Recognizing States and Governments – A Tricky Business

At the end of last week, we witnessed two global developments that may have a significant and long-term impact on how the international community thinks about membership. The first was the decision of the United Nations General Assembly to approve (by a two-thirds majority) Libya’s National Transitional Council (NTC) as the legitimate holder of that country’s UN seat. This move was accompanied by the Security Council’s agreement to deploy a new mission to Libya to support the NTC’s efforts in post-conflict reconstruction (known as UNSMIL – the UN Support Mission in Libya), and to lift some of the freezes on Libyan assets to finance that rebuilding, including those of the Central Bank and the Libyan Investment Authority. The second development was the bold declaration by the President of the Palestinian National Authority, Mahmoud Abbas, that he would seek membership for a Palestinian state in the UN, and that he would do so through direct appeal to the Security Council (rather than the General Assembly). This step – which the United States lobbied hard to prevent – follows months of failed efforts to restart negotiations with Israel on the creation of a Palestinian state.

As a result of the GA’s vote on Friday, NTC Chairman Mustafa Abdel Jalil will attend the upcoming UN gathering of world leaders in New York. Abbas, elected PNA President in 2005, does not enjoy the same privileges (although the Palestinian Liberation Organization has long been recognized as the representative of the Palestinian people, and has the status as an ‘observer entity’ at the UN). Indeed, the NTC has enjoyed a meteoric rise. Compare its assumption of its country’s seat in the UN with that of the Communist government of China. After World War II, China’s seat on the Security Council (and in the wider UN) was filled by the Republic of China (the Nationalists), and continued to be so during the stalemate of the Chinese Civil War. It was not until 1971 that the People’s Republic of China was awarded the Chinese seat at the UN (again, through a General Assembly Resolution).

Of course, international lawyers would be quick to say that we are dealing with apples and oranges here. The Libyan case is about the recognition of a government of an existing state, whereas the overtures of Abbas and the PNA are designed to bring about recognition of a new state. In other words, Libya already enjoys membership in the international community; all we are debating is who should represent it – an issue that has not traditionally been the concern of international law. What the Palestinian National Authority proposes is more significant: the creation of an additional member of the international community, which in legal terms requires the fulfilment of particular criteria and carries with it sovereign rights and responsibilities. Moreover, if Abbas’ tactic were to work (highly unlikely, given the U.S. promise to veto), the Palestinians would gain admission to a range of international legal and diplomatic forums, where complaints against Israeli occupation and its policy regarding settlements could be pursued.

But these seemingly clear legal distinctions are more ambiguous in practice. Let’s take the latter phenomenon first: the recognition of new states. According the 1933 Montevideo Convention (most commonly cited as a definitive legal source on the requirements of statehood), in order to be recognized as a state an entity has to fulfil four main criteria. It must have a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states. In short, international law takes the view that statehood is a matter of fact. In addition, as international lawyer Stefan Talmon insists, the recognition of other states merely confirms a new state’s status; it does not (contrary to the old ‘constitutive’ view) bring a new state into being.

In reality, however, the acquisition of the status of statehood is much messier. Indeed, Talmon admits that there ‘is probably no other subject in the field of international law in which law and politics are more closely interwoven.’ To begin, we have seen cases where entities have arguably met the formal requirements for statehood, yet not been recognized by other states in the system or admitted as states into the UN. Some take the view that this is the case with respect to Kosovo, whose 2008 declaration of independence was deemed legal by a non-binding opinion of the International Court of Justice in July 2010. Yet, at present, Kosovo is recognized by only 83 out of 193 UN member states and its membership of the UN is unlikely as long as Russia has veto power in the Security Council. (Interestingly, however, Russia has simultaneously used the U.S. recognition of Kosovo as a precedent to recognize the breakaway Georgian regions of South Ossetia and Abkhazia as sovereign states.) There are also cases where entities are recognized as states, without necessarily fulfilling the legal criteria. Some have argued (including Ali Abunimah) that Abbas’ efforts are premature, since at present the Palestinian Authority controls neither fixed territory nor borders, and is prohibited under the 1993 Oslo Agreements from freely entering into relations with other sovereign states.

These cases suggest that, far from being based only on fact, recognition is a highly political business. Some states and organizations, such as the European Union, are completely open about their political approach to recognition. So, for example, in 1991 the EU adopted Official Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, which stated that recognition would be made conditional on certain minimum standards like the prevalence of the rule of law, democratic government, guarantees for minority rights, and respect for existing borders. (Let’s leave aside, for the moment, the uncomfortable fact that individual EU states then disregarded their own guidelines, in their hasty recognition of Croatia and Bosnia.)

When we move on to the recognition of governments, we see a similar kind of ambiguity. As suggested above, international law is said to be silent on the question of who should represent a state, and therefore has not to date developed criteria to distinguish between illegitimate and legitimate governments. Furthermore, some states – such as the UK – are adamant that they do not engage in the practice of recognizing governments at all. Therefore, when questioned about whether Britain recognized the NTC, Foreign Secretary William Hague insisted until very recently that it was a moot question, since ‘the UK only recognizes states, not governments’.

Nonetheless, while formal statements of recognition may not be articulated, states still need to decide whether a particular person or group is competent to act as the organ and representative of an existing state – particularly in situations where there is civil war or competing factions. This decision is based not only on whether a government has effective control over a state’s territory, but again  – inevitably – on more political considerations. Discretion reigns here too. Thus, some European states (such as Italy) gave their ‘diplomatic recognition’ to the NTC before one could reasonably argue that such control had been demonstrated. Even now, the status of the NTC is disputed by some members of the international community. In the wake of the GA vote on Friday, a left-leaning group of Latin American states lodged their opposition to granting the UN seat to the NTC, arguing – in the case of Venezuela – that it would ‘represent an abominable precedent’.  In their view, the NTC is not the legitimate representative of Libya, but rather a faction imposed by foreign intervention. More generally, the NTC example raises questions about whether international law should have something to say about the recognition of governments, and what the balance should be between the demonstration of effective control over territory and support of the majority of the people.

This brings us back to the Palestinians. Even if statehood were to be recognized (and that is a very big if), that would not end the controversy, for it would bring into sharp relief questions about who should represent the Palestinians within the United Nations. As legal scholar Guy Goodwin-Gill argued in a widely cited advisory opinion last week, a successful bid for statehood threatens to fragment the Palestinian people – more than half of whom have been displaced and live outside the territories governed by the Palestinian Authority. At present, the United Nations – and the international community more broadly – recognizes the PLO as the sole representative of the Palestinian people (inside and outside the Occupied Territories), and their right to self-determination is not territorially limited to the West Bank and Gaza.

Would Abbas’ latest proposal change this for better or for worse? Many are focusing on what it would do to the prospects for a peace deal with Israel (and more narrowly to the PNA’s relationship with Washington). But there are broader implications. As Goodwin-Gill suggests, we could end up with a situation where the government of the new state (the PNA) would represent the Palestinian people within the UN, and the PLO would continue to represent them outside of it. In terms of the international community’s more general approach to membership, it may add weight to the arguments of those who believe that the character of a state’s government (particularly its form of representation) is a legitimate matter of international concern.

Photo courtesy of Reuters.