De facto government
DE FACTO RECOGNITION
(DE FACTO STATES: IT’S IMPACT ON INTERNATIONAL SYSTEMS)
Abstract
The de facto state is a secessionist entity that receives popular support and has achieved sufficient capacity to provide governmental services to a given population in a defined territorial area, over which it maintains effective control for an extended period of time. This paper examines the impact that de facto states have on international society and international law and assesses how they are dealt with by those two bodies through a focus on four case studies: Eritrea before it won its independence from Ethiopia; the Republic of Somaliland; Tamil Eelam and the Turkish Republic of Northern Cyprus. A fifth de facto state, Taiwan, is also considered in some detail to help illustrate potential alternatives to the three conventional means of dealing with these entities. The de facto state’s position under international law is also evaluated. In contrast to the generally negative attitudes surrounding secessionist entities, the paper concludes that the de facto state may indeed offer some positive benefits to international society.
Contents
I. Introduction………………………………………………………………………………….2
II. The De Facto State’s impact on International Society………………………………………3
III. How does International Society deal with the De Facto State……………………………...6
IV. International Law and the De facto State…………………………………………………...10
V. Conclusion…………………………………………………………………………………..14
VI. Criticism…………………………………………………………………………………….15
VII. References…………………………………………………………………………………..15
I. Introduction
If one takes 1960 as a convenient shorthand date for the ending of the vast majority of the decolonization process, then it can be argued that the three decades which followed that year were characterized by the greatest level of territorial stability ever seen in the history of international relations. With very few exceptions, the political map of the world’s sovereign states remained unchanged during this period. James Mayall attributes this state of affairs to an ironic historical fate of the once revolutionary principle of national self-determination which, in its post-1945 variant, has emphasized the sanctity of existing territorial borders and ended up “attempting to freeze the political map in a way which has never previously been attempted.”1 Entities once had to demonstrate and maintain a certain level of military, economic, and governmental effectiveness in order to preserve their position in a competitive international system, the post-war era has witnessed the wholesale granting of statehood to large numbers of former colonies with few, if any, demonstrated empirical capabilities. Once acquired, sovereign statehood has become almost impossible to lose. Small and/or weak states which, in earlier eras, would have been carved up, colonized, or swallowed by larger powers, now have a guaranteed existence in international society. In the words of Robert Jackson, “once sovereignty is acquired by virtue of independence from colonial rule, then extensive civil strife or breakdown of order or governmental immobility or any other failures are not considered to detract from it.”2 The result is an international system characterized by large numbers of what Jackson terms “quasi-states”: states which are internationally recognized as full juridical equals, possessing the same rights and privileges as any other state, yet which manifestly lack all but the most rudimentary empirical capabilities. The quasi-state has a flag, an ambassador, a capital city and a seat at the United Nations General Assembly but it does not function positively as a viable governing entity. It is generally incapable of delivering services to its population and the scope of its governance often does not extend beyond the capital city, if even there. The same normative logic in international society that serves to support existing quasi-states also denies the legitimacy of any would-be challengers regardless of how legitimate their grievances, how broad their popular support, or how effective their governance. It thus facilitates the creation of something that is more or less the inverse of the quasi-state: the de facto state. In essence, a de facto state exists where there is an organized political leadership which has risen to power through some degree of indigenous capability; receives popular support; and has achieved sufficient capacity to provide governmental services to a given population in a defined territorial area, over which effective control is maintained for an extended period of time. The de facto state views itself as capable of entering into relations with other states and it seeks full constitutional independence and widespread international recognition as a sovereign state. It is, however, unable to achieve any degree of substantive recognition and therefore remains illegitimate in the eyes of international society.
Whereas the quasi-state has recognized territorial borders and the ability to participate in intergovernmental organizations, in many cases it does not effectively control large swathes of its own countryside. Though it seeks recognition, the de facto state, on the other hand, has been denied its seat at the UN and its place at the international table. No matter how long or how effective its territorial control of a given area has been, that control is neither recognized nor is it considered legitimate. The quasi-state is legitimate no matter how ineffective it is. Conversely, the de facto state is illegitimate no matter how effective it is. The quasi-state’s juridical equality is not contingent on any performance criteria. Even if the entire state apparatus has collapsed, the quasi-state (à la Cambodia and Lebanon) will be supported and maintained through international efforts. At times, it may be more of an abstract idea than it is a hard reality. The de facto state, on the other hand, is a functioning reality with effective territorial control of a given area that is denied legitimacy by the rest of international society. At various points in time, examples of de facto states might include Biafra; Rhodesia after its unilateral declaration of independence; Charles Taylor’s “Greater Liberia”; the Karen and Shan states of Myanmar; Chechnya; Krajina; and the Bosnian Serb Republic. This working paper examines the impact that these entities have on international society and international law and how they are dealt with by those two bodies through a focus on four de facto states: Eritrea before it won its independence from Ethiopia; the Republic of Somaliland; Tamil Eelam; and the Turkish Republic of Northern Cyprus (TRNC). A fifth de facto state, Taiwan, is also assessed to illustrate alternatives to the conventional methods of dealing with such entities.
II. The De Facto State’s Impact on International Society The de facto state has had a substantive impact on international politics in two main areas: conflict and political economy. Of these two, its impact has clearly been the most apparent and readily quantifiable in the area of conflict and war. Limiting ourselves to just the four cases considered here, one finds that they have been implicated in somewhere between 160,000 to 275,000 fatalities and that they have produced somewhere between 2,345,000 - 2,795,000 refugees and internally displaced persons.3 While even approximate figures are unavailable for the number of those wounded or disabled, that figure must number in the hundreds of thousands. The number of land-mines deployed in these four areas certainly counts in the millions. As two of these cases—Somaliland and, especially, Tamil Eelam - continue to produce new fatalities and refugees today, these figures can be expected to rise. Were one to add other de facto states such as Biafra, Chechnya, and the Bosnian Serb Republic, they would clearly go much higher still. Additionally, the fact that de facto state situations are involved in three of the world’s most serious conflicts today—Chechnya, Sri Lanka, and the former Yugoslavia—illustrates the contemporary relevance of this phenomenon to war in the international system. Beyond the sheer numbers of those killed, wounded, and displaced, Zeev Maoz highlights another reason why the international community should be concerned with the de facto state. In a study of the ways in which state formation processes affect international conflict involvement, Maoz distinguishes between evolutionary and revolutionary types of state formation. He finds that
State formation processes affect patterns of post-independence involvement in interstate disputes. States that emerge out of a violent struggle for independence tend to be involved in a considerably larger number of interstate disputes than states that become independent as a result of an evolutionary process.4
There are two main problems in applying Maoz’s findings to the de facto state. First, his work focuses on states that have actually won their independence or, in his phrase, “joined the club of nations.” Most de facto states never reach this level. Second, the distinction between evolutionary and revolutionary state formation is not always clear in the case of de facto states. Where, for instance, would the TRNC fall in this dichotomized distinction? Additionally, Eritrea would have appeared to be a classic case of revolutionary state formation until its 1991-1993 transition period to independence brought it much closer to an evolutionary process. Indeed, one suspects that Maoz would be a strong supporter of the type of extended transition process that Eritrea went through and which has been proposed for Chechnya.5 This is because of the two reasons why evolutionary state formation leads to reduced levels of subsequent involvement in interstate conflicts. First, evolutionary state formation is “characterized by stable expectations of the indigenous national elites regarding their acceptance into the system by other states.” Second, these same evolutionary processes also create “stable expectations by other states regarding the upcoming expansion of the club of nations.”6While Maoz’s findings may not exactly translate to all de facto state situations, they do highlight one more reason these entities may have substantial impact upon international society. The impact of de facto states on political economy is relatively modest. This can be explained by a combination of factors including their limited numbers, their generally small size, their often impoverished conditions due to the devastation of war, and their lack of juridical standing—which acts as a substantial deterrent to foreign investment and international economic integration. That qualification aside, however, these entities do affect the global political economy. Two main points need to be made in this regard. First, in spite of their lack of juridical status, business is done with de facto states and similar such entities and this business may produce negative consequences. When looking at this issue from the perspective of sovereign governments who lose control of resource-rich regions, Robert Jackson and Carl Rosberg argue that “international bodies, foreign powers, and even private firms are likely to respect their de jure claim to such regions....” As such, “non-sovereigns who are in de facto control of them may be prevented from benefiting fully from their material exploitation.”7 While the first part of this claim holds, the evidence is increasingly against the second part. In 1991, for example, Charles Taylor’s “Greater Liberia” was France’s third-largest source of tropical timber. Taylor earned an estimated US$8-10 million a month from a consortium of North American, European, and Japanese companies interested in extracting diamonds, gold, iron ore, timber, and rubber from the areas he controlled. Taylor’s forces also allegedly reached an agreement with Firestone to cooperate in rubber production and marketing.8 The Khmer Rouge in Cambodia and UNITA in Angola are two other examples of non-sovereign groups exercising effective territorial control which have been able to finance their operations through the sale of mineral resources they control—diamonds in UNITA’s case and an assortment of gems and hardwood forest products for the Khmer Rouge. In all three of these cases, no one challenged Angola, Cambodia, or Liberia’s de jure claim to the regions in question. And yet, millions of dollars in business is regularly conducted by an assortment of public and private firms from around the world with the non-sovereigns who are in de facto control of those regions. Indeed, one suspects, based on the long-standing ability of these groups to finance themselves, that Charles Taylor, UNITA, and the Khmer Rouge must all make fairly good and reliable business partners. This type of business can negatively impact upon international society in a number of ways. First, the respective sovereign governments lose millions of dollars of lucrative revenues—often from non-renewable resources. Second, this loss of revenues indirectly leads to increased demands on other members of international society for greater assistance and, perhaps, for some sort of interventionary force. Third, such groups are unlikely to be the best respecters of trade regulations or the best protectors of the environment. Finally, the very illegitimacy of such de facto groups encourages illegal activities. The New York Times, for example, refers to the Kurdish safe haven in northern Iraq as“the largest black market clearing house for cigarettes in the Middle East.”9 The second main point to be made, though, is that de facto political status does not necessarily produce bad economic outcomes. The classic example here is Taiwan. At a minimum, Taiwan shows that a lack of formal diplomatic relations with the vast majority of sovereign states in the world today does not preclude economic success. In 1996, Taiwan was the world’s fifteenth largest trading power with a trade volume in excess of US$218 billion. Its foreign reserves are the third largest in the world at more than US$88 billion and its per capita GNP is in excess of US$12,800.10
The Taiwan example is unique in terms of the magnitude of its economic success, but it is far from the only de facto state that can claim some degree of economic prowess. The Liberation Tigers of Tamil Eelam (LTTE) have, for example, been able to reach a number of mutually acceptable arrangements with local businessmen. Under the Somali National Movement’s (SNM) leadership, livestock exports (the mainstay of the Somaliland economy) have more than tripled. This can be attributed both to the SNM’s commitment to free market economics and to its comparative efficiency in providing governmental services and maintaining order. Though the per capita GNP in the TRNC is perhaps only one-third that of the Republic of Cyprus, even this case shows that de facto statehood does not rule out economic development. The TRNC’s external trade volume has consistently risen and hitUS$447 million in 1990. Despite the consistent accusations of puppet statehood, only about 14 percent of Northern Cypriot exports go to Turkey. Approximately 78 percent of them are destined for the EU (primarily the UK). The TRNC currently has trade links with over 80 countries and it annually attracts more than double its population in tourist arrivals. From 1977 to 1990, the average annual growth rate was 6.5 percent. There is an automobile for every 2.5 persons—a level comparable to Greek Cyprus and higher than in some EU countries. Life expectancy is 71 years and the literacy rate stands at 97 percent.11 Obviously, its lack of juridical standing has hindered the TRNC in a myriad of ways. Its economy also has serious structural problems (such as an over-dependence on tourist revenues and a specific overdependence on Turkish tourists). Still, as the above examples show, de facto states and other related entities do impact the global political economy and they often manage to participate in it relatively successfully.
III. How Does International Society Deal with the De facto State? Within the general context of its strong diplomatic and financial support for all existing sovereign states, international society has traditionally chosen to respond to the existence of de facto states in three main ways: actively opposing them through the use of embargoes and sanctions; generally ignoring them and having no dealings with them; and coming to some sort of limited acceptance and acknowledgment of their presence. Each of these three approaches has a different set of costs and benefits for the international community and for the de facto state itself. The classic example of actively opposing the de facto state’s existence through the use of international embargoes and sanctions comes from Northern Cyprus. The Greek Cypriot embargo campaign against the TRNC has been quite successful. A variety of international organizations including the Universal Postal Union, the International Civil Aviation Organization, and the International Air Transport Association have refused to recognize or deal with the Turkish Cypriots in their respective areas of competence. As such, Ercan airport is not recognized “as it operates unofficially and poses safety hazards” and TRNC postage stamps have been proclaimed “illegal and of no validity.”12 The international embargo against Northern Cyprus was strengthened dramatically in 1994 when the European Court of Justice (ECJ, the judicial wing of the European Union) ruled that EU member-states could no longer accept movement and phyto-sanitary certificates13 from TRNC authorities. Under the 1972 association agreement between Cyprus and the then EC, Cypriot goods received preferential access to the EC marketplace. Until this 1994 ruling, the UK had been accepting certificates from TRNC authorities to ensure that the entire population of Cyprus benefited from the association agreement. In essence, the ECJ ruling held that movement and phyto-sanitary certificates could only be issued by authorities from the Republic of Cyprus. Produce and citrus exports from the TRNC are now banned from EU markets, although in practice many of them will probably be rerouted through Turkey.14 The international embargo campaign has hurt the TRNC economy. The fact that no country other than Turkey maintains direct air links with the TRNC substantially increases both the costs and the inconvenience of traveling to Northern Cyprus and is a serious impediment to the development of the tourist industry there. The impact of this measure alone on the TRNC’s fragile economy is enormous – in 1992 tourist receipts accounted for 30 percent of the TRNC’s entire GNP and were equivalent in value to more than 320 percent of its total exports.15 The overall effects of the embargo also show up in per capita income statistics. In 1995, Greek Cypriot per capita income stood at US$12,500, while the comparable Turkish Cypriot figure was just US$3,300.16 The isolate and embargo strategy obviously has substantial costs for the de facto state. It also, however, affects international society. Sticking with the TRNC example, in May 1993, Asil Nadir, the former head of Polly Peck International, fled from London to the TRNC in order to avoid serious fraud charges in the UK. Because the UK does not recognize the TRNC, there is no extradition treaty between them. As such, Nadir is effectively beyond the reach of British justice in the TRNC. In a related incident, Elizabeth Forsyth, one of Nadir’s aides who fled with him, asked to provide statements for her own trial from the TRNC. The British judge in the case would not allow as admissible any witness statements she made to a TRNC court because the UK did not recognize this entity. Nor would he allow evidence to be heard from the TRNC via a satellite television link.17 The TRNC’s status as a juridical black hole in the international system may also appeal to organized criminals. Its lack of taxation and extradition agreements with other countries led one member of the Russian mafia to descri’be it as a perfect setting because “[n]o one can touch you in the Turkish sector.”18
Far more typical than deliberate and active campaigns against the de facto state is the second option of generally ignoring its existence and refusing to engage it in any manner. An example here is the Organization of African Unity’s (OAU) refusal to allow the Provisional Government of Eritrea (PGE) observer status at its June 1992 summit meeting in Dakar, Senegal. The OAU did not call for actions to be taken against the PGE; it merely refused to grant it any status at its own deliberations. More costly to the de facto state is the general inability of most intergovernmental organizations and non-governmental aid agencies to deal with non-sovereign entities. As Alan James points out, it “deserves emphasis that the acquisition of sovereign status does, in itself, constitute a material, and not just a nominal, change in a territory’s position. For this alteration in its status is not simply a matter of words but has some practical implications, which can be of considerable significance.”19 Eritrea, for example, was unable to qualify for any bilateral aid or loans from the IMF or the World Bank until after the conclusion of its independence referendum. The Republic of Somaliland has also complained vociferously about the UN’s refusal to provide it with any substantial assistance. One example that particularly embittered Somaliland President Mohamed Ibrahim Egal was the UN’s refusal to assist Somaliland in rebuilding its legal infrastructure. In his words,
They were supposed to have repaired our courts and paid our justices. They were promising that for so long, and then... they came up with another brilliant excuse. They said ‘You call yourselves “chief justices” and “supreme courts” and if we pay for them, it will be an act of recognition of Somaliland.’ That’s after six months of reneging on their promises.20
Besides the active embargo, the TRNC also suffers from this general neglect. Its diplomatic isolation prevents it from receiving nearly all non-Turkish external development assistance. One major problem here has been the growing salinization of its limited water supplies. This situation could have been avoided had the TRNC undertaken a large-scale irrigation program. Unfortunately, dams and irrigation systems require massive investments—which in the case of the (Greek) Republic of Cyprus were carried out only with major development funding from the World Bank, the EC, and other international institutions.21 Another revealing example comes from Chechnya. In February 1996, the IMF negotiated a US$10.1 billion three-year loan agreement with the government of Russia. As it does not appear as an identifiable item in Russia’s budget, the costs of the war in Chechnya have not been an issue between Russia and the IMF. Yet, under IMF pressure, the Russian government recently announced a series of spending cutbacks which included money earmarked for the rebuilding of Chechnya’s devastated infrastructure. As The Economist put it, “[t]he perverse result is to leave the Russian government acknowledging a need to cut back on the cost of reconstructing Chechnya, but not on the cost of destroying it first.”22
For the de facto state, the costs of this second option are measured primarily in terms of potential aid and investment dollars lost. Looking at Eritrea from 1991 to 1993, David Pool observes that “[t]he costs of a smooth political transition to independence have been borne in the economic sphere, at least in the short run.”23 Unfortunately, for some extremely poor de facto states with slim margins of error such as Somaliland, these short run costs may make the difference between long-term survival or failure. For international society as a whole, however, the costs of this second option are only felt in the long run. After all, it costs nothing to ignore or neglect a de facto state today. If, however, to take one example, external assistance to develop Somaliland’s legal infrastructure will show a positive long-term return on investment in terms of improved local (and hence regional) stability, then the short-term savings on not providing that assistance may be overwhelmed by the increased costs of future long-term instability. Similarly, not taking Chechnya into its calculations may benefit the IMF in terms of its short-term loan repayments schedule. One might suspect, however, that such neglect will come back to haunt international society in the not-too-distant future. The third major option for international society in regard to de facto states is what might be termed the limited acceptance approach. This option is best exemplified by the international community’s attitudes toward Eritrea in its 1991-1993 period and by its most recent attitudes toward Somaliland. Though it was denied access to international organizations and many forms of external assistance, the UN did open a permanent representative’s office in Eritrea in November 1991.24 InFebruary 1992, a US Agency for International Development (USAID) delegation visited Eritrea and held discussions with senior PGE officials. They ultimately promised to present proposals to the American government to give Eritrea US$55 million worth of aid over a two-year period.25 The PGE in some ways made their own situation more difficult by steadfastly refusing to deal with the outside world through Addis Ababa. They refused to receive officials from embassies in Addis Ababa and would not consent to their aid needs being considered as part of an Ethiopian country program. Still, Lionel Cliffe maintains that by 1992 “most governments had adjusted to the realities of Eritrea’s de facto separation and to the inevitability of its eventual independence: external communications and most diplomatic relations had been normalized, and long-term aid was in the planning stage.”26 In the case of Somaliland, the evidence is somewhat more tentative. The US sent a fact-finding mission to Hargeisa in 1995 and the United Nations Development Program (UNDP) now maintains a representative office there. In June 1995, the UNDP representative, Earl Dyson, told the Somaliland government that UN agencies were prepared to work with it and that the government had the right to be informed about the budgets and projects of every agency. The US now deals with the Egal administration through the American embassy in Djibouti and,for aid projects, through the USAID office in Nairobi.27
Obviously, of the three choices presented above, this last option of limited acceptance is the one that is most advantageous to the de facto state. While it might not contribute to success toward the ultimate goal of sovereignty as constitutional independence, this type of limited acceptance coupled with the provision of humanitarian assistance can potentially ease a number of pressing problems facing the de facto state. While greater international involvement will likely limit the de facto state leadership’s autonomy through pressures to follow certain courses of action and avoid others, on balance the benefits should outweigh the costs as far as these entities are concerned. For international society, the greatest potential cost to this approach is angering the sovereign state on whose territory the de facto leadership operates. There is also the potential problem of not wanting to be seen to be encouraging these types of rebellions in the future. Indeed, the members of international society may fear that even such a nonjuridical accommodation of the de facto state will only serve to undermine their normative position against secession. In the short-term, the costs of this approach (in terms of aid expenditures and diplomatic time spent) will probably exceed those of doing nothing. In the long-term, international society must hope that the investment in dealing with pressing humanitarian problems today will reap dividends tomorrow in terms of improved stability and less threatened or isolated political leaderships.
IV. International Law and the De Facto State By definition, the de facto state lacks juridical standing in the society of states. This fact, along with its less secure, imprecise, and more fluid status might at first glance be seen as presenting fundamental problems to international law. On closer inspection, however, the international legal system appears quite capable of dealing with the presence of these entities. The first point to be made here concerns the applicability of international law to unrecognized bodies such as the TRNC or the Republic of Somaliland. It might be thought, as James Crawford puts it, that “if international law withholds legal status from effective illegal entities, the result is a legal vacuum undesirable both in practice and principle.” However, this view is incorrect because it “assumes that international law does not apply to de facto illegal entities; and this is simply not so.” The example Crawford uses here is Taiwan, which “whether or not a State, is not free to act contrary to international law, nor does it claim such a liberty.”28 What Taiwan is not free to act contrary to in this regard is jus cogens—defined by one scholar as “peremptory norms from which no derogation can be allowed by agreement or otherwise.”29 This idea has been incorporated into Article 53 of the 1969 Vienna Convention on the Law of Treaties.30 Though far from unanimous, modern legal opinion is also strongly in favor of the notion of jus cogens. Where the consensus on jus cogens falls apart is in identifying exactly which principles are and are not subsumed under it. The point to be made in regard to the de facto state, though, is a simple one: if one accepts that such things as the prohibition on genocide and the prohibition on the use of force except for self-defense have attained the status of jus cogens, then these norms apply to de facto states in the same way that they apply to sovereign states.
Beyond the realm of jus cogens, it can be shown both historically and in case law that unrecognized entities (of which the de facto state is merely one example) do have a juridically significant existence in international law. Historically, European states frequently entered into treaties with non sovereign entities. Ian Brownlie, for example, points out that until about the middle of the nineteenth century, it was perfectly possible to conclude treaties with various types of social structure which had a territorial base: but there had to be some definable and unified social structure. Basutos and Zulus qualified whilst Australian aboriginals and Fuegian Indians did not.31
In regard to case law, both US and international court decisions hold that the actions of de facto states may be given legal recognition in spite of the lack of formal diplomatic relations. In the absence of specific enabling legislation such as the TRA, the lack of diplomatic relations prevents de facto states from bringing suits in US courts. It does not, however, deny them any juridical existence. In Wulfsohn v. Russian Socialist Federated Soviet Republic [1923], for example, a US court granted the unrecognized Soviet government sovereign immunity on the basis that, even if unrecognized by the US, the Soviet government did exist and hence was a foreign sovereign that could not be sued in an American court without its consent. In M. Salimoff & Co. v. Standard Oil Co. of New York [1933], another US court applied the act of state doctrine to a confiscatory decree of the still-unrecognized Soviet government. This doctrine, which holds in part that “the courts of one country will not sit in judgment of the acts of the government of another done within its territory” was applied because, in the court’s judgment, We all know that it is a government. The State Department knows it, the courts, the nations, and the man in the street. If it is a government in fact, its decrees have force within its own borders and over its nationals.... The courts may not recognize the Soviet government as the de jure government until the State Department gives the word. They may, however, say that itis a government.32
Another leading US court case in this regard involved East Germany. In Upright v. Mercury Business Machines [1961], the court allowed an American assignee of a corporation controlled by the unrecognized East German government to sue in US courts. In doing so, the court rejected the defendant’s argument that the lack of de jure relations with the East German government should be determinative of whether or not transactions with it could be enforced in US courts. The court’s ruling held that
A foreign government, although not recognized by the political arm of the United States government, may nevertheless have a de facto existence which is juridically cognizable.... The lack of jural status for such government or its creature corporation is not determinative of whether transactions with it will be denied enforcement in American courts, so long as the government is not the suitor33
Internationally, this idea that unrecognized governments may still be “juridically cognizable” had previously been put forth in the Tinoco Claims Arbitration (Great Britain v. Costa Rica) [1924]. In this case, it was the unrecognized Costa Rican government of Federico Tinoco whose de facto existence was deemed juridically cognizable.34
Contemporary state practice also supports the idea that unrecognized de facto entities may conduct foreign relations with sovereign states which have not extended de jure recognition to them. Section 107 of the Restatement (Second) of Foreign Relations Law of the United States [1965], for example, specifies that
An entity not recognized as a state but meeting the requirements for recognition specified in 100 [of controlling a territory and population and engaging in foreign relations], or an entity recognized as a state whose regime is not recognized as its government, has the rights of a stateunder international law in relation to a non-recognizing state....35
Based on this, Victor Li concludes that “from an international law perspective, a de facto entity may clearly conduct foreign relations with countries which have not extended de jure recognition to it.”36
Such a conclusion is supported by Article 74 of the Vienna Convention on the Law of Treaties which states that “The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States.”37
Another lens through which to view the de facto state and international law comes from Common Article 3 of the 1949 Geneva Conventions. The historical significance of Common Article 3 is that it was the first attempt to regulate civil wars through international law. The article itself defines its scope in terms of “armed conflict not of an international character.” In essence, it attempts to ensure a certain minimum humanitarian code of conduct for internal conflicts irrespective of the legal status of the parties involved. According to paragraph two, the application of the article’s provisions “shall not affect the legal status of the Parties to the conflict.” Further, as the International Committee of the Red Cross (ICRC) emphasizes, “applying Article 3 does not in itself constitute any recognition by the de jure Government that the adverse Party has authority of any kind.”38 While the protections granted to those involved in internal wars are less substantial than the corresponding provisions for international wars, Article 3 is still generally seen by legal scholars as a positive step in that it effectively internationalizes humanitarian protection for civil wars and thus provides the hope that a minimum standard of conduct will be observed by the combatants in those wars.39
What of international law’s ability to deal with the existence of de facto states? Theoretically, there is not a problem here. International law is by no means unfamiliar with non-sovereign entities. Historically, it has found room to accept a wide variety of designations such as associated states, mandates, trusteeships, colonies, protectorates, free cities, condominia, and internationalized territories.40 There is no compelling theoretical reason why international law could not accommodate the de facto state or other such territorially-based entities possessing varying degrees of international competence. The present system of sovereign states and nothing else could mutate into a system of sovereign states plus a number of other entities.41 As Alan James observes, “[s]uch a mixed system could not claim to be based on the equality of all its participants.” Rather, its “organizing principle would therefore be that of accepted international competence.”42 In such a system, de facto states would have certain rights and responsibilities and be excluded from others. One can even envision such a system evolving to the point where finer distinctions are made within the category of de facto statehood. The caveat to all such speculation, however, is that these theoretical possibilities do not equate with contemporary practical realities. As James puts it, “At the practical level, developments moved decisively, a long while ago, in the direction of an international system in which the regular territorial participants were all of the same kind.”
While the practical prospects for such a mixed system are remote and states have shown a marked reluctance to apply the provisions of Article 3, there are a number of reasons why international societymight wish to bring de facto states and other rebel movements under the authority of its legal system. As W. Michael Reisman and Eisuke Suzuki point out, “Groups which have not yet been formally recognized as states but whose activities may have significant impacts on the international system are subjected to claims by others for conformity to critical international standards.”43Commonsense leads one to think that the best way to ensure compliance with such standards is not to cast the de facto state as far as possible into the juridical equivalent of outer darkness.
In addition to the interests of the states system as a whole, individual sovereign states will, for example, want to ensure that proper controls are placed on the transfer of dangerous substances such as agricultural pests or toxic wastes regardless of their foreign origin or destination. They may also want to ensure that de facto states and other such entities are incorporated into their own domestic legal systems. Looking at the matter from an American perspective, Victor Li argues that the United States should be protected against certain harmful actions taken abroad whether or not they occur in de jure recognized countries.... Similarly, statutes that produce beneficial results for the United States or facilitate the operation of American activities abroad should be interpreted to apply to both de jure and de facto recognized entities.44
De facto states already have some degree of “juridically cognizable” existence. There is no theoretical reason why they cannot be further incorporated into the international legal system. While there are some understandable political reasons for sovereign states to oppose such a move, there are also some strong practical reasons for them to support it.
V. Conclusion
This working paper has analyzed the impact of de facto states on both international law and international society. While the limited numbers of these entities relegates the de facto state to a somewhat peripheral role in international relations, their impact on such things as conflict and political economy is far from negligible. International society has traditionally chosen to deal with them in one of three main ways—actively trying to undermine them; more or less ignoring them; and reaching some sort of limited working accommodation with them. Each of these various methods has a different set of costs and benefits both for the de facto state and for the society of states as a whole. An implicit theme running throughout this paper is that these entities matter and that the members of international society need to devote more attention to the question of how best to cope with their existence.
In terms of international law, the de facto state’s lack of sovereignty does not prevent it from having a juridically cognizable existence. Perhaps surprisingly, international law is revealed to be quite capable of accommodating the de facto state—at least theoretically. There are obvious political reasons why existing sovereign states will likely continue to resist such an accommodation within the international legal system. Yet, there are also compelling practical reasons why sovereign states should want to see these entities further incorporated both into international law and into their own national legal systems. Intuitively, barring the legal gates and denying the de facto state even an extremely limited legal competence does not seem to be the way to encourage compliance with the fundamental norms, let alone the desiderata of international law.
VI. Criticism
Finally, in contrast to the prevailing negativity and disparaging judgments usually leveled against such entities, the argument put forth here is that the de facto state may, in some cases and in some regards, actually serve beneficial purposes. It is not claimed that the members of international society have consciously turned to these entities in an attempt to find the proverbial “lesser of two evils” when faced with particularly difficult choices. Nor is it argued that these entities provide ideal solutions or pareto-optimal outcomes. Rather, the much more limited claim is that the existence of de facto states produces not only costs, but also benefits for the society of states. The evidence presented for the de facto state’s utility is more speculative than it is conclusive but it does suggest that the prevailing view of these entities in solely negative terms obscures as much as it reveals. By its very nature, the de facto state is well suited to situations where the international community needs to be seen to be upholding cherished norms, while at the same time it finds creative or ad hoc ways to get around those very same norms. Its inherently nebulous status has the additional benefit of not precluding any other future settlement arrangements. If the de facto state did not exist, it might not need to be invented. Its very existence does, however, potentially offer a number of benefits to the society of sovereign states.
VII. References
1. Books
Amare Tekle, ed. Eritrea and Ethiopia: From Conflict to Cooperation. Lawrenceville: The Red Sea Press, 1994.
Bookman, Milica Zarkovic. The Economics of Secession. New York: St. Martin’s Press, 1992.
Bull, Hedley, and Adam Watson, eds. The Expansion of International Society. Oxford: Clarendon Press, 1984.
Dodd, C.H., ed. The Political Social and Economic Development of Northern Cyprus. Huntingdon: The Eothen Press, 1993.
Ian Brownlie. Principles of Public International Law. Oxford University Press, 2008
Jackson, Robert H. Quasi-States: Sovereignty, International Relations and the Third World. Cambridge: Cambridge University Press, 1990.
Malcolm Nathan Shaw. International Law. Cambridge University Press. 2003.
Mayall, James. Nationalism and International Society. Cambridge: Cambridge University Press, 1990.
Republic of China. The Republic of China Yearbook, 1994. Taipei: Government Information Office, 1993.
Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press, 1988.
2. Reports , Journals and collected materials
Brilmayer, Lea. “Secession and Self-Determination: A Territorial Interpretation.” Yale University Journal of International Law 16 (Winter 1991), 177-202.
Brownlie, Ian. “The Expansion of International Society: The Consequences for the Law of Nations.” In Hedley Bull and Adam Watson, eds., The Expansion of International Society, 357-369.
Crawford, James. “The Criteria for Statehood in International Law.” British Year Book of International Law 48 (1976-77), 93-182.
Human Rights Watch/Asia. “Sri Lanka: Stop Killings of Civilians.” Human Rights Watch/Asia Newsletter 7 (July 1995), 1-10.
Jackson, Robert H. “Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World.” International Organization 41 (Autumn 1987), 519-549.
Krasner, Stephen D. “Sovereignty: An Institutional Perspective.” Comparative Political Studies 21 (April 1988), 66-94.
Li, Victor H. “The Law of Non-Recognition: The Case of Taiwan.” Northwestern Journal of International Law and Business 1 (Spring 1979), 134-162.
Maoz, Zeev. “Joining the Club of Nations: Political Development and International Conflict, 1816 - 1976.” International Studies Quarterly 33 (June 1989), 199-231.
Schroeder, Gertrude E. “On the Economic Viability of New Nation-States.” Journal of International Affairs 45 (Winter 1992), 549-574.
U. S. Department of State, “Cyprus Country Report on Human Rights Practices for 1996.” Washington, D.C., February 1997.
Zartman, I. William. “Putting Things Back Together.” In I. William Zartman, ed., Collapsed States, 267- 273.
3. Newspapers and other periodicals.
Africa News. September 1995.
African Business. 1 December 1991.
BBC Summary of World Broadcasts. 15 November 1991. 18 February 1992. 6 June 1995.
Economist. 2 July 1994. 6 August 1994. 24 August 1996. 31 August 1996. 11 January 1997.
Financial Times. 12 July 1994. 25 July 1995.
The Guardian. 27 April 1996.
The New York Times. 17 August 1994.
The Reuter Library Report. 29 October 1991.
The Times. 6 March 1996.
The Washington Times. 29 April 1996.
4. Web Links. http://www.asil.org/ajil.cfm http://www.asil.org/ajil/ajilindx.htm http://www.wcl.american.edu/journal/ilr/index.cfm http://www.lib.uchicago.edu/e/law/intl/journals.html http://www.jstor.org/page/journal/amerjintelaw/about.html http://www.harvardilj.org/ http://www.law.yale.edu/academics/studentjournals&publications.htm http://bybil.oxfordjournals.org/ http://www.ejil.org/ http://www.brill.com/publications/baltic-yearbook-international-law http://www.brill.com/product_id18742.htm http://www.un.org/docs/sc/unsc_background.html http://hagueyearbook.weebly.com/index.html http://www.abebooks.com/Republic-China-Yearbook-1994/4673336966/bd http://www.shabait.com/ http://somalilandgov.com/ http://www.eelam.com/ http://www.northcyprusonline.com/North-Cyprus-Online-Government.php http://www.taiwan.gov.tw/
References: Bookman, Milica Zarkovic. The Economics of Secession. New York: St. Martin’s Press, 1992. Bull, Hedley, and Adam Watson, eds. The Expansion of International Society. Oxford: Clarendon Press, 1984. Dodd, C.H., ed. The Political Social and Economic Development of Northern Cyprus. Huntingdon: The Eothen Press, 1993. Ian Brownlie. Principles of Public International Law. Oxford University Press, 2008 Jackson, Robert H Malcolm Nathan Shaw. International Law. Cambridge University Press. 2003. Mayall, James. Nationalism and International Society. Cambridge: Cambridge University Press, 1990. Republic of China. The Republic of China Yearbook, 1994. Taipei: Government Information Office, 1993. Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press, 1988. Crawford, James. “The Criteria for Statehood in International Law.” British Year Book of International Law 48 (1976-77), 93-182. Human Rights Watch/Asia. “Sri Lanka: Stop Killings of Civilians.” Human Rights Watch/Asia Newsletter 7 (July 1995), 1-10. Jackson, Robert H. “Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World.” International Organization 41 (Autumn 1987), 519-549. Krasner, Stephen D. “Sovereignty: An Institutional Perspective.” Comparative Political Studies 21 (April 1988), 66-94. Li, Victor H. “The Law of Non-Recognition: The Case of Taiwan.” Northwestern Journal of International Law and Business 1 (Spring 1979), 134-162. Maoz, Zeev. “Joining the Club of Nations: Political Development and International Conflict, 1816 - 1976.” International Studies Quarterly 33 (June 1989), 199-231. Schroeder, Gertrude E. “On the Economic Viability of New Nation-States.” Journal of International Affairs 45 (Winter 1992), 549-574.
(DE FACTO STATES: IT’S IMPACT ON INTERNATIONAL SYSTEMS)
Abstract
The de facto state is a secessionist entity that receives popular support and has achieved sufficient capacity to provide governmental services to a given population in a defined territorial area, over which it maintains effective control for an extended period of time. This paper examines the impact that de facto states have on international society and international law and assesses how they are dealt with by those two bodies through a focus on four case studies: Eritrea before it won its independence from Ethiopia; the Republic of Somaliland; Tamil Eelam and the Turkish Republic of Northern Cyprus. A fifth de facto state, Taiwan, is also considered in some detail to help illustrate potential alternatives to the three conventional means of dealing with these entities. The de facto state’s position under international law is also evaluated. In contrast to the generally negative attitudes surrounding secessionist entities, the paper concludes that the de facto state may indeed offer some positive benefits to international society.
Contents
I. Introduction………………………………………………………………………………….2
II. The De Facto State’s impact on International Society………………………………………3
III. How does International Society deal with the De Facto State……………………………...6
IV. International Law and the De facto State…………………………………………………...10
V. Conclusion…………………………………………………………………………………..14
VI. Criticism…………………………………………………………………………………….15
VII. References…………………………………………………………………………………..15
I. Introduction
If one takes 1960 as a convenient shorthand date for the ending of the vast majority of the decolonization process, then it can be argued that the three decades which followed that year were characterized by the greatest level of territorial stability ever seen in the history of international relations. With very few exceptions, the political map of the world’s sovereign states remained unchanged during this period. James Mayall attributes this state of affairs to an ironic historical fate of the once revolutionary principle of national self-determination which, in its post-1945 variant, has emphasized the sanctity of existing territorial borders and ended up “attempting to freeze the political map in a way which has never previously been attempted.”1 Entities once had to demonstrate and maintain a certain level of military, economic, and governmental effectiveness in order to preserve their position in a competitive international system, the post-war era has witnessed the wholesale granting of statehood to large numbers of former colonies with few, if any, demonstrated empirical capabilities. Once acquired, sovereign statehood has become almost impossible to lose. Small and/or weak states which, in earlier eras, would have been carved up, colonized, or swallowed by larger powers, now have a guaranteed existence in international society. In the words of Robert Jackson, “once sovereignty is acquired by virtue of independence from colonial rule, then extensive civil strife or breakdown of order or governmental immobility or any other failures are not considered to detract from it.”2 The result is an international system characterized by large numbers of what Jackson terms “quasi-states”: states which are internationally recognized as full juridical equals, possessing the same rights and privileges as any other state, yet which manifestly lack all but the most rudimentary empirical capabilities. The quasi-state has a flag, an ambassador, a capital city and a seat at the United Nations General Assembly but it does not function positively as a viable governing entity. It is generally incapable of delivering services to its population and the scope of its governance often does not extend beyond the capital city, if even there. The same normative logic in international society that serves to support existing quasi-states also denies the legitimacy of any would-be challengers regardless of how legitimate their grievances, how broad their popular support, or how effective their governance. It thus facilitates the creation of something that is more or less the inverse of the quasi-state: the de facto state. In essence, a de facto state exists where there is an organized political leadership which has risen to power through some degree of indigenous capability; receives popular support; and has achieved sufficient capacity to provide governmental services to a given population in a defined territorial area, over which effective control is maintained for an extended period of time. The de facto state views itself as capable of entering into relations with other states and it seeks full constitutional independence and widespread international recognition as a sovereign state. It is, however, unable to achieve any degree of substantive recognition and therefore remains illegitimate in the eyes of international society.
Whereas the quasi-state has recognized territorial borders and the ability to participate in intergovernmental organizations, in many cases it does not effectively control large swathes of its own countryside. Though it seeks recognition, the de facto state, on the other hand, has been denied its seat at the UN and its place at the international table. No matter how long or how effective its territorial control of a given area has been, that control is neither recognized nor is it considered legitimate. The quasi-state is legitimate no matter how ineffective it is. Conversely, the de facto state is illegitimate no matter how effective it is. The quasi-state’s juridical equality is not contingent on any performance criteria. Even if the entire state apparatus has collapsed, the quasi-state (à la Cambodia and Lebanon) will be supported and maintained through international efforts. At times, it may be more of an abstract idea than it is a hard reality. The de facto state, on the other hand, is a functioning reality with effective territorial control of a given area that is denied legitimacy by the rest of international society. At various points in time, examples of de facto states might include Biafra; Rhodesia after its unilateral declaration of independence; Charles Taylor’s “Greater Liberia”; the Karen and Shan states of Myanmar; Chechnya; Krajina; and the Bosnian Serb Republic. This working paper examines the impact that these entities have on international society and international law and how they are dealt with by those two bodies through a focus on four de facto states: Eritrea before it won its independence from Ethiopia; the Republic of Somaliland; Tamil Eelam; and the Turkish Republic of Northern Cyprus (TRNC). A fifth de facto state, Taiwan, is also assessed to illustrate alternatives to the conventional methods of dealing with such entities.
II. The De Facto State’s Impact on International Society The de facto state has had a substantive impact on international politics in two main areas: conflict and political economy. Of these two, its impact has clearly been the most apparent and readily quantifiable in the area of conflict and war. Limiting ourselves to just the four cases considered here, one finds that they have been implicated in somewhere between 160,000 to 275,000 fatalities and that they have produced somewhere between 2,345,000 - 2,795,000 refugees and internally displaced persons.3 While even approximate figures are unavailable for the number of those wounded or disabled, that figure must number in the hundreds of thousands. The number of land-mines deployed in these four areas certainly counts in the millions. As two of these cases—Somaliland and, especially, Tamil Eelam - continue to produce new fatalities and refugees today, these figures can be expected to rise. Were one to add other de facto states such as Biafra, Chechnya, and the Bosnian Serb Republic, they would clearly go much higher still. Additionally, the fact that de facto state situations are involved in three of the world’s most serious conflicts today—Chechnya, Sri Lanka, and the former Yugoslavia—illustrates the contemporary relevance of this phenomenon to war in the international system. Beyond the sheer numbers of those killed, wounded, and displaced, Zeev Maoz highlights another reason why the international community should be concerned with the de facto state. In a study of the ways in which state formation processes affect international conflict involvement, Maoz distinguishes between evolutionary and revolutionary types of state formation. He finds that
State formation processes affect patterns of post-independence involvement in interstate disputes. States that emerge out of a violent struggle for independence tend to be involved in a considerably larger number of interstate disputes than states that become independent as a result of an evolutionary process.4
There are two main problems in applying Maoz’s findings to the de facto state. First, his work focuses on states that have actually won their independence or, in his phrase, “joined the club of nations.” Most de facto states never reach this level. Second, the distinction between evolutionary and revolutionary state formation is not always clear in the case of de facto states. Where, for instance, would the TRNC fall in this dichotomized distinction? Additionally, Eritrea would have appeared to be a classic case of revolutionary state formation until its 1991-1993 transition period to independence brought it much closer to an evolutionary process. Indeed, one suspects that Maoz would be a strong supporter of the type of extended transition process that Eritrea went through and which has been proposed for Chechnya.5 This is because of the two reasons why evolutionary state formation leads to reduced levels of subsequent involvement in interstate conflicts. First, evolutionary state formation is “characterized by stable expectations of the indigenous national elites regarding their acceptance into the system by other states.” Second, these same evolutionary processes also create “stable expectations by other states regarding the upcoming expansion of the club of nations.”6While Maoz’s findings may not exactly translate to all de facto state situations, they do highlight one more reason these entities may have substantial impact upon international society. The impact of de facto states on political economy is relatively modest. This can be explained by a combination of factors including their limited numbers, their generally small size, their often impoverished conditions due to the devastation of war, and their lack of juridical standing—which acts as a substantial deterrent to foreign investment and international economic integration. That qualification aside, however, these entities do affect the global political economy. Two main points need to be made in this regard. First, in spite of their lack of juridical status, business is done with de facto states and similar such entities and this business may produce negative consequences. When looking at this issue from the perspective of sovereign governments who lose control of resource-rich regions, Robert Jackson and Carl Rosberg argue that “international bodies, foreign powers, and even private firms are likely to respect their de jure claim to such regions....” As such, “non-sovereigns who are in de facto control of them may be prevented from benefiting fully from their material exploitation.”7 While the first part of this claim holds, the evidence is increasingly against the second part. In 1991, for example, Charles Taylor’s “Greater Liberia” was France’s third-largest source of tropical timber. Taylor earned an estimated US$8-10 million a month from a consortium of North American, European, and Japanese companies interested in extracting diamonds, gold, iron ore, timber, and rubber from the areas he controlled. Taylor’s forces also allegedly reached an agreement with Firestone to cooperate in rubber production and marketing.8 The Khmer Rouge in Cambodia and UNITA in Angola are two other examples of non-sovereign groups exercising effective territorial control which have been able to finance their operations through the sale of mineral resources they control—diamonds in UNITA’s case and an assortment of gems and hardwood forest products for the Khmer Rouge. In all three of these cases, no one challenged Angola, Cambodia, or Liberia’s de jure claim to the regions in question. And yet, millions of dollars in business is regularly conducted by an assortment of public and private firms from around the world with the non-sovereigns who are in de facto control of those regions. Indeed, one suspects, based on the long-standing ability of these groups to finance themselves, that Charles Taylor, UNITA, and the Khmer Rouge must all make fairly good and reliable business partners. This type of business can negatively impact upon international society in a number of ways. First, the respective sovereign governments lose millions of dollars of lucrative revenues—often from non-renewable resources. Second, this loss of revenues indirectly leads to increased demands on other members of international society for greater assistance and, perhaps, for some sort of interventionary force. Third, such groups are unlikely to be the best respecters of trade regulations or the best protectors of the environment. Finally, the very illegitimacy of such de facto groups encourages illegal activities. The New York Times, for example, refers to the Kurdish safe haven in northern Iraq as“the largest black market clearing house for cigarettes in the Middle East.”9 The second main point to be made, though, is that de facto political status does not necessarily produce bad economic outcomes. The classic example here is Taiwan. At a minimum, Taiwan shows that a lack of formal diplomatic relations with the vast majority of sovereign states in the world today does not preclude economic success. In 1996, Taiwan was the world’s fifteenth largest trading power with a trade volume in excess of US$218 billion. Its foreign reserves are the third largest in the world at more than US$88 billion and its per capita GNP is in excess of US$12,800.10
The Taiwan example is unique in terms of the magnitude of its economic success, but it is far from the only de facto state that can claim some degree of economic prowess. The Liberation Tigers of Tamil Eelam (LTTE) have, for example, been able to reach a number of mutually acceptable arrangements with local businessmen. Under the Somali National Movement’s (SNM) leadership, livestock exports (the mainstay of the Somaliland economy) have more than tripled. This can be attributed both to the SNM’s commitment to free market economics and to its comparative efficiency in providing governmental services and maintaining order. Though the per capita GNP in the TRNC is perhaps only one-third that of the Republic of Cyprus, even this case shows that de facto statehood does not rule out economic development. The TRNC’s external trade volume has consistently risen and hitUS$447 million in 1990. Despite the consistent accusations of puppet statehood, only about 14 percent of Northern Cypriot exports go to Turkey. Approximately 78 percent of them are destined for the EU (primarily the UK). The TRNC currently has trade links with over 80 countries and it annually attracts more than double its population in tourist arrivals. From 1977 to 1990, the average annual growth rate was 6.5 percent. There is an automobile for every 2.5 persons—a level comparable to Greek Cyprus and higher than in some EU countries. Life expectancy is 71 years and the literacy rate stands at 97 percent.11 Obviously, its lack of juridical standing has hindered the TRNC in a myriad of ways. Its economy also has serious structural problems (such as an over-dependence on tourist revenues and a specific overdependence on Turkish tourists). Still, as the above examples show, de facto states and other related entities do impact the global political economy and they often manage to participate in it relatively successfully.
III. How Does International Society Deal with the De facto State? Within the general context of its strong diplomatic and financial support for all existing sovereign states, international society has traditionally chosen to respond to the existence of de facto states in three main ways: actively opposing them through the use of embargoes and sanctions; generally ignoring them and having no dealings with them; and coming to some sort of limited acceptance and acknowledgment of their presence. Each of these three approaches has a different set of costs and benefits for the international community and for the de facto state itself. The classic example of actively opposing the de facto state’s existence through the use of international embargoes and sanctions comes from Northern Cyprus. The Greek Cypriot embargo campaign against the TRNC has been quite successful. A variety of international organizations including the Universal Postal Union, the International Civil Aviation Organization, and the International Air Transport Association have refused to recognize or deal with the Turkish Cypriots in their respective areas of competence. As such, Ercan airport is not recognized “as it operates unofficially and poses safety hazards” and TRNC postage stamps have been proclaimed “illegal and of no validity.”12 The international embargo against Northern Cyprus was strengthened dramatically in 1994 when the European Court of Justice (ECJ, the judicial wing of the European Union) ruled that EU member-states could no longer accept movement and phyto-sanitary certificates13 from TRNC authorities. Under the 1972 association agreement between Cyprus and the then EC, Cypriot goods received preferential access to the EC marketplace. Until this 1994 ruling, the UK had been accepting certificates from TRNC authorities to ensure that the entire population of Cyprus benefited from the association agreement. In essence, the ECJ ruling held that movement and phyto-sanitary certificates could only be issued by authorities from the Republic of Cyprus. Produce and citrus exports from the TRNC are now banned from EU markets, although in practice many of them will probably be rerouted through Turkey.14 The international embargo campaign has hurt the TRNC economy. The fact that no country other than Turkey maintains direct air links with the TRNC substantially increases both the costs and the inconvenience of traveling to Northern Cyprus and is a serious impediment to the development of the tourist industry there. The impact of this measure alone on the TRNC’s fragile economy is enormous – in 1992 tourist receipts accounted for 30 percent of the TRNC’s entire GNP and were equivalent in value to more than 320 percent of its total exports.15 The overall effects of the embargo also show up in per capita income statistics. In 1995, Greek Cypriot per capita income stood at US$12,500, while the comparable Turkish Cypriot figure was just US$3,300.16 The isolate and embargo strategy obviously has substantial costs for the de facto state. It also, however, affects international society. Sticking with the TRNC example, in May 1993, Asil Nadir, the former head of Polly Peck International, fled from London to the TRNC in order to avoid serious fraud charges in the UK. Because the UK does not recognize the TRNC, there is no extradition treaty between them. As such, Nadir is effectively beyond the reach of British justice in the TRNC. In a related incident, Elizabeth Forsyth, one of Nadir’s aides who fled with him, asked to provide statements for her own trial from the TRNC. The British judge in the case would not allow as admissible any witness statements she made to a TRNC court because the UK did not recognize this entity. Nor would he allow evidence to be heard from the TRNC via a satellite television link.17 The TRNC’s status as a juridical black hole in the international system may also appeal to organized criminals. Its lack of taxation and extradition agreements with other countries led one member of the Russian mafia to descri’be it as a perfect setting because “[n]o one can touch you in the Turkish sector.”18
Far more typical than deliberate and active campaigns against the de facto state is the second option of generally ignoring its existence and refusing to engage it in any manner. An example here is the Organization of African Unity’s (OAU) refusal to allow the Provisional Government of Eritrea (PGE) observer status at its June 1992 summit meeting in Dakar, Senegal. The OAU did not call for actions to be taken against the PGE; it merely refused to grant it any status at its own deliberations. More costly to the de facto state is the general inability of most intergovernmental organizations and non-governmental aid agencies to deal with non-sovereign entities. As Alan James points out, it “deserves emphasis that the acquisition of sovereign status does, in itself, constitute a material, and not just a nominal, change in a territory’s position. For this alteration in its status is not simply a matter of words but has some practical implications, which can be of considerable significance.”19 Eritrea, for example, was unable to qualify for any bilateral aid or loans from the IMF or the World Bank until after the conclusion of its independence referendum. The Republic of Somaliland has also complained vociferously about the UN’s refusal to provide it with any substantial assistance. One example that particularly embittered Somaliland President Mohamed Ibrahim Egal was the UN’s refusal to assist Somaliland in rebuilding its legal infrastructure. In his words,
They were supposed to have repaired our courts and paid our justices. They were promising that for so long, and then... they came up with another brilliant excuse. They said ‘You call yourselves “chief justices” and “supreme courts” and if we pay for them, it will be an act of recognition of Somaliland.’ That’s after six months of reneging on their promises.20
Besides the active embargo, the TRNC also suffers from this general neglect. Its diplomatic isolation prevents it from receiving nearly all non-Turkish external development assistance. One major problem here has been the growing salinization of its limited water supplies. This situation could have been avoided had the TRNC undertaken a large-scale irrigation program. Unfortunately, dams and irrigation systems require massive investments—which in the case of the (Greek) Republic of Cyprus were carried out only with major development funding from the World Bank, the EC, and other international institutions.21 Another revealing example comes from Chechnya. In February 1996, the IMF negotiated a US$10.1 billion three-year loan agreement with the government of Russia. As it does not appear as an identifiable item in Russia’s budget, the costs of the war in Chechnya have not been an issue between Russia and the IMF. Yet, under IMF pressure, the Russian government recently announced a series of spending cutbacks which included money earmarked for the rebuilding of Chechnya’s devastated infrastructure. As The Economist put it, “[t]he perverse result is to leave the Russian government acknowledging a need to cut back on the cost of reconstructing Chechnya, but not on the cost of destroying it first.”22
For the de facto state, the costs of this second option are measured primarily in terms of potential aid and investment dollars lost. Looking at Eritrea from 1991 to 1993, David Pool observes that “[t]he costs of a smooth political transition to independence have been borne in the economic sphere, at least in the short run.”23 Unfortunately, for some extremely poor de facto states with slim margins of error such as Somaliland, these short run costs may make the difference between long-term survival or failure. For international society as a whole, however, the costs of this second option are only felt in the long run. After all, it costs nothing to ignore or neglect a de facto state today. If, however, to take one example, external assistance to develop Somaliland’s legal infrastructure will show a positive long-term return on investment in terms of improved local (and hence regional) stability, then the short-term savings on not providing that assistance may be overwhelmed by the increased costs of future long-term instability. Similarly, not taking Chechnya into its calculations may benefit the IMF in terms of its short-term loan repayments schedule. One might suspect, however, that such neglect will come back to haunt international society in the not-too-distant future. The third major option for international society in regard to de facto states is what might be termed the limited acceptance approach. This option is best exemplified by the international community’s attitudes toward Eritrea in its 1991-1993 period and by its most recent attitudes toward Somaliland. Though it was denied access to international organizations and many forms of external assistance, the UN did open a permanent representative’s office in Eritrea in November 1991.24 InFebruary 1992, a US Agency for International Development (USAID) delegation visited Eritrea and held discussions with senior PGE officials. They ultimately promised to present proposals to the American government to give Eritrea US$55 million worth of aid over a two-year period.25 The PGE in some ways made their own situation more difficult by steadfastly refusing to deal with the outside world through Addis Ababa. They refused to receive officials from embassies in Addis Ababa and would not consent to their aid needs being considered as part of an Ethiopian country program. Still, Lionel Cliffe maintains that by 1992 “most governments had adjusted to the realities of Eritrea’s de facto separation and to the inevitability of its eventual independence: external communications and most diplomatic relations had been normalized, and long-term aid was in the planning stage.”26 In the case of Somaliland, the evidence is somewhat more tentative. The US sent a fact-finding mission to Hargeisa in 1995 and the United Nations Development Program (UNDP) now maintains a representative office there. In June 1995, the UNDP representative, Earl Dyson, told the Somaliland government that UN agencies were prepared to work with it and that the government had the right to be informed about the budgets and projects of every agency. The US now deals with the Egal administration through the American embassy in Djibouti and,for aid projects, through the USAID office in Nairobi.27
Obviously, of the three choices presented above, this last option of limited acceptance is the one that is most advantageous to the de facto state. While it might not contribute to success toward the ultimate goal of sovereignty as constitutional independence, this type of limited acceptance coupled with the provision of humanitarian assistance can potentially ease a number of pressing problems facing the de facto state. While greater international involvement will likely limit the de facto state leadership’s autonomy through pressures to follow certain courses of action and avoid others, on balance the benefits should outweigh the costs as far as these entities are concerned. For international society, the greatest potential cost to this approach is angering the sovereign state on whose territory the de facto leadership operates. There is also the potential problem of not wanting to be seen to be encouraging these types of rebellions in the future. Indeed, the members of international society may fear that even such a nonjuridical accommodation of the de facto state will only serve to undermine their normative position against secession. In the short-term, the costs of this approach (in terms of aid expenditures and diplomatic time spent) will probably exceed those of doing nothing. In the long-term, international society must hope that the investment in dealing with pressing humanitarian problems today will reap dividends tomorrow in terms of improved stability and less threatened or isolated political leaderships.
IV. International Law and the De Facto State By definition, the de facto state lacks juridical standing in the society of states. This fact, along with its less secure, imprecise, and more fluid status might at first glance be seen as presenting fundamental problems to international law. On closer inspection, however, the international legal system appears quite capable of dealing with the presence of these entities. The first point to be made here concerns the applicability of international law to unrecognized bodies such as the TRNC or the Republic of Somaliland. It might be thought, as James Crawford puts it, that “if international law withholds legal status from effective illegal entities, the result is a legal vacuum undesirable both in practice and principle.” However, this view is incorrect because it “assumes that international law does not apply to de facto illegal entities; and this is simply not so.” The example Crawford uses here is Taiwan, which “whether or not a State, is not free to act contrary to international law, nor does it claim such a liberty.”28 What Taiwan is not free to act contrary to in this regard is jus cogens—defined by one scholar as “peremptory norms from which no derogation can be allowed by agreement or otherwise.”29 This idea has been incorporated into Article 53 of the 1969 Vienna Convention on the Law of Treaties.30 Though far from unanimous, modern legal opinion is also strongly in favor of the notion of jus cogens. Where the consensus on jus cogens falls apart is in identifying exactly which principles are and are not subsumed under it. The point to be made in regard to the de facto state, though, is a simple one: if one accepts that such things as the prohibition on genocide and the prohibition on the use of force except for self-defense have attained the status of jus cogens, then these norms apply to de facto states in the same way that they apply to sovereign states.
Beyond the realm of jus cogens, it can be shown both historically and in case law that unrecognized entities (of which the de facto state is merely one example) do have a juridically significant existence in international law. Historically, European states frequently entered into treaties with non sovereign entities. Ian Brownlie, for example, points out that until about the middle of the nineteenth century, it was perfectly possible to conclude treaties with various types of social structure which had a territorial base: but there had to be some definable and unified social structure. Basutos and Zulus qualified whilst Australian aboriginals and Fuegian Indians did not.31
In regard to case law, both US and international court decisions hold that the actions of de facto states may be given legal recognition in spite of the lack of formal diplomatic relations. In the absence of specific enabling legislation such as the TRA, the lack of diplomatic relations prevents de facto states from bringing suits in US courts. It does not, however, deny them any juridical existence. In Wulfsohn v. Russian Socialist Federated Soviet Republic [1923], for example, a US court granted the unrecognized Soviet government sovereign immunity on the basis that, even if unrecognized by the US, the Soviet government did exist and hence was a foreign sovereign that could not be sued in an American court without its consent. In M. Salimoff & Co. v. Standard Oil Co. of New York [1933], another US court applied the act of state doctrine to a confiscatory decree of the still-unrecognized Soviet government. This doctrine, which holds in part that “the courts of one country will not sit in judgment of the acts of the government of another done within its territory” was applied because, in the court’s judgment, We all know that it is a government. The State Department knows it, the courts, the nations, and the man in the street. If it is a government in fact, its decrees have force within its own borders and over its nationals.... The courts may not recognize the Soviet government as the de jure government until the State Department gives the word. They may, however, say that itis a government.32
Another leading US court case in this regard involved East Germany. In Upright v. Mercury Business Machines [1961], the court allowed an American assignee of a corporation controlled by the unrecognized East German government to sue in US courts. In doing so, the court rejected the defendant’s argument that the lack of de jure relations with the East German government should be determinative of whether or not transactions with it could be enforced in US courts. The court’s ruling held that
A foreign government, although not recognized by the political arm of the United States government, may nevertheless have a de facto existence which is juridically cognizable.... The lack of jural status for such government or its creature corporation is not determinative of whether transactions with it will be denied enforcement in American courts, so long as the government is not the suitor33
Internationally, this idea that unrecognized governments may still be “juridically cognizable” had previously been put forth in the Tinoco Claims Arbitration (Great Britain v. Costa Rica) [1924]. In this case, it was the unrecognized Costa Rican government of Federico Tinoco whose de facto existence was deemed juridically cognizable.34
Contemporary state practice also supports the idea that unrecognized de facto entities may conduct foreign relations with sovereign states which have not extended de jure recognition to them. Section 107 of the Restatement (Second) of Foreign Relations Law of the United States [1965], for example, specifies that
An entity not recognized as a state but meeting the requirements for recognition specified in 100 [of controlling a territory and population and engaging in foreign relations], or an entity recognized as a state whose regime is not recognized as its government, has the rights of a stateunder international law in relation to a non-recognizing state....35
Based on this, Victor Li concludes that “from an international law perspective, a de facto entity may clearly conduct foreign relations with countries which have not extended de jure recognition to it.”36
Such a conclusion is supported by Article 74 of the Vienna Convention on the Law of Treaties which states that “The severance or absence of diplomatic or consular relations between two or more States does not prevent the conclusion of treaties between those States.”37
Another lens through which to view the de facto state and international law comes from Common Article 3 of the 1949 Geneva Conventions. The historical significance of Common Article 3 is that it was the first attempt to regulate civil wars through international law. The article itself defines its scope in terms of “armed conflict not of an international character.” In essence, it attempts to ensure a certain minimum humanitarian code of conduct for internal conflicts irrespective of the legal status of the parties involved. According to paragraph two, the application of the article’s provisions “shall not affect the legal status of the Parties to the conflict.” Further, as the International Committee of the Red Cross (ICRC) emphasizes, “applying Article 3 does not in itself constitute any recognition by the de jure Government that the adverse Party has authority of any kind.”38 While the protections granted to those involved in internal wars are less substantial than the corresponding provisions for international wars, Article 3 is still generally seen by legal scholars as a positive step in that it effectively internationalizes humanitarian protection for civil wars and thus provides the hope that a minimum standard of conduct will be observed by the combatants in those wars.39
What of international law’s ability to deal with the existence of de facto states? Theoretically, there is not a problem here. International law is by no means unfamiliar with non-sovereign entities. Historically, it has found room to accept a wide variety of designations such as associated states, mandates, trusteeships, colonies, protectorates, free cities, condominia, and internationalized territories.40 There is no compelling theoretical reason why international law could not accommodate the de facto state or other such territorially-based entities possessing varying degrees of international competence. The present system of sovereign states and nothing else could mutate into a system of sovereign states plus a number of other entities.41 As Alan James observes, “[s]uch a mixed system could not claim to be based on the equality of all its participants.” Rather, its “organizing principle would therefore be that of accepted international competence.”42 In such a system, de facto states would have certain rights and responsibilities and be excluded from others. One can even envision such a system evolving to the point where finer distinctions are made within the category of de facto statehood. The caveat to all such speculation, however, is that these theoretical possibilities do not equate with contemporary practical realities. As James puts it, “At the practical level, developments moved decisively, a long while ago, in the direction of an international system in which the regular territorial participants were all of the same kind.”
While the practical prospects for such a mixed system are remote and states have shown a marked reluctance to apply the provisions of Article 3, there are a number of reasons why international societymight wish to bring de facto states and other rebel movements under the authority of its legal system. As W. Michael Reisman and Eisuke Suzuki point out, “Groups which have not yet been formally recognized as states but whose activities may have significant impacts on the international system are subjected to claims by others for conformity to critical international standards.”43Commonsense leads one to think that the best way to ensure compliance with such standards is not to cast the de facto state as far as possible into the juridical equivalent of outer darkness.
In addition to the interests of the states system as a whole, individual sovereign states will, for example, want to ensure that proper controls are placed on the transfer of dangerous substances such as agricultural pests or toxic wastes regardless of their foreign origin or destination. They may also want to ensure that de facto states and other such entities are incorporated into their own domestic legal systems. Looking at the matter from an American perspective, Victor Li argues that the United States should be protected against certain harmful actions taken abroad whether or not they occur in de jure recognized countries.... Similarly, statutes that produce beneficial results for the United States or facilitate the operation of American activities abroad should be interpreted to apply to both de jure and de facto recognized entities.44
De facto states already have some degree of “juridically cognizable” existence. There is no theoretical reason why they cannot be further incorporated into the international legal system. While there are some understandable political reasons for sovereign states to oppose such a move, there are also some strong practical reasons for them to support it.
V. Conclusion
This working paper has analyzed the impact of de facto states on both international law and international society. While the limited numbers of these entities relegates the de facto state to a somewhat peripheral role in international relations, their impact on such things as conflict and political economy is far from negligible. International society has traditionally chosen to deal with them in one of three main ways—actively trying to undermine them; more or less ignoring them; and reaching some sort of limited working accommodation with them. Each of these various methods has a different set of costs and benefits both for the de facto state and for the society of states as a whole. An implicit theme running throughout this paper is that these entities matter and that the members of international society need to devote more attention to the question of how best to cope with their existence.
In terms of international law, the de facto state’s lack of sovereignty does not prevent it from having a juridically cognizable existence. Perhaps surprisingly, international law is revealed to be quite capable of accommodating the de facto state—at least theoretically. There are obvious political reasons why existing sovereign states will likely continue to resist such an accommodation within the international legal system. Yet, there are also compelling practical reasons why sovereign states should want to see these entities further incorporated both into international law and into their own national legal systems. Intuitively, barring the legal gates and denying the de facto state even an extremely limited legal competence does not seem to be the way to encourage compliance with the fundamental norms, let alone the desiderata of international law.
VI. Criticism
Finally, in contrast to the prevailing negativity and disparaging judgments usually leveled against such entities, the argument put forth here is that the de facto state may, in some cases and in some regards, actually serve beneficial purposes. It is not claimed that the members of international society have consciously turned to these entities in an attempt to find the proverbial “lesser of two evils” when faced with particularly difficult choices. Nor is it argued that these entities provide ideal solutions or pareto-optimal outcomes. Rather, the much more limited claim is that the existence of de facto states produces not only costs, but also benefits for the society of states. The evidence presented for the de facto state’s utility is more speculative than it is conclusive but it does suggest that the prevailing view of these entities in solely negative terms obscures as much as it reveals. By its very nature, the de facto state is well suited to situations where the international community needs to be seen to be upholding cherished norms, while at the same time it finds creative or ad hoc ways to get around those very same norms. Its inherently nebulous status has the additional benefit of not precluding any other future settlement arrangements. If the de facto state did not exist, it might not need to be invented. Its very existence does, however, potentially offer a number of benefits to the society of sovereign states.
VII. References
1. Books
Amare Tekle, ed. Eritrea and Ethiopia: From Conflict to Cooperation. Lawrenceville: The Red Sea Press, 1994.
Bookman, Milica Zarkovic. The Economics of Secession. New York: St. Martin’s Press, 1992.
Bull, Hedley, and Adam Watson, eds. The Expansion of International Society. Oxford: Clarendon Press, 1984.
Dodd, C.H., ed. The Political Social and Economic Development of Northern Cyprus. Huntingdon: The Eothen Press, 1993.
Ian Brownlie. Principles of Public International Law. Oxford University Press, 2008
Jackson, Robert H. Quasi-States: Sovereignty, International Relations and the Third World. Cambridge: Cambridge University Press, 1990.
Malcolm Nathan Shaw. International Law. Cambridge University Press. 2003.
Mayall, James. Nationalism and International Society. Cambridge: Cambridge University Press, 1990.
Republic of China. The Republic of China Yearbook, 1994. Taipei: Government Information Office, 1993.
Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press, 1988.
2. Reports , Journals and collected materials
Brilmayer, Lea. “Secession and Self-Determination: A Territorial Interpretation.” Yale University Journal of International Law 16 (Winter 1991), 177-202.
Brownlie, Ian. “The Expansion of International Society: The Consequences for the Law of Nations.” In Hedley Bull and Adam Watson, eds., The Expansion of International Society, 357-369.
Crawford, James. “The Criteria for Statehood in International Law.” British Year Book of International Law 48 (1976-77), 93-182.
Human Rights Watch/Asia. “Sri Lanka: Stop Killings of Civilians.” Human Rights Watch/Asia Newsletter 7 (July 1995), 1-10.
Jackson, Robert H. “Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World.” International Organization 41 (Autumn 1987), 519-549.
Krasner, Stephen D. “Sovereignty: An Institutional Perspective.” Comparative Political Studies 21 (April 1988), 66-94.
Li, Victor H. “The Law of Non-Recognition: The Case of Taiwan.” Northwestern Journal of International Law and Business 1 (Spring 1979), 134-162.
Maoz, Zeev. “Joining the Club of Nations: Political Development and International Conflict, 1816 - 1976.” International Studies Quarterly 33 (June 1989), 199-231.
Schroeder, Gertrude E. “On the Economic Viability of New Nation-States.” Journal of International Affairs 45 (Winter 1992), 549-574.
U. S. Department of State, “Cyprus Country Report on Human Rights Practices for 1996.” Washington, D.C., February 1997.
Zartman, I. William. “Putting Things Back Together.” In I. William Zartman, ed., Collapsed States, 267- 273.
3. Newspapers and other periodicals.
Africa News. September 1995.
African Business. 1 December 1991.
BBC Summary of World Broadcasts. 15 November 1991. 18 February 1992. 6 June 1995.
Economist. 2 July 1994. 6 August 1994. 24 August 1996. 31 August 1996. 11 January 1997.
Financial Times. 12 July 1994. 25 July 1995.
The Guardian. 27 April 1996.
The New York Times. 17 August 1994.
The Reuter Library Report. 29 October 1991.
The Times. 6 March 1996.
The Washington Times. 29 April 1996.
4. Web Links. http://www.asil.org/ajil.cfm http://www.asil.org/ajil/ajilindx.htm http://www.wcl.american.edu/journal/ilr/index.cfm http://www.lib.uchicago.edu/e/law/intl/journals.html http://www.jstor.org/page/journal/amerjintelaw/about.html http://www.harvardilj.org/ http://www.law.yale.edu/academics/studentjournals&publications.htm http://bybil.oxfordjournals.org/ http://www.ejil.org/ http://www.brill.com/publications/baltic-yearbook-international-law http://www.brill.com/product_id18742.htm http://www.un.org/docs/sc/unsc_background.html http://hagueyearbook.weebly.com/index.html http://www.abebooks.com/Republic-China-Yearbook-1994/4673336966/bd http://www.shabait.com/ http://somalilandgov.com/ http://www.eelam.com/ http://www.northcyprusonline.com/North-Cyprus-Online-Government.php http://www.taiwan.gov.tw/
References: Bookman, Milica Zarkovic. The Economics of Secession. New York: St. Martin’s Press, 1992. Bull, Hedley, and Adam Watson, eds. The Expansion of International Society. Oxford: Clarendon Press, 1984. Dodd, C.H., ed. The Political Social and Economic Development of Northern Cyprus. Huntingdon: The Eothen Press, 1993. Ian Brownlie. Principles of Public International Law. Oxford University Press, 2008 Jackson, Robert H Malcolm Nathan Shaw. International Law. Cambridge University Press. 2003. Mayall, James. Nationalism and International Society. Cambridge: Cambridge University Press, 1990. Republic of China. The Republic of China Yearbook, 1994. Taipei: Government Information Office, 1993. Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon Press, 1988. Crawford, James. “The Criteria for Statehood in International Law.” British Year Book of International Law 48 (1976-77), 93-182. Human Rights Watch/Asia. “Sri Lanka: Stop Killings of Civilians.” Human Rights Watch/Asia Newsletter 7 (July 1995), 1-10. Jackson, Robert H. “Quasi-States, Dual Regimes, and Neoclassical Theory: International Jurisprudence and the Third World.” International Organization 41 (Autumn 1987), 519-549. Krasner, Stephen D. “Sovereignty: An Institutional Perspective.” Comparative Political Studies 21 (April 1988), 66-94. Li, Victor H. “The Law of Non-Recognition: The Case of Taiwan.” Northwestern Journal of International Law and Business 1 (Spring 1979), 134-162. Maoz, Zeev. “Joining the Club of Nations: Political Development and International Conflict, 1816 - 1976.” International Studies Quarterly 33 (June 1989), 199-231. Schroeder, Gertrude E. “On the Economic Viability of New Nation-States.” Journal of International Affairs 45 (Winter 1992), 549-574.
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