Is the Islamic State a State (in the sense of international law)?

Is the Islamic State a State?

Ralph Janik is a Researcher at the University of Vienna, Faculty of Law. His research focuses on the use of force and history and theory of international law.

Ever since the so-called Islamic state managed to capture significant parts of Iraqi territory, it has triggered a wave of academic commentary, in particular on the right to self-defence against non-state armed groups. It is thus generally not seen a state in the sense of (international) law. Little agreement exists on the grounds upon which this characterisation is denied, however – rather, it seems that this question has been taken for granted. Since it can be said that entities like the Islamic State ultimately challenge the traditional thinking on statehood and a few words on its legal personality are thus warranted.

Statehood in International Law

There are numerous ways by which the Islamic State’s statehood can be contested. Two of them seem to stand out. On the one hand, one could doubt whether the criteria listed in the 1933 Montevideo Convention, i.e.

(a)    a permanent population

(b)   a defined territory

(c)    a government and

(d)   the capacity to enter into relations with other states

are present in the case of the Islamic State. On the other hand, one could simply argue that it is not recognized by any state and that Security Council has even passed a resolution (2249) calling for the eradication of its save haven in Iraq and Syria. The international community has thus also taken decisive steps to prevent the Islamic State from coming into existence as a legal entity.

In my view, the latter option is to be preferred. Given the flexibility often used in the establishment of states, an advocatus diaboli could certainly argue that the Islamic State fulfils all of these criteria.

While the people living under its rule are sometimes described as quasi-hostages (one needs to mention the gross human rights abuses committed against minorities here; a UN report even spoke of genocide against the Yezidis here), it seems to enjoy a certain level of support among the Sunni majority for maintaining law and order (see also here). It must also not be forgotten that the current alternatives – the Shia-dominated government in Iraq and the Kurds – are highly unpopular. In any case, the requirement of a permanent population does not allow for a restrictive interpretation since the colonization process has ultimately led to the establishment of a great number of states populated by people without a far-reaching sense of unity or solidarity.

The requirement of a defined territory does, as the examples of Albania’s admission to the League of Nations in 1920 or Israel’s membership in the UN show, not necessarily require universally accepted borders but merely control over a certain key area. The Islamic State has, despite its significant territorial losses in Iraq, managed to hold onto its safe haven in Syria. The remaining question is whether it lacks permanence. In this regard, it must not be forgotten that many states were recognized immediately after their declaration of independence during the de-colonisation period. In addition, US president Barack Obama has already made it clear that the fight against the Islamic State will take time, while the Islamic State’s declaration of the restoration of the Caliphate goes back to June 2014.

What is clear is that the Islamic State constitutes a government as required by the Montevideo Convention. It is independent from other states and fulfils all those functions usually associated with a state. A documentary by VICE News shows a prison system, authorities doing their daily work, or police officers patrolling the streets. It also entertains social-welfare programs and even claims to issue its own gold coins in an attempt to bring back the gold standard.

The capacity to enter into relations with other states, then, is often seen as a mere consequence of the first three criteria. Others contend that a minimum degree of acceptance by other states is required (see below).

What role for recognition?

Other factors such as a certain degree of civilization, minimal respect for human rights, or the willingness to adhere to international law (the latter was recently mentioned by Martti Koskenniemi) are not elements of statehood but rather play a role when determining whether to recognize an entity as a state. This leads us directly to the good old doctrinal debate between the declaratory theory and the constitutive theory.

Radical proponents of the declaratory theory have a hard time rejecting the Islamic State’s character as a state. The declaratory theory ultimately means that even the most tyrannical regime can constitute a state regardless of whether it is recognized or not as soon as it fulfils the three criteria of statehood – all that matters it is effectiveness.

Even if one could successfully argues that it does not have a territory or a population, such a restrictive application of these criteria runs counter to many historical examples and thus seems somewhat arbitrary. From a strictly legal perspective, it is generally hard to argue in favour of applying the statehood-requirements differently depending on the political circumstances. One possible solution is to require a higher standard of governance than mere effective control, i.e. that usually associated with the notion of good governance, in all cases. The remaining problem would be the question why this standard is applied in connection with newly emerging states only and not with long-established ones as well.

Hard cases like that of the Islamic State thus ultimately highlight the lasting importance of recognition. At the same time, a strict application of the declaratory theory is to be rejected, first and foremost since – absent universal recognition – one and the same entity could simultaneously constitute a state in the eyes of some and a non-state in the eyes of others.

A third view tries to walk a middle path between these two theories (e.g. suggested by John Dugard, see The Secession of States and Their Recognition in the Wake of Kosovo) by qualifying the capacity to enter into relations with other states is seen as an additional (fourth) element of statehood. A widely isolated entity with a permanent population, a certain territory, and a government would thus not be classified as a state. On the other hand, any entity may enjoy objective statehood (i.e. also towards non-recognizing states) if it is recognized by a certain number of states (the exact number is obviously difficult to determine). The status of existing states, even although many of them fall short of good governance, is thus not affected. In theory, tyrannical regimes could also achieve statehood. In practice, however, criteria like the rule of law, observance of human rights, or a certain degree of representativeness – are usually taken into account when new states come into existence. Hence, the Islamic State neither currently constitutes a state nor would it be able to achieve statehood and all of the associated privileges in the future.