This week we will be hosting a discussion of Martins Paparinskis’ book The International Minimum Standard and Fair and Equitable Treatment, recently published by Oxford University Press. Martins is currently a Junior Research Fellow at Merton College, Oxford. Prior to this he was a Hauser Research Scholar at NYU Law School and completed his MJur and doctoral work in Oxford. It has been a pleasure and a delight to have him first as a graduate student and then as a colleague in Oxford for so many years. He will be taking up a Lectureship at University College London in the coming academic year. In addition to this book, he has published a number of articles and book chapters on the law of foreign investment protection with much of his work showing how that law interacts with general principles of international law. Last year he compiled Basic Documents on International Investment Protection (Hart). His monograph and thoughts on the topic will be subjected to careful scrutiny this week by Sir Frank Berman (Oxford), Federico Ortino (King’s College, London), and Anthea Roberts (Columbia Law School/London School of Economics). We are grateful to all four for agreeing to have this discussion here.
Jure Vidmar and I are in agreement about the processes by which new States are created. Indeed, I think his book makes a really valuable contribution in setting out those processes of State creation. As Jure notes in his rejoinder, the difference between us is that he places these processes outside the Montevideo (and additional) criteria for Statehood and I argue that they are within the criteria. In particular, I argue that those processes help us in assessing fulfilment of the fourth Montevideo criteria of “capacity to enter into legal relations.” I argue that this criterion simply means independence (legal and factual).
Although Jure is willing, for the purposes of argument, to go along with interpreting the 4th criterion to mean independence, he has “mixed feelings” about this claims. He thinks considering the two to be the same is trying to fit concepts that don’t quite fit. In my view, the 4th criterion is about something more than its plain words indicate. It speaks about a “capacity” to enter into legal relations but it does not tell us precisely what confers this capacity. So we have to imply something that confers this capacity. This interpretive exercise is required by the very wording of the criterion and should not be seen as illegitimate. I suggest it is independence that confers this capacity as the “capacity” referred to is to a formal capacity and not a functional capacity.
Jure’s main argument with regard to fitting the political processes he identifies into the independence criterion is that it would lead to a problem of circularity. He says that argument would essentially be that a State would be a State because it is a State. I disagree. He uses the example of Somaliland (which I do not consider to be a State, yet). Jure says that on my argument, Somaliland is a state because it is a State. No, if I considered Somaliland to be a State, it would be a State because it is independent. Why would it be independent? Because the claim to territorial integrity of Somalia (the parent State) can be overcome. How is the claim overcome? It would have to be by parental consent, collective recognition or some other process. There would be no circularity here. Read the rest of this entry…
I would like to thank Dapo for his response to a particular claim I make on the statehood criteria. It is a twofold claim that I make in the book. First, the emergence or non-emergence of states cannot be explained by the Montevideo criteria. Secondly, the Montevideo criteria should not be seen as a rule of customary international law. I sense that Dapo could partly and qualifiedly agree with the first part of the claim. He certainly disagrees with the second part.
Dapo’s proposition essentially preserves the centrality of Montevideo by accommodating the process of state creation within these criteria. In so doing the proposition overcomes the deficiencies of Montevideo and the solution indeed looks very appealing at first sight. But it is problematic, as it makes the relationship between state creation and statehood criteria circular.
Territorial integrity and Montevideo
In a world where virtually every territory is a state territory and thus subject to a legitimate claim to territorial integrity, this claim can only be overcome by a political process which creates a new legal status. I think that Dapo and I agree up to this point. We diverge on the question of the place of this process and its relationship to the statehood criteria. Dapo accommodates the process within Montevideo, I place it outside; Dapo subordinates the process to Montevideo, I subordinate Montevideo to the process.
Dapo’s explanation reconciles the traditional Montevideo-centric approach in the law of statehood with its main criticism – the inadequacy of the criteria. By incorporating the process of state creation within Montevideo, the criteria are no longer an inadequate static checklist and can actually answer difficult questions, such as why Somaliland is not a state. By holding that the fourth criterion may compensate for deficiency in meeting others (meaning that some Montevideo criteria may be more important than others), it can even be explained why Bosnia was a state in 1992. The trick that makes Montevideo work is to bring what I treat as extra-Montevideo within the ambit of Montevideo. Read the rest of this entry…
I am pleased that Professors Jean d’Aspremont and Brad Roth both seem to approve of my proceduralised approach to state making which, inter alia, degrades the Montevideo criteria from customary law to a mere under-labourer of a political process. Their criticism is politely measured but if I had to identify one core word to capture the gist of their remarks, that word would be ‘objectively’, albeit in two different meanings.
First, there is the issue of the theoretical underpinnings of my work and the question of whether statehood can be objectivised. Do I indeed take a schizophrenic position on that? Secondly, synthesising international practice requires analysing and interpreting history. Whose story should an international lawyer choose to tell? In the context of the present debate, was the Badinter Commission interpreting, misinterpreting or developing the law?
The nature of the state
If I try to eliminate Prof d’Aspremont’s proverbial politeness, in blunt language he is telling me: “You are crusading against objectivism in the law of statehood, yet you are an objectivist yourself, albeit you get there only after a detour.” D’Aspremont is right, while claiming that states do not emerge objectively and self-evidently, it underlies my writing that at some point statehood is achieved and then it becomes objectivised vis-à-vis the international community as a whole. In my defence, let me say something on that ‘detour’.
My anti-objectivism is limited to the statehood criteria; it does not extend to the statehood status. I use that ‘detour’ to separate the two. States do not emerge simply by meeting the statehood criteria, be it Montevideo or however extended addition. D’Aspremont correctly notes that I proceduralise the law of statehood. It is this (internationalised) process which leads to a new legal status. There are no objective criteria for statehood in international law that could automatically make a state. Read the rest of this entry…
Objectivism and Managerialism in the Law of Statehood: the Tradition Renewed by Vidmar’s Democratic Statehood
Jean d’Aspremont is Professor of Public International Law at the University of Manchester
The law of statehood is a regulatory, explanatory and epistemological project. The law of statehood is an explanatory project in the sense that it seeks to make sense of the intricate and volatile practice of state creation. It is a regulatory and managerial project in the sense that it seeks to order the intricate and volatile practice of state creation. It is an epistemological project in the sense that it manifests the quest by one group of professional for ownership of the knowledge on the intricate and volatile practice of state creation. The scholarship on the law of statehood is informed by such a three-fold agenda. This multilayered agenda, in turn, determines the modes of apprehension designed by international lawyers to allow such a volatile phenomenon to penetrate the international legal system.
It is against this backdrop that the following observations will seek to situate the impressive and refined work of Jure Vidmar, whose subtle insights on the matter had been trickling in the literature these last years through an impressive number of articles. They now receive their full thrust with the publication of his first monograph entitled Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart, 2013).
Anyone who has studied a general course on international law will certainly be familiar with the criteria for Statehood contained in the Montevideo Convention on the Rights and Duties of States: permanent population; defined territory; government; and capacity to enter into relations with other States. In addition, they may have learned of the argument, put forward most prominently by James Crawford in The Creation of States in International Law, that there are additional criteria for the creation of states (e.g., the entity must not be created in violation of the right of self-determination or as a result of an unlawful use of force). But students of international law will also be well aware of the debate between those who hold the view that recognition by other States is simply declaratory of a Statehood (already achieved by fulfilling legal criteria) and those who take the view that it is recognition that constitutes new States as such.
Jure Vidmar’s recent book Democratic Statehood in International Law is an important contribution to these debates on what makes a State a State. One of the central points that runs through Jure’s book is that States do not emerge automatically from the application of legal criteria (the Montevideo criteria or additional criteria) (pp. 63; 137; 238-241). In his view States emerge out of a political process whereby a declaration of independence is accepted (p. 63 ;238). Jure claims that in that process fulfilment (or not) of legal criteria is neither here nor there. He says:
“What is, then, the normative value of the statehood criteria? It appears that they are, at best, policy guidelines rather than legal norms. Indeed, the fact that states grant recognition even when the statehood criteria are not met and withhold it where they are met indicates that state practice does not accept that statehood would depend on the Montevideo criteria. These criteria do not produce any direct legal effects. To some degree, they can only influence the international practice of acceptance or non-acceptance of claims for independence.” (p. 241)
On this analysis, an entity which fulfils the criteria does not automatically become a state (he would, I think point to Somaliland) and an entity which does not fulfil the criteria is not prevented from becoming a State (perhaps Bosnia Herzegovina would be his example). There is much to like about Jure’s work and his analysis. He provides us with a comprehensive analysis of State creation in the post-Cold War era. However, in this response to Jure, I aim to defend the view that criteria for Statehood (the Montevideo criteria and the additional criteria) are legal norms which do matter. Read the rest of this entry…
Jure Vidmar’s Democratic Statehood in International Law is on the short list of recent works – along with James Crawford’s magisterial 2006 second edition of The Creation of States in International Law and Mikulas Fabry’s 2010 Recognizing States: International Society and the Establishment of New States Since 1776 – that provide up-to-date, systematic and authoritative coverage of state creation and recognition in the international order. The book caps its author’s series of substantial contributions to the literature on this topic.
Vidmar’s treatment of statehood controversies is distinctive in invoking the enhanced role of democracy (or something going by that name) in the international normative order. Ever since Thomas M. Franck’s 1992 assertion of an “emerging right to democratic governance,” scholars have sought to assess whether and to what extent international law mandates adherence to democratic standards within (notionally “sovereign”) political communities. The democratic entitlement claim has straightforward relevance to determining whether a given institutional apparatus has legal standing to speak as the government of a state – for example, in the wake of a coup d’état – as opposed to determining whether a territorial entity has the legal status of statehood. Foreign states and intergovernmental organizations might, at least in principle, condition a putative government’s standing to represent a state – including for the purpose of ascertaining the validity of consent to presumptively-unlawful foreign intervention in the territory – on the outcome of elections certified as “free and fair.” As is generally noticed, international practice on this point is inconsistent, and not all scholars are satisfied that democratic criteria can be specified in a manner that transcends principled controversies about democracy’s essential meaning. Nonetheless, the existence of twilight does not refute the distinction between day and night, and substantial international practice can be attributed to a collective perception of particular regimes’ lack of democratic legitimacy. Read the rest of this entry…
In the book Democratic Statehood in International Law, I develop an argument that state creation is a political process of overcoming a competing claim to territorial integrity. The emergence of a new state is not an automatic or factual occurrence upon meeting the statehood criteria. The process requires some democratic procedures to be followed. It often also runs in parallel with an internationalised attempt at imposition of a democratic political system.
The post-Cold War practice and the effects of the right of self-determination have led some writers to proclaim that under contemporary international law a newly-emerged state needs to be democratic. Others have rejected this view by holding that democracy has not become a statehood criterion. My argument is that the first statement is exaggerated and the second one wrongly-focused. Non-democratic states can emerge in contemporary international law, but so can states that do not meet the statehood criteria.
In the process of state creation, the adoption of democratic institutions is equally as relevant or irrelevant as ‘Montevideo’. Considerations for democracy may impact state practice in relation to claims for independence but do not have any direct legal effects. The same can be said of the Montevideo criteria. Via the right of self-determination, state-creation nevertheless does require a democratic process. This is a requirement for independence referenda, not a requirement for a particular political system. The right of self-determination should not be conflated with democracy.
State creation as a political process of overcoming a counterclaim to territorial integrity
Acquiring statehood is not an international legal entitlement. Existing states are protected by the principle of territorial integrity. While this principle does not generate an absolute prohibition of secession, the consequence of its operation is that states cannot emerge automatically, as a matter of objective fact. States can only emerge in the legal circumstances where the claim to territorial integrity is either overcome or becomes inapplicable. Read the rest of this entry…
Should the International Law Commission Overrule the ICJ in its Articles on Immunity of State Officials from Foreign Criminal Jurisdiction?
In the current session of the International Law Commission (ILC), the Commission has continued its work on the immunity of State officials from foreign criminal jurisdiction. In the first part of the ILC’s 2013 session, the Drafting Committee of the ILC adopted three draft articles on immunity of State officials. Those draft articles deal only with the scope of the ILC’s project (what is in and what is out) and with immunity ratione personae. On the latter, the draft articles set out the persons enjoying immunity ratione personae and the scope of that type of immunity. Those draft articles adopted thus far do not address the scope of immunity ratione materiae from foreign criminal jurisdiction. Although the ILC’s work is still at an early stage, the Drafting Committee has already made one significant decision. Draft Article 3 provides that:
“Heads of State, Heads of Government and Ministers for Foreign Affairs enjoy immunity ratione personae from the exercise of foreign criminal jurisdiction.”
In this provision, the Drafting Committee has maintained the view that the immunity ratione personae applies to the so-called troika of high ranking State officials that the Vienna Convention on the Law of Treaties establishes as having a plenary or general competence to conclude treaties. There have been arguments that officials outside the troika (eg Ministers of Defence or of Trade) should also be granted immunity ratione personae, and indeed some domestic courts (eg in the UK ) have done so. The ILC seems set to reject this expanded view of immunity ratione personae and, in my view, rightly so.
What is more controversial is whether Foreign Minsters should be in this list. In taking the view that Foreign Ministers belong in this category, the ILC’s Drafting Committee has adopted the view of the International Court of Justice in the Arrest Warrant case (2002). That case concerned the immunity of the Minister for Foreign Affairs and the ICJ stated that the Minister for Foreign Affairs (like the Head of State and Head of Government) has immunity by virtue of that office, and while in office, even when it is alleged that he has committed international crimes. The ICJ went on to hold that the Foreign Minister was immune from foreign criminal jurisdiction even if abroad on a private visit.
The immunity ratione personae of serving Heads of State and Heads of Government is not particularly controversial. However, opinion is divided as to whether the Foreign Minister should be placed in the same category (even within the ILC – see the Drafting Committee Report ; and among States too – see here para. 58 ). In the Arrest Warrant case, the ICJ did not provide any State practice in support for the view that the Foreign Minister has immunity ratione personae under customary international law. I argue below that the ILC should consider whether the ICJ got customary law right and should consider departing from the ICJ’s decision. Read the rest of this entry…
This week we will be hosting a discussion of Jure Vidmar’s book Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice recently published by Hart. Jure is a Leverhulme Early Career Fellow in the Law Faculty at the University of Oxford and a Research Fellow at St John’s College, Oxford. The introduction to the book is available on SSRN. In addition to his book, he has published several articles on the law relating to Statehood, as well as on other topics. He is a wonderful colleague and is quickly emerging as a leading voice on issues relating to Statehood. His book and thoughts on the topic will be subjected to careful scrutiny this week by Professors Brad Roth (Wayne State University) and Jean d’Aspremont (University of Manchester). All three have written several pieces on EJIL:Talk! and we are grateful to them for returning to have this discussion here.