Professor Alexander Orakhelashvili
In a recent post published on Ejiltalk, Eran Stroeger seems to suggest that Israel’s recognition of Somaliland does not amount to a violation of international law, given that it does not amount to one of those situations in which he thinks that recognition could violate international law.
Citing paragraph 81 of the Kosovo Advisory Opinion, Stroeger suggests that ‘recognition may be illegal if an entity is constituted by “the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)”’. However, in that paragraph contained in Stroeger’s quote, the Court was not pronouncing on the requirements applicable to recognition. It was instead dealing with the criteria of (il)legality of unilateral declarations of independence by secessionist units. The issue of recognition was entirely outside the Court’s focus in that case (see also para.51 of the Advisory Opinion). Therefore, the Kosovo Advisory Opinion does not relate to, or propose criteria about, whether or when recognition of a secessionist entity by an external or third State is (un)lawful under international law. Consequently, therefore, the statement that “the Court effectively endorsed the view that states are within their right to recognize Kosovo or not” is essentially misguided. While Crawford’s work seems to be cited in support of the above thesis, it does nothing to endorse that position regarding recognition; more specifically nothing going near acceptance of that position appears at pages 283 or 390-391 which are referenced in Stroeger’s post. Moreover, Crawford (here, at 403, 415) has regarded Somaliland as an unsuccessful case of secession.
In short, the International Court has pronounced only on whether the Kosovo UDI with international law, and concluded that the UDI was made outside the realm of the international legal system, because the authors of the UDI were not eligible to act within that legal system and hence unable to violate its requirements. The Court has said, as Stroger also cites it, that “the scope of the principle of territorial integrity is confined to the sphere of relations between States” and does not apply to non-State entities. Recognition of an entity that does not meet the statehood criteria – because it is legally under another State’s territorial sovereignty and/or placed under an international governance regime such as one created by SCR 1244(1999) – is one of the ways in which one State can violate territorial integrity of another State. Very little would remain of the principle of territorial integrity if international law allowed any State to recognise territory that legally belongs to another State as an independent State. It is rather difficult to imagine how a State recognising Kosovo’s independence respects Serbia’s territorial integrity, or one recognising Somaliland respects Somalia’s territorial integrity. Also, Somaliland does not get anywhere near being a self-determination unit, because it is neither under colonial or alien occupation, and it cannot be seen to fulfil statehood criteria and be eligible for recognition on that basis.
It also seems to follow from Stroeger’s approach, relying on SCR 662(1990) on the Iraq/Kuwait situation that recognition of Somaliland is not illegal simply because the Security Council has not adopted “a resolution obligating States not to recognize an entity as a state or part of another state”. This comparison is baffling, to say the least. On what grounds could the Security Council adopt on Somaliland a pronouncement similar to one it adopted in relation to Kuwait? Somaliland is not occupied or torn away from Somalia by a third State (who would then typically be the addressee of the Security Council’s pronouncement of that kind).
Stroeger’s says that “As such, Somalia is correct to assert that the recognition of Somaliland does not alter the latter’s status, but that does not mean that its recognition is a breach of international law.” If an entity’s status after its recognition remains the same as before recognition, what is the point of recognition in the first place? From both political and legal points of view, the only reason States recognise the relevant entity is to regard that entity and deal with it as a State. That could not happen without the alteration of status being projected at least, if not successfully enshrined in law. Hardly anyone ever acts for nothing. Even something trivial and mundane as spreading some rumour about a person is done with the calculation that people will believe it and their minds will be influenced accordingly. A State recognising someone as a State acts out of political calculation to obtain favour from a recognised entity, and to deal with it as a State. The extent of practical dealings could vary from case to case, but any such dealing is inevitably premised on the recognising State regarding the recognised entity as a State.
It is true that recognition is primarily motivated by political factors, but that alone neither makes recognition produce any legal effect under international law or exempt it from the operation of the criteria that determine the criteria of its legality. This whole political/legal discussion is motivated by the wider analytical factor that there is a clear and obvious asymmetry between political or philosophical concept of recognition that focuses on wider patterns of relationship, alignment or affiliation between various entities in various contexts, and legal concept of recognition which is a much narrower one and operates in context of the pre-existing doctrines such as those of statehood criteria. If only owing to that contextual connection, recognition cannot produce any legal consequences under international law over and above those that the recognising State would be entitled to produce unilaterally. The question whether recognition produces any legal consequences is essentially the same as the question whether the recognising State can unilaterally modify the territorial remit of another State – one the part of which the entity to which recognition is extended forms.
To conclude, the legal concept of recognition of States is considerably narrower that its political concept. There are three aspects of recognition that positivist international lawyers ought to bother about. The first one is about whether the recognising State – or one denying recognition – has the authority to bring about the relevant territorial or political change unilaterally. The second one is about criteria determining whether the relevant State conduct in fact amounts to recognition (including in situations where a State does not expressly articulate recognition or even disclaims it). The third one is about whether the act or recognition violates international law and amounts to an internationally wrongful act, in which case the consequences foreseen under Part Two of ILC’s Articles on State responsibility would apply. Beyond that, recognition, its motivating factors and its intended legal consequences have no relevance in international law, much as plenty of secondary literature could be piled up to strengthen the opposite impression.