Denying the Spoils of War

Front matter

The Politics of Invasion and Non-recognition

Joseph O'Mahoney

The Politics of Invasion and Nonrecognition

Contents

List of figures and tables Acknowledgements List of acronyms and abbreviations

1. Rule maintenance: the logic of symbolic sanctions

4. Turkey, Cyprus and the Turkish Republic of Northern Cyprus 5. The independence of Bangladesh

CHAPTER ONE Rule maintenance: the logic of symbolic sanctions

This book asks why states engage in nonrecognition. This chapter presents the theoretical underpinnings of possible answers to this question. In the first section, addressing the question of the purpose of nonrecognition, I discuss different possible purposes to which sanctions could be put. In the second section, I lay out the methodology for the book and explain how the evidence will enable us to choose between the possible answers.

THE LOGIC OF SYMBOLIC SANCTIONS

The norm against aggression seems to be in some sense responsible for the use of nonrecognition. But how, exactly, are the two related? One plausible way would be that actors, believing so strongly in the moral wrongness of aggressive gain, unthinkingly reacted to each instance of aggression with condemnation and social sanctions (Elster 2007: 355- 6). This conception relies upon a problematic mechanism: an unthinking reaction to a norm violation. While a common phenomenon in interpersonal relations in everyday life, this mechanism seems implausible when applied to the behaviour of states. This is especially the case when numerous states coordinate and sustain nonrecognition over long periods of time. Even those wholeheartedly convinced of the immorality or undesirability of aggression think strategically about how to enforce or perpetuate the norm against it. A better account of the use of nonrecognition would involve a process of strategically weighing various options when faced with a case of aggression. One of those options is nonrecognition. This still involves a normative position concerning aggression. Actors value a world without war and view the use of international violence for selfish gain as wrong. But their actions taken in pursuit of peace are not unreasoned. So, what might their reasoning be?

Why sanction?

The traditional attitude towards sanctions is that if sanctions are severe or costly enough, they will harm a state’s economy, which will bring about pressure on the leaders of that state to change their policy. The goal is inducing policy change. The problem with this line of thought is that sanctions rarely work in this sense, and often seem obviously unlikely to do so (Pape 1997; Morgan and Schwebach 1997). Some work has tried to explain sanctions either as the result of mistakes and miscalculations (Hovi et al. 2005) or, more popularly, because leaders were trying to satisfy the demands of domestic constituents (Lindsay 1986). In a recent example, Whang, condemning the ‘analytic failure to explain the recurrence of seemingly ineffective sanctions’, appeals to the effects of sanctions on a president’s domestic political popularity via ‘cultivating an image of strength’ (2011: 788). Even work arguing that the benefits of sanctions can be long term, and also that the free-rider problem is not crippling to coercive explanations of sanctions, relies on sanctions imposing costs or demonstrating a willingness to bear costs (Thompson 2009).

The puzzle of low-cost sanctions

The literature on sanctions largely ignores the strategic issues involved in low-cost sanctions, including diplomatic or symbolic sanctions. Often low-cost sanctions are dismissed as useless. For example, Tostensen and Bull lament ‘only symbolic — and ultimately ineffective — acts’ (2002: 378). Three features of low-cost sanctions make their repeated occurrence puzzling. First, they do not inflict enough costs on the target to justify using it as a coercive tool. Second, they are not costly enough to those imposing the sanctions to serve as a credible signal of resolve to punish future violators of a rule. Third, there are still negative potential consequences for the sanctioners, even if these are not relevant to the costly signalling of resolve (Maller 2010). Taken together, these imply that according to costly signalling logic, we should not expect to see states engaging in low-cost sanctions as the sanctioner has plenty to lose and little to gain.

Norm dynamics and sanctions

Many analyses of sanctions ignore the context of norms and social institutions in which they are applied. In many frameworks, there is no analytic difference between sanctions enacted as a response to a violation of a strongly held norm, and sanctions enacted purely on the whim of the policymaker in pursuit of some isolated benefit.

That said, some work has noted the relevance of the institutional or normative context. Nossal argues for conceptualising international sanctions as retribution, or ‘the infliction of pain on an offender in return for an evil inflicted on the community’ (1989: 314). Nossal tries to distinguish this from ‘punishment for its own sake’, but undercuts this attempt by claiming that ‘there is nothing in the retributive punishment that is directed toward the future actions of either the offender or others’. What he is identifying is exactly the emotional or irrational use of sanctions for their own sake.

Relatedly, sanctions have sometimes been said to have an ‘expressive’ function. For example, Chesterman and Pouligny claim that ‘sanctions may be designed primarily to express outrage but without a clear political goal’ (2003: 505). Barber sees a secondary objective of sanctions being ‘to express a sense of morality’ or ‘symboliz[e] a general stance’ (1979: 380, 381). Sometimes this expressive function is explained by saying that inaction represents approval. Galtung argues that sometimes ‘doing nothing is tantamount to complicity’ and that a non-instrumental purpose for the imposition of sanctions is that it ‘serves as a clear signal to everyone that what the receiving nation has done is disapproved of’ (1967: 411). This intriguing idea has been referred to by others. For example, Lindsay claims that ‘had Britain not placed sanctions on Rhodesia, most countries would have seen it as a sign of British approval of the Smith regime’ (1986: 166). Similarly, Giumelli includes ‘shap[ing] normality in what is allowed and what is forbidden in the international system’ as an objective of sanctions (2011: 35). Baldwin points out that ‘if the principal alternative to economic sanctions is appearing to condone communism, racism, terrorism, or genocide, the observation that they are a “notoriously poor tool of statecraft” may miss the point’ (2000: 84). Nossal (1991) rightly focuses attention on the symbolic functions of sanctions, with particular regard to weak state sanctions on strong states. Inter alia, he argues that the role of Australian and Canadian sanctions on the USSR after its invasion of Afghanistan was to indicate that ‘the sanctioner disapproved of this behavior, and thus was reaffirming a commitment to the norms of sovereignty and territorial integrity’ (1991: 34-5). Similarly, Crawford and Klotz suggest that one reason for imposing sanctions is ‘to establish international norms by punishing a state for breaking global standards and multilateral rules’ (1999: 27).

However, despite appeals to the general idea of upholding, establishing or reaffirming norms, the current literature provides no detail, leaving it unclear how the mechanism is supposed to work. Also, the trend of much existing work is to treat the norm-violating state as the primary target of the sanctions, rather than the international audience.

I argue that nonrecognition of aggressive gain is driven by actors’ desire to maintain the rule against international aggression. That is, declarations of nonrecognition were not coercive tools or hypocritical moves to placate domestic constituencies, nor were they unreasoned expressions of emotion. Instead they were aimed at rule maintenance. How does this work?

Symbolic sanctions can be used to maintain the legitimacy of a rule of behaviour. They do this by creating common knowledge that coordinates future collective action. Symbolic sanctions can create or reproduce common knowledge, or shared understandings, of what the rules of international society are. In order to understand how this works, first we have to define the strategic situation via attention to the social institutional context (see Figure 1.1).

This model of rule violation and maintenance indicates the conditions that have to obtain in order for a rule maintenance action to make strategic sense.

Imagine that a community of actors knows that there is a rule of conduct between them. When one of the actors breaks the rule, or is judged to have broken the rule, the other members of the community have a choice. They can 1) impose material sanctions on the violator and enforce the rule; 2) they can do nothing or accept the action and its results, potentially abandoning the rule; or 3) they can impose symbolic sanctions and thereby maintain the rule.

If the other actors in the community do not engage in material or highly costly sanctions against the rule violator, there is uncertainty as to whether the rule still exists, has changed or has been abandoned altogether. In order that the community of actors knows that the rule still exists, the rule is reaffirmed. That is, action is taken that is intended to communicate that, in future, actors will judge behaviour according to that rule and potentially take costly action to enforce the rule. There are two pathways underlying the reasoning behind rule maintenance. First, it can affect expectations about whether the community will be able to coordinate costly sanctions on rule violators in the future. Second, it can affect actors’ beliefs about what is considered legitimate behaviour in the international system.

Symbolic sanctions, common knowledge and collective expectations

The expectation created or reproduced by rule maintenance sanctions is that even though costly sanctions were not used in the current instance, they may be used against future violations of the rule as the rule still

Rule There is an agreed rule of behaviour

Action interpreted as violation

One actor performs an action and one or more actors denounce it as a rule violation, or question whether it is permitted under the rule

Absence/failure of material sanctions

Actors either do not deploy costly material sanctions or these sanctions do not induce compliance to the rule j

Uncertainty about status of rule As costly sanctions were either not deployed or were ineffective, actors are unsure whether the rule is still the rule or has changed or disappeared l

Rule maintenance action

The rule is reaffirmed. Action is taken to communicate that in future the members of the community will judge behaviour according to the rule j

Rule There is an agreed rule of behaviour

Figure 1.1 Rule maintenance applies. This is different from a direct deterrence argument. Deterrence is premised on the idea that expectations of future action change because actors have demonstrated their ability or willingness to bear costs, thus enabling the differentiation between those actors willing to bear costs and those unwilling to do so. Rule maintenance actions have an effect on potential rule-breakers because rule maintenance means that actors have common knowledge of the community will to contribute to future sanctions on rule-breakers. Absent rule maintenance, potential rule-breakers can draw the inference that not only is the community currently unable to enforce the rule, but that they do not even value the rule itself.

It is clear in principle from analysis of signalling games that symbolic sanctions can reveal preferences to a limited degree.' The weak signal is not costly enough to demonstrate a willingness to bear the costs of enforcement. However, it is enough to differentiate between a type that does not value the rule (or the state of the world in which the rule is complied with) and a type that does values the rule, even if that latter type may not actually want to pay the costs of enforcing the rule.

In addition, if symbolic sanctions are collective, then even more information can be communicated. Norm enforcement sanctions present a (second order) collective action problem. That is, even if all actors would benefit from the norm being enforced, they would be better off if other actors paid the costs of enforcing the norm, that is, free riding on the efforts of others. So, a factor in a potential norm violator’s calculations should be the extent to which actors will be able to coordinate on the imposition of sanctions. Symbolic sanctions can reveal the preferences of actors not just to potential norm violators, but to other members of the community. If actors agree to participate in collective symbolic sanctions, it suggests that they disapprove of the violation. Absent collective symbolic sanctions, even actors who would be willing to participate in future costly sanctions in concert with the community will be less likely to be able to coordinate collective action. So, it is thus more likely that certain actions will be sanctioned with the common knowledge that those actions are considered norm violations by the community.

Common knowledge can be defined formally in terms of the partitions of information sets (Geanakoplos 1992: 65) but can be understood informally; a proposition p is common knowledge if everyone knows it, everyone knows that everyone knows it, everyone knows that everyone knows that everyone knows it, and so on. Common knowledge is thus different from aggregated individual knowledge.

However, existing models of signalling are too limited to be able to account for common knowledge creation or recreation. In fact, it is impossible within game theoretic models for common knowledge to be created. Rubinstein (1989) shows that if there is a finite number of messages being sent between rational players, then they cannot be sure that the other one knows the information, even though intuitively they would believe it.? Instead, we have to use alternative theories. Clark and Marshall (1981) analyse this problem and posit relatively simple heuristics used to get to a state of common knowledge. One important heuristic is inference from the copresence of A, B and some state of affairs to common knowledge. If happens when both A and B are present, and they know that the other is also present, they infer that p is common knowledge. This is called the mutual experience heuristic. Chwe (1998, 2001) analyses public rituals as examples of attempts to use mutual experience to create common knowledge aimed at helping or hindering coordination. In addition to other features of public rituals, like the content or the emotional resonance, the publicness of the rituals generates common knowledge. Because the ritual is performed in public, everyone present can see that everyone else present is also experiencing the ritual and can infer that the ritual and its content are common knowledge. Wendt points out that the concept of common knowledge is the same as the concept of intersubjectivity used by constructivists (1999: 160). Katzenstein et al. argue that common knowledge is a point of complementarity between rationalist and constructivist approaches to IR (1998: 680). In particular, given that what is common knowledge is highly influential, the processes by which common knowledge, or intersubjective understandings, of the rules of the game get created are ‘highly contested’ and often the object of strategic social construction (Finnemore and Sikkink 1998: 911).

The effect of common knowledge is to introduce an element of certainty into our interactions. If something is common knowledge, we can take it as given. If there is common knowledge of a rule, actors can treat the rule as existing objectively. They have to orient their behaviour around the rule even if they do not believe in the rightness of it individually. This conception is similar to Searle’s idea of how the social world is created by speech acts (2010). One class of speech acts both represents the world and changes the world by declaring that a state of affairs exists. Searle calls these Status Function Declarations. These create objective facts about the world by virtue of people’s collective acceptance or recognition of those facts.’ The rules of a society are an example of this type of objective fact. To create, or recreate, them requires stating that they exist.

This rule maintenance argument is consistent with recent work on social norms and rules as coordinating devices. One example is Tyran and Feld who conducted public goods provision experiments and found that mild law, that is, law backed only by non-deterrent sanctions, significantly increases cooperation if endogenously imposed, that is, the participants jointly agree to the law. They argue that ‘voting for mild law is interpreted as a signal for cooperation, and induces expectations of cooperation’ (2006: 137).

Kier and Mercer (1996) address the setting of precedents in international relations. However, their focus is on demonstrative instances, that is, where performing action A in situation B may or may not generate a convention with the content that actions of type A are permissible or appropriate in situations of type B. They mention the reaffirmation of a prohibition convention via the further prohibition of actions, but they do not specifically theorise situations where there is intent to set a precedent, not by performing the action that they want to be expected, but by agreeing that a principle is the principle by which future behaviour will be judged.

Symbolic sanctions, legitimacy and norm reproduction

Another element of rule maintenance is that symbolic sanctions make certain acts illegitimate, or sustain their illegitimacy. Rule maintenance is a crucial part of the politics of legitimacy. Knowledge of the rules of international behaviour is important for states’ expectations because when considering an action leaders of states cannot predict what others will do. There is a fundamental uncertainty faced in the real world over the capacities and intentions of others. However, actors can know what the principles involved are, what the terms of debate over the interpretation of the proposed action will be. Actors will then take these principles into account when deciding what actions to take. The key role of international law under this conception is that leaders of states have an idea of what types of actions will be investigated and in what terms they will be evaluated. As Reus Smit notes, ‘international law can serve as a focal point for discursive struggles over legitimate political agency and action’ (2004: 20). This makes knowledge of what rules are considered authoritative and accepted an important part of states’ calculations over the likely consequences of their actions. Rule maintenance is an important part of the creation of international order because it reinforces the stability of the rules of international behaviour. Rule maintenance is one type of the public talk that Mitzen places at the centre of global governance. She argues that when states ‘jointly and publicly commit to pursue a project together, publicity can exert a centripetal pull on individual actions capable of countering centrifugal tendencies and pulling individual acts toward the shared project’ (2011: 54).

In order to understand what is being claimed here, it is important to distinguish between a) moral beliefs of individual people and b) norms. Rule maintenance does not necessarily involve any effect on what individual people think is morally wrong. However, it does affect what people believe to be the authoritative norms of society. Jaeger’s (2008) analysis of ‘world opinion’ forcefully makes the claim that there is something beyond the aggregate of individual minds or opinions that actors refer to as something that exists. Steffek’s (2003) account of the legitimation of international governance foregrounds two aspects of legitimation that are core parts of rule maintenance. The first is that, as international governance is dependent upon explaining and defending the actions and policy decisions of international actors in terms of shared justificatory reasons, moments of explicit consensus are crucial for defining the values, goals and procedures that make up the rules (or regimes) of international governance. Rule maintenance actions, like the symbolic sanction of nonrecognition, are examples of these moments of consensus. They provide, in Steffek’s language, ‘the consensual reference points for the regime’s discursive justification and thus legitimacy’ (2003: 264). The second aspect of Steffek’s account of international legitimacy is the need for maintenance: ‘international governance ... requires permanent consensus-building’ (2003: 265). International rules and norms are constantly open to renegotiation and previous agreement is no guarantee of present or future agreement. This means that rule maintenance actions are necessary for the continuation or reproduction of what makes up legitimate governance.

Symbolic sanctions thus can be effectual, and made comprehensible, if we see them as rituals of rule affirmation or attempts to create common knowledge of actors’ common disapproval of certain classes of acts. This use of symbolic sanctions can be understood as consciously adopted norm reproduction. Actors declaring principles are aware that future interpretations of potential violations will involve consideration of previous incidents and action taken now will influence those future interpretations by providing a clear indication of appropriate action.

Variation in rule maintenance

The model of rule violation and maintenance can also be used to suggest some hypotheses about variation in rule maintenance actions (see Figure 1.2). At various stages of the model conditions can be such that there is no progress to the next stage.

First, a crucial assumption is that states value the rule, want it to be maintained and are able to coordinate on a rule maintenance action. If,

Rule There is an agreed rule of behaviour

Action not interpreted as violation

No collective interpretation, or collective excuse or justification

Action interpreted as violation

One actor performs an action and one or more actors denounce it as a rule violation, or question whether it is permitted under the rule

M fe Absence/failure of material sanctions

Actors either do not deploy costly material sanctions or these sanctions do not induce compliance to the rule

QW

M

Uncertainty about status of rule

As costly sanctions were either not deployed or were Rule changed or abandoned ineffective, actors are unsure whether the rule is still the rule or has changed or disappeared

Imposition of effective material sanctions

Actors impose material sanctions, like trade or arms embargoes, or use force, to enforce the rule

The rule violation is accepted and treated as if it is legitimate. Actors now do not believe there is a rule, or that the rule has 4 changed to allow the action performed

Rule maintenance action

The rule is reaffirmed. Action is taken to communicate that in future the members of the community will judge behaviour according to the rule

Rule There is an agreed rule of behaviour

Figure 1.2 Pathways of variation in rule maintenance.

alternatively, states no longer value the rule, want to change the rule or are unable to coordinate on a symbolic sanction, then rule maintenance actions will not be performed.

Second, if material sanctions, like economic sanctions or the use of force, have been imposed and are successful, then there is no need for rule maintenance. For example, after 1991 there was no need to not recognise the results of Iraq’s conquest of Kuwait because the violation had been overturned. This is not to say that the mere presence of material sanctions obviates the need for rule maintenance. An early rule maintenance action might facilitate the imposition of costly collective sanctions in response to the current violation, in which case the costly sanctions would come after rule maintenance, rather than before.

Finally, rule maintenance does not make sense if there is no rule violation. Whether some action is a violation of a rule is not given objectively. A violation is only a violation if actors treat it as such. Given the inevitable imprecision or vagueness of rules (or ‘open texture’ [Hart 1994: 123]) there is always the possibility that an argument can be made that any particular action is not a rule violation. Maybe the action is not of the right type to fall under the rule. Or maybe the action is of the right type, but there is some extenuating property or circumstance that means the action is a legitimate exception to the rule. See Chapter 6 for more extensive discussion of this issue.

METHODOLOGY

Process-tracing, mechanisms and explanation

The goal of this book is an exploration of the process by which nonrecognition becomes accepted and the reasons actors had for doing so. The method of analysis is often called process tracing (George and Bennett 2005: 205-32). Recent work has distinguished three subtypes of process-tracing (Beach and Pedersen 2013). This book uses a combination of theory-building and theory-testing process-tracing, both theorycentric approaches. First, in the Manchurian Crisis case, I start with the empirical material and use an ‘analysis of this material to detect a plausible hypothetical causal mechanism’ (Beach and Pedersen 2013: 16). This causal mechanism is the rule maintenance model. Then, for the other positive case of nonrecognition, Turkish Cyprus, I apply theory-testing process-tracing to see whether this causal mechanism, rule maintenance, is present in the case and whether the mechanism functioned in the same way. Detailed case analysis is the only way to determine if the posited mechanism is operating and is vital for making convincing counterfactual claims. Empirical demands in the current study are high, as it is difficult to determine actors’ purposes, ideas and their action in institutions without the use of multiple types of sources. Focused comparison of cases is also valuable, although the goal is not to test hypotheses about covariation. Comparison can demonstrate the limitations of the concepts or models used in explaining the cases they were developed for and motivate either the creation of new concepts or the modification of existing ones for the cases compared (Jackson 2010: 201).

A good description of the practicalities of this type of analysis is from the analytic narrative project.

By reading documents, laboring through archives, interviewing and surveying the secondary literature, we seek to understand the actors’ preferences, their perceptions, their evaluation of alternatives, the information they possess, the expectations they form, the strategies they adopt, and the constraints that limit their actions. We then seek to piece together the story that accounts for the outcome of interest. (Bates et al. 1998: 11)

To this description I would add understanding the justifications for action that actors use to legitimate their choices.

Motives and evidence

Wendt identifies the major methodological challenge for institutionalists when he critiques the rational design programme for being satisfied when a design choice is consistent with a model. Consistency is a necessary but not sufficient part of determining which is the better explanation. To decide between explanations, ‘we need to get inside the heads and discourse of decision-makers and see what is motivating their behavior’ (2001: 1028). How can we know why people do what they do? It is impossible to introspect another’s motives and intentions (O’Mahoney 2015). However, we can look at what actors said and did. In particular, the ways in which they justified their actions to others, both publicly and in private, can be the evidence for what they were trying to do. This is especially useful when a group of actors are trying to come to a decision on a joint action, like in a government or a group of governmental actors. Individuals are being honest about their reasoning, or they are trying to be convincing to others, or they are trying to avoid censure for violating shared rhetorical standards. In all three of these situations, speech acts are potential evidence of the reasons that are thought convincing. As Schimmelfennig points out, ‘whether or not political actors really mean what they say, they will choose their arguments strategically; and both opportunistic and truthful arguments have real consequences for their proponents and the outcome of the debate’ (2001: 66).

Case selection

In order to come to a conclusion on why states engage in nonrecognition it is necessary to study instances of actors’ decisions not to recognise aggressive gain from war. The unit of analysis is the nonrecognition debate. A nonrecognition debate is a situation where there is some contestation over the decision by a state or an international organisation to recognise or not recognise gains made in war. There are three conditions that must obtain for a case to constitute a nonrecognition debate:

1. At least one state uses military force against another state, that is, across international borders.

2. There is some de facto ‘spoils of war’, that is, political change of some sort asserted by the militarily victorious state and contested by other international actors.

3. The cross-border use of force is not collectively authorised by an international organisation.

The first condition excludes many cases of civil war or of secession. Recognition of a government within a state is a different type of thing from recognition of a new state or of the transfer of territory from one state to another. The international law literature maintains a strict division between the two ideas (Crawford 2007). Civil war and secession raise their own interesting questions concerning when and why states choose to recognise (see e.g. Coggins 2016) but are different from situations where sovereign states break the international rule against profiting from war.

The interest in this study is in cases where recognition was in doubt. Hypothetically, almost any state action could be a candidate for recognition, but the concern here is in the results of the use of force. In particular, there must be some lingering contestation of the results of the use of force. The ‘lingering’ criterion excludes cases where the results of the use of force are relatively fleeting. For example, during the war in the Ogaden in 1977, Somali forces had conquered a large amount of territory in Ethiopia. However, within a few months, and before there had been any formal end to the fighting, Ethiopian forces reversed all those territorial gains. Thus, there was no subject for a nonrecognition debate. The ‘contestation’ criterion concerns a challenge on normative grounds, which excludes cases where the political issues are redistributed by mutual consent, such as in a peace treaty or other agreement. Alternatively, this criterion also excludes the numerous cases of conquest during World War II. By the time of Nazi Germany’s invasion of Poland, there had ceased to be even a semblance of global norms. International order was in an extreme crisis and arguably did not exist; the period of World War II is the situation closest to pure anarchy since at least the Napoleonic era.

In the main body of this book I study four cases of nonrecognition debate: the Japanese conquest of Manchuria in 1931-3, the Italian conquest of Ethiopia (Abyssinia) in 1935-6, the Indian invasion of East Pakistan (later Bangladesh) in 1971 and the Turkish invasion of Cyprus in 1974. The Manchurian case is selected on the basis that the secondary literature identifies it as the first time nonrecognition was imposed on the results of the use of force. This means that policy discussion was more explicit and thus facilitates data collection. The Italian conquest of Ethiopia was selected as a comparison case to the Manchurian Crisis. The goal of comparison with negative cases in this study is to find out first whether the model of rule maintenance is useful in understanding the case at all and second why this case did not result in nonrecognition. That is, to identify sources of variation.