a pair of darling 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. “If you can decide that Kosovo is a state over our objections, we can decide that South Ossetia is a state over yours!”
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 can’t 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 can’t control the South Ossetians! The United States would like to help Georgia get control over the South Ossetians, but if this doesn’t happen – and it doesn’t seem likely – it will have to eventually bow to reality and recognize South Ossetia as an independent state, or – to the confusion of all – 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 – 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 “international community.”
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.