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Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine

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Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine SECESSIONS, COUPS AND THE INTERNATIONAL RULE OF LAW: ASSESSING THE DECLINE OF THE EFFECTIVE CONTROL DOCTRINE Assessing the Decline of the Effective Control Doctrine BRAD R ROTH * Attempted secessions (for example, Kosovo and Somaliland) and coups d’état (for example, Madagascar and Honduras in 2009) prompt contestation over whether or not legal status is to be conferred on local exercises of de facto authority. International legal standing has traditionally been established by victory in a trial by ordeal: a region initially integral to an existing state successfully establishes itself as an independent sovereign unit only where its secession movement creates — usually by decisive victory in an armed struggle — facts on the ground that appear irreversible; an insurgent faction successfully establishes itself as a government where it overthrows an existing constitutional structure and secures — even if at bayonet-point —widespread popular acquiescence. Insofar as it is perceived as little more than an imprimatur for ‘might makes right’ at the local level, this ‘effective control doctrine’ is manifestly offensive to a rule-of-law sensibility. Notwithstanding the international order’s disposition to defer to the outcome of internal conflicts, alternative solutions are available where a state manifestly fails to embody the self-determination of the entirety of the territorial population, or where a government manifestly fails to represent the political community that the state encompasses. These alternative solutions, however, far from generating new generally applicable doctrines, tend ineluctably to have an ad hoc character. CONTENTS I Introduction............................................................................................................... 2 II Effective Control and the Assessment of Secession Questions ................................ 4 A ‘Recognition’ and International Legal Status: Constitutive and Declaratory Approaches ............................................................................... 4 B Effectivity as an Aspect of the Traditional Criteria of Statehood................. 6 C Self-Determination of Peoples in Non-Colonial Contexts ......................... 12 D Non-Consensual Dissolution of Federal States: The Badinter Improvisation.............................................................................................. 17 E Kosovo and Beyond: The Inevitability of Ad Hoc Responses to Secession Crises ......................................................................................... 23 III Effective Control and the International Status of Coup Regimes........................... 30 A Popular Sovereignty, Ideological Pluralism, and the Effective Control Doctrine ...................................................................................................... 30 B Toward a Doctrine of Governmental Illegitimacy in International Law: The Haiti and Sierra Leone Cases .............................................................. 35 C The Anti-Coup Proclamations of Regional Organisations ......................... 38 D The New Wave of Rejection of Coup Regimes: Honduras and Madagascar................................................................................................. 42 IV Conclusion: The Decline of the Effective Control Doctrine and the Absence of a Coherent Substitute.......................................................................................... 47 * JD (Harvard); LLM (Columbia); PhD (Berkeley). Associate Professor of Political Science and Law, Wayne State University. The author wishes to thank Jean d’Aspremont for his helpful comments. 1 2 Melbourne Journal of International Law [Vol 11 I INTRODUCTION Although ‘recognition’ is frequently discussed as a political or diplomatic rather than a legal matter, no task is more fundamental to the international rule of law than that of identifying both the primary units of the global order and the institutions that have standing to act in the name of those units. International law acknowledges ‘states’ as bearers of a distinctive package of rights, obligations, powers and immunities (that is, ‘sovereignty’), and attributes to each state a ‘government’ with the legal capacity (for the time being) to assert rights, incur obligations, exercise powers, and confer immunities on the state’s behalf.1 Where contestation arises over whether an entity has the legal properties of a state or whether a particular governmental apparatus acts validly in the state’s name, legal relationships of all kinds are called into question.2 Legal doctrines are thus needed to govern international conferral of legal status on local exercises of de facto authority, whether carried out in the name of new sovereign units (for example, Kosovo and Somaliland) or of new leaderships asserting rule over existing sovereign units (for example, new regimes coming to power by force in Madagascar and Honduras in 2009). The international legal order’s repudiation of ‘might makes right’ in relations among states masks a critical component of that order’s traditional doctrines governing what is cognisable as an exercise of state authority: an emphasis on present or past patterns of ‘effective control’. Although the doctrinal schemes for recognising states and governments are distinct and are each complex, a traditional common thread is the role played by ‘effective control through internal processes’ — processes that may be marked by the very violence and coercion that the international order disdains to dignify in interstate relations. International legal standing has traditionally been established by victory in a trial by ordeal: a region initially integral to an existing state successfully establishes itself as an independent sovereign unit only where its secession movement creates — usually by decisive victory in an armed struggle — facts on the ground that appear irreversible; an insurgent faction successfully establishes itself as a government where it overthrows an existing constitutional structure and secures — even if at bayonet-point — widespread popular acquiescence. The international order’s attribution of sovereign independence to established territorial political communities thereby has traditionally entailed (to put it most bluntly) the right of each to fight its civil war in peace and to be ruled by its own thugs. Insofar as it is perceived as little more than an imprimatur for ‘might makes right’ at the local level, this ‘effective control doctrine’ is manifestly offensive to a rule of law sensibility. 1 The legal framework for the latter attribution is the theme of the author’s 1999 book. See Brad R Roth, Governmental Illegitimacy in International Law (Oxford University Press, 1999). 2 Of greatest potential significance in this context is the authority to invite foreign military forces to play a role in bolstering a particular system of public order against challenges by its rivals. See, eg, Gerhard Hafner, ‘Present Problems of the Use of Force in International Law: D Sub-Group on Intervention by Invitation’ (Report, Institut de Droit International, 25 July 2007) <www.idi-iil.org/idiF/annuaireF/10th_commission_d.pdf>; Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 British Year Book of International Law 189. 2010] Assessing the Decline of the Effective Control Doctrine 3 It comes as no surprise, then, that so many present day commentators, theorists, jurists, and even diplomats view the effective control doctrine negatively, and resist its implications for contemporary recognition controversies. Where local impositions appear to defy popular will or the rule of law, there is a natural inclination, consistent with the moral principles articulated in international human rights instruments and other authoritative international pronouncements, to prefer more plausibly democratic or constitutional solutions to recognition contests. In the developments of the past two decades, there is a nexus between trends in the recognition of states and those in the recognition of governments: the international community’s rejection of local efforts to maintain by force the territorial integrity of the Socialist Federal Republic of Yugoslavia (‘SFRY’), in the face of clear majorities for independence within the constitutionally established territorial sub-units, is of a piece with the international community’s newfound reluctance to recognise unconstitutional seizures of power from democratically elected authorities. However, the effective control doctrine cannot be so easily jettisoned. The doctrine fills a void inherent in a decentralised legal order founded on arbitrarily-drawn territorial boundaries and beset by continuing clashes of both interests and values. While a rigid application of traditional premises may produce genuinely perverse results, a radical departure from those premises would open up questions that the international system has had good reason to keep closed, and would potentially invite the kind of unconstrained external intervention in internal affairs that the international law of peace and security seeks to preclude. Disparagement of the effective control doctrine is all too easy in the absence of a ‘moral reading’ of the doctrine,3 one that exposes the doctrine’s role in effectuating the purposes and principles of the United Nations Charter system. The effective control doctrine is best understood, not as an amoral or tactical concession to realpolitik, but as a means of
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