Disinformation on the Sovereignty Market: Russia Attempts to Spoil Armenian-Georgian Relations?

On May 20, Regnum News Agency released an article claiming that Armenian Russians planned to donate nearly a hundred million dollars towards the cause of Abkhazian state recognition:

The Union of Armenians of Russia (UAR) headed by businessman Ara Abramian intends to spend $ 90 million to ensure recognition of the independence of Abkhazia and so-called South Ossetia by third world countries. REGNUM news agency reports with reference to a competent source close to the leadership of the union. They found it difficult to name the source of these funds, but noted that directions of the said activity, according to their information, had been agreed by the UAR with leaders of the Russian diplomacy. Results and geography of spending are not reported.

Given that, back in 2009, Nauru granted recognition of Abkhazia for a mere $50 million, a $90 million donation ought to be sufficient for Abkhazia to buy recognition from at least one more Pacific island nation — possibly even two.

However, Regnum News Agency, a Russian news dissemination service, appears to not be the most trustworthy agency around, and the Union of Armenians in Russia has denied the report:

We have to remind the Regnum’s administration that this is not the first time their agency is publicizing unverified and untrue report, referring to the Union of Armenians of Russia[.]

But even without the UAR’s denial, the story would not add up all the way. Although Armenians make up 20% of Abkhazia’s population, they are politically underrepresented in the region, and it is unlikely a Russian group would spend such a large sum to advance a rather questionable method of obtaining sovereignty. Armenia’s political interest in Abkhazia is also relatively minimal, as compared to, say, Nagorno Karabakh.

Continue reading

Trades on the Sovereignty Market: Serbia Gives Iraq Weapons in Exchange For Non-Recognition of Kosovo

The rise of the relative importance of soft power in international relations has had an unintended consequence on international law: the creation of a sovereignty market.

The sovereignty market involves an international exchange of aid in return for recognition of an entity’s claims for statehood. This trading is sometimes carried out in a very blatant fashion, as was the case in Abkhazia’s outright purchase of Nauru’s recognition. More commonly, though, they are done in a more subtle fashion, with both the aid and the declarations of recognition done behind the disguise of normal diplomatic relations.

The latest swap on the sovereignty market’s trade floor is between Serbia and Iraq. It’s a reverse sovereignty swap, though, in that Serbia is not seeking recognitions of itself — it’s claims to statehood are secure — but rather it is seeking non-recognition of Kosovo. Kosovo’s claims to statehood have steadily grown, and although the recent ICJ opinion on the legality of its declaration of independence was somewhat ambivalent, with 69 out of 192 nations recognizing its sovereignty, Kosovo is well on the path to statehood.

To battle the rising recognition of Kosovo, Serbia is attempting to woo other nations into agreeing to non-recognition. However, because the importance of any state’s decision to recognize or not recognize is decreased where ulterior motives for the decision exist, Serbia has to be subtle about it. In the case of Iraq, the purchase of Iraq’s non-recognition of Kosovo has been disguised behind flowery declarations of long-standing friendship, and, oh, by the way, we’ve just given them three fighter jets:

The [Serbian] Ministry of Defence said that Iraq did not recognise the unilaterally proclaimed independence of Kosovo, and added that that Iraq’s support to the sovereignty and territorial integrity of Serbia was confirmed.

Sutanovac highlighted that Serbia and Iraq have a long tradition of having a good, quality, partnership and friendly relations, adding that the two countries have common views on Kosovo-Metohija.

The Defence Minister stressed that the government of Iraq intends to purchase weapons and equipment in Serbia, and added that he spoke with the Prime Minister of Iraq about cooperation in the field of the military industry, after yesterday’s delivery of three aircraft.

He declared that the Iraqi side is very satisfied with the fulfilment of deadlines and quality standards.

Sutanovac affirmed that Iraq wants to engage Serbia in the reconstruction of an air base, building a military hospital and for the supply of ammunition of all calibres.

-Susan

[Edit: Another interesting angle that just occurred to me is the political-religious intersection at work here. Kosovo is, of course, an overwhelmingly Muslim state*, while Serbia is not. It might seem odd that Iraq is willing to barter its non-recognition of a Muslim nation in return for military goods, but I wonder if this trade reflects a more different political divide at play: while Kosovo’s population is largely Sunni, Iraq’s government is now Shia and has been since the overthrow of Saddam. Conflict between Iraq’s majority Shia population and its minority (but still substantial) Sunni population plays a huge role in Iraqi domestic politics, and non-recognition of Sunni Kosovo may have been both a bid for Serbian aid and a way for the Shia government to give the Sunni factions in Iraq a poke in the eye.]

* Yes, LL2 (or at least the Susan-half of it) does extend its diplomatic recognition to the state of Kosovo.

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.

-Susan

Nauru’s Prohibition on Transfers of Land to Non-Citizens

Earlier, I used the “cybernation of Wirtland” as a thought experiment for discussing how international law might treat the acquisition of territory for the deliberate purpose of obtaining sovereignty. Wirtland has ‘proposed’ to acquire territory, and therefore eventually achieve statehood, by entering into a deal with Nauru by which Wirtland would obtain sovereignty over Nauru’s strip minded lands.

Although Nauru would be entirely free to enter into such a deal, as the principle of permanent sovereignty requires that every State recognize “the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests,” (GA Resolution 1803 (XVII), preambular para.5), there are many reasons to seriously doubt another entity could achieve statehood by acquiring them.

It turns out I was looking at the issue far too abstractly. While I still think it is an interesting question as to whether or not a country can, in a financial transaction, withdraw claims of sovereignty over a portion of its territory and grant them towards the establishment of an entirely new State with no prior existence, using Nauru as the hypothetical example is a nonstarter. Nauru is, in itself, an interesting test case for many of our notions of sovereignty, but it cannot be the basis of a new nation’s claim to territory — because Nauruan law prohibits the alienation of real property to non-Nauruan citizens.

I knew from the Case Concerning Certain Phosphate Lands in Nauru that phosphate mining in Nauru took place under a series of complex mandates, trusteeships, and leases, and I got curious about who exactly would have been said to be “sovereign” over Nauruan territory prior to Nauru’s independence in 1968.

While looking up stuff about that, though, I was surprise to see that under Nauruan law today, it is a criminal offense to sell land to a non-Nauruan citizen, and any such attempt to do so will result in a void transaction. The Lands Act 1976 of Nauru provides that:

(1) Transfer inter vivos of the freehold of any land in Nauru to any person other than a Nauruan persons prohibited, and any such transfer or purported transfer, or any agreement to execute any such transfer, shall be absolutely void and of no effect.

(2) Any person who transfers, or agrees attempts or purports to transfer, the freehold of any land in Nauru to any person other than a Nauruan person is guilty of an offence and is liable to imprisonment for six months.

So, looks like Wirtland needs to buy land from someone else.

-Susan

Sorry, Wirtland, You’re Not a Sovereign– Try Again In A Couple Centuries or So, Maybe Custom Will Have Changed Enough By Then

A few days ago, I got a comment on my post about Nauru’s recognition of Abkhazia. It linked to the blog for the Sovereign Cybernation of Wirtland:

According to official press release, Wirtland approached the government of Nauru with a formal proposal to transfer a piece of its territory to Wirtland. Nauru, one of world’s smallest island nations situated in the South Pacific, has vast barren terrain left over after several decades of phosphates mining. “Proposal for Monetization of Unused Land by cooperation between Republic of Nauru and Wirtland” is intended to utilize a piece of Nauru’s barren terrain. According to the Proposal, “Republic of Nauru officially assigns a piece of its territory, of any quality and size, to Wirtland. Nauru will have a major stake in future sales of land from this territory, agreed in contract”. In his letter addressed to the President of the Republic of Nauru, Chancellor of Wirtland underlined his hope that “such a plan, if realized, will make a positive effect on the economy of Nauru”.

How intriguing. Looks like someone is trying to implement my “buy a sandbar, become a nation!” idea. And if you’re interested in becoming a part of this burgeoning new developing country, you can of course get your citizenship application here. [PDF]

It’s almost too bad the scheme could never work. But Wirtland does get points both for creativity and for dreaming large.

Still, I’m a bit unclear as to how Wirtland plans exactly to carry out its ambitious national goals, given its limited “citizenship” base and non-existent power of taxation:

Wirtland aims to become economically self-sustaining. Wirtland builds communities, which will offer political and economic benefits, generate employment opportunities, provide new sources of artistic creativity and independent opinion-sharing.

To take Wirtland seriously for a moment, what happens if Nauru agrees to the deal they’re offering? Don’t say it won’t, if anyone will go along with the Wirtland scheme, it’s Nauru — they’ve already made clear their recognition goes to the highest bidder, and Nauru’s state recognition powers are arguably far more valuable than are the bleached and stripped patches of land in question. I’d say it’s extremely unlikely, given Wirtland’s limited financial resources, and the fact that Nauru’s recognition normally comes with a multi-million dollar price tag, but I’ll concede the idea is at least plausible.

So Nauru agrees. Now what? Wirtland has “land”, but not permanent population, no government with control over the territory, no capacity to enter into foreign relations, and (unless they convince Nauru to toss it in to sweeten the deal) no recognition. (Although I’m sure Wirtland would counter by pointing out that that they so can too enter into international relations. See, just check out their press release on the Georgia-Russia conflict! That’s totally a capacity to engage in foreign diplomacy!)

But private entities purchase land all the time, and don’t thereby become “sovereign” under international law due to their ownership. Even if Nauru bizarrely agreed to cede all rights and ability to control the land (which is unlikely), that would not necessarily change Nauru’s status as sovereign over it. Guantanamo Bay, for instance, is rented by and occupied by the United States, but formally, the area is still a part of Cuba’s sovereign territory.

In the event of Nauru ceding land to Wirtland, the most likely result is that the rest of the world simply continues to treat the “Wirtland” territory as Nauruan sovereign soil, and completely fails to acknowledge the existence of any entity calling itself Wirtland. As a practical matter, the issue is probably moot, as it’s not as if anyone else in the world is remotely interested in that particular piece of Nauruan real estate. So there will be no invasions or occupations or other scenarios which might present a legal challenge to the national character of the land, and so no reason for the precise legal status of the phosphate mines to be determined. But under international law, it is about as close to black letter law as you can get that the territory will not be considered Wirtland sovereign soil.

This would be due in part to the fact that Wirtland does not meet any of the other indicia of statehood. But, mostly, it would be due to the fact no other State on earth would give Wirtland recognition. The idea is just too preposterous, too cognitively jarring, for enough people all over the world to simply begin believing in the communal fiction of its statehood — and furthermore, Wirtland is too small to be a potential political benefit or a potential threat to other States, so Wirtland has no hope of short circuiting the normal process of recognition by bullying its way into statehood either.

Not to mention, under the Website Theory of Statehood, the most Serious and Authoritative barometer of statehood ever invented, Wirtland does not really present a strong case for sovereignty. Wirtland’s website only rates somewhere in the middle of the pack. Which sounds all right, until you consider that, as a “cybercountry,” really it should be held to a much higher standard with regards to its online presence than are the rest of the world’s currently unrecognized sovereigns.

-Susan

Two Very Scary Excerpts on the Condition of Haiti

On the Haitian economy:

All but one of Haiti’s textile plants – which account for 90 per cent of its exports – were in Port-au-Prince. Consequently, the earthquake has essentially knocked out the country’s entire export sector. The Port-au-Prince region also accounted for 85 per cent of government revenues.

And on Haiti’s dependence on UN food supplies:

The UN says that yesterday it managed to feed 40,000 people and that it hopes to increase that to 1 million people a day within two weeks, and 2 million in a month.

“By the end of Monday, we will have distributed more than 200,000 food rations in and around Port-au-Prince,” the UN World Food Programme announced in a statement. It said that it was establishing food kitchens to feed the hungry.

If the Food Program needs to be supplying rations to that many people a month out from the disaster, that is very foreboding news for Haiti’s long-term future. The population of the entire affected region is around 3 million — and some estimates have as many as 300,000 people there dying in the earthquake and its immediate aftermath. If so, that would mean the UN is gearing up to be responsible for the food supply of nearly three fourths of the people in the greater Port-au-Prince area. That is, to say the least, an unsustainable situation.

In a post last week, I brought up the issue of whether a state without a territory is still a state. But having a government is also one of the formal requirements of statehood, a condition which Haiti now only nominally qualifies for. I don’t think it’s too much of a stretch to say that it is only inertia and the continued communal belief that Haiti-is-a-State by the rest of the world that makes Haiti a State at all.

-Susan

How Exactly Did The U.S. Come to Be In Charge of the Port-au-Prince Airport, Anyway?

Hundreds of media articles covering the ongoing events in Haiti report that the U.S. has “taken over”or is “running” the airport in Port-au-Prince. This has, predictably, already caused conflict with other States regarding the coordination of relief efforts, with France in particular criticizing U.S. administration of the airport.

What I cannot find, however, is any explanation of what the nature of the U.S. authority over the airport is and how it came to be. Did the Haitian government — which has taken no official action that I am aware of since the earthquake happened (and weren’t making that many before the earthquake either, for that matter) — come together long enough to authorize a U.S. administration of the airport? Is the U.S. simply in charge of the flight schedules, or is it literally in charge of the entire airport area?

I am beginning to suspect that the United States simply showed up first and announced it was in charge of the airport, and then because no one objected to this claim too loudly, it became a self-fulfilling declaration.

This article from the American Forces Press Service seems to suggest that is exactly what happened:

In his update, Elton underscored the speed with which Air Force personnel began operations after landing at the badly damaged airport around 7 p.m. on Jan. 13.

“Within 28 minutes of landing our first aircraft, we had special tactics combat control teams controlling the airspace around the airfield, and sequencing in the arriving aircraft that night,” he said.

That the United States simply seized control over the airport is not necessarily a bad thing, at all — someone needed to take point on the situation, and because the U.S. is the closest major power, it is the obvious choice — but it also raises a lot of thorny jurisdictional questions.

A quote from this article seems to suggest a possible legal source of authority, however:

Tucked between Port-au-Prince airport and the giant UN compound is a one-storey building with no security or reliable communications and only two small suites of grubby offices.

Before the earthquake hit, this was the headquarters of Haiti’s judicial police. It is now the seat of the Haitian Government and the office of President Préval, but it is seldom occupied, has no reception staff and people peer through the windows.

Hillary Clinton, the US Secretary of State, insisted yesterday that [President] Préval remained in full charge of both Haiti and the aid effort that is still failing to reach those who need it most. Mr Préval himself declares that he is in charge of events and the UN says that it directs rescue teams and distributes aid according to information received from his administration.

The idea that President Préval is currently exercising any significant government control right now is not credible. However, from a legal standpoint, it is in the best interest of the U.S. and the UN insist that yes, Préval is in charge, and yes, he has authorized various foreign and international entities to exercise jurisdiction over parts of Haiti. It clears up a lot of very messy legal problems that would otherwise exist, even if, in reality, the authority for the intervention comes ex post from a man sitting in a shack who has absolutely zero real power to exercise any control over Haiti.

-Susan

Update: As soon as I put up this post, I stumbled across a better explanation how the U.S. presence is being justified under international law. Note that the following was issued just this weekend — a full four days after the U.S. took control over the airport.

A joint statement Saturday from the Haitian president and U.S. Secretary of State Hillary Clinton referred to an expanded U.S. security role.

“President Préval, on behalf of the Government and people of Haiti, welcomes as essential the efforts in Haiti by the government and people of the United States to support the immediate recovery, stability and long-term rebuilding of Haiti and requests the United States to assist as needed in augmenting security in support of the government and people of Haiti and the United Nations, international partners and organizations on the ground,” the document reads.

How much do you want to bet that the statement in question was a legal formality, drafted by some State Department lawyers and handed over for Préval to rubber stamp? Shoot, I’d probably even take a bet that Préval never actually read the document.