What Makes a State a State?

The concept of statehood has been the cause of some of the greatest conflicts in the past century as entities seek to carve out their own independent cultural identity and enter the international stage. It is the highest legal personality that can be afforded to an entity, with the full range of rights and responsibilities that are available to the international community granted. The dissolution of the former Yugoslavia, the Southern Ossetian independence movement, and the declaration of independence by the entity of Somaliland are just three contemporary examples that highlight the importance a population places on achieving statehood. However, what makes a state a state? What is the yardstick to measure when an entity has achieved statehood? This blog will examine the two competing theories of statehood and provide a basic overview of the area.

Declarative Theory

The declarative theory has four requirements for an entity to be considered a state and is based upon the Montevideo Convention of 1933 – a treaty that has attained customary status in international law. While there is no internationally agreed upon legislation detailing the regulations regarding statehood, the Montevideo Convetion has historically been the method of examining whether statehood has been achieved. Article 3 of the Convention declares a state to exist if it meets the following criteria:

1. A Defined Territory – While there must exist some core territory for the entity to possess, international law states that the borders do not require to be fixed. Border disputes are permitted for a state to exist – and there is a useful list of existing border disputes between recognised sovereign states in a Wikipedia article.
2. A Permanent Population – There is no threshold for population size for an entity to achieve statehood. The state with the smallest population is Nauru with just over 10,000 citizens whereas China and India have populations of over 1,000,000,000.
3. Governance – International law requires effective possession of, and control over, a territory. Only in exceptional circumstances does it allow corporate entities that have lost effective control over territory to survive as international entities for some time. This criterion is somewhat inconsistently applied, however. For example, Croatia & Bosnia-Herzegovina were both recognised as independent by EU despite non-governmental forces controlling large parts of territory in civil war.
4. Capacity to Enter into Relations with Other States – There must be some degree of autonomy and legal independence for the entity before statehood is granted. For example, despite relying on each other heavily for a large range of matters, the Czech Republic and Slovakia can be considered two distinct states as they both have the ability to enter into relations separately.

Constitutive Theory

While the above criteria seem to be logical, it can often be extremely difficult to ascertain whether an entity has achieved each of these prerequisites. For this reason, there has been a move away from the traditional declarative theory, based on the Montevideo Convention, and shift towards the constitutive theory. The constitutive theory does not give criteria, instead focusing on the role of recognition by other States. Under the constitutive theory, the principle of statehood is political, based on the notion of recognition, rather than legal requirements. Essentially, a state can be considered to be sovereign if another state recognises it as such.

Collective recognition could assist an entity that does not meet the full requirements set forth in the Montevideo Criteria. However, it raises a challenging question regarding the ability of recognition curing any defects a potential state may have in fulfilling the Montevideo Criteria. This can be seen in the ICJ’s decision to accept Bosnia-Herzegovina’s statehood despite leaders not controlling of a large proportion of the territory at the time. There is, however, no recognised standard regarding exactly how much recognition is required to fulfil the theory.

 

The US and the UN: A Changing Tide

In the past week, the administration of President Trump has threatened to cut payments to the United Nations by the United States government by half, having the potential to greatly impact on humanitarian and peacekeeping missions the UN has established. This comes after President Trump has been fiercely critical of the organisation, perhaps being the most outspoken President regarding the UN. The US, however, seems to get a ‘free pass’ in the UN and the Trump administration would do well to remember that.

It is not disputed that the US contribution to the UN is small; the financial assistance provided is by far the largest of any state. This funding does not come without any hidden attachments, however, and the US get a good deal from the UN for their assistance.

A permanent member on the Security Council, there is rarely negative press surrounding the use of the veto power by the United States, particularly in relation to their involvement in issues surrounding the Israeli apartheid regime. Contrast this with the portrayal of the Western media of Russia for their frequent use of the veto in situations relating to Syria, whilst in itself abhorrent, is puzzling.

Furthermore, following the illegal invasion of Iraq in 2003, headed by the United States under no legal authority granted by the Security Council, there were no hard-hitting sanctions placed upon the hegemonic power. The money provided to the UN, whether consciously or not, buys the state influence in the institution, and profits handsomely from this influence in furthering its foreign policy goals. Again, contrast this to the actions of Iraq in the 1990s following their invasion of Kuwait and it is clear the US gets a good deal.

Cutting funding to the United Nations is likely to be seen as a provocative act and, should President Trump go ahead with the threats issued, will lead to a loss of hegemonic power within the institution. It would appear that President Trump is sacrificing the long-term diplomatic interests of the state for the short term budget saving option – which amounts to  around 0.001% of GDP.

The ICC: Better Health than Ever

Despite its relatively young lifespan as a judicial institution, there are many that have written the ICC off as ineffective. This position was supported in recent times with calls from the African Union to start a mass exit following allegations of the Court having an African bias. These criticisms appear to be misguided and the ICC should be considered stronger than ever before.

Since 2016, the ICC has been formally served with withdrawal notices from three stars – South Africa, The Gambia, and Burundi. This, coupled with members of the African Union encouraging others to follow suit has created difficulties for the Court.

Since the turn of 2017, the withdrawals from South Africa and The Gambia have been revoked and it appears that the fears from many of its supporters that this would be the beginning of the end for the Court have been premature.

The argument of the ICC being too focused on African states should also not be given too much thought. Whilst it is true that many of the investigations have centred on African states, many of these have been self-referred. Furthermore, the Office of the Prosecutor, the organ of the Court that decides which investigations it will follow through with, is held by a Gambian woman.

Whilst there may be legitimacy issues with the non-involvement of powerful states and issues relating to the enforcement of arrest warrants, the Court appears to be in good health, with states that have made the decision to leave having a change of heart. It can only be hoped in the near future that other issues of the young Court can be ironed out and it becomes an effective judicial mechanism in enforcing international law.

Scotland and the NATO Myth

Scotland’s First Minister Nicola Sturgeon yesterday publically stated that plans are in place for a second independence referendum. The move follows a narrow defeat for the Yes campaign in September 2014 and the subsequent decision for the United Kingdom to leave the European Union, a decision the majority of the Scottish public voted against.

In the 24 hours since the public announcement, NATO Secretary-General Jens Stoltenberg stated Scotland would not retain membership of NATO should Scotland become independent. Whilst this may be strictly true, the notion that NATO would reject Scotland’s application to join has been cited, but this would go against the best interests of the organisation. NATO will not be willing to leave the GIUK open and allow the opportunity for Russian encroachment in the region.

Scotland would be in control of a large part of the vital Greenland-Iceland-United Kingdom passage, the section of the Atlantic Ocean that would potentially allow Russian naval forces free entry into the Atlantic. The straight is of vital strategic importance to NATO should tensions escalate to a level seen at any time during the Cold War. The purpose of NATO, to defend against Russia in the Cold War, would mean that any application Scotland makes would more than likely be automatically accepted.

With the announcement of an independence referendum in Scotland, we can expect to see more deceptions like this in the near future.

WikiLeaks the Russian Propaganda Machine

In the past week, WikiLeaks published a new set of documents that they claim will be the first in a series entitled ‘Year Zero’. The leaks relate to classified documents from the Central Intelligence Agency, the C.I.A., and the organisation, headed by controversial figure Julian Assange, claim it is the largest ever release of classified information. Among the allegations made by WikiLeaks in the information release included evidence that the C.I.A. were using malware to target modern technology – such as iPhone and Android devices, as well as Smart TVs. However, the move by WikiLeaks, a stateless organisation that has no official affiliations with any nation, can be best viewed as another move in the ongoing story regarding U.S.-Russian relations – placing the organisation firmly in the camp of the Russian state.

The revelations allege the Agency is using this malware to ‘spy’ on the public by exploiting the flaws in the security of the software and hardware of the affected devices. While it may not be surprising to many that an intelligence agency has the tools to track individuals – whether these individuals are citizens by large or individuals the C.I.A. may have a particular interest in – the document dump comes at a time of fractured relations between the US President and the C.I.A.. With the new Commander-in-Chief’s criticism of the agency’s suggestion of Russian involvement in the U.S. elections, the move is nothing more than the organisation’s attempts to discredit the intelligence agency and shine the spotlight away from the on-going and developing story of President Trump and President Putin’s relationship.

If suspected links between the Russian state and WikiLeaks are confirmed to be true, this information will have come as a great surprise to the Russian government. It is likely the Russian government were unwilling to give up information relating to the methods of foreign intelligence agencies, such as the C.I.A. but saw it as a concession they were willing to take in order to direct attention away from the election hacking scandal.

WikiLeaks have previously come to the aid of the U.S. President. In the election campaign, it was WikiLeaks who provided documents relating to the emails of Hillary Clinton that President Trump clung on to. It is undoubted that this helped to swing the election in favour of President Trump and was key to his victory. With these latest allegations, again helping the President, it is becoming clearer that WIkiLeaks is a tool the Russian state is willing to use to force change in the world.

Palestine, Israel and the International Criminal Court

On April 1^st 2015, Palestine formally acceded to the Rome Statute, the founding treaty of the International Criminal Court (hereafter, ICC), in a bid to pursue allegations of war crimes committed by Israel. Shortly after accession, the decision was made by the ICC’s Office of the Prosecutor (hereafter, OTP) to open a preliminary investigation into the events that unfolded in the region from the summer of 2014, a summer that saw a huge devastation on human life during Israel’s so-called ‘Operation Protective Edge’. The decision to accept Palestine as a member of the ICC has a number of implications in the international community which shall be examined below.

Function of the ICC

Before examining the effect of accession, it is important to understand the function of the International Criminal Court in the international community. The purpose of the ICC is to attach criminal responsibility to individuals for their actions at an international level and punish the acts accordingly. However, it is not a judicial tool to punish every single crime that occurs at an international level, only “the most serious crimes of international concern”, as set out in Article 1 of the Rome Statute. These can be defined as: genocide; crimes against humanity; war crimes, and; the crime of aggression.

Furthermore, the ICC does not operate on the basis of universal jurisdiction; its reach is limited by the delegated jurisdiction granted by member states. Thus, the ICC could not exercise full jurisdiction over states that are not party to the Rome Statute – such as Israel or the United States, for example.

Question of Implicit Statehood

Whilst the majority of the international community are in agreement regarding the question of Palestinian statehood, there exists strong opposition from major world powers, most notably Israel for obvious reasons, and the United States, their greatest ally.

The Rome Statute provides that only States can accede to the Court. In 2009, Palestine had attempted to join the ICC but the then OTP had refused to accept accession until an international agreement could be reached regarding the position of Palestine in the international community. This decision took three years for the OTP to come to. Shortly after, Palestine’s position in the United Nations was elevated from ‘observer entity’ to ‘non-member observer state’ through General Assembly Resolution 67/19. Whilst this is predominantly seen as the moment statehood was granted to Palestine, it is understandable why some confusion may exist. The position of Palestine has not changed since the passing of the GA Resolution.

The ICC may have created a dangerous precedent of implicitly ‘granting’ Palestine statehood in granting accession. It is not the place of the ICC to implicitly grant statehood in the manner they may have done so in this instance. The purpose of the ICC is to prosecute individuals responsible of international crimes and venturing out-with their jurisdiction into matters such as statehood may make States reluctant to join the Court in future. The ICC has never been given the role of a “border-determination body” as Eugene Kontorovich states; this should be left to the ICJ.

Violations of International Law

Whilst this blog is not long enough to list the various crimes that took place during Operation Protective Edge, there exists a vast amount of evidence to warrant a full investigation in the ICC. Breaking the Silence, an Israeli NGO that contains Israeli Defense Force testimony to actions during the summer of 2014, along with the various UN Human Rights Council Reports have numerous examples of various breaches of international criminal law at a systematic level against both Israelis and Palestinians. It is highly unlikely that the Court will consider the actions of Israel as genocide, although it arguably could be considered as such, due to the political fallout that may occur. Instead, the issue of crimes against humanity is likely to be investigated. These specficially include: the targeting of civilians; inadequate warning and risks to civilians; disproportionate and indiscriminate attacks; the use of human shields, and, potentially; the West Bank Settlements.

Should trials take place; it would involve military commanders of Palestinian armed groups and the IDF, as well as governmental officials. Despite it being extremely unlikely these individuals directly participated in the conflict, Article 28 of the Rome Statute provides the legal basis to prosecute on the basis of superior responsibility for the crimes committed by their subordinates.

Complementarity Principle

The complementarity principle is one of the governing principles of the ICC – it remains the sovereign responsibility of the State to punish crimes within their jurisdiction.Article 17 of the Rome Statute provides that the Court is not able to investigate if: “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”

States’ historical reluctance to allow nationals to be tried by an international body meant a middle ground was found in the drafting of the Rome Statute – only prosecute international crimes where the State fails to genuinely do so, or waves their right to prosecute.It is highly unlikely that States would have quite so readily acceded to the Rome Statute had a primacy relationship been in place due to encroachment into the principle of sovereignty.

Palestinian accession to the Rome Statute has seen an increase into the military investigations conducted by Israel themselves following Operation Protective Edge. Despite this welcomed move by Israel, it would not be unwarranted to state this increase is an attempt to stall any international investigation.

The investigations have been centred on low-ranking military officials rather than commanders or government officials, a concern of the UN HRC Report , which stated Israel must “ensure that such investigations will not be confined to individual soldiers alone, but will also encompass members of the political and military establishment, including at the senior level, where appropriate.”

Routes for the Court

                Close the Investigation

The Prosecutor could, in light of the evidence gathered, decide the best course of action would be to close the examination. Whilst this may seem like a strange decision based on the information available, there could be various legal, diplomatic or financial pressures to do so. It wouldn’t be unreasonable to suggest the situation in Palestine fails to meet the gravity requirement set out in Article 17 of the Rome Statute.  This would be unlikely due to the number of civilian deaths since the start of the conflict in 2014 – a number higher than the situations in the Central African Republic and Mali, for example, where full scale Court investigations were launched.

Secondly, the diplomatic pressure on the ICC to close an investigation could become enormous, particularly due to the backing Israel receives from the United States. However, since its inception the ICC has been accused of focussing on African and non-Western actors – of the 10 formal investigations opened, 9 have involved African states. Only in recent years, with an investigation into Russia’s actions in Georgia, have the ICC’s interests left the African continent. Palestine may be seen as a welcomed opportunity to move away from the perception of an African bias.

Finally, it has been stressed that the resources open to the Prosecutor are limited – the ICC relies on funding from contributions received from State parties. Much of the focus of the ICC’s past investigations have not included the major powers in the international community, possibly due to the possibility of funding cuts. Following Palestinian accession, Israel called on the major world powers to cut their funding – targeting Canada, Australia, Germany and Japan, which would account for approximately €30m of the ICC’s already limited contributions

Open an Investigation

Opening a full investigation into the events of Operation Protective Edge is perhaps the most dramatic option open to the Prosecutor. It is important to note, however, a formal investigation does not necessarily condition convictions will take place – only three convictions have taken place after indicting 39 individuals. It is likely that any potential investigation that does open will include violations of international law from both sides. It is unclear over the level of co-operation that will be given by Israel whereas the Palestinian state is under an active duty to assist any investigation by virtue of being a member of the ICC. Thus, there is the risk that the investigation becomes one-sided in probing only violations of law by Hamas and Palestinian armed groups as they are unable to gather reliable evidence for Israeli actions.

Conclusion

This post has shown that there exists potential for a full Court investigation into acts committed by Hamas and IDF members, as well as Israeli Governmental officials. Should the Court wish to proceed with trials against individuals, it would be expected to be in violation of Articles 7 and 8 of the Rome Statute – violations of crimes against humanity and war crimes.

Despite Palestinian accession to the ICC and the possibility of accountability being achieved for the events in 2014, justice for the perpetrators is still likely to be a number of years away should the Prosecutor wish to proceed with a formal investigation. However, it is an exciting development for the international community and the Palestinian people.

Turkey and the NATO Conundrum

Following the recent ‘coup attempt’ in Turkey – that has so far left up to 350 killed; over 9,000 arrested; almost an unbelievable 50,000 workers suspended; the removal of educational institutions and a portion of the judiciary and police; and plans for the reinstatement of the death penalty in the State – there have been calls in the media to suspend Turkey’s NATO (North Atlantic Treaty Organization) membership, as well as threats from the United States Secretary of State. However, this move has both legal and geo-political consequences that may not make this an enticing proposition.

It is appropriate to first discuss the purpose and history  of NATO as this will likely play a large factor in determining the future of Turkish involvement in the organization. NATO was founded in 1949 by 12 members of the international community in a bid to combat the growing threat of the former Soviet Union. The worry of Russia can still be seen through expansion of NATO, with Estonia, Lithuania and Latvia, former Soviet Union States, becoming members in 2004 and Slovenia and Croatia, former Yugoslav States, acceding to the treaty in 2004 and 2009 respectively. Now, NATO is seen as a collective defence treaty, with Article 5 providing that an attack on one member constitutes an attack on all members, this will be discussed later.

It is no coincidence that NATO has expanded to include States surrounding Russia in order to allow NATO bases to monitor Russia closely. Turkey’s global position in relation to Russia, shown below, and the Middle East is of great strategic value to NATO members that makes the threat of expulsion to be unlikely. Allowing NATO members to have military planes in the sky should there be cause to do so has always been the greatest incentive in permitted Turkish membership. Furthermore, Turkey’s contribution to NATO is also of importance as Turkey contributes the second largest military, over a total of 1,000,000 personnel – only behind the United States. Finally, the risk of alienation and the threat in driving the Turks into the path of Russian and Arab alliances may be seen as too great a threat to the Western States. In just over a decade in charge, President Erdogan has transformed Turkey from a secular society, protected in the Turkish constitution (just as the right of the military to conduct a coup is protected in the Turkish constitution), into a largely Muslim society.

Moving on to examine the legal discussion surrounding the expulsion of Turkey’s NATO membership, it is important to establish that there is no removal process by means that is not self-expulsion. Whilst Article 13 of the treaty provides that a member may withdraw following the enforcement of it for 20 years, there is no process for other States to expel a ‘bad’ member – perhaps an oversight by the founding members. However, if NATO choose not to act, members could be dragged into a territory and conflict that they want no part of.

As alluded to above, Article 5 of the NATO treaty provides that an attack on one member party constitutes an attack on all. The application of this, however, has been rare and has only been invoked once – at the request of the United States following the 9/11 attacks and invasion of Afghanistan. It was surprising that France chose not to invoke Article 5 following the Bataclan attacks in November 2015. However, in the wake of the coup, the Turkish Government have stated they expect unfaltering support from NATO members to bring those responsible to justice.

In summary, NATO has no legal mechanism to remove Turkey from the alliance, despite the burning desire many may have to do so. The increased radicalization of religion in the region, coupled with Turkish actions against Syrian and Russian forces, it may be no surprise that NATO members are uneasy with Turkey’s involvement. However, expelling Turkey could lead to a disastrous knock-on for the region, creating more unrest in the Middle East and losing an important geo-political member.