Home Archive for category "Self-Determination" (Page 4)

The Importance of Legal Criteria for Statehood: A Sur-Rejoinder to Jure Vidmar

Published on August 10, 2013        Author: 

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…

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The Importance of Legal Criteria for Statehood: A Rejoinder to Dapo Akande

Published on August 9, 2013        Author: 

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…

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Democratic Statehood in International Law: A Rejoinder to Jean d’Aspremont and Brad Roth

Published on August 9, 2013        Author: 

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…

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The Importance of Legal Criteria for Statehood: A Response to Jure Vidmar

Published on August 7, 2013        Author: 

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…

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Vidmar’s Democratic Statehood Thesis in Light of the Yugoslav Dissolution

Published on August 7, 2013        Author: 

Brad Roth

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…

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Democratic Statehood in International Law

Published on August 6, 2013        Author: 

JureVidmar_profile1In 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 bBook. Democratic Statehood. Jure Vidmarecome 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…

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Discussion of Jure Vidmar’s Democratic Statehood in International Law

Published on August 5, 2013        Author: 

Book. Democratic Statehood. Jure VidmarThis 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.

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Democracy, Peoples’ Uprising and Unconstitutional Change of Government in Egypt: The African Union Principles and Responses

Published on July 8, 2013        Author: 

ZY12012Zeray Yihdego is Senior Lecturer in International Law at the University of Aberdeen. He is a Fellow of the Higher Education Academy and a member of the UN Expert Group on the Firearms Protocol, which supplements the UN Convention against Transnational Organised Crime 2000. In addition to serving as an expert, Dr Yihdego also acts as a consultant for the Vienna based UN Office on Drugs and Crime.

Democratically elected Egyptian President Mohamed Morsi (photo credit) was ousted by theMohamed_Morsi-05-2013 Egyptian military on July 2, 2013. The former President is under house arrest, while members of his presidential team are in custody. The Army argues that it responded to the peoples’ demands and will, while the former President and his supporters called the action as a military coup. The situation challenges the notions of democracy (as understood to mean a rule by majority), self-determination (as understood to mean peoples’ right to decide on their political, socio-economic and other fates as a unit). The coup also raises important questions about Egypt’s adherence to one of the African Union’s (AU) principles: the rejection of unconstitutional change of government. Perhaps more importantly, the situation poses real challenges for the AU in how it implements the principle prohibiting such unconstitutional changes of government. Read the rest of this entry…

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A Shared Responsibility Trap: Supplying Weapons to the Syrian Opposition

Published on June 17, 2013        Author: 
Syran Opposition Flag (Source: Wikipedia)

Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons. Read the rest of this entry…

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P.S. Catalonia

Published on June 6, 2013        Author: 

My Editorial on Catalan independence certainly put the cat among the pigeons – or perhaps more accurately, the pigeon (or dove) among the cats.  Reactions were ferocious and some unpleasantly ad hominem, even by some authors who should know better. I read with care all reactions, including those removed by our Blogmasters for violating the decorum and sobriety which are a hallmark of EJIL: Talk! Most underscored, with different levels of vehemence, the longevity and authenticity of Catalan nationalism – something that was not called into doubt – and a variety of historical grievances.  None, in my view, came even close to meeting my basic point, which was that to insist on independence as a solution to resolving the grievances and vindicating Catalan national identity, was a defeat of the very spirit and ethos which gave birth to that noble experiment which is the European Union. I repeat: Independence? Bon Voyage. But not in the EU.

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