Differentiated Statehood? ‘Pre-States’? Palestine@the UN

Nothing is ever simple in the Middle East in general, and the Arab-Israeli conflict in particular. The rather tired parable of the frog and the scorpion as applied to this arena (‘This is the Mid East, not the Mid West’, says the scorpion to the frog as they both drown) would be funny if it were not so sad; it can be applied to any number of protagonists in the conflict. Yet, in the case of the UNGA vote to ‘upgrade’ Palestine to non-member observer state status, the politics are, strangely perhaps, somewhat less knotty than the law.

Only the US, Canada, the Czech Republic and a few small Rent-a-States voted against the resolution. A good number of states, among them some undoubted Israel friends, abstained, and a large majority, including some other undoubted Israel friends, voted to accept Palestine to this new status.

The EU was all over the place, with member states in all three camps, including key member states such as Germany, the UK, Poland and the Netherlands among the abstentions, and others such as France, Italy and Spain, voting in favour. So much for the Common Foreign Policy.

Politically this was said to be a resounding defeat for Israeli diplomacy. That it was; but even the most brilliant diplomacy would probably have been of no avail here. The vote was a universal repudiation of Israel’s settlement policy which practically the whole world, including the United States, regards as an obstacle to peace and as illegal under international law. Indeed, it is illegal. The recent attempt by the Israeli-appointed Edmond Levy Committee to ‘kosher the pig’ by resurrecting arguments from the 1970s, which have today even less bite than they had then, has been largely met with derision. Interestingly the Levy Report remains ‘under study’ by the Israeli government, which has wisely avoided any official endorsement. Legally destabilizing the 1967 boundary, as the Report does, would be welcome, paradoxically yet understandably, not only to Israeli annexationists but also to Hamas. The UNGA vote was, indeed, intended by many as an expression of support for the PLO and Mahmoud Abbas in the intra-Palestinian struggles.

It was also, rightly or wrongly, an indication that in the blame-game, many in the international community ascribe more blame to Israel for failed movement in the peace process than to the Palestinians, the uncompromising and scary ‘negationist’ statements and policies of Hamas notwithstanding. If I am right in this last assessment it may also have an interesting, even profound, legal implication. Israel’s duty under the still-controlling UNSC Resolution 242 is to return Territories (and let’s not get into the stale discussion on the omission of ‘The’ in the resolution) in the context of a peace agreement, one objective of which would be to ensure peace within recognized and secure boundaries (the word ‘secure’ is the one which opens the possibility to mutually agreed border adjustments). Israel remains a lawful belligerent occupant pending such a peace treaty. Can that last forever? Surely this must be subject to some ‘good faith’ negotiation requirement if the legal formula does not become a recipe for permanent belligerent occupation.

One incipient implication of the UNGA resolution might be that the world is tiring of the ‘leave it to the parties’ approach to peace, serving notice that the status of  lawful belligerent occupation cannot last forever and  inching towards an ‘imposed solution’.

For complex reasons, some good, some bad, some very bad, this conflict excites more passions and partisanship than just about any other in our world. Hard cases, it is said with some reason, make bad law. So I plead with my readers to set aside their particular passions about this conflict as I offer some reflections on a problem of international law which the UNGA vote illustrates, the significance and importance of which transcend the specificities of Israel and Palestine. Specifically, I am interested in the practice of the UN inasmuch as it is pertinent to the birth of new states.

One is all too familiar with the competing theories as regards the role of recognition in this process. In a recent, characteristically thoughtful postingEJIL’s indefatigable blog master, Dapo Akande opined:

“Theory, practice and judicial decisions favour the declaratory theory and assert that recognition does not create Statehood.”

I think this is an over-statement. In my humble opinion, theory and practice could be said in such a categorical way to support the declaratory theory only as regards the emergence of new states from colonial rule. If you look at practice since the end of the era of mass decolonization, it points in my view much more towards a constitutive role for recognition. I employ a legal realist methodology and take as a starting point the cases of Bangladesh and Northern Cyprus. Both were born in somewhat similar circumstances, seceding and declaring independence, aided by illegal use of force by a powerful neighbour. I make no comment on the moral claim in each case. Bangladesh joined the family of nations to become an eventual member of the UN. Northern Cyprus is till this day an ‘entity’ recognized as a state by Turkey alone. Recognition explains the difference. Had Northern Cyprus enjoyed the kind of recognition that Bangladesh did, could anyone doubt that its flag, too, would be waving today at the Shoebox? And vice versa. I find unconvincing any attempt to explain the outcome by reference to essentialist legal doctrine on the conditions for statehood and/or by the claim that the recognition afforded one, rather than the other, was driven exclusively by legal considerations rather than political discretion and convenience.  I would also maintain that most of contemporary practice on the emergence of new states, including the breakup of the Soviet Union and former Yugoslavia  ̶  Kosovo most recently  ̶  give more credence to the constitutive than the declaratory role of recognition. Surely any doubt about the status of Kosovo would have been resolved by more capacious recognition.

How much recognition, and by whom, are questions that will remain with fuzzy edges. But no more fuzzy than when similar questions are posed as regards the emergence of new norms of customary international law. In fact, recognition as a necessary constitutive element in the emergence of new states other than in colonial situations, derives from and tracks customary international law. Part of the constitutive theory is that it reflects the ability of states, through general practice and opinio juris (for which, in the case of full recognition of a state, the two elements fuse) to create new legal norms  ̶  or legal situations  ̶  effective erga omnes. (Let us leave for now the theoretically interesting but practically almost irrelevant doctrine of persistent objection.)

The normative force of the constitutive theory is one which regards the emergence of a new state, especially in situations of, say, secession, as calling for not only factual but also political judgment, and thus a situation in which the international community is called upon to act not as a registrar of companies or charities (whose job is to examine whether a claimant has satisfied a series of objective criteria) but as a political body, such as a legislator, whose job is to judge the political utility and which may, or might, be swayed even by, yes, self-interest and political prejudice. Such is the nature of political discretion.

When Dapo Akande suggests that theory supports the declaratory role of recognition, he probably meant to write that he favours the declaratory theory, for the constitutive theory is out there too, and which is to be preferred in theoretical, conceptual, policy and normative terms is not an empirical matter at all. On all these criteria I prefer overall the constitutive to the declaratory theory for reasons which I need not spell out fully here, even if in some cases it produces, what in my view are unfortunate and unjust outcomes. One reason I prefer the constitutive theory is because I believe the issue ought to be political. Characterizing it as such makes states more accountable for their decisions, unable to hide behind ‘I’d love to do it, but, crocodile tear, the law does not allow me to’ types of arguments.

In an aside, I think the case of Palestine and Israel also supports the constitutive rather than declaratory role of recognition. Israel was not created by the Partition Resolution of the UNGA on 29 November 1947, but by the combination of its Declaration of Independence and diplomatic recognition by a sufficient number of states representing or reflecting the international community at the time. Interestingly, Israel failed in her first attempt to join the UN. I have already argued in these pages that had Palestine declared its independence on that same night, it most likely would have received even greater recognition, not least from the Arab states, and would have emerged as an independent state alongside Israel. I am not sure what impact that would have had on peace, but the Palestinians as a people with a right to self-determination would surely not have disappeared off the international legal radar for the next few decades as they did.

The PLO has emerged as the undisputed representative of the Palestinian people in their quest for self-determination, thanks to the near universal recognition they have received in this role; however, their attempt at a Declaration of Independence in 1988 garnered recognition from only 100 states, not sufficient in the eyes of most to bestow statehood. EJIL carried an interesting exchange in its very first issueyard

. That number has not varied much. Nota bene: there are quite a few states that voted for or abstained in the UNGA vote but have not given diplomatic recognition to an independent Palestine.

What, then, is the role of admission to international organizations generally and the UN more specifically as a proxy to recognition? It is here that things really become messy.

You would have thought that one proposition could be made with certainty: admission as a full member to the UN forecloses any doubt or debate on statehood. No false positives there. And yet, could one claim that Belarus and the Ukraine, full members of the UN alongside the Soviet Union, really enjoyed at the time plenary state responsibility as independent states?  And pre-independence India? These, however, might be anomalous exceptions to a general rule.

Of course one can be a state and not be a member  ̶  some states over the history of the UN have elected that status. Likewise, rejection of membership to the UN by the UN need not automatically be taken as probative for ‘non-statehood’. After all, there might be near universal diplomatic recognition thus signalling statehood, but a permanent member of the UNSC might exercise its veto, and thus thwart membership  ̶  but not statehood.

What of other international organizations or agencies of the UN? How probative is their practice of admission to membership as to the question of statehood? In that interesting blog entry Dapo Akande allows for a constitutive role for such ‘collective recognition’. If I understood the argument correctly, admission to, say, UNESCO, settles the question of statehood just as would admission to the UN itself. I have my doubts whether this robust view of collective recognition is the law and whether this is, or would be, good law.

The difficulty is as follows: on the one hand, the traditional theory of recognition involved the aforementioned quantitative and qualitative paradigm. Enough states (quantitative) reflecting the make up – however defined – of the international community (qualitative) is the operative principle. The Permanent Members of the Security Council provide a brutal if inexact proxy: one of Kosovo’s difficulties in claiming full statehood is the continued withholding of recognition by Russia and China. On the other hand, admission to IOs, including special UN agencies, is based on clear voting rules which for the most part do not differentiate among states. Micronesia and China carry the same one vote. For the sake of argument, one can imagine a situation where the pattern of recognition was such that, say, all five permanent members of the Security Council withheld recognition, and yet a majority of states voted for admission to an IO. Would such admission signal the birth of a new state?

Some might answer with a yes and think this a good thing, others might disagree. But the legal issue is whether in accepting the voting rules to this or that IO, states also accepted that such a vote would become a proxy for, indeed replace, their discretion in according diplomatic recognition to statehood and an entry card to full membership as a state in the international community.

What other meaning, one may wonder, could such a vote have other than recognition of statehood – after all, one is talking of organizations, membership of which is typically reserved to states? This seemingly rhetorical question does not lend itself to an obvious rhetorical answer.

There seems to be no consistency in individual state practice of formal diplomatic recognition in the face of declarations of independence and the practice of admission to IOs. There may be limited support to full diplomatic recognition, but broader support for membership in this or that IO. A petitioning member may be admitted into one organization and not into another by the same voting state. Kosovo, which has enjoyed diplomatic recognition by only about 100 states, is a member of the IMF and the World Bank but was rejected by other IOs. There are clearly states which may find it beneficial to have Kosovo as a member of the IMF and World Bank, but not, yet, a member of other IOs. States may support or not object to an admission of a claimant to UNESCO, but reject such in the context of, say, the UN as a whole.

Inconsistency? Only if you accept a robust version of the collective recognition theory (but would that not be a non-sequitur?) and/or you accept the binary hypothesis on which much (though not all) of this debate is typically conducted: state or non-state, with nothing in between. Very tentatively I want to suggest another possibility. Suspend your disbelief for a moment and entertain the thought that there might, here too, be a status mixtus as regards the very notion of statehood.

It is not without precedent in international law: consider the mandate system created by the League, which survived well into the 1970s (!) and which clearly contemplated different levels of statehood. Consider also the somewhat anomalous status of Belarus and the Ukraine during the Soviet era, and the fact that India, prior to independence, was a charter member of the UN. Think of the Andorras and Monacos of the world. And, hold onto your socks, consider even the situation of the member states of the European Union in areas such as fisheries and international trade, where the Union has certain exclusive competences. Sure, the member states remain full states in formal status. But in the actual praxis of international life, functionally things look interestingly different, reminiscent perhaps of the tension between the formal existence of a right and its exercise. Statehood, grant me, is not that simple a monolithic concept.

The practice of differentiated recognition is, one could argue, at least consistent with a hypothesis that the international community and international law in certain circumstances contemplate an evolving legal reality of statehood. A first step may be recognition of peoplehood and the right to self-determination. There may be steps in the direction  ̶  determined politically  ̶  of an expanding role in the international community, including membership, as a member state, in a variety of international organizations on the way to ‘full’ statehood, which would happen in the traditional way when enough states gave full diplomatic recognition to the claimant state and according to which admission to the UN would be fully probative and legally sufficient, but not a necessary condition. Note my caution: I do not claim categorically that this is the law, but that this proposition is consistent with state practice of recognition.

Let us pose again that seemingly rhetorical question: What other meaning, one may wonder, could such a vote (of admission as a member to an IO) have other than recognition of statehood – after all, one is talking of organizations, membership of which is typically reserved to states? There might be, under this alternative hypothesis, several other meanings: for example, a judgment that it is useful for functional reasons, given the objectives of the organization, to have such a ‘state’ as a member even if in other contexts the statehood status would remain unresolved. Maybe the more ‘liberal’ admission voting rules are designed specifically to facilitate these functional objectives of the organization without embroiling it in the bigger political issues. If this were so, a second reason, then, to be cautious about the robust view of ‘collective recognition’ is that if it were to gain currency it might have the opposite effect: to deter states from this process of functional admission since any vote for  membership in any agency or universal IO would be an all or nothing vote. Is that to the benefit of the international community? At least some doubts may be entertained.

It might be that collective recognition should be considered constitutive and probative to full statehood when the votes in favour of admission are close to universal. Abstentions on this reading could be considered as a legal device which would allow states to assent to functional entrance into an IO without the ‘collective’ imprimatur of universal recognition and full statehood.

The construct I discuss is driven by an attempt to align better doctrine with the actual practice of states and also, tentatively, by a conviction that the collective interest is served by allowing the kind of flexibility which, regardless of its full and final political and international legal status, a Kosovo can be a member of the IMF, World Bank and other IOs. Of course many issues would need to be worked out in relation to the precise set of rights and duties – and international legal capacities – of the status mixtus or ‘pre-states’. But that we do all the time with international organizations, the common denominator of which is the enjoyment of international personality whilst the specific ambit of which may differ from one IO to another. And that, too, we have been doing for a few decades now, still trying to work out the precise demarcations, rights and duties of the Union and its member ‘post-states’.