Sunday, 18 September 2016
In 1918 Woodrow Wilson gave his famous 14 point speech in which he stated “national aspirations must be respected, peoples may now be dominated and governed only by their own consent; self determination s not a mere phrase, it is an imperative action that statesmen will henceforth ignore at their own peril."
In 2016, the people of NKR are celebrating their 25th anniversary of independence but without recognition of their sovereignty by the international community. Juxtaposing these two events begs the question, over 100 years after the Wilsonian moment; what happened to the principle of self-determination, and how does it apply to the de facto states of the 21st century?
In order to be able to discuss these topics in the 21st century it’s important we try to contextualise them and be aware of historical antecedents to understand where we are today.
The topics of today’s discussion will include:
I’ll make three arguments:
Recognition and Self-Determination
Recognition and self determination are evolving concepts and it is important to place this into the landscape of history and how it is international society has evolved.
Recognition is a fairly recent phenomenon. Recognition as the full key to statehood in international society only actually became practiced in the 19th century, and even then it was only dependent on the display of effective governance - one only had to be a de facto state. How a state would come to exist was not a consideration for international society after world war one, and this was the first time the recognition of sovereignty was linked to an ideological commitment by people such as Woodrow Wilson.
When in the 19th century the recognition of self-determination had been a negative international right, Wilson now conceived of it as a positive international right. Wilson’s ideology, however, was perceived to risk opening a pandora’s box of nationalist claims, prompting Wilson’s secretary of state to quip that “the more I think about the president’s declaration as to the right of self-determination, the more convinced I am of the danger of putting these ideas in the minds of certain races”. So in actual practice, as opposed to Wilson’s idealistic rhetoric, the key change that saw 1919 as a turning point in the history of recognition and self-determination was not the realisation of this positive right, rather it was the elimination of the right of conquest. This was the first time the process of state creation was considered integral to the state’s case for recognition. This has provided a long lasting platform for the non-recognition of states created through the exertion of force. There is an in-built aversity to any state that has been created through that - and unfortunately, that doesn’t take into consideration the individual cases and why it was force was used.In this period, the two most prominent norms that still echo today and still define how it is these practices are realised are those of non-intervention and territorial integrity. I might add that the only exception during the Cold War period to these rules was the case of Bangladesh, which got independence in 1971 and this was under the premise of what was known as remedial secession. Essentially, due to gross human rights violations, the parent state had been deemed to forfeit its sovereignty. This is an argument we see echoed today.
De facto states are often described and often analysed in the post-Cold War context for good reason. And unfortunately, that’s often as far back as people go when trying to understand and explain the plight of de facto states. In the post-Cold War era we’ve seen a number of changes in the landscape of international society; one of which is that the case of state dissolution has been accepted as a form of secession, the other is that the idea of standard before status has turned into a discourse which came about when in the early 1990s states were told they had to live up to certain democratic and human rights standards (and protect minority rights) in order for statehood to be realised. This is what was told to the Yugoslav republics by the Badinter Commission that in order to gain their right to self determination, that is what they had to do. Unfortunately in reality, those standards were not actually applied consistently. This is an important point to understand; that the concept of earned sovereignty - that a state can earn sovereignty by adhering to democratic practices - is still an important part of the discourse today.
In the post-Cold War era we’ve also seen the idea of remedial secession garner more traction; this is in part due to the partial recognition of Kosovo. And finally, the perception has been formed unfortunately that de facto states are nothing more than pawns in a game between great powers. That they are at the mercy of great power politics, and that they are lacking in any of their own agency.
Kosovo gives us an interesting example because many see this as a turning point in recognition. And although we see a turning point in certain attitudes, and although we do see self determination being extended to an entity that was not a colony, I argue that Kosovo is still yet to actually gain full recognition and therefore lacks the full legal and political protection that being a fully sovereign state actually equips you with. And this is a position that Karabakh adopted not long after Kosovo’s recognition.
The Costs of Non-Recognition
It can be absolutely incapacitating when it comes to economic development; the inability to secure loans from international credit institutions makes it very hard for an entity to develop. What about Taiwan? Taiwan’s guarantees with the relationships it has with the United States makes it much easier to develop as a prospering economy.
De facto states are ineligible to join most international organisations, and are not protected by international law which irks most foreign investors. They are rarely able to access international markets and are deprived of tourist trade due to the absence of consular services. Karabakh is a place of great beauty, of great natural beauty, yet most foreign offices would warn against travellers going there.
The greatest cost of non-recognition is not being afforded the norm of non-intervention, and consequently always staring down military aggression. The bloody reunification of Tamil Eelam is a looming spectre for most de facto state.s And this is why the Four-Day War in April struck fear in to the hearts of so many. It’s not just how sad it was that so many lives were lost, but it’s the prospect of what that could turn into that is particularly scary.
This is just a baseline of the costs of non-recognition. I will address the three case studies and demonstrate how and why the costs of non-recognition are particularly acute for Nagorno Karabakh.
The current barriers to recognition being a non colonial territory, being the norm of non-intervention and the norm of territorial integrity, another one that’s not discussed not as commonly is the wake of South Sudan’s recognition. When I was in Somaliland, in Hargeisa last year, embedded in their ministry for foreign affairs - the constant discourse of what South Sudan has done to their prospects of recognition was every morning and every afternoon. Because South Sudan, a fascinating case because it abides to all these rules that I’ve put forward, had the parent state recognition, it’s done everything that international society said it needed to do, yet it is currently embedded in turmoil, war, and if ever there were a place where human rights are not respected it’s South Sudan.
These are the points that are more commonly known, one of the points I am going to make today is that one of the other barriers to recognition that is significant to have come out of my research is that there is a status-quo bias within international society. A lot of people might think the status quo bias means that we want borders on maps to remain the same, but status-quo bias is the fact that states are happy with the current situation and deem it to be the most peaceful and rightful situation and rather than try to solve the situation or the conflict they are happy with the status quo.
One example of this; one of the chairs of the OSCE Minsk Group - Ambassador James Warlick - crossed over the line of contact in October of 2015. Just after he crossed over, shots were fired into the air. Ambassador Warlick came out and stated he had no knowledge of where the shots came from, but for many people that I interviewed that day it was not the case. Furthermore to that, in September 2015 the co-chairs of the Minsk Group called on Armenia and Azerbaijan to accept an OSCE mechanism for investigating ceasefire violations; Armenia accepted it out of hand, but Azerbaijan would not accept it without significant political concessions. Now this was a marked step for the Minsk Group who usually lack the teeth to bite so assertively, this was a big call; but it was also pragmatic it makes sense if there is a conflict we should monitor who is actually violating the ceasefire.
Of course when this was rejected out of hand by the Azerbaijanis, nothing was done to further that. There is little in the ways of means, determination and will to put in an effective mechanism for monitoring the violation of the ceasefires. One last point I’ll make in relation to the status-quo bias is that if you look at 2008, the UN Resolution 62/243, Azerbaijan brought a resolution to the UN General Assembly that was focused around the territorial integrity of Azerbaijan; nothing wrong with the picture except for the fact that France, the United States, and Russia - the three chairs of the OSCE Minsk Group - not only voted against it, but stated specifically why they were voting against it. The three countries representing the three chairs who are supposed to be in charge of mediating this conflict - and what happens, in international society we had 100 abstentions from voting. This is why, with Somaliland as well, the perspective of the status-quo bias is becoming stronger from analysts in the region. One of the reasons is that in Somaliland, there is incredible inter-clan rivalry; and a lot of people believe that non-recognition has allowed those clans to get along in a way they ordinarily wouldn’t.
Furthermore to this, in terms of barriers to recognition, is the idea of quotidian statehood. Relating to the concepts of standards before status and the democratic credentials of de facto states; they are clearly functioning states with empirical sovereignty so to speak, and this can put forward an image of these entities as being able to do a more than sufficient job - in which case, international society then says, ‘well if that’s the case, why do we need to recognise?’. This is of course hollow of any moral intention, but this is a problem de facto states face. If they are actually functioning entities, if they look after their people, if they install democratic institutions, if people have the right to vote, if minorities are protected; then they are actually sometimes potentially being denied recognition because of it.
Legitimation and International Society
Recognition is much more than just a diplomat or state leader making a public declaration, the most important form of state recognition is that which empowers an independent polity - such as Karabakh - to enjoy the legal and political protection afforded to recognised sovereign states. This is not to take away from other symbolic acts of recognition - such as when the NSW Parliament recognised Nagorno Karabakh, a powerful and valuable statement - but I am strictly talking about the recognition of sovereignty by a sufficient number of sovereign states so as to gain entry to the United Nations because this is truly the most powerful form of recognition.
Recognition is inherently social. When a state is trying to become a recognised state, and have its sovereignty recognised, this is not only an inherently social process, this is legitimation; this is about being accepted as a legitimate entity within a community.
The most common approach to understanding international society is that states not only coexist with each other, but are conscious of common interests and common values that form a society in a sense that they conceive of themselves as being bound by a common set of rules in their relations with one another and they share in the running of common institutions. In other words, international society is more than just the sum of its constituent parts. The scholar professor Ian Clark argues that international society is exactly what exists when there is a contestation of legitimation between states. The organisational manifestation of this is the United Nations. The existence of international legitimacy denotes the existence of an international society.
By legitimacy, we refer to a consensual appraisal that’s made in any community that empowers actors and sanctions actors; it’s normative, but its contestation can be political. Often when people use the language of legitimacy, they are only talking about the moral content; however, it can also have political content. It is important to note that legitimacy is not irreducible to any normal combination norms; and on top of that, the right to act is constituted by recognition from other rights holding constituents. It has to be other sovereign states that recognise the sovereignty of de facto states for it to have full international legitimacy.
The practice of legitimacy and how it is extended to new members is best conceptualised through a framework built on three pillars; legality, morality, and constitutionality.
The legality in its most basic sense is referring to the widely held view that international legitimacy adheres to the law. For an action to be deemed legitimate, it must be in accordance with international law. This of course is only true most of the time, which is why we have the pillars of morality and constitutionality. Legality is an important force in the dynamics of international legitimacy, but the two are by no means synonymous. An illustrative example of this can be found in the international commission on Kosovo, which stated that the military intervention by NATO was illegal but legitimate. Illegal because it was not approved by the United Nations Security Council (UNSC), but legitimate because all diplomatic avenues had been exhausted, and because the intervention had the effect of liberating the majority population of Kosovo. International law in this case is clearly an insufficient source for mapping the entire terrain of legitimacy - which is where morality comes in. As one international legal scholar says, the shortcomings of international law are that it doesn’t actually do what morality requires.
Constitutionality refers to reciprocated political beliefs and assumptions in international society that influence behaviour and are not enshrined in law nor can they be equivalent to the moral principles. It’s a political sphere of conventions, informal understandings and mutual expectations. This is the particularly complex pillar of understanding what happens in an international legitimation process because it can be subject to swift changes in the global system, and is always contingent on the power relations in that society. Conventions change, expectations evolve.
These three cognate forces are ever present in the international society. They are like magnetic fields that shape the compass of international legitimacy. Why is this important? Recognition is not just about proving that you are an eligible member, it is about making an argument for why international society should evolve as a community.
Post WW1 standards of civilisation; at that point in time, that was seen to be through the lens of morality and constitutionality acceptable practice. That is what the constitution of an international society included, that was the community they wanted to be. Post WW2 oversaw a major shift in what was deemed to be legitimate. The moral compasses comes into play, the contours of constitutionality changed because people’s epxectations changed, state expectations changed, and therefore international law changes. This can be seen in the case of Bangladesh, remedial secession, human rights - the pillar of constitutionality had to evolve in order to be able to accept that which was ‘right’.
The discourse of self-determination and the practice of recognition have evolved to accomodate shifting attitudes and beliefs of international society, continuously shaping the threads of that community’s normative fabric.
Case Studies
Kurdistan Region of Iraq
The Kurdistan Region of Iraq is a federated region of Iraq, often raising questions as to whether they’re a de facto state. Structurally, they have a functioning government which is seen as legitimate by its people - although that is wavering - relations with other states - except with certain disputes on its Southern Border - and it exists within a defined territory. There are certain limitations to that which the Kurdistan Region of Iraq in terms of how it can function on the fringe of international society; however they are only related to consular and diplomatic support they can provide abroad, and in relation to the rules of residence and who they can grant citizenship to within their own boundaries.
The Kurdistan Region of Iraq, although having not declared independence, are very open about their aspirations for independence. Using this case study helps to illuminate the practices of international society and the disconnect that can exist between international engagement and the domestic legitimacy of a government.
IN the current de facto state, the KRG’s main legitimation strategy has been one of international engagement. The Kurdistan Region of Iraq has managed to attract over 30 diplomatic consulates to open in Erbil; they have access to the ears and eyes of the international community. Last year when the foreign minister when travelling, he was granted an audience with Julie Bishop in Canberra.
The key to the KRG’s international engagement has been enticing economic engagement. Before their relations with Baghdad disintegrated, the KRG benefited from a lucrative agreement where the central government paid for the production cost of oil companies in Kurdistan, in addition to the 17% of the annual Iraqi budget being paid to Erbil. On top of that, they implemented little investment laws, and attracted a wealth of foreign direct investment. In 2011, FDR Magazine ranked Erbil the 5th most attractive place for potential FDI in the Middle East. The combination of FDI and the lucrative oil management agreement fuelled an unprecedented economic growth in the Kurdish region, and improve the Kurdish lifestyle to a point where all other Iraqis are jealous. Erbil is the only place in Iraq where you will get 24 hours a day of electricity.
When I visited the region in 2013, Western economic commentators were referring to the region as the “New Dubai”, or the “Dubai of 10 years ago”; that’s how strong the hope for the Kurdistan region was - all because of their economic development. Kurdistan’s bilateral trade with Turkey in 2013 was approximately $12 Billion USD, and was estimated at the time to grow to $20 Billion USD by 2016. When I visited last year, I was fortunate enough to spend a lot of time in the company of the diplomatic community and three things became very clear:
First of which was the extent of the diplomatic engagement by the KRG had clearly increased their international normative standing. The influence they had in international diplomatic circles was incredible. The economic opportunities in the Kurdistan Region of Iraq before Daesh formed was crucial to securing this foreign investment. I was surprised by the number of economic advisors and financial advisors that existed in all of the consulates; many more than the straight diplomats that were not only in their compounds but working with the KRG.
A fascinating point here in relation to how it is the KRI represents the people they are supposedly self-determining is the significant disconnect between the people and the government. Now, this was evident on two fronts; first was the message of independence - something that can’t be included in the thesis because it was based on purely anecdotal evidence - was the number of people who were happy with their Iraqi passports. This was in strong contrast with what was being put forward by the government themselves. Beyond that, the other thing that shows the great disconnect between the international society and how they will engage de facto states, and the disconnect between that and the state’s normative standing and domestic legitimacy, is the fact that the Kurdistan Region of Iraq does not have a functioning government at the moment. They have specific ministers who are good at their job - but when I was there in September of last year, they didn’t let the speaker of the parliament into Erbil because of current political disagreements that were happening between the major parties.
The president was supposed to step down in 2013; he negotiated a two year extension to 2015, he was supposed to step down last year - against the wishes of the constitution, and against the wishes of many of the people including all of the opposition parties, he is still the president of the Kurdistan Region of Iraq.
What would recognition mean for the Kurdistan Region of Iraq? It would definitely allow for it to further its economic expansion, but the record suggests that this would go hand in hand with corruption. In the last 4 years since the oil production has been at an all time high, there have been hundreds of millions of dollars that have gone missing. There are definite positives to recognition, but one of the major problems is the fact that the two major parties, the PUK and the KDP, can’t get together and form a parliament - and what recognition would mean would be to provide those parties with something to fight over. The fact that number of diplomats that saw it as a success that the PUK and the KDP hadn’t picked up arms and started fighting each other is a testament to the fact that this is not a united entity.
Somaliland
It is very clear with Somaliland that the main argument for their legitimation is the history and legal premise that they have. This was affirmed to me by their foreign minister and is based off the fact that in 1960, Somaliland was granted full-fledged independence and had recognition for 5 days before they then voluntarily joined a union with Somalia.
However, the argument that they make is that not only should this be considered a case of state-dissolution, but that the constitution was never actually consummated because they rejected a referendum in 1961. This is the main thrust of Somaliland’s argument and where they try to stand on the fringe of international society. Complementary to that is a process of international engagement; and this has two major pillars - one of which is providing security against the terrorism of the horn of Africa, and the economic potential of the Berbera Port which they are currently developing which a couple of weeks ago signed some very lucrative contracts with companies from the UAE.
Somaliland also argued that their legitimacy comes from their people. There is no doubt about this - Somaliland has an incredibly unique democracy where their upper house is all representatives of the different tribes, and their lower house are elected officials. This means that all of their clans actually have representation - the people have a voice whether through their religious institutions, clan, or elected officials. There is an incredibly vibrant and unique form of democracy happening in Somaliland.
In 2008, the Chairman of the Somaliland Electoral Commission described the elections as a test for Somaliland’s recognition bid. However, in Somaliland where was have a situation not dissimilar to the Kurdistan Reign of Iraq; democracy is stalling because elections keep being pushed back. Parliamentary elections were supposed to happen in 2013; however, they were delayed for 2 years to align them with the presidential elections which were supposed to happen in 2015. It now appears as if neither of these are going to take place until 2017. Not only that, but studies that have been done within Somaliland show that there is not only an extreme tension between their clans, but there are some of the clans that argue that it is a democracy of the Isaacs; the major clan in Somaliland.
There is a substantial minority of non Isaac clans that desire unification with Somalia. The narrative of recognition, not dissimilar to the Kurdistan Region of Iraq, is not harmonious and felt by all Somalilanders. That is not only the case of the minority clans; the identity of Somaliland is also somewhat dichotomous. There are many people who are very forward about the fact that their tribal allegiances are stronger than their Somaliland identity; this is understandable given the rich history of their tribal identity - given the fact that their tribal identity gives them access to a democracy in a way that does not exist in most parts of the world. One can understand why it is this is a strong part of who they are. however, this does trump their Somaliland identity and there are factions within that society for who recognition means very little.
Somaliland what would recognition mean? Well, this is essentially whether or not the question of recognition is in the hands of the African Union. This is something admitted not only by the gov.t of Somaliland but all of its advisors. I would argue that this show yet again another shift in the approach of international society. Because international society hear is actually being sensitive to the regional dynamics of Africa; they are aware of the number of secessionist claims within Africa and therefore are very cautious as to what recognition would mean. Only if the African Union is satisfied will the international community grant recognition to Somaliland.
Obviously it would have serious economic benefits because it opens avenues for financial loans to be gained, hopefully spurring economic development. At the same time, there are many people who are quite fearful of this simply because right now in Somaliland, if you consider it to be its own country, the GDP per capita is $348 a year. That makes it the fourth poorest country in the world. And there is this belief that within Somaliland, non-recognition has actually allowed them to find a unity and work together in a way that may not have otherwise been achievable. This raises serious question marks over whether or not recognition would actually be good for the stability of the Horn of Africa.
Nagorno Karabakh
Nagorno Karabakh when i was there last year was a place where it became very clear to mean that the argument was consistent both throughout the government and the people that its legitimacy comes from its people. This is precisely what the chairmen o the national assembly said to me, what the deputy foreign minister said to me, and not only from the people but the effectiveness of the government given the circumstances in which NKR exists.
There is evidence to suggest that his is not just political rhetorics, and that this is more than just the desire of the people. Not only was there a new constitution adopted in 2006 affirms its democratic status, but is showed that opposition parties gaining seats. Seven parties participated, and five passed the threshold to gain seats.
Freedom House lists the NKR as being partly free, and the two weakest scores that brought down the overall score were associational and organisational rights, and the rule of law. Why is this? Because of the security architecture of the region and because of the violent threat of invasion that exists in Karabakh, they have no choice but to implement martial law. And for freedom house, that is always going to drag down these scores.
Before the last round of elections in 2012, a series of focus groups were conducted and concluded there was no doubt that democracy was the goal of the people. The study concluded that it was about as democratic as a state could be in a position of no war, no peace. The study also found that Karabakh is an imperfect democracy; and this is something that I would liked to build on - when you look at the three cases, especially Somaliland and the NKR, we see this vibrant and unique form of democracy develop.
Somaliland and NKR have democracies that function unlike other democracies; and I would argue that this is the true meaning of democracy - that it represents the people, a people for whom self determination is a central issue.
In Karabakh there is a unity of voice between the government and the people. After 25 years of independence, this has encompassed a whole generation who know only the Karabakh government and who have been fighting for recognition their whole life. This is reflected in the above study, and this was made very obvious when I spent a night in the company of the Dashnak Youth.
For the NKR, recognition is an existential imperative. Karabakh faces the greatest hostile military threat of any de facto state; some would argue that the Kurdistan Region on this front is fighting Daesh - but this has nothing to do with their existence as the Kurdistan Region of Iraq; they are not fighting another state actor, and they have inter-state cooperation. It is a terrorist organisation, and it is not the same as having Azerbaijan’s military staring you down. Not only do they have the greatest hostile military threat, and not only are there 18 and 19 year old boys dying on a monthly basis, the safety and security of the people of Karabakh is compounded by the component of non recognition when it comes to land mines.
I spent a lot of time last year in the company of the HALO Trust and looking at the incredible work they do in the region. But the HALO Trust because of international boundaries and maps are not able to gain access to all of the Karabakh region to clear the tens of thousands of mines put into the ground during the conflict. As such, every year, there are farmers, and children, losing their lives and limbs because of this condition of non recognition. Furthermore, Karabakh is particularly isolated from the global economy. The longer it takes for it to be linked to the global economy, the further behind it will be.
Furthermore to this - of all the de facto states with a hostile military threat on its border, the NKR does not have a great power insurance policy; and I would argue nor should it. Prior to 2008 one could make an argument that Abkhazia and South Ossetia as de facto states of the Caucasus also have a strong military threat because of their relationship with their parent state. But since the 2008 war, it has become very clear where Russia stands, and the fact that it is not in Georgia’s interests to try and invade South Ossetia or Abkhazia. If you look at the regional security architecture, and Kosovo’s partial recognition as an example, having great an powerful friends as your only guarantee for security can actually be detrimental for the future of the state.
But this is again what plunges Karabakh into such an existential quandary - is the fact that it is actually reliant on Russia’s prudence. Russia has symmetric rearmament as the crux of its deterrent strategy in the Caucasus - it pours arms into both sides with the idea being that this will actually help security and help balance power. Further to that, they argue that by having bases in Armenia, being the smaller country, that this should help their deterrence strategy. There are arguments for and against this - but one thing is abundantly clear coming form this is the fact that Karabakh’s security is essentially in the hands of Russia; a nation they do not have an alliance with. This is incredibly volatile.
On top of this, Karabakh it is argued, by far the most isolated of the de facto states. Its economy is reliant on Armenia and the diaspora, there is no access to financial institutions, it is physically isolated, and as I said earlier, it is one of the most geographically beautiful regions I’ve ever been to. But because of the situation, it cannot open its doors to the many tourists who should be enjoying the view.
Karabakh’s recognition is an existential imperative, and further more I think I’ve demonstrated that it does have a strong case for the recognition of its self determination.
I’d like to leave you with a final thought and throw a question at. Given the contours of international society, the current turmoil in the middle east is indicative of the volatility of the boundaries of the post colonial era. It is highly unlikely Syria and Iraq are going to exist with the same borders and effective legitimate government borders in years to come. The contours of international society’s constitutionality and morality will undoubtably be challenged - when that happens, how will the NKR position itself?