The Duplicity of Recognition under International Law (or Just a Reminder that Putin is a Lawyer)
On February 21, 2022, Russian Federation President Vladimir Putin announced that Russia would recognize Donetsk and Luhansk, provinces now generally recognized as part of the sovereign territory of the Ukraine, as independent states. The recognitions raise numerous (urgent and alarming) questions of international peace and security, but for the limited purpose of this blog and its readers, it also serves as a reminder that international law has its own administrative structure, largely but not exclusively devolved to sovereign states themselves which are both the drafters and implementers of international legal rules. The recognition also serves as a stark reminder that Putin is a lawyer, and that for all the talk of an impending invasion of Ukrainian territory, the legal maneuvers undertaken by Putin are more complex than an invasion in clear violation of the U.N. Charter, and will add complexity and difficulty to a unified response from the global community.
The post-World War II order was premised on the authority of a dedicated global body – the United Nations – that would manage threats to international peace and security through its most significant administrative agency: the U.N. Security Council. The U.N. Charter delegates to the Security Council the authority to determine that a threat to international peace and security exists and to adopt measures to address it. Articles 41 and 42 of the U.N. Charter provide substantial flexibility to the Security Council as to the nature of those measures, including the use of force, which is how measures like international criminal tribunals for Rwanda and the former Yugoslavia could be used as well as the authorization of the use of force, as against Libya in 2011.
The U.N. Charter always allowed for self-defense, but even outside of that capacious justification (for example, the U.S. has used that justification to both invade Iraq and to assassinate an Iranian general), the system never really worked. The major reason is that the five permanent, veto-holding members of the Security Council, China, France, Russia, the United Kingdom, and the United States, rarely viewed threats to international peace and security with sufficient consensus to agree on measures. Another significant reason is that which Putin now exploits: the recognition of states, or parts of states, remained outside the technical authority of the Charter (other than if the Security Council could muster agreement that an issue of recognition was tantamount to a threat to international peace and security). Seventeen or so states have joined the Montevideo Convention, a decades-old treaty that aimed to solve some of the problems of recognition, while most others reserve the right to declare a region or an entire state something that it would not consider itself, mostly for economic and political reasons.
The catalogue of problems the doctrine of recognition has caused is long and distinguished. The “one China” policy allows countries to deal with the PRC while turning a blind eye to its claims over Taiwan. The United States refused to recognize the Western Sahara as part of Morocco until it saw doing so as a way to get the country to recognize Israel. Only three countries ever recognized the Taliban as the lawful authority of Afghanistan before the allied invasion in 2001 and now none do. There are dozens perhaps hundreds of additional complications in international relations caused by the incoherence of recognition under international law.
In other work, I’ve addressed the incoherence of recognition in the belligerency context, and the conditions under which it is likely to be used. The whole point is that recognition is at once duplicitous, meaningless, and ultimately decisive of important issues in international law. While early accusations against Putin’s recognition point to promises made in the Minsk Accords, international lawyers will struggle to find specific obligations violated or that the accords taken as a whole remain binding. Plebiscites in the Donetsk and Luhansk may very well reveal preferences for Russian confederation, confounding legal analysis and the legitimacy of the use of force as a response. The rejection by any state of Russian recognition is not much more than a manifestation of its own recognition of Ukrainian territory, including the recently annexed Crimea. In short, Putin’s move is not clearly illegal under international law, because recognition is both an accepted rule of international law and one reserved to the discretion of each state, and that makes the current environment all the more dangerous.