Sample Undergraduate 1st International Law Assignment

The Extent to which Traditional Concepts of Statehood are indeed Applicable to the Islamic State

Introduction

In 2018, a growing body of news reports[1] suggested that the control exerted in Iraq and Syria by the Islamic State had declined. Its last territorial stronghold fell at Baghuz in March 2019. However, since the group’s rapid rise to control, particularly in Iraq and Syria since 2014, a number of discourses have considered how far the terrorist organisation fulfils the traditional concept of Statehood.[2] This work examines the extent to which traditional concepts of Statehood are indeed applicable to the Islamic State at the height of its power, and what implications may exist in this regard in terms of the relevance of concepts of Statehood in international society. The work will begin by considering the criteria for Statehood in the Montevideo Convention[3] before examining the relevance of State recognition. Finally, the work will ask whether the aims of the Islamic State have any relevance in determining Statehood and the implications of this for the traditional concept of Statehood.

The Montevideo Convention and Illegality

The traditional criteria for Statehood may be found in the Montevideo Convention, Article 1 of which provides that in order to be considered a State, what is required is a permanent population;[4] defined territory;[5] the existence of government;[6] and the ‘capacity to enter into relations with other States’.[7] The first three criteria would appear to be easily fulfilled in respect of the Islamic State: as Bernstein has explained, a permanent population lived in the territory it controlled despite displacement and changes at its borders;[8] and as Shany, Cohen and Mimran note, the Islamic State exercised control over a ‘broad swath of land’[9] and undertook, albeit extremely brutal, governmental control within that territory, possessing offices, collecting taxes and regulating businesses.[10] It is true of course that such assertions about the apparent fulfilment of the Montevideo criteria in this regard could be subject to debate: Shany, Cohen and Mimran themselves concede that the criteria may be flexibly interpreted.[11] However, it will be shown throughout the remainder of this work that a particular difficulty in determining whether the Islamic State has operated as a State for the purposes of international law has been in terms of its capacity to enter into international relations.

Before doing this however, it should be noted that in addition to the Montevideo criteria, the legality of the means by which a State is brought into being may affect its claim to Statehood. Here, Crawford claims[12] that the prohibition against the use of force in Article 2(4) of the UN Charter,[13] protects States from being dismantled and that ‘the international community has with considerable consistency refused to accept the legal validity of acts done or situations achieved by the illegal use of force’.[14] The difficulty with this, it is submitted, is that Article 2(4) addresses the use of force by States in their international relations.[15] The Islamic State’s operations included atrocities,[16] but it would be circular to deny that it was a State solely because it had itself breached an obligation addressed to States. The wider issue of illegality remains. In its Kosovo opinion the International Court of Justice distinguished declarations of independence connected with unlawful force or other grave breaches of international law. In Resolution 2249 the Security Council treated the Islamic State as a terrorist group and reaffirmed the territorial integrity of States. This is not to say that the fulfilment of the Montevideo criteria should mean that the Islamic State is in reality a State, but simply arguing that it is not on the basis of Article 2(4) is problematic, although further discussion of illegality is not possible within this short work.

Is Statehood Appropriate in Modern Society?

As noted above, the Montevideo Convention requires that a State is capable of entering into relations with other States:[17] whilst the discussion here may take place in a number of areas, all cannot be considered due to the limited word count. As such, the analysis focuses upon recognition. The capacity to enter into relations concerns independence, which is distinct from securing diplomatic recognition. Article 3 of the Montevideo Convention expressly distinguishes a State’s political existence from its recognition.   In this regard, the constitutive theory provides that recognition of a State is ‘a necessary act before the recognised entity can enjoy an international personality’.[18] Conversely, the declaratory theory of recognition holds that such recognition cannot ‘bring into legal existence a State which did not exist before’:[19] thus, it is not the recognition of a State which renders the State a State, but rather that recognition simply confirms a pre-existing legal position.[20]

It appears that the declaratory theory may be preferable to the constitutive theory; the example of Palestine is instructive here. Masud argues that Palestine fulfils the Montevideo criteria. It has non-member observer State status at the UN and is recognised by a large number of States, but some ‘powerful’[21] States have continued to fail to recognise Palestine as a State. Given that there is a body of evidence which suggests that the lack of recognition of Palestine by some States is political, rather than legal,[22] the constitutive theory of Statehood would appear to be problematic in that political tensions may undermine legal concepts.[23] One is inclined therefore to accept that the declaratory theory offers a more sound basis for Statehood in theory, although a lack of recognition by States may offer difficulty for such States to conduct international relations in practice. Here, one is inclined to accept the proposals of Lauterpacht: the commentator argues that the problem of determining when a body has achieved Statehood in the international community could easily be reconciled by a policy which accepted that given a ‘high degree of political integration [in] the international community’,[24] an appropriate majority in an international organisation of States could decide recognition collectively.[25] This would certainly appear to mitigate the problems with recognition of Palestine whist also ensuring that States can in practice operate internationally where they have declared themselves as States. The Islamic State declared itself a Caliphate, but no State recognised it as a State.[26]

This author would argue however that treating Statehood in such a way is outdated. Support for this may be found in the work of Craven, who argues that historically, the concept of the State ‘stood at centre stage around which an elaborate architecture of legal rules was to be described and generated’.[27] As Grzybowski has argued, historically at least, Statehood has always been ‘the very heart’[28] of questions regarding the international legal order.  It is suggested however that such a concept of Statehood is not relevant in modern society, or at the very least is not the only basis upon which such an architecture operates, as evidenced by the growth in powerful non-State bodies, subject to international law.[29]  One may argue of course that whilst, as Vidmar observes, Statehood may create a system of rights and duties which apply ‘only’[30] to States, this in itself does not prevent international rules and relations from being applied to and conducted with other bodies, potentially incorporating entities such as the Islamic State. There may indeed have been a huge growth in the conducting of international relations with non-State entities, but this itself is not sufficient a basis to assert that Statehood is an out-dated concept. What may be more relevant are arguments that regardless of the apparently changing importance of the State within the international community,[31] determining whether a body has achieved Statehood has always been problematic. Indeed, it is rather interesting to note that Lauterpacht’s proposals were made in 1947, at a time when it would appear that traditional concepts of Statehood still applied,[32] and it is therefore argued that even in times when such views of the importance of States may have been prevalent, attributing Statehood has always been difficult in practice.

This is all very well in theory: the difficulty is that there does not appear to be any basis upon which to argue that the Islamic State wanted to achieve internationally recognised Statehood between 2014 and 2017, or that it sought diplomatic recognition from other States. It may be true that the Islamic State did in 2014 declare itself a Caliphate,[33] and did operate locally in a State-like manner, with official offices and issuing documents,[34] but there is no evidence that it has sought to integrate internationally within the bounds of international law.  Attempts therefore to determine whether the Islamic State should be considered a State do not appear to have any practical purpose, and are thus mere academic rhetoric: it is argued that what is really relevant is how bodies such as the Islamic State should operate within the international legal order, [35] if they do not wish to obtain State status. It is therefore argued that whilst it may be theoretically sound to treat Statehood as a question of fact to be determined in accordance with the declaratory theory and Montevideo Convention, with collective recognition as proposed by Lauterpacht, this ignores the reality of the situation with the Islamic State. Even where a body does not seek diplomatic recognition, international legal rules may still bind it. Common Article 3 of the Geneva Conventions binds each party to a non-international armed conflict, including an organised armed group, without changing the parties’ legal status.

Conclusion

This work has argued that whilst the majority of the Montevideo criteria do appear to have been fulfilled in the case of the Islamic State, its ability to enter into relations with other States was problematic. Its exercise of governmental functions did not displace the sovereignty of Iraq or Syria. It remained a non-State armed group.  It is here that one is inclined to ask whether concepts of Statehood, including the declaratory and constitutive theories of recognition, continue to have relevance, at least in terms of the growth of groups such as the Islamic State: where groups do not appear to seek diplomatic recognition, the real issue will be determining how they are to be classified within the international legal order when appearing to exercise State functions within a region.

Bibliography

Table of Conventions

• Montevideo Convention on the Rights and Duties of States (1933)
• UN Charter 1945

• Geneva Conventions 1949, common Article 3.

Cases and United Nations documents

• Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, paras 80–81.
• UN Security Council Resolution 2249 (2015). Twenty-fourth report of the Analytical Support and Sanctions Monitoring Team, UN Doc S/2019/570.
• UN General Assembly Resolutions 67/19 and ES-10/23.

Books

• Crawford J, The Creation of States in International Law (Second Edition, Oxford University Press 2007).

• Dixon M, McCorquodale R and Williams S, Cases and Materials on International Law (Fifth Edition, Oxford University Press 2011).

• Lauterpacht H, Recognition in International Law (Reprint Edition, Cambridge University Press 2012).

• Meijknecht A, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (Intersentia 2001).

Articles and Other Sources

• H Lauterpacht, ‘Recognition of States in International Law’ (1944) 53 Yale Law Journal 385.

• Belanger-McMurdo A, ‘A Fight for Statehood? ISIS and its Quest for Political Domination’ (2015) E-International Relations available at https://www.e-ir.info/2015/10/05/a-fight-for-statehood-isis-and-its-quest-for-political-domination/ accessed 24/6/2018.

• Bernstein E, ‘Is the Islamic State a State in International Law?’ (2015) available at https://casetext.com/analysis/is-the-islamic-state-a-state-in-international-law accessed 24/6/2018.

• Callimachi R, ‘The ISIS Files’ (2018) The New York Times available at https://www.nytimes.com/interactive/2018/04/04/world/middleeast/isis-documents-mosul-iraq.html accessed 24/6/2018.

• Craven M, ‘Statehood, Self-Determination and Recognition’ Chapter 8 in Evans M, International Law (Fourth Edition, Oxford University Press 2014).

• Czaplinski W, ‘Recognition and International Legal Personality of Non-State Actors’ (2016) Pécs Journal of International and European Law (2016) 7-17.

• Editor, ‘Islamic State and the Crisis in Iraq and Syria in Maps’ (2018) BBC available at https://www.bbc.co.uk/news/world-middle-east-27838034 accessed 24/6/2018.

• Jodoin S, ‘International Law and Alterity: The State and the Other’ (2008) LJIL 21(1) 1-28.

• Koskenniemi M, ‘Lauterpacht: The Victorian Tradition in International Law’ (1997) EJIL 215-263.

• Longobardo M, ‘The Self-Proclaimed Statehood of the Islamic State Between 2014 and 2017 and International Law’ (2017) Anuario Español de Derecho Internacional 33 205-228, available at WestminsterResearch accessed 24/6/2018.

• Masud M, ‘Palestine and the Right to Statehood under International Law: An Absolute Right that has Become a Hope’ (2017) Cov LJ 22(1) 9-14.

• Grzybowski J, ‘To Be or Not to Be: The Ontological Predicament of State Creation in International Law’ (2017) EJIL 28(2) 409-432.

• Sayed A, ‘Who is Unwilling and Unable to Prosecute Crimes Against Humanity in Syria?’ (2014) EJIL Talk available at https://www.ejiltalk.org/who-is-unwilling-and-unable-to-prosecute-crimes-against-humanity-in-syria/ accessed 24/6/2018.

• Shany Y, Cohen A and Mimran T, ‘ISIS: Is the Islamic State Really a State?’ (2014) The Israel Democracy Institute available at https://en.idi.org.il/articles/5219 accessed 24/6/2018.

• Strain B, ‘Palestinian Statehood: A Political Pipedream but a Legal Reality’ (2002) Cov LJ 7(1) 1-11.

• Vidmar J, ‘The Concept of the State and its Right of Existence’ (2015) CJICL 4(3) 547-565.