Can the Mere Recognition of a State Be a Violation of International Law?

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.


Diverting Apophis: Russia Threatens to Break the Asteroid Suicide Pact

A few days ago, I posted about how international law might affect the earth’s response to a threatened asteroid collision, specifically the threat posed by asteroid 2004 MN4, a.k.a. 99942 Apophis. It turns out I was a bit premature — Apophis is back in the headlines.

Even though the odds of Apophis hitting earth are on par with the the odds of me finding a job the odds of North Korea making it out of Group G alive, Russia is now courageously offering to fund a space mission to protect us from this deadly threat.

It remains to be seen how they plan to do so, however. Scientific American’s blog gets the story about right: Russian space chief makes vague threat to vaguely threatening asteroid.

Anatoly Perminov, the head of Russia’s space agency, said today that Russia will consider deflecting the near-Earth asteroid Apophis from its present path, according to news reports. After all, Apophis’s orbit periodically brings the 270-meter asteroid uncomfortably close to Earth, and it has long been on the watch list of nearby bodies that pose a threat (however slight) to Earth. The only problem is that Perminov seems not to have done his homework on the subject.

According to Perminov, “No nuclear explosions [will be carried out], everything [will be done] on the basis of the laws of physics.” And also the law of nations, apparently, as any sort of asteroid-diversion premised upon the use of explosives would likely be in violation of multiple treaties and GA resolutions. Because the expected non-collision is still decades in the future, however, Russia would not need to use nuclear warheads to divert the course of Apophis. Much subtler methods would work as well — I’ve seen some suggestions that even something as simple as painting one side of the asteroid white could change its orbit, thus pushing it farther away from Earth. (Or possibly right into it, who knows.)

Perminov is also quoted as saying, “A scientist recently told me an interesting thing about the path [of an asteroid] constantly nearing Earth… He has calculated that it will surely collide with Earth in the 2030s.”

This is blatantly incorrect, and I cannot imagine that the head of the Russian space agency would be unaware of that. Either Perminov was engaging in some unauthorized bluster, or else Russia has some bigger plans in mind. It is far too early to tell, based only upon the isolated musings of one official, but I do wonder if Russia is thinking of using the minuscule threat to humanity that Apophis poses as a PR cover for carrying out some otherwise objectionable space activities.

On one last note, although usually I use this blog to stretch a science fiction story to show how it can somehow be tangentially relevant to international law, this time I get to do the reverse. It looks like Stargate SG-1 is to blame for how the asteroid got its name:

Apophis is the Greek name given to the Egyptian demon Apep, who was the enemy of light and order, the personification of evil and chaos. Depicted as a giant snake, Apophis/Apep attacked the Sun god Ra as he made his way through the Egyptian underworld during the evening hours. Solar eclipses were thought to be Apep’s few daytime attempts to swallow Ra, who always succeeded in cutting his way out of the snake’s belly. As the enemy of Ma’at, the ancient Egyptian concept of order and law, Apep represented chaos.

However, mythology may not have been the only consideration in naming Apophis. Codiscoverers Dave Tholen and Roy Tucker are fans of the TV series Stargate SG-1. The show’s most persistent villain is Apophis, an alien also named for the Egyptian god. “We considered a number of names, but ‘Apophis’ kept floating to the top,” says Tucker. “Apophis was a very fitting name for 2004 MN4 not only because of its threatening nature, but also because of its evolution from an Aten asteroid to an Apollo asteroid during the 2029 encounter.”

Since this one got to come from Stargate, can we name the next asteroid that threatens human extinction “TARDIS”?


Saturday Evening Rap Break: Pimp My Satellite

Yo Russia it’s me, your arch-nemesis,
We the G’s over seas with Micky-D’s stains on our T’s,
with luxuries like you wouldn’t believe,
we’ve got more ringtones on our iPhones than China’s got Chinese,
We’re America biyatch, the land of the free
We gave you Michael Bolton and Jurassic Park 3
Our soccer teams suck and our beers taste like pee pee
but our rhymes are so phat they get type II diabetes

But enough about us, how come you ain’t been callin me?
I guess you’re trying to stabilize your volatile economy,
preoccupied nationwide with new domestic policies,
psych, ya right, I know you tryin to follow me
You’ve been
Disgraced in the space race, trying to save face after comin in second place,
Just enough to taste victory, chase history, ace Kennedy, but ya lost pace with your enemy,
and now you’re layin low, plottin’ for as long as we’ve known ya,
You hold you’re head up like Neil Armstrong didn’t pwn ya,
that secret space ride that you’re tryin to hide isn’t something I would publicize with any pride, I’ll tell ya why…


The Saga of the Arctic Sea Continues

The Arctic Sea has gone missing again, though this time under Russian control and presumably heading for Russian port. Spain never let the ship into Las Palmas due to the presence of military personnel on board.

Meanwhile, although 11 of the 15 Russian crew members were eventually released, the remaining 4 are still on board the Arctic Sea — and according to their wives, being held captive there:

Captain Sergei Zaretsky and three crew members have not been allowed off the Arctic Sea more than a month after a Russian warship seized the vessel from eight suspected pirates.

Their wives appealed to the International Red Cross and the governments of Spain, Malta, Finland and Russia to intervene, saying that the men were in poor health two months after the Arctic Sea was supposedly boarded by an armed gang in the Baltic Sea.

I can’t figure out exactly what sort of help the crews’ wives are asking for, but at any rate they are very unlikely to receive it.

Back in Russia, the lawyers for the hijackers are now portraying this as some sort of National Lampoon’s Russian Spring Break. The hijackers — ecologists, in reality — got their boat swamped, and the Arctic Sea just happened to be passing by. The crew of the Arctic Sea offered them a lift, and they all then sailed down to Cape Verde, cavorting in the sun and playing in their pool. The poor ecologists had no idea the ship was missing or even that they were now off the coast of Africa, except that it was getting “warmer,” so they assumed they’d sailed south. Alleged hijacker Dmitry Bartenev, on crew-pirate relations:

“The crew were very friendly. When they realised we were Russians, they took us to the saloon bar and cracked open a bottle of vodka. There was a lot of booze on the Arctic Sea: whisky and strong alcohol of all kinds.”


Temporarily Out of Fashion: Somalian Piracy. Temporarily In Fashion: Viking Piracy.

I realized this morning, to my intense disappoint, that International Talk Like a Pirate Day was yesterday, and I completely missed it. This won’t happen again, I’ve already programmed it into my phone so there’s no chance of me missing it next year. But to make up for my laxness, I’m declaring today International Pirate Blogging Day and celebrating that by giving an update on the somewhat under-reported story of the Arctic Sea. The Arctic Sea was captured by pirates last July before going MIA on an ocean voyage from Sweden to Africa, and the theories surrounding the whole incident sound suspiciously like the plot of Dan Brown novel.

The (roughly known) facts: The Arctic Sea is a Maltese-flagged ship, owned by a Finnish company, which is in turn owned and run by a Russian citizen living in Finland. which when the hijacking occurred had left port from Finland bound for Algeria, with a cargo of timber (owned by a separate company also controlled by the same Russian citizen who owned the ship) worth $1.7 million on board. Around July 24, the Arctic Sea was then captured off the coast of the lawless, warlord controlled territory of Sweden, but this was not reported publicly. Contact was lost with the ship around July 31, during which time the ship chugged down through the English Channel, around the Iberian peninsula, and then remained missing for a number of weeks. On August 17th, Russia successfully recaptured the ship off the coast of Africa near the island nation of Cape Verde. There were no reported injuries. The eight (ten?) hijackers are apparently ethnic Russians, who speak English, and are either stateless or hold passports to Russia, Latvia or Estonia. As an additional point of confusion, when captured off of Africa the ship’s captain “unexpectedly claimed” to be the North Korean ship Congdin 2, en route from Cuba to Sierra Leone — but as far as I can gather, essentially no one has any idea what the hell that was all about.

Russia announced it would be taking the ship back to a Russian port. Instead, the ship next turned up at the Canary Islands, where it remains in limbo as Spain continues to refuse entry to the Arctic Sea. Malta, where the ship is flagged, has been involved in the negotiations but apparently wants to wash its hands of the whole thing. Russia is less than pleased, and announced that:

“The decision of the Maltese authorities has puzzled the Russian Investigative Committee. Moreover, it contradicts international maritime law. The Maltese action makes the ship docking in the Spanish port of Las Palmas problematic. This also creates problems for the ship’s crew because they are running out of fuel and drinking water[.]”

Far as I can make out, the ship’s still bobbing about in the waters off of Las Palmas, but transfer of the ship to the original owners is being organized. Meanwhile, all the pirates are back in Russia and are currently facing prosecution.

The conspiracy theories: There are dozens of theories out there, but the major claim being made seems to be this whole deal was really about “Russian mobsters selling missiles and/or air defense shields to Iran.” The most convoluted of these tales involve Israel’s Mossad being responsible for the diversion of the ship’s trip to Iran:

Another theory is that Mossad concocted the alleged hijacking by setting up a criminal gang, who were unlikely to have known anything about a secret cargo, instead blocking the route to Iran by the mounting media interest.

“Once the news of the hijack broke, the game was up for the arms dealers. The Russians had to act,” said a former Russian army officer. “That’s why I don’t rule out Mossad being behind the hijacking. It stopped the shipment and gave the Kremlin a way out so that it can now claim it mounted a brilliant rescue mission.”

One serious problem for fans of this theory: Why the heck would Israel entrust the recapture of an arms smuggling ship to a bunch of drug addicted bar brawlers? (Additional note to the hijackers: Fire your lawyers. No one believes y’all were members of a stranded environmentalist group trying to “document environmental abuses.” If that’s the best cover story you’ve got, you’re in big trouble.)

And while it seems like something fishy was going on, given the extreme shortage of reliable reporting out there, its hard to tell right now if it’s anything more sinister than a bunch of deluded Russians becoming the Keystone Kops of the piracy world. Because this was the most incredibly awkward ship hijacking the world has seen since Blackbeard was a teenager. The only thing clear about this whole mess is that the pirates were basically a bunch of dogs chasing a car, and they had no idea what to do with the ship once they actually captured it. So they just decided to cruise it down to Cape Verde for the heck of it.

However, combined with recent diplomatic trips by Israel’s president to Russia to discuss Iranian relations the day after the Arctic Sea was found, as well as the cancellation of the U.S. missile shield plans in Poland and the Czech Republic, there’s enough fodder there for the conspiracy theorists to last them for months.