Nikitas,
I'm somewhat nervous at responding to your comments and questions,
By legalisation I did not mean to infer that you proposed it. The general notion is that once a state is created by illegal means, the subsequent recognition by the victim legalises its creation and existence. Cypriots have a reflex action almost to any mention of recognition, and this goes for both sides.
for the simple reasons that others will make some perverse interpretation as to my motives and that your comments raise big issues which may spin beyond this thread. Hesitations aside, here goes :
First, I acknowledge that 'By legalisation I did not mean to infer that you proposed it' - I didn't ever think that you did (as opposed to others!)
I would use a distinction between
de facto and
de jure -apologies to others for the technical language, which I believe Nikitas to be familiar with, but it needs to be used to help clarify different forms of the state. Thus how a state is formed - through war, revolution, ethnic cleansing, economic reorganisation, social contract, or whatever - may take many different routes but whatever the differences a
de facto state has been formed. A
de facto state does not require legal recognition -
de facto simply means that it is a fact, it exists. It has buildings, personnel, structures, rules, rituals etc. The
de facto state is what is important to ordinary people, it is that which confronts or governs their daily life. What matters to lawyers (and those who find themselves on the 'wrong side' of the
de facto state) is the
de jure state, that is the state as legally defined.
That a
de facto state was the product or result of ethnic cleansing, genocide, war or some other barbarism does not alter the fact that it exists. We might be horrified by it, but we can't deny it. We can't wish it away. My contention in earlier posts is that variations on the theme of barbarism is common to the creation and development of most states. (This is a
historical claim so those who disgaree can present evidence to the contrary if it is there. I remain fairly confident in making this claim but am certainly open to dissuasion).
But you comment about the general notion 'that once a state is created by illegal means, the subsequent recognition by the victim legalises its creation and existence.' I'll take that in two parts. First, a
de facto state, say the Soviet Union from 1917, was created out of a revolution which, by definition, was an illegal process and product. It was illegal to incite mutiny in the navy and army, it was illegal to publish 'seditious' newspapers, it was illegal to organise bolshevik and menshevik parties, it was illegal to execute the Romanovs, etc. The Russian Revolution was illegal on any number of counts and so was its product, the USSR. So was the new USA in 1776, so was the new French Republic in 1789, so was the new Iraqi state in 2005. 'Illegal' in this sense means illegal according to the laws of the predecessor state (or regime). And it did not require the Romanovs or Saddam to 'recognise' the new state to make a
de facto state legal. So an important principle to recognise is that those who are ousted or those who are victims of a newly created state are clearly not needed/required to give their blessing to the new order. Thus internal recognition 'by the victim'
does not 'legalises its creation and existence' and it is not necessarily required for a new state to move from a
de facto status to a
de jure status.
But that is internal recognition, but what about external recognition ? The second part, then, is how a
de facto state is recognised
de jure and this depends on the principle of recognition. Any standard international law textbook will tell you that the 1933 Montevideo Convention is an early attempt to define legally a state, and basically it says that there must be four characteristics : i, a defined territory, ii. a permanent population, iii. a government and iv. be 'capable of entering into relation with other states'. Yes, in essence, that is it. No mention of victims, no mention of how the state came into being, though to this minimal list we can probably add the principle of self-determination. On the Montevideo criteria TRNC is, without a shadow of doubt qualifies as a legally defined state. But, and there is a big BUT, of course TRNC is not recognised as a
de jure state for diplomatic purposes. It does not have, in legal parlance, 'legal personality'. Or to put it another way no other international legal persons i.e states, with the exception of Turkey, recognise TRNC as a legal person (even if TRNC meets Montevideo criteria). (There's lots more legal argument about this which I won't go into but for anyone interested look at the Manchukuo case, Rhodesia, and the successor states to the USSR).
But pulling this, now, right back to the thread and your comment, Nikitas, the key point is that at no point in the legal process of the recognition of states does the fate or opinions of victims enter the equation. TRNC is not recognised not because of the traumas and tragedies visited upon Greek Cyporiots but because of the claimed illegality of either (i) the nature of the 1974 Turkish intervention, i.e, it was as a threat to international law and order, and/or (ii) the nature of Turkey's continued occupation i.e, the threat that poses to international law and order. (You might reasonably ask but what about Israel & Palestine, Israel and Lebanon, Syria and Lebanon, and ....)
Having said all of that, having said that TRNC is not a recognised state, and that TRNC has no independent 'legal personality' it does not mean that TRNC is devoid of or without international legal obligations and without other forms of legal recognition. For example, every time the EU or UNDP gives monies to north Cyprus it is signing paperwork with a legal entity. Every time Tpap speaks to Tat he is recognising a person who is internally recognised by a state which he otherwise holds to be illegal.
Anyway, this is a long way round saying that the tragedies that befall a people may not, and routinely do not, have ANY consequence on legal recognition and legal legitimacy of states. That may be a depressing conclusion to come to, but I would emphasise that these are not my laws these are the international laws that for better or worse we've been saddled with. Don't shoot the messenger.
