1.5 Literature Review
Introduction
The literature that was reviewed was that which analyzed the probable reasons why some territories remain unrecognized as a state in the IS. A specific focus was on Somaliland. The literature also included those that explain some of the criteria used in the IS to recognize territories as states. When examining such criteria, the note was made of the examples of territories that have fulfilled such criteria and whether or not they were recognized as states. The researcher was also interested in literature that relates to Somaliland’s interactions in the IS as well as how IGOs have influenced its non-recognition status in comparison to other states or territories. The aforementioned literature was obtained from books, journals, newspapers, credible websites, and speeches among other sources that can stand the test of credibility.
Criteria for recognition of states in the IS
Malanczuk and Akehurst postulate that when a new state comes into existence, other states are confronted with the problem of deciding whether or not to recognize the new state.[5] They add that recognition means a willingness to deal with the new state as a new member of the international community. The rise of a new state means that the IS does not stay the same. The status quo is revised and each time states and other international actors want to transact on a global issue then a provision is made of the new state’s reaction to global issues; the fact that such reaction could be ignored notwithstanding.
Brunnée et al identify two theories that have been advanced for recognition: the constitutive theory and the declaratory or evidentiary theory.[6] They assert that the constitutive theory postulates that recognition has a constitutive effect to the extent that it is through the act of recognition that international personality is conferred. In essence, states are only established as subjects of international law by the will of the international community through recognition. According to Brunnée et al, the declaratory or evidentiary theory adopts an opposing approach and is more inclined to reality in so far as state practice is concerned. The theory propounds that statehood does exist prior to recognition. That recognition is only a formal acceptance of an already existing situation. Thus, it is the factual situation that produces the legal constitution of the entities and recognition does not have to be awaited for this purpose.[7]
Erades and Instituut delved into the legal dynamics of recognition of a state by other states.[8] The act of recognition is a precondition of the existence of legal rights: full international personality as a subject of international law derives from the decision of other states to recognize statehood. To this has been coupled the view that there is a legal duty on states to accord recognition where the criteria for statehood under international law are satisfied.
Kaplan has discussed the principles that guided the recognition of states by the United States (US) during the time of Thomas Jefferson as Secretary of State.[9] These principles involved effective governance, discharge of national obligations, and general acceptance by the people. These requirements were comfortable for a nation that won its independence through revolution.
Bringing in an interesting aspect of premature recognition of states, Shaw says that there is often a difficult and unclear dividing line between the acceptable recognition of a new state, particularly one that is emerging as a result of secession, and intervention in the domestic affairs of another state by way of premature or precipitate recognition.[10] For each individual case, ‘‘the state seeking to recognize will need to consider carefully the factual situation and the degree to which the criteria of statehood…have been fulfilled. It is, therefore, a process founded upon a perception of fact.’’[11] Croatia, for example, was recognized as a state by the European Community member states on 15th January 1992. Its recognition was premature to the extent that at the time and for much longer after that it didn’t effectively control one-third of its territory.
Evans posits that recognition of statehood has also been based on the willingness of the territory seeking state recognition to respect the rights of its population.[12] For example, the long-denied recognition of an independent Southern Rhodesia was based, at least in part, upon the regime’s denial of majority representation and South Africa’s apartheid policy was denied recognition in the Bantustan and Namibia. More recently, the guidelines formulated by the European Community (EC) for the recognition of new states formed out of the break-up of the former Union of Soviet Socialist Republics (USSR) and Yugoslavia made recognition dependent upon a commitment to the rule of law, democracy and a guarantee of minority rights.[13]
Cross pointed toward the possibility that international law had been violated in the manner in which some states were recognized in the Balkans.[14] Under German pressure, a meeting of Foreign Ministers of the European Union member countries was held in Brussels on 17 December 1991, which passed a Declaration on the Criteria of Recognition of New States in Eastern Europe and the Soviet Union and also a Declaration on Yugoslavia. They stated that the European Union (EU) was prepared to extend recognition to the Yugoslav republics and confirmed their support for the obligations stated in the document on the criteria of recognition of new states. Cross’ analysis is that from the viewpoint of international law, the EU declarations represented a gross violation of the 1975 Helsinki Act stipulating respect for the territorial integrity of each state signatory.[15] The declarations in question withdrew Yugoslavia (and also partially the USSR) from the sphere of the international jurisdiction of the Act. Further, the EU countries assumed the functions for which no one had authorized them, wilfully misappropriating the Organization for Security and Cooperation in Europe (OSCE) and UN decision-making prerogatives concerning the destiny of a sovereign and independent state.
There have been efforts in the IS to bring the recognition of states under some legal framework. The classic statement of the elements of statehood under international law can be found in the 1933 Montevideo Convention. As Bederman notes, ‘‘…article I of this treaty declared ‘the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states’…this remains the customary international law standard of statehood.’’[16] Bederman adds that ‘‘…the political reality is that entities that can effectively act like states are treated as states. With breakaway or separatist entities…when the new entities achieve some measure of independence and are safely and permanently established, recognition should follow. This occurred for the revolutionary government in the mass protests in cities around the U.S. against an executive order that would block millions of people from entering the United States, the former Spanish colonies in Latin America, and so forth in the history of the past two centuries.’’[17]
The Estrada Doctrine brought an interesting dimension. As Jessup observes, the Mexican government made an announcement that it would no longer give any expression regarding the recognition of new governments which come to power by coups d’état or revolution. This policy, therefore, recognizes states rather than governments.[18]
Scattered around the world are a number of states and statelets that have declared independence but are not recognized by other states. These political entities are what Kolstø referred to by various names: ‘de facto states’, ‘unrecognized states’, ‘para-states’, ‘pseudo-states’, and ‘quasi-states’.[19] This denial of recognition is not based on any assessment of their internal sovereignty, which may or may not be deficient. The reason, instead, is that the would-be state has seceded from a recognized state that does not accept this loss of territory. Such secessionist states can be said to lack external sovereignty.[20] Examples include Nagorno-Karabakh (NK), Transnistria, also known as Trans-Dniester or Transdniestria; Abkhazia, South Ossetia, Taiwan and Chechen Republic of Ichkeria. Others are Kosovo, Turkish Republic of Northern Cyprus and Tamil Eelam.
Since decolonization, Africa has had at least four quasi-states one (Eritrea) of which has achieved international recognition whereas South Sudan only recently gained independence from Sudan after an internationally observed plebiscite. From 1960-1963 Katanga sought to secede from Congo whereas Biafra (1967-1970) wanted to be independent from Nigeria. Both were unsuccessful in their quests. Kolstø notes that when the Spanish colonial power withdrew from West Sahara in 1976, the Polisario liberation movement established the Saharan Democratic Arab Republic, but controls today less than one-third of the territory of West Sahara. The rest is under the control of Morocco.[21]
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