[Volokh] Eric Posner: Happy Birthday South Ossetia and Abkhazia,

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Posted by Eric Posner:
Happy Birthday South Ossetia and Abkhazia,
http://volokh.com/archives/archive_2008_08_24-2008_08_30.shtml#1219779275


   a pair of darling [1]twins, though a bit on the small side
   (populations 70,000 and 250,000 respectively), and perhaps not with a
   terribly appealing prognosis. In fact, one might wonder whether they
   have really been born. Russia has recognized them as independent
   states; the rest of the world considers them provinces of Georgia.
   They do have de facto independence. What are we to make of this
   situation?

   For one thing, we can look at their elder sibling, Kosovo. Recognized
   by western countries but not by Russia or China, it declared
   independence from Serbia in 2008. Russia has made much of this
   precedent. âIf you can decide that Kosovo is a state over our
   objections, we can decide that South Ossetia is a state over yours!â

   International law has little to say about the creation of states. From
   time to time, one hears statements that a population can obtain
   statehood if it controls a territory, can have legal relations with
   other states, and so forth, but in fact statehood is determined by
   other states, in a recursive process, and when other states canât
   agree, there are serious problems. Suppose, for example, that the
   United States would like to persuade the people living in South
   Ossetia to join an anti-moneylaundering effort. Should it ask South
   Ossetia to join a treaty? But only states can enter treaties! Should
   it make a treaty with Georgia? But Georgia canât control the South
   Ossetians! The United States would like to help Georgia get control
   over the South Ossetians, but if this doesnât happen â and it doesnât
   seem likely â it will have to eventually bow to reality and recognize
   South Ossetia as an independent state, or â to the confusion of all â
   treat it like a state without calling it that.

   People should be more worried than they are by the fragmentation of
   states. Consider that shortly after World War II, there were around 60
   states. Today, there are almost 200 (depending on how one counts
   quasi-states like Kosovo, and weird cases like Taiwan, which everyone
   has agreed is both a state (because it clearly has independence) and
   that is not a state (to mollify China), and there are even stranger
   beasts). A lot of this increase is due to decolonization, but in
   recent years, the main cause has been, essentially, ethnic separatism.
   Because ethnic groups are mixed together, ethnic separatism is a
   recipe for civil war, ethnic cleansing, and worse. And because most
   ethnic groups are tiny, the resulting nation states can be too small
   to govern themselves â Kosovo is an example, again. They either become
   failed states, magnets for terrorists and drug smugglers, or wards of
   powerful states or what is mischievously called the âinternational
   community.â

   The more states there are, the harder it will be for them to cooperate
   -- a worry for those concerned with world-scale problems such as
   climate change and international terrorism. And because international
   law rests on the cooperative efforts of states themselves,
   fragmentation may further weaken international law, to the detriment
   of all.

References

   1. http://news.bbc.co.uk/2/hi/europe/7582181.stm