Statehood Is a Matter of Politics, Not of Law

It is argued that statehood is attained after the fulfillment of certain prerequisites or “criteria”. Nevertheless, the application of criteria is not without problems: “The multi-criteria nature of concept, the tangled web of historically-specific pathways of state development, and differences in state forms have all contributed to substantial theoretical difficulties in reaching any wide agreement about how to define ‘the state’” (Dunleavy, Patrick,2007) What instruments have attempted to define the idea of the state? Max Weber's classic definition remains to be highly influential.

His definition claims that a state is an organization which “(successfully) claims a monopoly on the legitimate use of physical force within a given territory”.

The Montevideo Convention is another source that is often cited as a guide in determining statehood. According to the Convention, a state should harbour a defined territory, a permanent population, and a government with the capacity to enter into relations with other states. So, is meeting these preconditions enough to be considered as a state, or does being recognized as a state define statehood? Malanczuk argues the following: “recognition is one of the most difficult topics in international law.

It is a confusing mixture of politics, and international law the legal and political elements cannot be disentangled; when granting or withholding recognition, states are influenced more by political than by legal considerations, but their acts do have legal consequences. Herein, statehood becomes politically charged, and the influence of power may have a definitive effect on an entity's legal status as a state or not.

The constitutive theory on statehood argues that recognition constitutes state existence, that is, an entity is not a state before it is recognized as such. Contrastingly, the declaratory theory argues that a state exists prior to recognition; the state's de facto existence is separate from its de jure status. Recognition, then, is “merely an acknowledgement of the facts.”(P. Malanczuk, 2002) A clear definition of what it is to be a state has not been codified in international law. This is probably due to its highly subjective nature; statehood is ultimately a politically charged and sensitive topic that is subject to bias. In this context, identifying the legal elements of statehood is increasingly difficult.

The Montevideo Convention of 1933 is often cited as the criteria for statehood, and thus the Convention now has a place in customary international law, meaning it has “evolved from the practice or custom of states”, ( M. Dixon ,2007) and it is “what states make of it” (M. Dixon ,2007). Thus, customary international law evolves over time, changing according to the practice of states.

This suggests that the prerequisites of statehood in international law are subject to the practice of (already recognized) states, varying according to the opinion of these actors. Since recognition is a political act, it can be easily affected by value judgments and other extra legal conceptions. This is where politics and politically charged interpretations of norms and “criteria” begin to have a pronounced effect on the realization of statehood. Does recognition, then, over ride the other criteria for statehood? Ultimately, does the “state create recognition, or recognition creates the state?” (J. Crawford, 2006). It seems then, that prerequisites to statehood can be found in the extra legal.

The ICJ affirms this view, stating the Montevideo Convention is not a source of customary international law. As no legal codification defines statehood, the task of determining statehood becomes somewhat subjective, depending on the situational context and the specific circumstances of the case in question. Consequently, this makes statehood a concept liable to politics, interpretation, and ultimately, power.

Moving beyond abstract formulations, international practice shows that in the real world, the law can be easily marginalized by these concepts. Similarly, the prerequisites of statehood can also be made irrelevant in the presence of politics and power. Is statehood based on legality, or the extra legal, or rather, a combination of both? Article 2 of the UN Charter states that the organization (and thus recognized states) is based on “the sovereign equality” of all Members.

From the legal point of view, this formal sovereignty ensures the formal and equal power of all recognized states before international law. Thus, this type of power is within the framework of law and legality. In the context of statehood, where does power in the political sphere actually emanate from? Can it be found in the same “formal sovereign equality of all states”; within the “norm”, within the legal? Inequalities in the real world suggest otherwise.

The problem of legitimacy has a political dimension that goes beyond its legal and moral aspects the process of legitimization is ultimately a political phenomenon, a crystallization of judgment that may be influenced but is unlikely to be wholly determined by legal norms and moral principles. “An entity is not a state because it is recognized; it is recognized because it is a state” (J. Crawford, 2006).Does this statement really reflect in the politics of the real world. If recognition is indeed a political act, then it is liable to the discretion and influence of states.

Thus, the opinion held of one state may deter the recognition of statehood for another entity. The political act of recognition is inconsistent, states are allowed to recognize one state, and not another: there is no overlying “system” to recognition:

“state practice demonstrates neither acceptance of a duty to recognize, nor a consistent constitutive view of recognition”, and, as a result, “while the political relevance of the recognition of new states is beyond all doubt, the rules of law which apply to this aspect of public international law remain uncertain”. The right to self-determination is one that permeates through international law: “self determination made its way into codified international standards and is nowadays part of positive law” (A. Preda, 2003). Additionally, self-determination, a notion rooted in political and moral conceptions, entails a broad spectrum of application:”The actual transformation from a political and moral principle into a legal right has hardened its meaning but has also conferred upon it a universal dimension”

(A. Preda, 2003). There are no legal rights to statehood that exist within international law. Thus, claims to statehood are largely based on the extra-legal. This means that the politics that surround statehood-power and legitimacy for one have a pronounced role in claims to statehood. “Rights” to statehood then, are based on these extra legal factors. Recognized states decide if the “criteria” to statehood has been fulfilled or not, and because there are no legal prerequisites of statehood, statehood is something that is determined by the opinion of states:

“The very personality of a state depends on the political decision of other states” Thus, “the matter of deciding the criteria for statehood within the discretion of existing recognized states” is a matter of who defines statehood, and ultimately, who wields the power to enable its realization. Thus, it follows that having all the “ingredients” to statehood a nation, government, and territory- in some cases (such as those of the ROC and Palestine) - means little if another state does not recognize an entity as such. The idea of external support is implied in the final criterion of statehood, that is, “a government; and capacity to enter into relations with other states”.

This criterion has been translated into the prerequisite of recognition, and recognition is a form of support. Support from certain actors may have a definitive effect on the chances of the realization of statehood. In a world directed by politics and special interests, what then, are the prospects of being recognized as a state without support from others? Although membership in the UN is not a formal prerequisite to statehood, already recognized states deem it as an important indicator of the fulfillment of the criteria to statehood:

“The endorsement by the Security Council is definitely not a necessary condition for statehood, since the Security Council does not constitute any sort of international civil authority that certifies the birth of new states. As a result, modern day developments have heightened the importance of UN Membership as a characteristic of states. Because of this, collective legitimization has emerged as one of the UN's major political functions, and the current fashion of legitimization of the status and behavior of states in the international arena emphasizes the collective and the political aspects of the process. Thus, legitimization is heavily influenced by the views of political bodies such as the UN.

This is problematic for the realization of statehood, because the UN is a body that is easily affected by political power. Is statehood then, ultimately defined by various forms of power and politics? As no legal codification to statehood exists, this allows for the most powerful to create the “rules of the game”, while others are left behind. Statehood becomes something that is based on nuances of legality and legitimacy, allowing for the role of special interests and politics. For example, Kosovo is much closer to statehood than Palestine ever has been, and the difference between this two is their access to power and legitimization. So Palestine exemplifies the highly politicized nature of statehood, and how power can act as staunch opposition; overriding other internal qualities.

Composing some sort of legal codification for the premises of statehood would limit the subjectivity of statehood and thus be of help, but the ILC has already attempted this and failed, and understandably so. Attempting to do this would entail reaching some kind of consensus within the international community of existing states, which is difficult to achieve on any issue, due to politics and special interests. Furthermore, certain powerful states might want to maintain the blocking of statehood for other entities, and thus, it would be in their interest to create even more problematic prerequisites to statehood.

Question 5:

Assess the legality of the Israeli war on Lebanon in 2006. Does legality matter?

The legal issues surrounding the use of force, known to international lawyers as jus ad bellum, have once again been thrust into the legal limelight as a result of Israeli military action in Lebanon. Human rights organizations such as Amnesty International accused Israel of deliberately targeting civilian infrastructure and committing war crimes during the month-long conflict. (David Frickling, 2006) Amnesty said that Israel’s strikes on civilian buildings and structures went beyond “collateral damage,” amounting to indiscriminate and disproportionate attacks contrary to the Geneva Conventions and the laws of war. (Amnesty International, 2006)

On July 12, 2006, a frontier dispute between the Israeli Army and the armed wing of Hezbollah rapidly developed into a full scale armed conflict, leaving hundreds of civilians (mostly Lebanese) dead. Only the passing of UN Security Council Resolution 1701 brought a respite to the 34 days and nights of intense fighting in which approximately 1,164 people (mostly civilians) were killed. Of these, 162 were Israeli (of whom 119 were military personnel).

The UN Charter provides in Article 2(4): “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Today, the prohibition of aggression is universally considered to have reached the status of a jus cogens norm. In fact crimes associated with war entail individual criminal responsibility, and the military commanders implicated in such atrocities can be indicted before the International Criminal Court in The Hague. Alternatively, they can be tried in the courts of third states under the doctrine of universal jurisdiction.

This is relevant in the present situation since neither Israel nor Lebanon is a State Party to the Rome Statute. To make a legitimate claim of self-defense under international law, reference must be made to Article 51 of the UN Charter which provides in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”

Israel’s UN Ambassador referenced Article 51 on July 12, in identical letters to the UN Secretary-General and the Security Council. He wrote: Israel thus reserves the right to act in accordance with Article 51 of the Charter of the United Nations and exercise its right of self-defense when an armed attack is launched against a Member of the United Nations. The State of Israel will take the appropriate actions to secure the release of the kidnapped soldiers and bring an end to the shelling that terrorizes our citizens. (Dan Gillerman, 2006).

In Nicaragua v. United States of America, the ICJ ruled that “the prohibition of armed attacks may apply to the sending by a state of armed bands to the territory of another state, if such operation, because of its scale and effects, would have been classified as an armed attack rather than a mere frontier incident had it been carried out by regular armed forces.” Thus, the attack has to be of a certain scale and inter-state in character. It must be serious, not trivial, and it is clear that frontier disputes do not amount to armed attacks.

For the sake of argument, it will be assumed that the Israeli version of events is correct that Hezbollah started the conflict by capturing two soldiers, killing several others, and firing a salvo of rockets into Israeli border villages on July 14. Even so, it is not entirely clear whether Israel can claim a right of self-defense under the UN Charter. As established in Nicaragua, Israel can make a legitimate claim under Article 51 only if the attack by Hezbollah could be classified as an “armed attack” and not a mere frontier incident.

The Nicaragua court’s reasoning, however, is not without criticism. American academia, in particular, has criticized the court on the issue of the identity of the perpetrator of the armed attack that it must be directed from a state. (Ruth Wedgwood, 2005) This is because Article 51 is silent on the state requirement and the travaux preparatoire provide no explanation for this anomaly.

Rather, the state requirement was the consensus interpretation placed upon the definition of an armed attack in Article 3(g) of the Definition of Aggression annexed to General Assembly resolution 3314, passed in the mid- 1970s when wars of national liberation were in vogue. Whether the law has changed in the aftermath of the 9/11 attacks so as to apply to non-state actors according to state practice and opinio juris is open to debate. It should be stressed that the practice by states like Israel, the U.S., and even the UK, as highlighted in articles by legal scholars, are not universally accepted as representing the current state of international law on the use of force and self-defense. (Ch.Gray, 2004)

On the other hand, the fact that the G8 referred Hezbollah specifically, rather than Lebanon, may be evidence of a new custom emerging. In any event, for the sake of argument, it will be assumed that Article 51 permits a state to defend itself in the event of an armed attack by a non-state actor but only if there is a certain link with a state. (T. Ruys and S. Verhoeven, 2005).

The crux of the issue, therefore, is whether Hezbollah’s attack was so grave as to trigger the applicability of Article 51. While the attack may not independently trigger Article 51, Israel could invoke the Nadelstichtaktik (needle prick) doctrine, also known as the “accumulation of events theory.” According to the Nadelstichtaktik doctrine, each specific act of terrorism, or needle prick, though it may not independently qualify as an armed attack, could, taking into consideration the totality of incidents, amount to an armed attack entitling the victim state to respond with armed force.

26 Therefore, although the events of July 14 in isolation would likely not trigger Article 51, under Nadelstichtaktik the several incidents prior to July 14 may allow Israel to argue that it does. While the court lacked sufficient evidence to rule conclusively on the matter in both cases, it appears from the ICJ’s jurisprudence that the doctrine requires a series of attacks to be “collective,” “cumulative in character,” and attributable to a state. If Israel is permitted to invoke the Nadelstichtaktik theory, it could just as easily be used by Lebanon, for Israel frequently enters Lebanon’s territorial waters without its consent.

Furthermore, the Lebanese government accuses Israel of regularly violating its airspace between May 2000 and July 2006. (Associated Press, 2005) Lebanon considers these incursions “a form of international terrorism,” alleging that these low-altitude flights break the sound barrier over civilian-populated areas and “instill terror among Lebanese civilians, especially children.” Moreover, even if the Nadelstichtaktik doctrine is applicable, it would not justify Israel’s war against Lebanon.

The border has been relatively stable since Israel’s withdrawal from southern Lebanon in 2000, although there have been several clashes within the Blue Line (in Lebanon) in the Shabaa Farms area. Yet Israel did not respond with such overwhelming force in its previous clashes with Hezbollah. One may question why Israel felt the need to respond so aggressively in the summer of 2006. Regardless of the various theories advanced in support of military action, it must be emphasized that the use of force in international relations is subject to the conditions of proportionality and necessity.

This means that a state may only use force that is necessary to repel an armed attack and its response must be proportional to that attack. Furthermore, the Israeli attack cannot be justified as self defense because, in the words of Daniel Webster in the famous Caroline incident, there was not a “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”(R.Jennings, 1938) As a regional superpower Israel had plenty of other means and the arsenal available to respond differently if it so wished, whether by commando action, police action, or through diplomacy.

The fact that Israel did not even give the Lebanese government the opportunity to arrest and detain the suspects on its soil before resorting to the use of force which should always be a means of last resort is revealing. Israel has exchanged prisoners with Hezbollah before, and it could have done so again.( Ravi Nessman,2004) It is submitted that Hezbollah’s July 14 attack on Israel did not threaten its territorial integrity or political independence, the only grounds for justifiable war.

Rather, the converse is true: Israel’s bombardment of Lebanon’s major cities and its full-scale invasion of the south threatened its existence and political independence as a sovereign nation. Even if Israel could resort to Article 51 assuming that it was subject to an armed attack it would seem that Israel exhausted that right when it pursued the guerillas into Lebanon in the aftermaths of the initial attack. Israel’s actions were neither necessary nor proportionate to the scale of the threat posed by Hezbollah. So even if, for arguments sake, Israel’s actions did fall within the Article 51 exemption, its actions were both disproportionate and unnecessary.