Is Syria Still a State?

According to the 1933 Montevideo Convention, a community that claims to be a state may legally constitute a state only if it meets four criteria: a permanent population; a defined territory; an effective government; and the capacity to sign international agreements. If the claimed state or its government receives “recognition” from many existing states, such political acts may, in ambiguous situations, bolster the case for statehood.

For example, under Montevideo the Palestinians do not have a state. The population of their desired state, along with its territory, governmental powers, and international standing, are subject to negotiation with Israel pursuant to the Oslo Accords of the 1990’s. Therefore, Palestinian sovereignty remains aspirational, even though as a political matter “Palestine” is recognized by numerous states. Conversely, Afghanistan complies with Montevideo and is therefore a state, even though politically its Taliban government enjoys hardly any recognition.

Once a state legally exists, it may temporarily lose one of the four criteria of sovereignty without losing its sovereign status. The Iranian Revolution of 1979 overthrew the incumbent monarchy but Iran did not cease to be a state. Syria voluntarily compromised its sovereignty in 1958 when it merged with Egypt to form the United Arab Republic but dissolved the union in 1961 and reasserted its independent character.

If a state loses most or all elements of statehood for an extended period, its sovereignty may legally expire. Yugoslavia perished in the early 1990’s as its component republics declared independence.

Syria became a state in 1946. But by December 8^th, when Syria’s 13-year civil war vaulted the Islamist terrorist group Hayat Tahrir al-Sham (HTS) to power, the country arguably lost all four features of statehood.

Syria’s population is hardly permanent. Before the war, the nation’s headcount reached 22 million. But today, about 5.5 million Syrians shelter in neighboring countries, and another million live in Europe. No one knows if those displaced persons will return, in part because Syria’s economy cannot support them. Similarly, the 185,000 souls who fled from war-torn Lebanon to Syria may not return home. Also unknown is whether the 7.2 million Syrians internally displaced during the civil war will reestablish roots domestically or seek asylum abroad.

Syria’s territory defies definition. HTS’s name contains the term “al Sham,” or “Greater Syria.” This implies a territorial claim encompassing not only Syria but Lebanon, Israel, and Jordan. Syria’s Golan Heights is claimed and controlled by Israel. The terror group ISIS regards a region spanning Syria and Iraq as the “Islamic State.” Turkey occupies much of northern Syria and rules it as a proto-state. The Kurdish community lives autonomously in the country’s northeast in preparation for a “State of Kurdistan.” And a Druze village near the Golan Heights seeks annexation to Israel.

Syria plainly lacks an effective government. HTS has not even drafted a constitution, devised a budget, or commenced many government functions.

As for the fourth Montevideo ingredient, the capacity to sign interstate agreements, it appears no such documents have been signed by HTS. So far, the junta has ignored a Syrian government agreement to repay the country’s $30 billion oil debt to Iran.

Based on the above, HTS will have to move quickly and mindfully if it wishes to preserve Syria’s stature as a state. To begin with, they should accept the terms of a recent Joint Statement on Syria issued by the US and various allies. The Statement strongly endorses Syrian sovereignty but expects HTS to construct a democratic state with equal rights for all, including women and minorities – notwithstanding that  Islamist insurgents typically abhor democratic ideals (an HTS spokesperson has already declared women unfit for key government positions). All the more reason, then, to demand such reforms before the US and Europeans de-list HTS as a terrorist organization and lift their economic sanctions. Only then could HTS realistically attract the foreign investment needed to welcome returning refugees, install a viable government, and otherwise reassemble the building blocks of statehood.

Once these steps are taken, the world may validly continue to recognize Syria as a state. What should not happen, however, is a superficial process that produces a successor entity without meeting the requirements of Montevideo.

ABOUT THE AUTHOR

Joel M. Margolis is the Legal Commentator, American Association of Jewish Lawyers and Jurists, U.S. Affiliate of the International Association of Jewish Lawyers and Jurists. His 2001 book, The Israeli-Palestinian Legal War, analyzed the major legal issues in the Israeli-Palestinian conflict. Previously he worked as a telecommunications lawyer in both the public and private sectors.