CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE USE OF FORCE AGAINST THE ISLAMIC STATE ȍ JUS AD BELLUM ASPECTSȎ a State becomes an International Person and a subject of International Law.” 11 In the early 20 th century, the constitutive theory was abandoned in favour of a declaratory one. Under this theory, “the political existence of the state is independent of recognition by the other states”. 12 Yet, in the absence of any international body that would be tasked to authoritatively decide on the statehood of a certain entity, recognition remains, even under the declaratory theory, a useful tool indicating how the international community assesses the claims for statehood. By spring 2017, the IS has not secured a single recognition. 13 The capacity to enter into relations with the other states differs from recognition in that it does not focus on the reaction by other states but, rather, on the ability (and willingness) of an emerging State to conduct foreign relations. The fulfilment of this criterion by the IS is doubtful. Although the IS would most probably be objectively able to enter into international relations with other States, it has not so far shown any readiness to do so. Rather than seeking to become yet another member of the international community, alongside the other States, the IS aims at destroying these States and at replacing them with a universal caliphate. That is also why the words “in Iraq and Syria” were removed from the name of the IS(IS) in 2014. The IS therefore does not seem to meet the fourth Montevideo criterion. 1.2 Additional Criteria of Statehood One of the additional criteria proposed by scholars is independence . Independence denotes “continued existence /…/ as a separate State with the sole right of decision in all matters economic, political, financial or other”. 14 In the Las Palmas Case, the arbiter Max Huber declared that “independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State”. 15 Independence has to be both formal and real: the entity has to declare itself, and at the same time has to effectively be, autonomous from other States. Conclusion of coalition/partnership agreements does not impede the fulfilment of this criterion, as long as the entity remains free to determine its policy and to withdraw from such agreements. The IS seems to receive funding and material support from certain States of the region (Qatar, Saudi Arabia, etc.). 16 Despite that, it is, as one author put it, “no one’s puppet”, 17 as it sets and carries out its goals rather autonomously and it is also, to a large extent, economically autarchic. Thus, the criterion of independence is met by the IS. There is no consensus as to whether the lack of legitimacy could be an impediment to statehood. Legitimacy itself is not clearly defined in this context. Sometimes, it relates to the respect for the principle of self-determination. An entity is legitimate if its establishment is the expression of the free will of its inhabitants. In other instances, legitimacy pertains to 11 OPPENHEIM, Lassa, ROXBURGH, Ronald, International Law: A Treatise , The Lawbook Exchange, 2005, p. 135. 12 Article 3 of the Montevideo Convention. 13 It has been claimed that the UK government’s plan to charge the UK citizens having joint the IS forces with treason (under the 1361 Treason Act) might amount to a form of implicit recognition. This claim is controversial. See BERNSTEIN, Eli, Is the Islamic State a ’State’ in International Law?, 2015, Academie.edu Online – https:// www.academia.edu/17570619/Is_the_Islamic_State_a_State_in_ International_Law (13 May 2016). 14 PCIJ, Customs Regime Between Germany and Austria, Advisory Opinion, 5 September 1931. 15 Island of Las Palmas , 1928, RIAA (Vol.II), p. 831. 16 See ANDERSON, Tim, Who Supports The Islamic State (ISIS)? Saudi Arabia, Turkey, Qatar, Israel, UK, France, USA, GlobalResearch, 20 November 2015. 17 BERNSTEIN, Eli, op. cit., p. 5.

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