Wednesday, November 12, 2014

John Dugard's Melland Schill Lecture at the Manchester International Law Center (M.I.L.C.)

October 15 John Dugard delivered a lecture at the University of Manchester. It was organized by the University's International Law Center as part of its resuscitated Melland Schill series. The lecture's topic was statehood. In particular, Dugard identified the principal obstacles faced by aspiring states in achieving recognition, furnished the basic history behind some of those obstacles, and proffered a possible solution.  The main themes were the principle of territorial integrity, the prohibition of secession, and uti possidetis.

I enjoyed the content a lot.  The brief historical précis concerning the decolonization of Latin America and the emergence of nation states on that continent was particularly intriguing being that it is history very seldom taught or (curiously) of only scant interest to those of us outside the region.  The leitmotif pervading the talk was that political considerations almost invariably seem to subordinate international law--such as there is--in the context of state recognition.  That was certainly a shrewd (and frustrating) observation.

However, I could not help but feel most uneasy about several facets of Dugard's talk.
  • Dugard lamented how the Badinter Arbitration Commission--formed in the early 1990s to essentially demarcate the borders of the erstwhile constituent republics of Yugoslavia--decided to ignore the demographics of the region in the course of its proceedings.  In particular, he reproached it for overlooking the existence and relevance of the autonomous regions of Kosovo, Republic of Srpska, and Krajina.
    • The above betrays an ignorance (or, at least, ignoring) on Dugard's part of some basic historical facts.
    1. The Badinter Committee was in operation between 1991 and 1993.
    2. Kosovo is the only one of the three entities that has any historical precedent or merit.  It was a constitutionally-recognized autonomous region within the former Yugoslavia.  The other two never held any such or similar status.
    3. Krajina was proclaimed in 1991, around the time the Committee began its work.  Its existence owed to the success of local Serb militias (with semi-official support of the regular Yugoslav military forces) in seizing control of sections of the territory formally part of Croatia qua a federal Yugoslav republic.  No entity such as Krajina--de iure or de facto--had ever existed on the lands claimed by the instant entity.
    4. The Republic of Srpska was formally and legally established in 1995 (i.e. well after the Committee had wound down its operations) pursuant to the Dayton Accords, although it had existed in some form and within constantly shifting borders since 1992 on the same foundations as the aforementioned Krajina.
    • The question arises: On what basis does Dugard ascribe legal or even political equivalence to Kosovo on the one hand, and Srpska and Krajina on the other?
    • Is Dugard seriously arguing that an ability to conquer and continued control of a territory is or ought to be recognizable under international law; yea, that it should be rewarded with arguably the highest conceivable privilege in international law and relations: recognition of statehood?
    • Does he seek to roll back one of the preeminent pillars of international law and relations, that took literally centuries to crystallize and solidify: the prohibition on the use of force?  Is he advocating we revert to the brute ius victoriae?
    • Lastly, is he not at the very least precipitate in chastising the Badinter Committee for ignoring "facts on the ground" when those facts entailed fluid and ambiguous developments contemporaneous with and even postdating the Committee's work?
  • He--reasonably, in my view--denounced the possibility of carving up Africa along tribal lines, because doing so would have entailed the genesis of hundreds, if not thousands, of states.  That would be impractical, unwieldy, and most probably beyond political pale.
    • By arguing against using demographics in generating states in Africa, Dugard betrays breathtaking hypocrisy.  Why should the national aspirations of Serbs in Croatia and Bosnia-Herzegovina have been acknowledged and accommodated by the Badinter Committee, but not those of countless African tribes?
    • Are Africans' wishes qualitatively inferior to the European Serbs'?  Is Africans' sense of identity, cohesion, and belonging somehow less worthy of recognition than the Serbs'?
    • Ultimately, the many African tribes' national desires could have been acceded to far more easily and with better justification (at least historically speaking, and possibly even legally) when setting up brand new states a few decades ago than could maiming Croatia or Bosnia, both of which have a long and august history as states.
    • Where is the consistency: Are or are not demographics (which are usually synonymous with ethnicity or nationality) to constitute a major, the main, or even the sole determinant in demarcation of states' borders and/or in state recognition?
  • He advanced a solution whereby an international tribunal would be established, which would examine each petition for statehood in its own right, and produce a nonbinding declaration of the merits of each such case, presumably for the consideration of the Security Council and other international actors.
    • This notion was verbalized by Dugard literally a half hour after he had narrated the story of Kosovo and the relevant advisory opinion of the International Court of Justice on the matter.  In the event, he pointed out that the I.C.J. had issued an opinion of the case, which it described as sui generis, and which the Security Council promptly decided to ignore.
    • The problem here is obvious.  Dugard wants a tribunal; the I.C.J. is a tribunal (indeed, most would consider it the foremost, most authoritative and illustrious tribunal in the world).  Dugard wants it to examine each case of prospective statehood on its own merits; that is precisely what the I.C.J. did with Kosovo.  Dugard wants the new tribunal to issue nonbinding opinions; check: It is what the I.C.J. did in Kosovo, too.
    • Apart, therefore, from the fact that we already have a tribunal that does exactly what Dugard proposes, the solution he advances does not address the core challenge: Whether it be the I.C.J. or Dugard's fabled new institution, what is to ensure that the Security Council does not ride a carriage and horses through its opinions just as transpired in the case of Kosovo?
    • Furthermore, the antecedent problem aside, does the world seriously need yet another expensive talking shop?  Would Dugard like to justify its establishment to the taxpayers who would foot the bill?
  • He made repeated references to Palestinians and "Palestine" as well as the role of the United States in world affairs, which he casts in--to put it mildly--an unflattering light.  Those remarks were in each instance laden with political connotations and messages.
    • Dugard's rabid anti-Israeli paroxysms are well documented and need no revisiting*.  Regardless of whether or to what extent he is justified in this regard, it is nothing short of outrageous that while mentioning "Palestine" at least a half dozen times, he did not throw even an innuendo the way of, say, the Taiwanese or the Tibetans.  The Kurds got a single, rather perfunctory, mention.  For someone who likes to fly the banner of equality and justice, Dugard propagates a world wherein some peoples are conspicuously more equal and important than others.
    • Leaving aside thus what can only be deemed hypocrisy and favoritism, by making continual loaded political comments, Dugard undermines his own argument.  If the problem of state recognition (the inequity, iniquity, inequality, inconsistency, illegality, etc.) owes to geostrategic and political deliberations of the powers that be, then what is the value of injecting his own political dogma into the argument?  If there is too much politics and not enough law in the field of state recognition as it is, then should Dugard not be aiming to redress the imbalance instead of perpetuating it himself?

The foregoing certainly served to "put a damper" on the entire experience.  One expects an international theorist and practitioner of Dugard's stature to demonstrate a higher degree of professionalism--particularly as far as academic neutrality and probity--than showcased in casu.

Nevertheless, he adverted to a thought-provoking and paradoxical issue, to wit: Being a state is the basic prerequisite for an ability to participate in the formation of international legal instruments and mechanisms.  Yet, becoming a state is not at all determined by that selfsame international law, but by narrow, unpredictable, and often petty politics.

Law concerning state recognition exists, most notably the Montevideo Convention's four unambiguous, fairly easily ascertainable criteria.  Yet, due to politics, entities that satisfy those criteria (including the Palestinians) have not been elevated to the hallowed club of the "international community" nor do they have much prospect of being admitted in the foreseeable future or beyond, whereas some who do not fulfill one or even more of the conditions have.

Should we just reconcile ourselves to the reality of Realpolitik and accept that law will always take a backseat in this regard, or is there a scenario whereby states can be persuaded to follow the objective letter of the law?  That, of course, is not merely the dilemma informing the matter of statehood and recognition, but many other aspects of international law.  Indeed, one could persuasively argue that there is no such thing as international law per se, but merely states' obligations in an international context, which states adhere to or not according to political dynamic.

* To illustrate: A day later, while commenting on a doctoral candidate's presentation on general ius in bello, out of literally thousands of blood-curdling examples of its violations, Dugard invoked the one single modern-day documented case of an Israeli Army's rabbi (and a retired one, at that) who called for an indiscriminate killing of Palestinians.  Whatever his reasons, Dugard clearly has an extremely sharp ax to grind with Israel.

© 2014 Michael L.S.

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