ASIL Live-Blogging, “What Makes a State?”

Moderator: Karen Knop, University of Toronto

Speakers: Lea Brilmayer, Yale Law School; Valerie C. Epps, Suffolk University Law School; Deng Deng Nhial, Deputy Head of Mission, Embassy of South Sudan; Paul R. Williams, American University; Temur Yakobashvili, Ambassador of Georgia to the United States

Introduction by Karen Knop

“What makes a State?” is the perfect topic for this conference.  “Statehood” is the quintessential example of a simple definition that does not apply simply.  Of course, we have the four factors under the Montevideo Convention; however, we also know that there a number of exceptions to these factors in practice.  In addition, the debate between the constitutive theory of state recognition and the declaratory theory thereof only complicates matters further.  Thus, statehood is by no means a simple prospect.

Remarks by Paul Williams

Known for the idea of “earned sovereignty.”

Will blend “what makes a State” and self-determination in the discussion.

What makes a State?  Territory.  Full-stop.

You can always find a population.  You can always find a government.  As for sovereignty or capacity to enter into foreign relations, this is primarily political, not legal; therefore, it is not, or should not be, a factor for statehood.

So why the focus on territory?  Because of the interrelationship between statehood and self-determination.

There are two ways to become a State: fight your way out of an existing a State and form your own, or suffer terrible atrocities until the international community takes pity on you and recognizes you as a State (i.e. Kosovo).

What about consent?  Oftentimes, State consent is either involuntary or fallacious.

What about R2P?  States have the right to territorial integrity, and the duty to protect the civilian population.

What about the ICC?  The ICC adds moral clarity to these conflicts.

“Earned Sovereignty” refers to the engagement of the international community with a population over a period of time until it is ready to stand on its own.  Examples: East-Timor and Kosovo.

Encourages international lawyers to look at this development when trying to answer the ultimate question.

Remarks by Valerie Epps

Known for her strong critique on the ICJ’s Kosovo Advisory Opinion, “foam on the tide of time.”

Three themes: First, the clashing norms in international law that are enmeshed in topic of statehood.  Second, why we are stuck in a rut as international lawyers on this topic.  And third, what it will take to get out of this rut.

(On a side note, James Crawford has penned one of the greatest books on the topic of statehood.)

With respect to the first theme, what two contradictory norms come into play when discussing statehood?  First, sovereignty, territorial integrity, non-intervention, etc.; and Second, the human rights movement (in particular individual rights and obligations, such as the right to engage in the political process, the right not to be discriminated against, the right not to be tortured, the right to due process, etc.) and R2P.

With respect to the second theme, why are we stuck in a rut?  Kosovo Advisory Opinion: there is no rule under international law that prohibits ad hoc groups from declaring independence.  The ICJ’s decision was terribly unhelpful in answering the question, “What makes a State?”  Italy v. Germany: the ICJ “stoically upheld State sovereignty,” even in the face of claims of egregious human rights violations.  In both cases, the dissenting opinions offered helpful critiques of the arguably antiquated notions of statehood.

With respect to the third theme, what will it take to get out of this rut?  We need a clearer definition of “peoples.”  We need more clarification on the ideas of internal and external self-determination.  We need to work on forms of autonomy (e.g. Scotland, Wales, etc.).  If a people wants to be independent, they should be allowed to form their own State, and the notion that the parent State must first consent is outmoded.  Finally, we should not worry about so-called micro-states (See e.g. Luxembourg).

Remarks by Temur Yakobashvili

We have enjoyed 3,000 years of statehood, and look forward to 3,000 more.  The fact that “Georgia is a State” is not the result of the Soviet Union; it is the result of 3,000 years of statehood, as previously mentioned.

Independent v. “Fake” States

Since WWII, it has been very difficult to define “victory.”  As it relates to Georgia, Russia has occupied two areas of Georgia and has claimed “victory” as a result of this occupation.  That “victory” is Russia’s claim that South Ossetia and Abkhazia are independent States; “States” which consist of territory that Russia has ostensibly annexed from Georgia under the guise of independence.  As a result, South Ossetia and Abkhazia are “Fake States.”  Making matters worse, these “Fake States” are the product of ethnic cleansing and other crimes against humanity.  Therefore, the international community should not accept these “Fake States” as real States under international law; it should not allow Russia to use international terms to illegally retake land under a desperate attempt to reclaim the “glorious past” – and size – of the former Soviet Union.

Remarks by Lea Brilmayer

Importance of State Recognition: There are certain kinds of benefits that are available only to recognized States.  For example, financial assistance from the World Bank, UN, or bilateral and multilateral aid donors; security assistance from other States recognizing the entity as a State; political power that allows an entity to sign certain agreements and to enter into certain international organization; and juridicial rights that are extended only to States.

Importance of Statehood: In order to enjoy the full protections of international law for you and your peoples, you must be a State.  As mentioned above, small States or micro States are not a problem.

PANEL QUESTIONS

Question by Paul Williams: We all agree that the Montevideo Convention is antiquated, but what should we do to update the Montevideo Convention to reflect reality without increasing instability?

Answer by Valerie Epps: The real problem is that State power trumps all, and that the law accommodates itself to State power.  Thus, we must not allow State power to dictate law.

Answer by Temur Yakobashvili: In addition to the Montevideo Convention factors, we must first have security guarantees.  Second, we must deal with the refugee problem by providing for repatriation of displaced persons.  Third, the rights of the persons who reside on the territory must be preserved and protected.  These three elements are vital for finding a practical solution.

Answer by Lea Brilmayer: Third States should base their support for either a State or a break-away State based on which State is “right” legally speaking.

Additional remarks by Paul Williams: Kosovo is the case study for how many recognitions you need to be a State.  Currently, they have 78, and by their own standards, they need 100.  Nevertheless, in my personal opinion, I believe Kosovo is a State.

Additional remarks by Temur Yakobashvili: Kosovo is not the case study; it is the exception.

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