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11-1-2010 Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine Brad R. Roth Wayne State University, [email protected]

Recommended Citation Brad R. Roth, Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine, 11 Melb. J. Int'l. L. 393 (2010). Available at: https://digitalcommons.wayne.edu/lawfrp/242

This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. SECESSIONS, COUPS AND THE INTERNATIONAL RULE OF LAW: ASSESSING THE DECLINE OF THE EFFECTIVE CONTROL DOCTRINE

BRAD R ROTH *

Attempted secessions (for example, Kosovo and Somaliland) and coups d'6tat (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 traditionallybeen 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 ...... 394 I Effective Control and the Assessment of Secession Questions ...... 396 A 'Recognition' and International Legal Status: Constitutive and Declaratory A pproaches ...... 396 B Effectivity as an Aspect of the Traditional Criteria of Statehood ...... 398 C Self-Determination of Peoples in Non-Colonial Contexts ...... 404 D Non-Consensual Dissolution of Federal States: The Badinter Im provisation ...... 409 E Kosovo and Beyond: The Inevitability of Ad Hoc Responses to Secession C rises ...... 415 III Effective Control and the International Status of Coup Regimes ...... 422 A Popular , Ideological Pluralism, and the Effective Control D octrine ...... 422 B Toward a Doctrine of Governmental Illegitimacy in : The Haiti and Sierra Leone Cases ...... 427 C The Anti-Coup Proclamations of Regional Organisations ...... 430 D The New Wave of Rejection of Coup Regimes: Honduras and M adagascar ...... 434 IV Conclusion: The Decline of the Effective Control Doctrine and the Absence of a C oherent Substitute ...... 439

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. Melbourne Journal of InternationalLaw [Vol I11

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