Statehood for Sale: Derecognition, “Rental Recognition”, and the Open Flanks of International Law

Abstract

State derecognition, defined as the withdrawal of recognition from a putative state, has been more impactful as a diplomatic subculture in the last decades than is often assumed. Recent practice suggests that when states engage in derecognition, they do not mechanically assess whether a state no longer fulfils the traditional criteria for statehood, but rather employ derecognition as a tool of foreign policy, tailored to enhance their own economic and geopolitical interests. The bargaining dynamics of derecognition and “rental recognition” policies adopted by a range of smaller states create a precarious hostage-like situation for the targeted entities who helplessly watch their international status being traded in a recognition market. As the success of some claims to statehood risks beings reduced to a matter of pricing, a process of commodification emerges: state recognition is granted to the “highest bidder” regardless of factual reality or legal considerations. With this backdrop, the present paper seeks to clarify how international law conceptualizes derecognition and its hypotheses of legality, offering an overview of contemporary events of derecognition and expedient shifts in recognition to clarify the role and deficiencies of international law as it stands before the emerging phenomenon of “statehood commodification”

1 Introduction

The emergence of new states and the processes leading to their recognition constitute a locus classicus of international legal scholarship. State recognition epitomizes the welcoming of a new entity into the international community and guarantees that it can effectively engage with its various subjects and institutions, enjoying the benefits of statehood to their full extent. Substantial literature has been devoted to the politics and legal conditions of state recognition, while the reversal of such act has remained an outstanding and obscure issue.

State derecognition, defined as the withdrawal of recognition from a putative state, has been more impactful as a diplomatic subculture in the last decades than is often assumed. Recent practice suggests that when states engage in derecognition, they do not mechanically assess whether a state no longer fulfils the traditional criteria for statehood, but rather employ derecognition as a tool of foreign policy, tailored to enhance their own economic and geopolitical interests. The decentralized nature of recognition and derecognition processes confers significant political leverage upon a range of smaller states that would otherwise have very limited ascendancy in the international arena. In this scenario, each state can be said to hold a portion of the “life and death” call over a putative state’s claim to functional statehood from an international relations perspective.

Conversely, the threat of derecognition is often accompanied by the imposition of a price for its maintenance, creating a precarious hostage situation of “rental recognition” for the targeted putative states. Impoverished Central American, Asian, and African states bargain with the relevant interest groups for the continued recognition or derecognition of breakaway territories they had previously recognized in exchange for humanitarian aid, technical assistance, investment, military, and security cooperation, among others. The economic sway involved in the current dynamics of derecognition and “rental recognition” undermines the capacity of international law to inform action on matters of statehood and sovereignty, rendering almost utopic a scenario where states can neutrally assess which entities must be derecognized with exclusive reference to the traditional statehood criteria.

As the success of some claims to statehood risks being reduced to a matter of who bids higher, a process of commodification emerges: the recognition or derecognition of states becomes a matter of pricing, indifferent to factual reality or legal considerations. With this backdrop, the present paper seeks to clarify how international law conceptualizes derecognition and its hypotheses of legality, offering an account of contemporary events of derecognition and expedient shifts in recognition, as well as reflecting on the driving forces behind the phenomenon of “statehood commodification” and its bargaining dynamics. This exercise is expected to shed light on the shortcomings of the applicable international law and facilitate the understanding of its possible role in reacting to such practices.

2 Recognition, Derecognition, and International Law

Recognition is a term of art in international law that expresses the “acknowledgement of the existence of an entity or situation, indicating that the full legal consequences of that existence will be respected.”¹ In turn, recognition of states is a diplomatic practice of “gatekeeping” that determines which entities should be admitted as members of the international society of states based on certain normative criteria, such as population, territory, government, and the capacity to enter into international relations. Such requirements are traditionally codified in Article 1 of the Montevideo Convention on the Rights and Duties of States of 1933. Recognition or lack thereof produces significant material effects on putative states: the acceptance or not of the international legal personality of an entity largely determines its ability to develop normal diplomatic and economic relations, acquisition of membership in international organizations, entitlement and operationalization of rights and obligations, and participation in dispositive relations of coordination and cooperation, among others.²

While the grant of recognition is generally understood to be a prerogative of each existing state in assessing a situation of fact, it is hardly deniable that state recognition epitomizes a practice of decision-making that transcends a mechanical “box ticking” despite the benchmark of a relatively upfront set of statehood criteria. The astounding variety of historical processes leading to the creation of new states and their subsequent recognition leaves no doubt that the practice is also shaped by the contingency of world politics and the preferences of great powers and groups of interest,³ rendering unlikely a cold application of international law requirements. Indeed, recognition of states remains “a subject full of paradoxes and curiosities.”⁴

The academic debate on state recognition has been dominated by an intractable doctrinal divergence between those who see it as constitutive of statehood (or status-creating) and those who see it as declaratory of statehood (or status-confirming). In short, they contrast recognition as act of statehood-conferral as opposed to an act of statehood-acceptance.⁵ But regardless of one’s allegiance in the age-old debate, now jolted by the perspective of a tertium non datur,⁶ the fact that international legal scholarship has routinely focused on this process as being unidirectional is hardly disputable. By doing so, it has implicitly assumed that state recognition can sometimes be stopped (or frozen), especially in its early stages, but not reversed as a matter of principle.⁷

The idea of a state being the target of derecognition, as opposed to non-recognition, has only incidentally been explored by both international lawyers and political scientists. In fact, until recent years, state derecognition was a non-problem in the light of scant state practice.⁸ Even in such circumstances, where no express rules address the issue, one can already identify a subtle tug of war in the existing literature concerning the legality of state derecognition, with no consensus or clear majoritarian view. The following subsections offer an overview of the different understandings of state derecognition in international law.

• a. State Derecognition Prohibited

The first strand of legal scholarship, largely reflexive of the declaratory theory, contends that states cannot generally withdraw recognition once it has been granted. Although recognition is a highly discretionary act in the first place, it is binding on the recognizing state once performed. The idea that the legal personality of a state could be dependent on the continued good will of its peers is considered derogatory to its independence and destabilizing to international relations. This approach is grounded on Article 6 of the Montevideo convention, which determines that “recognition is unconditional and irrevocable.”

Derecognition could only be envisaged as an act of applied international law if it was not arbitrary, but rather reflected the extinction of statehood elements in a putative state. For Lauterpacht, recognition is not a grant or a contract, but a declaration of capacity guided by tangible facts, and for this reason, derecognition can only be performed if the original basis for recognition disappears. This happens when “a state loses its independence or the necessary degree of self-government, a government ceases to wield effective authority, etc.”⁹ In other words, derecognition could only be a new act of recognition, that of taking notice of a new fact of disappearance.¹⁰ Lauterpacht further stresses that derecognition “must be exercised with a circumspection and restraint even more pronounced than the positive act of granting recognition” and that “it cannot properly be used as an instrument of political pressure or disapproval.”¹¹

In a similar vein, Chen contends that derecognition cannot be performed because recognition does not determine the existence of a state but merely acknowledges it in the first place, and therefore it is only logical that “existence once acknowledged is acknowledged, there is nothing to withdraw.”¹² Acts of derecognition, unless informed by international law, are to be taken as arbitrary acts of inimicality whose performance does not presuppose to the non-existence of a state.¹³ In fact, since an initial decision of recognition expresses the fulfilment of statehood criteria, as long as it does not accrue from a mistake of fact, its subsequent denial cannot have a status-destroying effect. Chen understands that this point should be one of agreement between both declaratory and constitutive theory scholars, since international law should not be interpreted as to put a premium on aggression, meaning that even from a constitutive perspective, a state should have no ability to excommunicate or put to legal death an entity it had previously created by virtue of recognition.¹⁴

It is important to underscore that the severance of diplomatic relations is not tantamount to derecognition, as the former is a discretionary choice of discontinuing joint optional relations on the international plane and has no bearing on statehood per se. Talmon maintains that “a State, the government of which is not politically recognized by another State, nevertheless remains a subject of international law in relation to the latter State, and all rights and duties stipulated by treaty or customary law remain in force in the mutual relations between [the two] States.”¹⁵ Therefore, if the desired effect of a derecognition act is not to reassess a matter of statehood, but rather to express discontent and terminate a political bond, the severance of diplomatic relations is the appropriate non-abusive way to proceed.¹⁶

• b. A Lotus Approach to State Derecognition

The second strand of legal scholarship contends that recognition is an element as fundamental for the configuration of statehood as effective control over a territory, independence, or a permanent population. Building on the constitutive theory, it affirms that derecognition is capable of undermining claims to statehood, as the withdrawal of recognition may cause confirmed factual aspects of statehood to be meaningless from the perspective of external interactions with largely recognized subjects of international law.¹⁷ In other words, statehood in isolation cannot be considered statehood proper.

Beyond derecognition by reasons of a subsequent finding that recognition was granted prematurely or in violation of fundamental norms of international law,¹⁸ or simply that statehood criteria have since disappeared, states have a wide margin of appreciation to withdraw recognition and engage in status destruction for political reasons that may extrapolate legal discourse. In the absence of express normative guidance to the contrary, discretionary derecognition is envisaged as being “part of the game.” By expanding on an iteration of the Lotus dictum in matters of state recognition and derecognition, Jean d’Aspremont affirms that “any subject of international law decides for itself how it interprets and construes the facts or the situation that is the object of recognition” and stresses that “once granted, recognition can also be subsequently withdrawn if the author changes its interpretation (and policies) or wishes to make it known differently.”¹⁹

Thus, the act of derecognition should be accepted as a permitted tool of foreign policy insofar as it is not generally prohibited and does not affect a specific international commitment entered into by the derecognizing state that might prevent it from acting in this manner. Although “the discretionary character of recognition has been increasingly qualified by the development in positive international law of an obligation not to recognize […] in the framework of international responsibility and that applies in many situations besides the birth of new states or illegal acquisition of territory,” no such conditionalities have been transposed to the withdrawal of recognition. As such, derecognition remains “uniquely a political act, operating largely if not entirely at the discretion of states.”²⁰

• c. Contradiction and Indeterminacy

The disorienting absence of express rules concerning the permissibility of derecognition in international law beyond a minor core of scholarly agreement that includes mistake of fact (premature recognition), state creation in violation of jus cogens, and extinction of statehood elements²¹ results in a highly indeterminate normative landscape. International lawyers are frequently exposed to situations of this sort in matters of statehood, and prudence dictates that the consequences of each approach should be investigated in the practice of international relations to avoid interpretations that foster absurd results. A permissible reading of recognition and derecognition opens an avenue for power politics and possibly abusive practices in the enactment of such acts. This horror vacui is warranted by recent events demonstrating that any discipline of state practice in the field is loose and perhaps not even desired by states, with no cases to be found where recognition withdrawal is expressly prohibited.

The dangers hiding in the political battleground that is afforded by the uncertain or absent regulation of this topic are well captured by Visoka, who contends that “[t]he derecognition of nascent states that do fulfil the criteria for statehood and can make a legitimate case for independent statehood […] represents an aggressive, irresponsible and devastating attack on the international rules-based order as it results in the expansion of ungoverned territories, regional instability and fierce rivalry between powers.”²²

However, the lack of flexibility of either full-prohibition or Lotus approaches is perhaps reflexive of a lack of dialogue with the actual risks and possibilities engendered by contemporary state practice. The latter empirical insight can provide an updated account of the reality which international law purports to impact, serving as the cornerstone of a more credible normative solution for the challenges now experienced. Hence, the next section explores three different cases that illustrate how the bargaining dynamics of derecognition and “rental recognition” play out in practice and to what incentives and concerns the involved actors demonstrate a responsive behavior.

3 The Bargaining Dynamics of Derecognition and “Rental Recognition”: Kosovo, Taiwan, and Western Sahara

In order to better understand what factors inform the micro-politics of state derecognition and “rental recognition” as well as the main decision-making characters and the different narratives of justification employed, the present section explores the bargaining dynamics of derecognition processes targeting Kosovo, Taiwan, and Western Sahara (SADR). These three cases provide an interesting sample of partially recognized entities emerging from diverse political constellations underpinned by unilateral secession, incomplete decolonization, and competing claims to legitimate government. An overview of the common traits of their respective struggles for recognition will facilitate the mapping of scenarios where derecognition can be abusive as a diplomatic tool, laying the groundwork for an organized reaction to undesirable practices.

• a Kosovo

Kosovo’s statehood has been contested since it issued its declaration on independence in February 2008. Serbia continues to oppose Kosovo’s claims and views it as a province constituting an integral part of its territory.²³ Otherwise, attitudes of third states have been profoundly divided—the US and most EU members states recognized Kosovo as an independent state shortly after its declaration of independence, while Russia, India, China, Brazil, and some EU members dealing with secessionist claims in their own domestic constituencies refused to do so. The recognition figures for Kosovo seem to have peaked at 114,²⁴ but the entity has since lost 15 recognitions, 3 of which were later reinstated as acts of re-recognition.

To the group of states that was concerned about Kosovo becoming a dangerous precedent, the USA and the UK were quick to advance an argument about Kosovo’s sui generis situation to comfort opposers and unresolved states, facilitating Kosovo’s integration in the international community. However, Serbia and its close ally Russia were not oblivious to the diplomatic push and engaged in a highly organized campaign of derecognition.²⁵ One of the first moves was lobbying in the United Nations General Assembly for a request of Advisory Opinion on the legality of Kosovo’s Declaration of Independence before the International Court of Justice (ICJ), aimed at obtaining a declaratory ruling that would reinforce the territorial integrity of Serbia. However, the outcome was underwhelming for Serbia and did not prevent further recognition—during the proceedings 22 states recognized Kosovo, a number that increased sharply in the period immediately after the opinion was issued.²⁶ As is widely known, the question before the ICJ was phrased narrowly, and the Court never clarified whether Kosovo had achieved statehood and what effects recognition would have in the case.²⁷

However, the derecognition campaign began to bear fruit when São Tome and Príncipe first derecognized Kosovo in 2013. Later in 2017, Suriname and Guinea Bissau followed and in 2018, Burundi, Liberia, Papua New Guinea, Lesotho, Dominica, Grenada, Comoros, Madagascar, and the Solomon Islands. Finally, in 2019, the latest derecognitions were issued by the Central African Republic, Palau, Togo, Ghana, and Nauru. Liberia, Sierra Leone and Guinea-Bissau have since re-recognized Kosovo.²⁸

Apart from internal political crises in Kosovo and occasional rearrangements of international alliances, Kosovo’s derecognitions through the 2010s can be explained by a “war of recognitions”²⁹ waged by the Serbian Ministry of Foreign Affairs,³⁰ whose objective was to reduce the number of Kosovo recognitions to 96 or less, half the number of United Nations member states. Kosovo claimed that derecognitions were being secured in exchange for financial aid, arms sale deals, visa waiver agreements, and even bribery.³¹ Such claims gained momentum in 2019 when an envoy of the Serbian Foreign Minister to the Central African Republic was reported to have bribed the local foreign minister with US$ 340,000 in exchange for Kosovo’s derecognition.³²

Additionally, according to Papić, Russia was actively involved in the process of securing derecognitions. There is a timely overlap between the conclusion of BITs between Russia and certain states that eventually derecognized Kosovo, such as Suriname, Burundi, Dominica, Grenada, Madagascar, and Palau.³³ Interestingly, while the Serbian Minister of Foreign Affairs denied Russia’s involvement in the derecognition campaign, he claimed that even if that were true, it would not differ from what the USA was doing in respect of Kosovo’s independence claim in the first place.³⁴

On diplomatic notes disclosed by the Serbian Ministry of Foreign Affairs, the inexistence of statehood elements in Kosovo was never presented as a reason for derecognition by third states. In fact, Kosovo arguably had a better claim to statehood by the time the recognitions were withdrawn than when they were granted,³⁵ as their domestic institutions were consolidated in the following years as the dependence on UNMIK political apparatus phased out. Reasons offered for derecognition included ongoing negotiations between Belgrade and Pristina under the auspices of the EU without further explanation of how or to what extent this was relevant, as some of the derecognizing states afforded recognition when such platform was already being used in 2011. Otherwise, some states asserted that their recognition of Kosovo was premature and/or violated United Nations Security Council Resolution 1244, but the later consolidation of statehood criteria and the ICJ Advisory Opinion pointing towards the legal neutrality of a declaration of independence suggest that these justifications were untimely and incoherent.³⁶

Considering the above, it becomes evident that political considerations dominated the process of derecognition for Kosovo. International law “[took] the back seat”³⁷ again when confronted with considerations of regional peace and security, exhaustion of negotiations on final status, and, above all, economic incentives. Furthermore, the lack of reaction from third states could reinforce the argument that revoking recognition is not only possible but acceptable in international relations, rather than the opposite.³⁸

• b Taiwan

The Republic of China (Taiwan) was recognized by 66 states in 1963, but today, counts no more than 14 recognitions.³⁹ The controversy surrounding derecognition in this case is rooted in the post-revolutionary reality of the 1950s that saw the rise of competing claims of political elites based in Taiwan and mainland China to the exercise of legitimate governmental powers over the same territorial unit—China as a whole. As such, it was originally a domestic dispute over representation rather than a question of distinct statehood, making the issue one of government recognition rather than state recognition.⁴⁰ However, as both Taiwan and mainland China evolved under different leaderships and political systems across decades, gradually consolidating separate identities, the dispute arguably gained an international dimension that merits reframing: By achieving a separate existence accompanied by a satisfactory fulfilment of the traditional statehood criteria, Taiwan should be included in the category of “partially recognized states” for many, in spite of its original (and still formally unchanged) claim to be the sole legitimate government of all China.⁴¹

The derecognition wave affecting Taiwan began with it losing a seat at the United Nations in 1971 and was accelerated after the USA established diplomatic relations with mainland China (PRC) in the following year, to the detriment of Taiwan. While most states coincided in derecognizing Taiwan in favor of PRC from that moment onwards, Taiwan was still able to obtain new and secure former recognitions of small states in the Pacific, Caribbean, and Central America in the decades that followed, by strengthening relations with them through infrastructure development and assistance programs.⁴²

Using analogous strategies, the PRC began to engage Taiwan-recognizing states using similar methods in the ensuing decades, in a derecognition counter campaign against the alleged rebel province. Taiwan and the PRC formalized their programs of “dollar diplomacy” in the field of state recognition and started to dedicate enormous resources to obtaining each other’s derecognitions and/or maintaining their own. By the mid-1990s, the Taiwan International Cooperation and Development Fund was established with an initial capital that amounted to US$350 million dedicated to facilitating grants, humanitarian relief, and loans to states willing to participate in the recognition game. Taiwan’s Foreign Assistance Programs expanded to cover activities ranging from technical assistance, human resource development, sending overseas volunteers, and mobile medical services.⁴³

An illustrative example of beneficiaries comes from the Bahamas, Grenada, and Belize, which received US$2.5, US$10, and US$50 million respectively in aid after deciding to recognize Taiwan instead of the PRC in 1989 and 1990.⁴⁴ Taiwan is also the greatest foreign aid donor to St. Kitts and Nevis as well as to St. Vincent and the Grenadines.⁴⁵ In this sense, Hu argues that foreign aid provision is the most important factor in the decision of maintaining or withdrawing the recognition of Taiwan in favor of mainland China, which is likely “more of an economic developmental issue rather than a political-diplomatic one.”⁴⁶

Conversely, the PRC has established a continuous influx of FDI in the Caribbean and increasingly finances infrastructure projects, such as in Jamaica (a US$720 million highway) and in the Bahamas (a port, casino, and luxury resort), putting pressure on the local governments for a change in recognition policy which was eventually successful in both countries. Additionally, the creation of a China-CARICOM Forum has facilitated PRC’s political leverage in the region, creating channels for the negotiation of preferential loans, natural disaster prevention funds, and grant of humanitarian aid.⁴⁷

With this backdrop, it becomes evident that fragile states and their leaders are not “passive victims of the China-Taiwan rivalry.” Instead, when it comes to the commodification of state recognition, they are “active participants in the process.”⁴⁸ In fact, “[t]heir more or less ‘insatiable’ requests and the smart tactics they have adopted in exploiting the two rivals were instrumental in the development of the so-called ‘cheque-book diplomacy’.”⁴⁹ Multiple states have rented their recognition to the most generous of the two donors,⁵⁰ a phenomenon that finds its most exorbitant expression with the positions of Dominica, Grenada, or Saint Lucia who in the course of about twenty years recognized, derecognized, and re-recognized Taiwan opportunistically, switching sides whenever the material conditions offered by the other contender became more appealing.⁵¹

It is true that mainland China has increasingly benefited from its asymmetrical economic power is respect of Taiwan to suffocate its remaining recognitions, though some states in the Caribbean and Pacific regions prefer to keep Taiwan as their diplomatic partner to satisfy their short-term needs, taking advantage of the fact that the fewer partner Taiwan has, the more budgetary flexibility it has to secure the support of each one with greater resources.⁵²

Finally, both Taiwan and mainland China identify an opportunity in the fact that the decision-making powers for derecognition are normally allocated in the executive branch of government, meaning that both contenders can make use of a different type of “temptation” addressed to specific personalities. According to Mendelson, Forman, and Moreira, in both Taiwan and the PRC, there is an established practice of supporting foreign heads of state with “questionable funds” that come from secret sources, with no specific purpose.⁵³ An episode is reported by Alexander where diplomatic bags containing up to US$50 million in cash were gifted to the representatives of a state for general use, the only condition being a continued recognition of Taiwan for the next 3 years.⁵⁴

• c. Western Sahara (SADR)

Since 1973, the POLISARIO front has fought for the national liberation of Western Sahara, a non-self-governing territory partially under Moroccan occupation, whose decolonization process from Spain was frustrated according to the UN Special Committee on Decolonization.⁵⁵ However, this unresolved territorial status did not prevent the POLISARIO front from issuing its declaration of independence in 1976 under the name of Saharawi Arab Democratic Republic (SADR). In less than a decade of existence, the entity was able to garner the recognition of 84 UN members, a number which has dropped to less than 40 since the first derecognition by Equatorial Guinea in 1980.⁵⁶

Unlike the conflict between Taiwan and PRC, where both formally claim an exclusive right of recognition entailing the unavoidable derecognition of the other, Morocco and Western Sahara do not claim such exclusivity. In fact, states that recognized Western Sahara usually also recognize Morocco, the problem being that the existence of the first is completely within the territorial claim of the latter. Proof of non-exclusivity comes from the breakthrough of simultaneous membership at the of the African Union, negotiated and implemented successfully in 2017.⁵⁷

This does not mean, however, that Morocco has generally permitted Western Sahara to participate in international fora, extending its network of partners and amplifying the reach of its independence claims. Rather, it has engaged in an aggressive campaign of derecognition targeting states in Central America, West and Central Africa, and the Caribbean that had recognized SADR. Apart from withdrawal decisions that were based on a call to avoid a “Balkanization in Africa” or the need to find a “final status” solution with a referendum provided for in the Houston Agreement of 1997—as justified by Benin, India, Vanuatu, El Salvador, Nicaragua, Honduras and others⁵⁸—most derecognitions are seen as a condition necessary to strengthen economic ties with Morocco.

The increasing cooperation between Morocco and Caribbean Community (CARICOM) since the 1990s, especially in the field of energy and water management, can be linked to the derecognition processes carried out in Antigua and Barbuda, Barbados, Grenada, Dominica, Saint Lucia and St. Kitts, and Nevis throughout the 2010s.⁵⁹ Morocco has also largely increased its provision of humanitarian aid for the region in connection with natural disaster incidents in the last decade.⁶⁰ Also, Moroccan diplomacy has allegedly employed bribery and economic blackmailing to prevent Western states from considering the claims of Western Sahara, highlighting the sizable operations of European companies in the Moroccan-controlled Western Sahara exploiting mineral resources and fisheries. From 1976 to 2016, an estimated US$5.56 billion worth of natural resources were extracted from Western Sahara.⁶¹

An example of this strategy at play concerns Sweden. In 2014, a coalition of parties that had vowed to recognize Western Sahara came to power and intended to implement their resolve.⁶² In order to frustrate the movement towards a first EU recognition, Morocco cancelled the opening of the first IKEA store in the country and called for a total economic boycott of all Swedish products and companies. Such initiatives proved effective: The Swedish MFA backed off soon after and pledged not to have intentions of recognizing Western Sahara.⁶³

On the other hand, historical rivals of Morocco such as Algeria, Iran, and South Africa engage in the opposite activities and espouse the Western Saharan claim, providing material support for its leadership and advocating for its recognition. Morocco contends that Western Sahara does not fulfil the requirements of statehood because the POLISARIO front is not truly independent, but rather a proxy for Algeria and its interests in the region. Building on this rationale, Panama derecognized SADR in 2013 and justified its decision based on SADR’s incapacity to consolidate independent government and other “fundamental elements of statehood,” being no more than a “ghostly entity” with a non-effective government that is primarily in exile.⁶⁴

4 The “Commodification” of Statehood Recognition: Should International Lawyers Care?

The case studies conducted above exemplify how matters of statehood have gained an undeniable economic dimension for a particular group of smaller states that do not hesitate to explore alternative methods of advancing their isolated interests and diversifying their sources of revenue in moves of typical “small state diplomacy.”⁶⁵ Considering that the practice of submitting discussions of statehood to a bidding system has been rising in popularity over the last decades, one wonders to what extent the acceptance of a “commodified” approach to recognition is undermining the integrity of statehood assessments in contemporary international law.

While the majoritarian declaratory approach to state recognition sees a dissociation of recognition from the existence of statehood as such, as recognition is envisaged merely as an acknowledgement of a tangible reality, it would be inconsequential do deny the deleterious effects of derecognition in practice. Even if derecognition does not instantly strip the sovereignty of a putative state, large-scale processes of the sort clearly lead to diplomatic isolation, political turmoil on the domestic level, precarious and limited access to international institutions, as well as vulnerability to external interference, generating collective insecurity. In this sense, the act of recognition and its withdrawal still retain a salient constitutive aspect, since in practice it can either crystallize or undermine the emergence a putative sovereign entity, regardless of its effectiveness, legality, and legitimacy towards the broader international community.

The most recent wave of derecognitions has a readily identifiable number of recurrent “traders” that follow the same modus operandi and respond to similar incentives when deciding to “sell” acts of derecognition or maintaining it towards putative states, taking advantage of the hostage-like situations in which they are trapped. For this reason, one could argue that such arbitrary unilateral acts carried out in questionable circumstances are fabricated and should be challenged by international lawyers concerned with the integrity of the law on statehood.

On the opposite end of the spectrum, some political scientists⁶⁶ have reinforced the absolute discretion of states in “commodifying” derecognition as they please—smaller states often suffer from rampart poverty and must maximize their leverage and sources of revenue in any way they can in the international arena. While “selling” the assessment of a third party’s statehood might be repugnant for some, it may be a necessary and economically efficient maneuver for others. This reasoning falls in line with an instrumentalist approach to the state as a revenue-generating machine, whose symbolic dimension in sociological or legal terms should not be overstretched.⁶⁷ Any modern state collects taxes, issues bonds, charges tariffs, and engages in commercial enterprise—but are these activities fundamentally different from trading recognition as an intangible asset? Finding a market value for the sovereignty of a state and trading it as a derivative might be feature of sovereignty itself, one morally ambiguous possibility among many others, but nothing more. In any event, it has been submitted that derecognition would have negligible effects on the integrity of a rules-based system, since the practice is restricted to a limited number of "traders.”⁶⁸

However, the sheer scale of the resources committed to this market and the lack of organized reaction by the international community create a risk of normalizing the outlandish logic of awarding statehood to the highest bidder in any given situation. This is by no means easy to reconcile with a rules-based international system, nor is it desirable considering that it contributes to blurring reality and fiction, favoring invasive attitudes of state prevention in matters of state creation. External interference that curtails the fragile sovereignty of emerging states can be problematic regardless of their final ability to consolidate statehood. Derecognition should be the object of some concrete regulation at the very least.

Although it is true that states remain the ultimate judges in matters of state recognition, which remains a political act guided by near absolute discretion, the reversal of such act cannot enjoy the same leeway. A quick exercise of setting the typical facts of a money-obedient derecognition against the backdrop of legal limitations such as abuse of rights⁶⁹ and estoppel⁷⁰ would likely send a shiver down the spine of most (if not all) international lawyers. Establishing limits to abusive conduct in matters of derecognition is not only desirable but coherent: After one identifies that a state exists, subsequently denying this reality is a logic-defying attitude that should only be tolerated if recognition was originally based on a mistake of fact.

Unjustified and unprincipled derecognitions are extremely destabilizing as they contribute to an ethically ambiguous hierarchization between partially recognized or unrecognized states and recognized ones in international law, reinforcing the “gatekeeping” powers the latter have when it comes to suffocating what they consider to be undesirable forms of political organization, preventing their access to a vibrant international life. It is indeed surprising how quickly small African, Pacific, or Caribbean states could switch their historical roles: In matters of state derecognition and “rental recognition,” the oppressed have become the oppressors.⁷¹

A final and somewhat puzzling situation concerns the lack of reaction by third states when confronted with state derecognition and “rental recognition.” One could only speculate as to the reason of such silence: Do states intend to reserve their “right” to act as unbound maximizers when an interesting derecognition opportunity emerges? Or are these practices simply irrelevant (or unknown!) to most MFAs across the globe to deserve a manifestation of dissatisfaction or endorsement? Although no grand conclusions can be derived from silence in the cases analyzed, serious and legitimate efforts in statehood assessment cannot unfortunately be expected from all states. This is perhaps a subtle call for international lawyers to take the lead, step in, and fill the “legitimate assessment” gap by being the new recognizers—or at least being less deferring to the traditional bureaucracy of state recognition and more vocal about their own perspectives and opinions in specific cases of contested state creation.

5 Final Remarks

The dynamics of counter-diplomacy explored in the case studies conducted in this paper showcase how nonconformist parent-states display a salient desire of state destruction when campaigning for the derecognition of “rogue” entities emerging in the international arena. As was seen, the audience of such efforts is a very peculiar one, but by no means passive. Smaller states with limited revenue streams will not hesitate to juggle contenders and trade a previously granted recognition, siding with the “highest bidder” in a competitive statehood market. While derecognition does not entail an automatic usurpation of putative statehood, the effects of large-scale derecognition are hardly disputable: diplomatic isolation, insecurity, poverty, and domestic turmoil.

Positive international law is particularly disappointing in the present case. The absence of clear limitations to the practice of derecognition, which could only be derived from a principled approach to the problem, create a mostly unbound space for legal contortionism. In a scenario of great indeterminacy, advocating for the legality of derecognition⁷² or diminishing its negative impact are equally credible projects for some. The apathy of the international community before the issue does not contribute to a balanced solution either: The views of most states on the topic remain obscure. Therefore, in terms of capacity to orient action, international law does not deliver more than an enigmatic and deafening silence to an avid audience.

But the no man’s land of state derecognition and “rental derecognition” will take its toll. Understanding the credibility of newborn claims to statehood will become increasingly complicated if such discussions are polluted by obscene quantities of money and the practice is accepted without further eyebrow-raising. Kosovo, Taiwan, Western Sahara, and other contested entities will continue to experience the material impact of new derecognitions as they struggle to move forward and consolidate their precarious status in the international arena.