Monday, June 30, 2014

New Islamic State in Middle East?

The militant group ISIS has declared a caliphate, or a new state based in Islam, in the areas currently under its control in Syria and Iraq.  While an Islamic state may be a long-term goal of ISIS and related groups, they are far from meeting the necessary criteria for statehood under international law and are unlikely to receive much, if any, international recognition.

Under article 1 of the Montevideo Convention on the Rights and Duties of States, a state should possess the following qualifications for statehood: (1) a permanent population, (2) a defined territory, (3) a government, and (4) capacity to enter into relations with other states.  ISIS claims territory from Aleppo in northern Syria to the Diyala province in eastern Iraq. However, given the existing states' recognized political boundaries, massive refugee flows in and out of the various areas of this region, and the ongoing fighting over territory between ISIS and the Iraqi army, among other factors, it certainly cannot be said that the new caliphate has a permanent population or a defined territory. To the extent that the caliphate has a government, it appears to be the leaders of the militant group ISIS.  ISIS has announced that its new leader is Abu Bakr al-Baghdadi. Its ability to function effectively as a government, rather than a militant group, and to engage in relations with other states remains to be seen.

International scholars, such as Milena Sterio in her book, The Right to Self-Determination under International Law, have posited alternative criteria based more on real politics.  Professor Sterio suggests that new states are unlikely to be successful unless the peoples seeking statehood show that: (1)  they have been severely oppressed, (2) the central government of the mother state(s) are relatively weak and ineffective at administering the region where the peoples are located, (3) international organizations have been involved in administering the region, facilitating power-sharing, institution-building, and capacity development for the struggling people, and (4) most importantly, the peoples have the support of at least one of the great powers.

ISIS and its supporters are unlikely to meet these criteria either.  They largely come from states where they have been able to freely practice their religion and culture and, thus, cannot claim severe oppression.  They likely can point to a weak central government, at least in Iraq, but that claim is more difficult to make in Syria, despite the ongoing civil war.  International organizations have been involved in Iraq; again, less so in Syria. And most importantly, it is does not appear that ISIS has the support of any major power for its current activities.  Thus, ISIS's claim to statehood is certainly premature and should not be recognized under international law.

(cgb)

http://lawprofessors.typepad.com/international_law/2014/06/new-islamic-state-in-middle-east.html

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