In the past few days, Russia has purported to enter into several agreements with Abkhazia, an autonomous region in Georgia that had proclaimed its own sovereignty and is now attempting to achieve recognized statehood. These agreements include the establishment of direct air traffic between Russia and Abkhazia (including an obligation on Russia to help repair the airport there) and the formalization of Russian presence in Abkhazia with a 49-year lease on a Russian military base in the region.

Abkhazian leaders have also proposed a law allowing Russians to purchase houses in Abkhazia on the same terms as Abkhazian citizens.

According to Georgia, these agreements were “illegally signed by an occupying power and a puppet regime”. NATO has likewise denounced the pacts as illegal. Given that Abkhazia is merely a region of Georgia under international law, the pact with Abkhazia cannot change Russia’s status as an illegal occupier of Georgia – and a violation of Article 2:4 of the UN Charter. (For obvious reasons, this poses a large hurdle on Georgia’s accession to NATO. If Georgia did succeed, the U.S. and other NATO nations could potentially be obligated under international treaty law to go to war with Russia.)

A few days ago, the Georgian president, Mikheil Saakashvili, released a statement on Georgia’s relations with Russia:

Recognition of independence of regions of Abkhazia and South Ossetia was illegal and their occupation was illegal as well, although they do not call it occupation any more, they take the territory legally, but say it’s not occupation. What do you call it then, is it a military tourism? What are these Russian troops doing then illegally in the other country’s territory? The way Russian propaganda works is very clear – you blame someone of what you are doing or going to do.

Although Russia’s occupation of Abkhazia is plainly illegal, the accusation that the mere recognition of Abkhazia and South Ossetia is a violation of international law is a more intriguing claim. Can the recognition of a state be, in itself, an illegal act?

So far, only four states recognize Abkhazia: Russia, Nicaragua, Venezuela, and, as discussed previously on this blog, Nauru. For two of these states, recognition may have in fact been in violation of international law. Both Venezuela and Nicaragua are signatories to the Montevideo Convention, and under Article 11 of that treaty,

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

So at least in theory then, Venezuela and Nicaragua could be in breach of a treaty obligation, although not CIL. Russia, however, along with all other non-American states, is not party to the Montevideo Convention. How then could its recognition of Abkhazia violation international law? Even had Russia not formally recognized Abkhazia, it would be entitled under international law to treat Abkhazia has a pseudo-sovereign in certain respects. For instance, during the American Civil War, the United Kingdom did not recognize the Confederacy as a sovereign state, but did accord them a “belligerent” status that allowed for Confederate ships to enter into ports on the same terms as ships flagged by recognized states. Even today, many nations will recognize private contracts, such as marriage, that were entered into under the auspices of a non-state, even if for other purposes the non-state is denied to have any independent existence.

The power to recognize other states is a privilege of statehood — not a duty. Had the constitutive theory of statehood had become a controlling principle of international law, there would be a stronger foundation for President Saakashvili’s claims about Russia. Judge Lauterpacht, a proponent of the constitutive theory, even suggested that international law should impose a duty on states to recognize other states.

This idea never took hold, however, and instead, under the declarative theory, states can use whatever criteria they wish when deciding whether or not to extend recognition to a new state, even if it otherwise meets all objective qualifications for statehood. Customary international law is more or less settled today on a declarative approach to statehood that declares a state is a state when it satisfactorily meets certain indicia of sovereignty. A state, therefore, is any entity that possesses “a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.”

But this formulation is more of a definition of what a state should be than any sort of normative command constraining state behavior. Although an argument could be made that a state is in violation of international law when it purports to “recognize” an entity that does not possess these four criteria, I would expect many states to outright reject the validity of this norm — given how subjective evaluations of statehood often are, if 77 states recognize a state and 116 do not, would the 77 now be committing an illegal act? On the close cases, obviously not. But even defining what is and is not a “close case” is a tricky call.

What about a state’s recognition of the statehood of something unambiguously inapplicable? What would it mean for one state to recognize, say, a cruise ship as an independent state? Or how about something truly absurd – how about a toaster? Would this be an “illegal” act, or would it be more akin to a null command, something that is simply not cognizable under international law?

Obviously, there are a lot of actions a state could take as a result of its recognition of another state that would contravene international law. But the act of recognition or non-recognition in itself is harder to characterize as something that can be “illegal.”

Meanwhile, whether or not Russia’s recognition of it was justified, Abkhazia is attempting to obtain further international support for its claims to sovereignty, perhaps recognizing that having Russia as its patron is more likely to result in Abkhazia’s relegation to puppet state status than in true statehood. Currently, Abkhazian delegates are visiting foreign countries throughout South American, attempting to establish diplomatic ties with and, more importantly, receive recognition from nations there:

The agenda of the Abkhazian delegation’s working visit to the region includes the development of economic relations with Latin American countries, he said.
“We are looking for ways to fill our relations not only with political statements, but also with specific economic projects,” the acting foreign minister said.
During the tour of Latin America, the Abkhazian delegation will visit Venezuela, Argentina, Ecuador, and Bolivia.

Up until now, the recognition Abkhazia has received from other states has been either politically or monetarily motivated. By attempting to secure ties with other countries through “economic projects,” Abkhazia hopes to establish international recognition that is not merely nominal but also persuasive proof of its sovereignty. To this end, Abkhazia has made a point of emphasizing that it possesses both a moral right to its statehood as well as a positive claim to statehood under international law:

Abkhazia insists that the question of its recognition “be considered not only in terms of the right to self-determination, but primarily in terms of view of international law,” the acting foreign minister said.
“In both cases Abkhazia has indisputable arguments,” he added.

More and more, I am becoming convinced that Abkhazia and, to a somewhat lesser extent, South Ossetia, are positioning themselves in a manner that will eventually allow them to make legitimate claims to statehood. They are obviously a long ways off, I would not be surprised if, within the next decade, one or the both of them find seats in the General Assembly.

-Susan