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

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.

Take Scotland as an example. What will be the legal status of that territory in five years? Will it still be a part of the UK or form an independent Scotland? This will be determined by a political process which includes certain legal requirements (e.g. a democratic expression of the will of the people at the referendum). The UK is committed to respecting the outcome of the referendum and would thus waive its claim to territorial integrity. Conversely, Spain has announced it would oppose Catalan independence. International law does not put an obligation on a state to accept independence of a part of its territory. But if it chooses to do so, this has international legal implications – the claim to territorial integrity is removed.

Statehood is thus legal status achieved in a (political) process of overcoming an applicable counterclaim for territorial integrity. Democracy finds its place in this process. Sometimes a democratic constitution for a new state will be drafted internationally en route to independence; a new state may also be internationally guided through the process of democratic transition. But sometimes the international actors will only need to decide whose claim is more legitimate, as the Badinter commission had to do in the SFRY. In this context I happily accept Prof Roth’s friendly amendment – ‘democracy may lurk in the background’. Indeed, the Catalan claim would also be more likely to gain international support if Franco were still in power in Madrid. However, I go even further than Roth and conclude that the statehood criteria, too, do no more (or less) than ‘lurk in the background’ of the state-making process.

Once we move beyond the statehood criteria and have passed the process of state creation, I become an objectivist. Once an entity has become a state, this status carries legal consequences for the entity itself as well as for other actors. In this sense statehood is objectivised vis-à-vis the international community as a whole.

The presumption of (objective) statehood and territorial integrity continue even if the state can no longer perform the duties of a state, for internal or external reasons. Kuwait did not cease from being a state during the Iraqi occupation and Somalia continues to be a state despite a lack of central governmental authority. There again needs to be a (political) process – running within certain legal parameters – for the legal status to be altered. In the absence of such a process, states like Somalia continue to exist virtually as a legal fiction. Returning to the debate on objectivism in the law of statehood, Somaliland does not become a state objectively by meeting the statehood criteria because there is a presumption of Somalia’s statehood. This status is objectivised vis-à-vis the international community as a whole.

II. The Badinter Commission: interpreting, misinterpreting or developing the law?

The state-making process is often internationalised. In the example of the SFRY the Badinter Commission was the central institutionalised feature of this internationalisation. By ‘declaring’ dissolution, it declared that the SFRY – and thus its claim to territorial integrity – no longer existed. This paved the way to independence of its constitutive republics. The Badinter Commission ‘declared’ dissolution in its first opinion, delivered on 29 November 1991. I fully agree with Roth that this may well have been the most important opinion of the Commission. In the book I argue that dissolution was one possible interpretation but certainly not the only one. It would be equally as plausible to claim that some republics were merely seeking unilateral secession. The Badinter Commission’s opinion, however, saved those republics from the curse of unilateral secession – an act which is rarely successful.

The Commission’s interpretation of ‘non-consensual dissolution’ was, therefore, by no means a self-evident or an objective outcome. It was one possible interpretation, but not the only one. The interpretation was grounded in the constitutional breakdown of the federation. However, at this point I depart from Roth’s view that this was an eminently constitutional lawyers’ reasoning, taking little or no account of international law. The Commission established that the organs of the federation were no longer representative. In the language of international law, this could be understood as denial of self-determination internally. True, such circumstances do not create a right to independence (in the book I explicitly reject the remedial secession theory, in the SFRY or elsewhere). However, the circumstances of a breakdown of the constitutional arrangement providing for equality of all peoples of a federation may add to the legitimacy of a claim for independence. As a result, the international community may be more willing to accept such a claim.

This is analogous to para 155 of the Quebec case, where the Supreme Court of Canada acknowledged that Quebec could declare independence unilaterally, yet would not automatically become a state. It could become a state, though, if foreign states accepted its independence after considering the legality and legitimacy of the claim, taking into account the conduct of Quebec and Canada. In the Quebec case, this part may have been no more than an obiter dictum, as there was no constitutional breakdown or denial of self-determination at stake in Canada. But in the SFRY it was a real issue. While independence of its republics was by no means a legal entitlement, the claim was legitimate due to the political and constitutional developments in the federation. And the Badinter Commission was willing to accept this claim.

It is in the context of legitimacy where I meet Roth’s position again. Democracy was definitely lurking in the background. When deciding whose competing claim to uphold, independence or territorial integrity, the Badinter Commission and its founders were more sympathetic toward those republics that were transitioning toward democracy. By upholding independence, the Commission also rejected Milošević’s militarism and transition to post-Socialist authoritarianism.

This finally brings me to the question of boundaries. As Roth rightly identifies, one of the core problems in the international law of statehood, pointed out also in my work, is determining a territorial unit in which the population would express its democratic will. The post-colonial practice confirms that where internal boundaries delimit historically-realised self-determination units, this is going to be a territorial base for popular consultation and potentially new international delimitation. The latest internal boundary arrangement will matter, even if not everyone perceives it to be just.  International law in such circumstances cannot seek to remedy all historical injustices; if it did, it would inevitably create new ones.

I fully indeed agree with Roth, referring to Radan, that the internal delimitation in the SFRY did not anticipate the emergence of new states. What I wanted to stress in my work is that these were nevertheless not colonial-like arbitrary lines but, in fact, boundaries with a strong historical pedigree. Once it was internationally accepted that the SFRY was in the process of dissolution (again, by no means a self-evident conclusion), the alternative to confining new international borders along the internal lines was to accept that all delimitation was in flux. As Shaw notes, accepting this would be an invitation to conquest and ethnic cleansing. The Badinter Commission thus reasonably pursued the outcome of cementing the internal lines but needed an authority to ground its agenda in international law. As non-colonial practice was lacking at the time, the Commission resorted to uti possidetis. In so doing it ran into a problem, as uti possidetis was a principle applicable in decolonisation, which the SFRY was not. To ‘prove’ the non-colonial applicability of the principle, the Commission then selectively quoted the Burkina Faso/Mali case.

Subsequent practice, however, shows that new non-colonial international borders have always been confined along the latest internal boundary arrangement, without any reference to controversial uti possidetis in the underlying documents. If Scotland becomes independent, will its delimitation become a matter of uti possidetis? Or does it rather have to do with a strong pedigree of delimiting a historically realised self-determination unit? In my view it is the latter; Scotland’s boundary is not an arbitrary colonial-like line. And my claim is simply that due to their historic pedigree of delimiting self-determination units, boundaries within the SFRY were more Scotland-like than colonial-like.

When talking about new international delimitation one needs to take notice of some basic caveats. Internal boundaries are almost never established with an aim of dissolution or secession of one of the constitutive units. The SFRY was not that unusual in this regard. It is necessary to distinguish between several kinds of internal boundaries, not all of them are capable of becoming international borders. Some delimit historically-realised self-determination units (e.g. Scotland) and others are mere administrative lines (e.g. Oxfordshire). While the boundary of Scotland is capable of becoming an international border, it would make little sense if the boundary of Oxfordshire were upgraded to this status. Lastly, very few boundaries in Europe can be perceived as being just, uncontroversial and fully reflecting the will of the people. So, one should not impose this yardstick when states emerge anew. International law often overrides a democratic will of the people – and quite often for good reasons, too. I believe this is a broader picture one needs to keep in mind when analysing the emergence of new states and their delimitation.

I hope this rejoinder helped in clarifying some of the core issues raised by Professors d’Aspremont and Roth. I would like to thank them again for their time, effort and thought-provoking remarks. My gratitude also goes to the editors for hosting this debate on EJIL Talk!