A couple of weeks ago, the United Kingdom recognised the umbrella Syrian opposition organization, National Coalition for Syrian Revolutionary and Opposition Forces (NCS) as the “sole legitimate representative of the Syrian people”. In so doing, the UK was following a number of other States that have also recognised NCS as the legitimate or sole legitimate representative of the Syrian people. It is reported that the US government will accord the same recognition, perhaps next week. In the summer of 2011, many States also recognised the Libyan National Transitional Council as the “[sole] legitimate representative of the Libyan people” prior to later recognising the Libyan NTC as the government of Libya (see previous EJIL:Talk! Post here and an example here). The question that arises with this recognition is: what does it mean to recognise an entity as the legitimate representative of the Syrian [or Libyan] people? Also, what are the implications of such recognition? Does this type of recognition operate only in the world of international politics, or does it have some legal basis? More importantly, does this form of recognition have legal consequences?
In particular, I wish to examine in this post whether the recognition of NCS as legitimate representative of the Syrian people should be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through the NCS. If that is so, what consequences might this have for actions that foreign States may take and what assistance, if any, might this entitle the Syrian opposition to?
Recognition as Legitimate Representatives and Recognition of Governments
It is important to note that as was the case with Libya, the recognition of NCS as the sole legitimate representative of the Libyan people is not a recognition of NCS as the government of Syria. Furthermore this form of recognition does not, without more, indicate removal of recognition of Bashir Assad’s government as the government of Syria. Indeed, States continue to have diplomatic relations with Assad’s government and therefore continue to treat it as the government of Syria. [The position of France is unclear. It is reported as having received an Ambassador from the National Council but has referred to the Council as the future provisional government]. Recognition as the sole legitimate representative is clearly intended to have political effects [see Stefan Talmon’s ASIL Insight]. In the first place, it is intended to indicate that the recognizing State regards the struggle by the group against the government of that State as legitimate. Furthermore, this recognition is also intended to provide legitimacy to the group in question, with recognition as the sole representative indicating that the recognizing State will only deal with that particular group in matters related to the struggle. The intent is usually to bolster the political position of the group recognised as the sole representative and to indicate that is the umbrella group under which others should coalesce. In the case of Syria, as was the case in Libya, this form of recognition appears to indicate that the recognizing States regard NCS a government in waiting and a group that is capable of taking over, at least on a transitional basis, from the Assad government, were it to fall (see British and French statements to this effect).
Self Determination and Previous Practice on Recognition as Legitimate Representatives
Perhaps the most interesting aspect of these acts of recognition of NCS (and the Libyan NTC) as the legitimate representative of their respective peoples is that it is very much reminiscent of the recognition of national liberation movements in occupied Palestine and in colonial African territories in the 1960s and 1970s. Movements like the Palestinian Liberation Organization (PLO), the African National Council (ANC) in South Africa; the South West Africa People’s Organization (SWAPO) in Namibia; and the African Party for the Independence of Guinea and Cape Verde (PAIGC) in Guinea Bissau were all recognised as the legitimate (authentic or sole legitimate) representative of their respective peoples by the United Nations General Assembly. In some cases, for example, in Angola, South Africa and Mozambique, the Organization of African Unity recognized more than one group in each territory or country as legitimate representatives of the people.
In these previous cases, recognition of a group as legitimate representative of a people has come as part of the recognition that the people in question have a right to self-determination. As will be recalled, various international instruments, including Article (1) of the International Covenant of Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights (ICESCR), provide that :
“All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination is one that accrues to “peoples”. However, “peoples” can only exercise this right though some form of political structure. Thus, in the decolonization era, the recognition of a group as a [the] legitimate representatives of the people indicates that the group speaks and acts for a people in the exercise of their rights. The close connection between self-determination and recognition as legitimate representative of a people can usually be seen from the UN General Assembly [UNGA] that grant this form of recognition. In the case of the PLO, UNGA Res 37/43 (1982) urged all States and international organizations:
“to extend their support to the Palestinian people through its sole and legitimate representative, the Palestinian Liberation Organization, in its struggle to regain its right to self-determination and independence in accordance with the Charter.”
In the cases indicated above, recognition of a group as legitimate representative of a people was given in the context of a non-self governing territory or in some other case where it was clearly acknowledged that the right of self-determination was engaged. In particular, it was accepted that this right applied to cases of colonial domination, alien occupation and racist regimes and it was in those cases that national liberation movements were recognised as legitimate representatives of people.
Recognition of the NCS as legitimate representative of the Syrian people (and also the Libyan case) therefore appears, at first sight, as being out of line with previous practice as they do not appear to be self-determination cases. These are not cases of colonial domination or alien occupation, nor are they cases of regimes thought to be racist. What is also interesting about the Syrian (and Libyan) cases is that Western countries which had generally opposed recognition of national liberation movements as legitimate representatives of people, are now using the term. In the decolonisation period, these States often abstained or voted against UN GA resolutions recognising national liberation movements as such. When UN GA Res 35/227 (1981) recognised SWAPO as the “sole and authentic representative of the Namibian people” and called on other states to render military and other assistance to the organization, Britain, France, West Germany, Canada and the United States protested that “[t]he people of Namibia have the right to choose their own Government through free and fair elections.” It is ironic that some of these same countries are now following this precedent with regard to the Arab Spring. [It is also interesting that like the case of delegitimized govts in the self-determination struggle of the 60s and 70s, where developing countries spoke of the "regime" in Rhodesia or South Africa and this was inserted to GA resolutions, Western governments and media now refer to governments they no longer support as "regimes". When a government is labelled a regime, that is perhaps the first sign that it is no longer seen as legitimate.]
Self Determination in Syria?
So, is the recognition of NCS as legitimate representative of the Syrian people to be taken to mean that Syria is regarded as a case where the Syrian people are exercising their right of self-determination, through NCS? It is not clear whether recognizing States are actually thinking in these terms, but this may well be the best way to conceive of their actions. Although Syria is not a non-self governing territory or a case of a racist regime, this does not mean that the right of self-determination is not at play. It is well recognised that all the peoples of independent States continue to have the right of self-determination. This is the meaning that has been given to Article 1 of the ICCPR and of the ICESCR.
It is to be expected that the peoples of a State will determine their political future through participation in the political processes in that State. However, it is also plausible to conceive of the right of self-determination in an existing State being exercised through an armed struggle. The logic that emerges from previous practice on self-determination suggests that this is the case. In the first place, it is recognised that non-self governing territories may exercise their rights of self-determination through an armed struggle. This is an acceptance that an armed struggle could be a means of vindicating the right. Secondly, it is sometimes asserted (eg the Canadian Supreme Court in Re Secession of Quebec Case) that in cases where the right of internal self-determination (in the form of participation in the political process) is denied, a minority group would then have a right of external self-determination (i.e secession). This implies that where internal process for achieving internal self-determination have failed, a secondary right is created to seek self-determination by other means since secession would usually have to be achieved outside the political process, especially as we are speaking of cases where the political process has failed to allow for internal self-determination. In the case of minority groups, a conceptual problem with this assertion of a secondary right is that it is not clear how a group that does not hold the primary right of internal self-determination (which belongs to all peoples of the State) then become the holders of the secondary right. However, it seems more coherent to say that where all peoples of the State are being denied the primary right that same peoples then have a secondary right to seek to achieve self-determination by other means.
In short, Syria could be seen as a case where the Syrian peoples having failed to achieve internal self-determination by ordinary political means are now seeking to achieve self-determination by other means. The NCS would then be seen as the representative of the Syrian people in the sense of it being the [sole] political and military organization that is competent to speak and act for the people in the exercise of their right to self-determination.
To be clear, I do not mean to suggest that the analysis above is necessarily mine. What I am suggesting is that this analysis could be implied from the recognition of the NCS as the representatives of the people.
Consequences of Applying Self-Determination Framework to Syria
What consequences, if any, follow from thinking of Syria as a self-determination case, and more importantly of thinking of the recognition of the NCS as legitimate representatives of the Syrian people in terms of self-determination? Arguably the law relating to the use of force and relating to assistance that could be given in the case of an armed conflict would apply differently than might otherwise have been the case.
Ordinarily, international law prohibits intervention in the internal affairs of other States. Providing support to armed groups fighting against the government of a State would ordinarily fall foul of this principle. Moreover, the International Court of Justice has held in the Nicaragua case that while funding an armed opposition group in another State would violate the principle of non-intervention, providing arms to such a group would not only be an unlawful intervention but would also be a violation of the prohibition of the use of force contained in Article 2(4) of the UN Charter and in customary international law. It is interesting that the UK, the US and other western States have refrained to provide arms to the Syrian opposition but have been willing to provide other forms of assistance. No doubt, there are political reasons for this half hearted support but one wonders whether, at least on the part of the UK, there are doubts as to whether providing weapons would be a more egregrious form of illegality.
However, if Syria were considered a case of self-determination and the NCS and the Syrian opposition were considered to be fighting in a self-determination struggle, it is arguable that prohibition of non-intervention and the use of force applies differently. There is a reasonable case to be made that international law permit State support for groups fighting for self-determination and that permissible support includes provision of weapons. Certainly, there was extensive practice of States providing assistance, including weapons and other military assistance, to national liberation movements fighting in self-determination struggles against colonial or racist regimes. Although there was some opposition to this principle, principally by Western States, the General Assembly on a number of occasions affirmed the right of these movements to seek and receive assistance, including military assistance. It is again ironic that Western states that were least keen on providing assistance to national liberation movements that now speak quite openly about the possibility of arming groups they consider to be the legitimate representatives of peoples. The practice of the UN GA on this issue is set out by Brad Roth in the excellent chapter on self-determination in his book Governmental Illegitimacy in International Law (1999). The Declaration of Principles of International Law Concerning Friendly Relations (GA Res 2625, 1970) stated that in their actions against, and resistance to forcible efforts to deprive them of their right of self-determination, “peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”. This resolution was adopted by consensus with the consequence that question of whether lawful support includes military support was left vague. However, on other occasions, the General Assembly has been more explicit. GA Res 3070 (1973) reaffirmed the legitimacy of “all available means, including armed struggle” and called for “moral, material and any other assistance to all struggling” for self-determination. Even more explicit was UN GA Res 35/227 (1981) which declared support for the “armed struggle of the Namibian people”, and called for “increased and sustained support and material, financial, military and other assistance to [SWAPO]” which was stated to be “the sole and authentic representative of the Namibian people”. Antonio Cassese in his book The Right of Self-Determination (pp. 199 and ff) also takes the view that international law permits States to supply weapons to national liberation movements fighting in a self-determination struggle.
However, if the rule which permits foreign support to those fighting for self-determination were extended to cases like Syria, i.e cases of opposition forces fighting against the government of an independent State, this exception to the principle of non-intervention and the prohibition of the use of force, threatens to swallow up the rule. One can easily foresee that States that wished to violate the two prohibitions preventing support for opposition groups would simply recognise those groups as legitimate representatives of the peoples concerned and then consider themselves free from the ban on providing support to opposition groups. This seems to be a powerful reason for being cautious about extending the rules derived from the colonial and analogous experience to the case of peoples aspiring to a secondary right of self-determination in independent States. Indeed, extending the rule to this sort of case would go in the opposite direction from the rule sometimes put forward (eg by Louise Doswald Beck and Christine Gray) that in cases of “civil wars” assistance to both sides – government and opposition – is forbidden as that would be an interference in the exercise of self-determination of the people concerned. [Incidentally, the Syrian case is an example of lack of State support for this purported rule].
The practice which carves out an exception to the prohibition of the use of force and allows support to be given to national liberation movements which were recognised as the legitimate representatives of peoples entitled to the right of self-determination, was developed in the context of colonial domination, occupation and racist regimes. It is arguable that, in principle there is less reason to be concerned about intervention in internal affairs or force used against territorial integrity because in most of those cases (colonial and alien domination) the matter was not considered to be purely internal. However, one has to admit that this point of principle does not sit easily with the South African or Rhodesian experience, which were internal matters.
In conclusion, it is conceivable to consider the Syrian conflict as an example of peoples fighting to exercise their right of self determination. Recognition of the NCS as the legitimate representative of the Syrian people might be regarded as recognition that a self-determination framework is applicable to Syria. Furthermore, one may even go so far as to say that international law permits foreign States to aid national liberation movements recognised as the legitimate representatives of people fighting for self-determination and that this aid may include military aid. However, there are good reasons to restrict this last principle to cases of self-determination in the case of peoples fighting against colonial domination, alien occupation or racist regimes. Alternatively, it might that support ought only to be given to those groups that are collectively recognised by the international community as legitimate representatives of peoples fighting for self-determination. Such recognition should ideally be done by the UN General Assembly.