The contemporary practice of state recognition: Kosovo, South Ossetia, Abkhazia, and their aftermath

Abstract

This paper assesses state recognition, the practice historically employed to regulate membership in international society, since the United States–led recognition of Kosovo and the Russian-led recognition of South Ossetia and Abkhazia. Its main goal is to succinctly examine the question of whether these two controversial episodes have signaled change in the existing norms of recognition of new states. The paper argues that there is not enough evidence for the claims of some observers and governments that unilateral secession is, as such, becoming legitimate internationally. The leading recognizing powers took great care in all three cases to reject the applicability of their decision to other situations of unilateral secession, and they have since approached those other situations as if no acknowledgment of the three territories had taken place. Nevertheless, there can be little doubt that the deeply contested nature of these cases has introduced confusion and uncertainty into the practice and that this has had, and will have, important implications elsewhere in the world, in terms of both re-invigorated claims of statehood and the potential for unilateral recognition decisions by powerful outsiders. In fact, it is extremely unlikely that Russia's recognition of South Ossetia and Abkhazia in August 2008 would have ever occurred without the prior US-led recognition of Kosovo in February 2008.

Keywords:

• state recognition
• international legitimacy
• unilateral secession
• international norms
• precedent

Acknowledgements

The author would like to thank for their comments the editor and anonymous reviewers of this journal as well as Vicken Cheterian and the participants of the May 2010 workshop in Geneva on “New Geopolitics and Role of Diplomacy in the Caucasus,” where the initial version of this paper was presented.

Notes

This argument takes different forms. Dubinsky (242) contends that the three cases hollowed out the unilateral secession taboo and set the stage for “a proliferation of ethnonationalist states.” Weller (239, 272), Perritt (255), Anstis and Zacher, and Quane, on the other hand, argue that Kosovo signals international acceptance of “remedial” secession, by which countries can lose sovereignty over a territory if they have committed serious violations of human rights. Although not found in their statements recognizing the Balkan territory, the argument that there is a remedial right to unilateral secession and that Kosovo qualifies under this right was advanced by Albania, Estonia, Finland, Ireland, Germany, Jordan, the Netherlands, Poland, Slovenia, and Switzerland in their written submissions and oral statements before the International Court of Justice in the advisory opinion case of Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. Russia also alluded to remedial secession before the court, but in rather general and tentative terms. While accepting that the question can arise in certain extreme circumstances – presumably South Ossetia and Abkhazia, both of which were mentioned as meeting the criteria by Russia's foreign ministry upon their recognition (“Statement by the Ministry of Foreign Affairs”) – the Russian submission explicitly denied that Kosovo in 2008 was one of them. It should be mentioned that both kinds of arguments are not new: some contend that the unilateral secession taboo was abandoned with recognition of ex-Yugoslav republics in the early 1990s (see Fabry 208, n. 2–3), while the remedial secession argument goes back to the non-binding “Report of the League of Nations Commission of Rapporteurs on the Aaland Island Question” (1921) and United Nations General Assembly Resolution 2625 (1970) (see Cassese 109–25).

And even then, the enduring claim that these states' sovereignty was unjustly and illegally extinguished served in a few cases – such as Latvia, Lithuania, and Estonia in 1991 – as a key justification for their later restoration.

This category included Southern Rhodesia, Namibia, Angola, Mozambique, Cape Verde, Guinea-Bissau, and East Timor. It still includes Western Sahara. That the group shrank is to a significant extent thanks to international society, which in numerous global and regional forums applied various degrees of pressure on the deniers or violators of the right to self-determination to withdraw from these territories.

In the case of the newly decolonized states the principle of territorial integrity was also referred to as the principle of uti possidetis juris.

As in the past, such consent was extremely hard to come by. Between 1945 and 1993 Singapore was the only sub-state unit of a post-colonial country that succeeded in obtaining it, when Malaysia's central government asked Singapore to leave Malaysia in 1965.

Even in this case, its application for UN membership was successful only after Bangladesh was recognized by Pakistan in early 1974.

According to a number of international lawyers, UN GA Resolution 2625 (1970) and the later Vienna Declaration of the UN World Conference on Human Rights (1993) contain a “safeguard clause” which entitles peoples oppressed on the basis of race, creed, or color to remedial secession. Nevertheless, international practice with respect to various post-colonial cases of unilateral secession does not suggest that states have accepted that parts of sovereign states have a right to remedial secession. As mentioned in Note 1, several countries supported this argument in their submissions to the ICJ in the case of Kosovo's unilateral declaration of independence, but they cited no case where the remedial right was actually applied. As made clear in the same note, none of them made the purported right a basis of their public justifications to recognize Kosovo.

Eritrea did eventually garner recognition, but this occurred only after Ethiopia's assent to let the Eritreans choose independence in a 1993 referendum. It was this consent that accomplished what the three-decades-long control of large swaths of Ethiopian territory could not. The same scenario was replayed in 2011 in South Sudan, which gained the right to hold a referendum on independence in the agreements signed with the central government in Khartoum in 2002 and 2005.

All three documents were adopted under the auspices of the Conference for Security and Co-operation in Europe (CSCE), later renamed the Organization for Security and Co-operation in Europe (OSCE). While the Helsinki Final Act can be interpreted as affirming the principles of inviolability of frontiers and territorial integrity of states only in the context of interstate relations, the Charter of Paris clearly extends it to intrastate relations, acknowledging “the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of states.” The Copenhagen Document goes even further: it stipulates that persons belonging to national minorities do not have “any right to engage in any activity or perform any action in contravention of … the principle of territorial integrity of states.” The Copenhagen formulation found its way into Article 5 of the European Charter for Regional or Minority Languages (1992) and into Article 21 of the Framework Convention for the Protection of National Minorities (1995).

There are new global documents reaffirming that territorial integrity protects countries against internal, and not just external, challenges. Article 46 (1) of UN GA Resolution 61/295 (2007), the UN Declaration on the Rights of Indigenous Peoples, stipulates: “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”

The 2006 dissolution of the Union of Serbia and Montenegro also falls into this category.

This position was consistent with the findings of the Badinter Commission, an advisory panel of jurists created by the European Community to consider legal questions arising from SFRY disintegration. See its Opinion No. 1 of 20 Nov. 1991 and Opinion No. 8 of 4 July 1992 in Trifunovska (417, 635).

The recognizing states have continued to discount the de facto criteria, which began with decolonization. At the time of their acknowledgement, Azerbaijan, Moldova, Croatia, Georgia, and most conspicuously Bosnia and Herzegovina did not possess effective control over considerable segments of their territory.

For wide-ranging analyses of unrecognized de facto states in the post–Cold War period, see Pegg, Bahcheli et al., Lynch, Geldenhuys, and Caspersen and Stansfield.

Those supporting the Ahtisaari report came to argue that Resolution 1244 affirmed Serbia's territorial integrity only until a final settlement on the Kosovo conflict and that such a settlement did not require agreement between the two parties. This interpretation of Resolution 1244 did not appear before 2006 – no country or intergovernmental organization had publicly suggested that Kosovo could gain independence from Serbia without the latter's consent.

The EU as a whole saw the Kosovo situation as sui generis too, and this was reflected in the decisions of most member countries opting for recognition. See “Presidency Conclusions,” 14 Dec. 2007, paragraph 69.

Apart from Serbia, elaborate written statements falling in this category were submitted by Argentina, Cyprus, Romania, Russia, and Spain.

For references to Abkhazia and South Ossetia as sui generis, “special cases,” see also Medvedev's “Interview with CNN” and “Interview with TV Channel Russia Today.”

See, for example, “Presidency Conclusions,” 1 Sept. 2008, paragraph 2. This judgment was later confirmed by the EU-established Independent International Fact-Finding Mission of the Conflict in Georgia (Vol. 1, 17).

Some Palestinians have suggested that if Kosovo could declare independence in the absence of a negotiated settlement with Serbia, then they do not have to wait for a peace agreement with Israel. These opinions have not met with official foreign support (Diker), although several Latin American countries issued statements of recognition of a Palestinian state in the 1967 borders in late 2010 and early 2011. However, even if the Palestinians did attain widespread support for unilateral independence, the cases are very different in legal terms. Kosovo was a part of a sovereign state, whereas the West Bank and Gaza, former territories of a British Mandate, are not. No outsider has suggested that Israel's consent, however critical politically, is a legal prerequisite for Palestinian statehood. In any case, Israel has accepted the Palestinian right to independence and its dispute with the Palestinian Authority is largely about the territorial and demographic shape, not the legitimacy, of a sovereign Palestinian state.

Paragraph 43 of the Bucharest Summit Declaration also extends this support to Moldova.

Indeed, paragraph 35 of NATO's Lisbon Summit Declaration in November 2010 and paragraph 47 of NATO's Chicago Summit Declaration in May 2012 express “support of the territorial integrity, independence and sovereignty of Armenia, Azerbaijan, Georgia and the Republic of Moldova” and support for “efforts towards a peaceful settlement of these regional conflicts, taking into account these principles.”

This judgment is shared, as far as South Ossetia and Abkhazia are concerned, by the Independent International Fact-Finding Mission of the Conflict in Georgia (Vol. 1, 37).

In its advisory opinion of Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo of 22 July 2010 the ICJ did not much clarify the question of the legality of Kosovo's independence. The court found merely that the unilateral declaration of independence of Kosovo, as a public act, was not a violation of general international law or specific legal instruments dealing with Kosovo. It did not rule on the international legal consequences of this proclamation – whether on Kosovo's right to secede, its status as a “state,” or the admissibility of its foreign recognition. The ICJ also refused to address the question of the remedial right of secession. Perhaps the only important general verdict of the court was that the principle of territorial integrity applies exclusively to interstate relations, which, as a matter of international practice, is true of the era before decolonization but untrue of the period since (Fabry chs. 2–6). Whatever one's view of the advisory opinion, however, it has not led to a wave of new recognitions of Kosovo.