To be or not to be: This "thing" says it is a state but its enemies question this claim. Under international law, who is right?

By Christophe Foucault, 01/Aug/2007

BRUSSELS, August 3, 2007 (Tiraspol Times) - The encyclopedia definition classifies a state as "a political association with effective dominion over a geographic area." It usually includes the set of institutions that claim the authority to make the rules that govern the people of the society in that territory.

In sociology, the state is normally identified with these institutions: in Max Weber's influential definition, it is that organization that has a "monopoly on the legitimate use of physical force within a given territory," which may include the armed forces, civil service or state bureaucracy, courts, and police.

Although scholars are, for the most part, clear on what Pridnestrovie is, politicians are not. In Tiraspol, on one side of the Dniester river, politicians claim that Pridnestrovie is a sovereign and independent state. On the other side of the Dniester, in Chisinau, the capital of Moldova, politicians loudly proclaim that it isn't.

To determine whether or not Pridnestrovie is a state, it helps to know what we are talking about. To do so, let us start with a clear and neutral definition of what the word "state" really means.

Defining the state

Although the term often includes broadly all institutions of government or rule — ancient and modern — the modern state system bears a number of characteristics that were first consolidated in western Europe, beginning in earnest in the 15th century, when the term "state" also acquired its current meaning. Thus the word is often used in a strict sense to refer only to modern political systems.

Within a federal system, the term state also refers to political units, not completely sovereign themselves, but in some cases partially or co-sovereign, which are subject to the authority of a constitution defining a federal union. Thus we find the "states and territories of Australia" and the "states" in the United States of America. Neither Moldova nor Pridnestrovie have a federal system at the present time, so in these parts the word "state" is used to mean "sovereign and independent nation state."

In casual usage, the terms "country," "nation," and "state" are often used as if they were synonymous; but in a more strict usage they can be distinguished:

- Country denotes a geographical area. PMR has a defined geographical area with 816 km of borders. It would qualify as a country, but for political reasons it is not yet recognized as such.

- Nation denotes a people who are believed to or deemed to share common customs, origins, and history. Ethnicity does not matter as much as a desire to be together and sharing a common goal. In Pridnestrovie, even the majority of the ethnic Moldovans support independent statehood and oppose becoming part of Moldova. In this sense, PMR is more of a nation than other ethnically diverse nation states such as Bosnia.

- State refers to the set of governing institutions that has sovereignty over a definite territory. Having shown its ability to exercise effective authority over its territory for nearly two decades, PMR is already clearly a state.

Empirical definition of the state

The word state has both an empirical and a juridical sense, i.e., entities can be states either 'de facto' or 'de jure' or both.

Empirically (or de facto), an entity is a state if, as in Max Weber's influential definition, it is that organization that has a "monopoly on legitimate violence" over a specific territory. Such an entity imposes its own legal order over a territory, even if it is not recognized as a state by other states (which is the current situation of Pridnestrovie).

Juridically (or de jure), an entity can still be a state in international law even if it is not recognized as such by other states. International law, which springs from natural law, does not include diplomatic recognition among its requirements for statehood.

The state as a person of international law should possess a permanent population, a defined territory, and a government which can enter into relations with the other states. Article 3 of the Montevideo Convention reads as follows: “The political existence of the state is independent of recognition by the other states”.

The state and the international system

Since the late 19th century the entirety of the world's inhabitable land has been parceled up into states with more or less definite borders claimed by various states. Earlier, quite large land areas had been either unclaimed or uninhabited, or inhabited by nomadic peoples who were not organized as states. Currently more than 200 states comprise the international community, with the vast majority of them represented in the United Nations. Pridnestrovie falls into this group of just over 200 states, but is part of the minority which is not presently represented in the United Nations.

Is Pridnestrovie part of the international system? Yes, but not fully. All 200+ states form what international relations theorists call a system, where each state takes into account the behavior of other states when making their own calculations. From this point of view, states embedded in an international system face internal and external security and legitimation dilemmas.

Recently the notion of an 'international community' has been developed to refer to a group of states who have established rules, procedures, and institutions for the conduct of their relations. Influential members of the self-declared international community have worked consistently to keep Pridnestrovie out of their club, for political reasons. This effectively excludes Pridnestrovie from an important venue for access to international law, diplomacy, formal regimes, and organizations. It also gives rise to critics' claims of Pridnestrovie being a "black hole" although these claims are somewhat bizarre since Pridnestrovie itself has repeatedly stated its strong interest in joining this international community.

The state and international law

By modern practice and the law of international relations, a state's sovereignty is not conditional upon the diplomatic recognition of the state's claim to statehood. Degrees of both recognition and sovereignty may vary, and the two are not tied to each other. In Africa, for instance, one state - Somalia - has plenty of recognition but no functioning government and no actual sovereignty over the anarchic territory which it claims, whereas another state - Somaliland - lacks international recognition but has a well-functioning government, effective sovereignty within its borders and rules democratically over the territory which it claims. Moreover, any degree of recognition - even recognition by a majority of the states in the international system - is not binding on third-party states.

The legal criteria for statehood have been defined both by international law scholars and the legal departments of foreign ministries in many countries. Nevertheless, in cases such as Pridnestrovie, the laws are surpassed by political circumstances.

One of the documents often quoted on the matter is the Montevideo Convention from 1933, the first article of which states:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

A recent report noted that what matters most is the actual situation on the ground, to the point of normally being the “sole criterion” under international law. All other considerations are either non-existent or of secondary nature. Quoting from its official state policy, Switzerland’s DFA, Directorate of International Law, sums up this universal practice as follows:

The formal recognition of a state presupposes that the state in question truly meets the requirements of international law in the matter of statehood. The prevailing doctrine imposes three requirements: a national territory, a citizenry and a state authority, i.e. an internally and externally effective and independent government embodying the sovereignty of the state. The sole criterion for assessing the quality of statehood in this context is the actual situation on the ground (“principle of effectiveness”).

The report also quotes the policy of the United States on this matter, concluding that according to U.S. policy, Pridnestrovie again meets all formal requirements for statehood. The legal definition of a state under The Foreign Relations Law of the United States of America reads as follows:

Under international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.

Is the unrecognized state still a state?

Recognition is not required in order to be a state under international law and the political existence of the state is independent of recognition by other states. The Montevideo Convention - which is an international treaty signed and ratified by the United States and numerous other countries makes this clear in its article 3. Recognition is not a formal requirement of statehood. Therefore, neither a political unit needs to be recognized to become a state, nor does a state have the obligation to recognize another one. At the same time, neither recognition is enough to create a state, nor does its absence abolish it.

Rather, recognition merely accepts a factual occurrence. Thus recognition is "declaratory" as opposed to "constitutive."

Official state policy of the government of Switzerland is a typical example of the adherence to international law. It states that recognition is not a prerequisite for a state to be considered sovereign under international law: In practice the existence of a state is not however dependent on any such prior recognition. The determining factor is solely the actual and concrete presence of the three concomitant characteristics of statehood, i.e. a national territory, a citizenry and a state authority.

So in the final analysis, what is this thing which calls itself Pridnestrovie? International law is clear on the point. Politics, with its mix of wishful thinking and selective picking of facts from the real world, is less clear. In the end, the people of Pridnestrovie are staking their hopes that law - not politics - will carry the day.

Source: The Tiraspol Times

Home | Contact us | Links | Archives | Search