Recognition as Sanction: Using International Recognition of New States to Deter, Punish, and Contain Bad Actors

RECOGNITION AS SANCTION: USING INTERNATIONAL RECOGNITION OF NEW STATES TO DETER, PUNISH, AND CONTAIN BAD ACTORS ALEXANDER H. BERLIN* 1. INTRODUCTION This Article makes two novel claims, one normative and one descriptive. The normative claim is that the international community should recognize as new states entities claiming independence from their parent states if doing so would serve as an effective sanction for human rights abuses committed by the parent state, even if there is no connection between the secessionist entity and the bad behavior of the parent state (“the sanction theory of recognition”). The descriptive claim is that the international community’s recognition decisions, while not expressed in terms of the sanction theory of recognition, are becoming increasingly driven by it. Secession, recognition, and the creation of new states is an issue of enormous practical significance; in addition to the almost 150 states that came into existence in the twentieth century, numerous entities and movements seek independence today.1 While some movements can be dismissed as fantastic, like the current movement for an independent Vermont and similar movements in other states,2 many secessionist entities, like Chechnya, Darfur, * Law Clerk to the Honorable Patti B. Saris, United States District Court for the District of Massachusetts. The author would like to thank Professor Lea Brilmayer, the Howard M. Holtzmann Professor of International Law at Yale Law School, for her willingness to share the insights and ideas behind this article, and to provide endless editing and encouragement; Christopher Mandernach and Krishanti Vignarajah for their editing help; and Mo, Matt, Mom and Dad, for their invaluable support in this and in everything. 1 See Bruno Coppieters, Introduction, in CONTEXTUALIZING SECESSION: NORMATIVE STUDIES IN COMPARATIVE PERSPECTIVE 1, 1 (Bruno Coppieters & Richard Sakwa eds., 2003) (discussing modern secession crises). 2 See Ian Baldwin & Frank Bryan, The Once and Future Republic of Vermont, WASH. POST, Apr. 1, 2007, at B1. (discussing the movement for Vermont’s independence and noting that similar movements exist in Alaska, California, Hawaii, New Hampshire, South Carolina, Texas, and other states). 531 Published by Penn Law: Legal Scholarship Repository, 2014 532 U. Pa. J. Int’l L. [Vol. 31:2 Tibet, Kosovo, Taiwan, Somaliland, and others present extremely difficult situations and complex theoretical and practical questions. A secessionist entity’s quest for independence, of course, concerns not only the secessionist entity itself, but also the parent state from which it seeks independence: if the secessionist entity is successful, the parent state suffers a blow to its territorial integrity and loses control over the entity’s territory, population, and resources. The question of secession is a high-stakes contest in which there are winners and losers. And as with any such contest, determining who wins and who loses will rarely be a simple task. Much of that complicated determination, declaring either the secessionist entity or its parent state the winner or the loser, falls to other states in the international community. For secessionist entities to become full-fledged states with all the accordant benefits, they must be recognized as states for one of two reasons: either because recognition is an essential precondition for statehood or, more practically, because it is only with recognition that new states actually realize the benefits of statehood. Under international law, other states decide whether or not to recognize secessionist entities as new states. The question, then, is: how should states decide whether or not to recognize a secessionist entity as a new state? Traditional answers to this question have focused on the intrinsic merits of the secessionist entity. The simplest answers specify certain requirements of statehood, and suggest that recognition should be granted to all secessionist entities that meet those requirements. Others have supplemented the requirements of statehood with additional requirements, usually related to some international ideological norm: that is, secessionist entities should be recognized as states if they meet the requirements of statehood and have democratic institutions, or promote self-determination, or do not have illegal origins, or meet some other criterion. These proposals are flawed for two primary reasons, both caused by their inattention to the parent states implicated in recognition decisions. First, they fail to take account of the interests of the parent state, which has an enormous stake in whether or not the secessionist entity is recognized as a new state and thereby removed from the parent state’s control. These theories do not provide sufficient justification for the violation of the parent state’s territorial integrity that is inherent in recognizing the secessionist entity as a new state. Similarly, because parent states are so interested in the outcome of recognition decisions, the https://scholarship.law.upenn.edu/jil/vol31/iss2/5 2009] RECOGNITION AS SANCTION 533 international community’s strategy for recognition decisions can be used to influence the behavior of states. These theories, by ignoring the parent state, squander a vital opportunity for the international community. Focusing on human rights abuses committed by the parent state takes advantage of this opportunity for influence while also providing a justification for damaging the interests of the parent state. While the international community has many interests it might like to advance through its recognition decisions, focusing on human rights abuses has much to recommend it. Certainly, deterring human rights abuses qualifies as an important interest of the international community; and the international community has very few tools to use in its efforts to deter such abuses. Critically, while other interests might also be worth promoting, focusing on the human rights abuses of the parent state provides the international community with a justification for damaging the interests of the parent state and violating its territorial integrity through recognition of a secessionist entity within its borders: the international community is not just advancing its own selfish interests at the expense of the parent state, but the parent state, through its criminal acts, has forfeited its right to respect for its interests, including its territorial integrity. Picking up on these notions, “just cause” and “just cause plus” theories of recognition merge the question of human rights into the intrinsic merits of the secessionist entity: they require that a secessionist entity have suffered human rights abuses at the hands of its parent state before a secessionist entity can be recognized as a new state. While these theories of recognition deter certain human rights abuses and provide a justification for damaging the interests of (...truncated)