soviet Union, the velvet divorce in Czechsolovakia, the success of Eritrean and other anti-Dergue forces in Ethiopia, and, of course, the wars of succession in Yugoslavia. In a breathtakingly short period of time a whole new group of states was introduced to swell the membership of the international system. To be sure, there was reluctance to encourage these trends, again for fear of the precedents that would be set for other restless national minorities, and indeed, perhaps for those people like the Turkish Cypriots, who had already established the realities of their statehood on the ground. For instance, at one point, the first President Bush, in contrast to long years of American moral support for the Baltic peoples, urged them to reconsider the option of full independence from the Soviet Union, a gesture of support for the increasingly beleaguered Mikhail Gorbachev.¹ And European Union spokesmen warned Czech and Slovak leaders that their impending divorce could mean isolation outside the European family.² Most significant, tensions between leading members of the European Union over a strategy of recognizing the self-proclaimed independence of former Yugoslav republics, the first cases being Slovenia and Croatia, reflected the anxieties over exactly what was being released in this post-Soviet can of worms.³ Still, in the end, new precedents for achieving statehood had been established, albeit with the democratic sanctions of free elections of governing parties committed to the independence agenda and reinforced in most cases by referenda with convincing majorities in support of separate statehood.

The narrow interpretations of self-determination being granted only to colonial peoples, as outlined in General Assembly Resolutions 1514 and 1541 (1960), had suddenly given way to new possibilities for people whose links to their metropolitan centres were not those of the traditional and more familiar blue-water colonies, but rather those who were in effect challenging the identity and the international frontiers of those states from which they sought to liberate themselves. For the most part, they were eventually recognized and accepted into international councils. In any case, through international recognition of these new states the international system was expanded again and a new wave of inclusiveness stretched the parameters of the system to a point that would have been unthinkable in 1945.

The very nature of the controversy over early recognition of the former Yugoslav republics reflected deep concerns over precedents set by states born out of the womb of secession. Yet, though the conventional post-war taboo against secession was breached, it was not overrun. Indeed, the conservatism of international norms on the genesis and prerequisite conditions of statehood remain powerfully formidable and consequently contradictory, inconsistent and even hypocritical. In short, the contemporary international system is one of egregious double standards. On the one hand, there is a continuing commitment to states whose legal international personality masks a general state of domestic collapse, where the writ of the state is incidental and random at best. This is particularly true in several sub-Saharan African countries where rebel armies, warlords, and in some cases foreign armies, roam over vast swathes of territory with the official state authorities confined only to the capital and adjacent areas and even then only in broad daylight.

In cases such as the Democratic Republic of Congo, or Somalia, one is bound to go beyond the question of recognizing the legitimate government of these alleged states to raising the deeper issue of whether the state actually exists. Are such states legal fictions on international life-supports to safeguard the cardinal and sacred principle of territorial integrity, a principle particularly and frantically held by African states in recognition of capricious colonial roots, the many dangerous internal cleavages endemic in the region and the fragile basis of legitimacy, not only of so many governments but of the states themselves? Robert Jackson was one of the first scholars to attack the sacred cows of legal and diplomatic correctness in his unequivocal exposure of what he called ‘quasi-states’ or ‘pseudo-states’.⁴ Similarly, inspired by the work of Thomas Homer-Dixon, Robert Kaplan paints a portrait of the total collapse of governance in a string of states in his remarkable book, The Ends of the Earth.⁵

In all of these cases the policies of stubborn recognition of dubious, pretender or substantively non-existing states is nonetheless consistent with the spirit of inclusiveness and continued universality in the international system. But it is a policy which is at odds with its mirror image, that is the determined non-recognition of states which do meet de facto criteria, nonetheless, continue to be treated as if they did not exist or banished to a shadowy underworld of the shunned, international lepers in a world of lawful states. Moreover, a firm commitment to keep the usurpers beyond the gate is hardly consistent with patterns of greater universality and inclusiveness. Nor does it offer much prospect of conflict resolution in these cases because one partner’s status precludes the confidence, good faith and security to engage a long-term settlement. Indeed, this hardline policy of dismissing the claims of dissident peoples who see themselves trapped in the legal framework of an alien state also risks undermining the credibility of international recognition as an instrument of international order and security. It is that question to which we will return later in the discussion. First, let us consider the implications of the trends outlined thus far in this necessarily broad introduction.

Statehood: legality and legitimacy

An abiding concern throughout this volume is the attendant tension between conditions of legal status, reflected in the act of state recognition, and the conditions of legitimacy of statehood, which are assumed, at least officially, in the act of recognition itself. Legal status and convincing arguments for the legitimacy of states may not always conform to the formalities of diplomatic practice for either recognized or unrecognized states, whatever private misgivings may be acknowledged in world chancelleries. In other words, members of the international community, and indeed the international community collectively, may recognize and continue to recognize in response to diplomatically correct pressures a state whose status and future is a source of deep misgivings. Similarly, there may be a reluctance to challenge those same orthodoxies of diplomatic consensus by publicly acknowledging the realities so obvious in a shunned and unrecognized state. Consider the misfortune of the hapless former foreign minister for Italy, Lamberto Dini, who was forced to withdraw his acknowledgement that there were indeed two states on the island of Cyprus.⁶

When we speak of the legitimacy of a state in international relations we are referring to the justification for its existence in both practical and moral terms;⁷ that is, the credentials of statehood. In the first sense legitimacy refers to an assessment of the state’s capabilities. Can the state (or would-be state) act in the capacities normally understood to be the functions of a state? Here the emphasis is on viability: that is, ‘surviving and functioning in a changing environment’.⁸ The capacity to fulfill the functions of statehood can be seen as a measure of a state’s ‘survivability’. A state with intrinsic and chronic disabilities may be viewed by other members of the international system (and even by its own subjects) as an aberration likely to succumb eventually to a more rational and capable political system. Legitimacy is withheld to the extent that permanence is doubted.

But the legitimacy of a state is not only a reflection of its capacities. It is also a consideration of moral justification, of its ‘right’ to a separate destiny. The justification of a state’s existence is a question of both domestic and international support. The internal basis of legitimacy reflects the extent to which the state is identified with primary community loyalties. Legitimacy is present if the state is believed to be the ‘basis of which a particular group organizes its separate and distinct existence’.⁹ The international judgement of a state’s legitimacy is based, in part, on an assessment of this evidence. It is also the belief that these majority sentiments can be accommodated within the framework of other principles, particularly the territorial integrity of other historical claims of other peoples and states. (Herein lies the rub for the aspiring states in this volume.) Legitimacy then is the conviction that a particular territorial community has a right to be constituted as a state and to enjoy the privileges of sovereignty and membership in the international system.

Legitimacy is most convincing if the separateness of the community as a sovereign state is seen to be in accord with clear evidence of self-determination. This aspect of the legitimacy of the state is also an issue of viability. Clear domestic consensus in support of the state’s separate independence, buttressed by a favourable international climate, is particularly important in times of crisis when a state’s survival is threatened by larger interests and alternative versions of a just settlement. Of course, this is even more pressing for aspiring, unrecognized, states where the issue is not just survival but abortion.

The legitimacy of the state in international relations refers, then, to the extent to which there is positive commitment to a state’s right to exist and confidence in its ability to survive, at least in the foreseeable future. The legitimate state is the state which is seen as credible, durable and authentic. In this sense, the concept of legitimacy conveys more than the acceptance derived from legal recognition, though recognition and admission to international organizations most certainly invest even the most improbable states with at least some measure of legitimacy.

Every state jealously protects the rituals, symbols and privileges of its sovereign status. For some, the legal prerogatives of sovereignty may contribute in time to legitimacy where it is not yet confidently established. That is certainly the hope of visionary nation builders in fledgling and fragile African states. Similarly, for leaders of unrecognized states, international recognition and legal acceptance would surely reinforce the legitimacy which they believe to be the basis of their claims to separate statehood. When there are misgivings about a state’s right to exist (Macedonia, perhaps) or its likelihood of survival (the Democratic Republic of the Congo or even Iraq), a state can be said to suffer ‘a crisis of legitimacy’. In such cases, self-justification becomes a foreign-policy priority, reflecting both the lack of confidence in the state itself and the perceived scepticism or indifference of the outside world. This is all the more true for governments of unrecognized states in waiting. Behind the weakness of a state’s or would-be state’s credentials is the fear that the identity of the state will be surrendered to more persuasive claims or more expedient interests. Legitimacy is a bulwark against expendability (a major factor in the defence and rescue of Kuwait) and for the smallest and weakest states, and certainly for unrecognized states in gestation, the appeal to the legitimacy of their independence may be their only defence in the face of challenge.

There is one further dimension of the legitimacy question that needs to be noted, particularly in relation to the cases in this volume: the role of external interventions in the struggle for independence and recognition. This is an issue which speaks to both the ‘consumatory’ and the ‘instrumental’ elements of Apter’s familiar elucidation of legitimacy. The active presence of foreign allies can obscure the clarity and even the authenticity of the domestic call for self-determination. At worst, the role of external allies, particularly if there is an obvious asymmetry between domestic and external forces, can cast the cause for independence as one of external fabrication and manipulation. Similarly, at the instrumental level, the struggle may be portrayed successfully in international councils as a contest between the metropolitan government and an avaricious third-party state with the domestic forces successfully marginalized to the sidelines. Because of these dangers even sympathetic allies to the independence cause are reluctant to risk the possible dangers of premature recognition if foreign forces are in the picture. Thus the most supportive allies of an independent Bangladesh initially withheld formal recognition while it appeared that Indian forces might be critical to the outcome. But Bangladesh was a case of secession, not decolonization.

The same inhibitions have not been evident in those cases of decolonization where foreign troops have been in the front lines of the liberation struggle. Consider the role of Cuban forces in the Portuguese colonial territories in Africa. Indeed, a number of sympathetic African and Third World states recognized an independent Guinea-Bissau with Cuban troops active in the country, even while the Portuguese were still firmly in charge of the capital, Bissau. In the vein of the constitutive theory of recognition, it was as if this act would hasten the birth process of an independent Guinea-Bissau. But Portugal was an illegitimate occupying colonial power with no claim in the international community for the respect of its overseas territories.

The situation for our case studies is entirely different. None is a case of decolonization according to the language and practice of self-determination in the United Nations in the post-war period. To be sure, one can argue persuasively for a broader interpretation of ‘decolonization’ that would include the contiguous imperial expansion of Russia, for example, a colonial adventure in substance not unlike the overseas expansion of her European maritime rivals. But, fairly or not, the cases in this volume are cast within a context of secession and separatism and not decolonization. This in itself makes issues of legitimacy more pressing and more formidable. The presence of external allies remains a critical factor in some of these cases (the Turkish Republic of Northern Cyprus, Abkhazia, the Trans-Dniester Republic), but not a major issue in others (Somaliland, Bougainville and even Chechnya where, in spite of various volunteer Islamic insurgents, foreign troops from other states have not been involved).

In summary, both the instrumental and the consumatory elements of the legitimacy question have been radically challenged by major shifts in the international system since 1945. The conventional emphasis on competence, capacity and viability, which were widely assumed to be the minimal conditions for statehood in the early post-war years, were abandoned entirely in a wave of universal inclusiveness in the latter periods of decolonization, reflected primarily in the micro-state phenomenon. Indeed, most of the unrecognized and would-be states in this volume would seem to demonstrate more convincing and more promising conditions of long-term capacity and viability than a number of the smallest states which currently sit in the General Assembly. For instance, given the dire prognostications of global climate change, the very physical existence of some of these states is under threat. There has been also a similar shift in the normative dimension of the legitimacy question which may have profound implications for the candidate states in this volume, and for those who would follow in their wake.

Since 1991 the strictly narrow right to self-determination confined to the colonial territories of the European maritime powers has been breached; not without formidable resistance, to be sure, but breached nonetheless. These shifts in international norms have implications not only for the unrecognized states and subnational movements central to this discussion but also for the conventional and orthodox underpinnings of international recognition in policy and practice.

Self-determination, decolonization and the micro-state phenomenon

When the great European maritime powers first contemplated the realities of post-Second World War withdrawal from their overseas territories, they understandably viewed this process as one of independence for the major peoples of the empire. After all, these were, for the most part, very large, resource-endowed territories where prospects for their viability as independent states were not in question, except for the most stubborn and reactionary soldiers of empire in the Conservative Party, Whitehall and their continental counterparts. Still, the conventional thinking of the time was that the smallest territories, those bits and pieces of empire which came to be known as micro-states or very small states, would likely remain permanent wards of their metropolitan centres. It was widely felt that for the smallest colonial territories perhaps continued integration with the metropolitan power was the only reasonable choice.¹⁰ Accordingly, much of the debate in the 1950s and early 1960s on the future of these diminutive entities centred on notions of viability, or rather the...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Foreword
• Acknowledgements
• Introduction
• 1 Political realities and legal anomalies
• 2 Republika Srpska
• 3 Montenegro and Serbia
• 4 Albanian and Serb rivalry in Kosovo
• 5 From frozen conflict to frozen agreement
• 6 Chechnya
• 7 The Abkhazians
• 8 Under Turkey’s wings
• 9 Palestine 2003
• 10 Can clans form nations?
• 11 Bougainville
• Conclusion