A Response to Brad Roth by Jean d’Aspremont

[Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam]

Brad Roth’s timely and insightful article entitled ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ published in the Melbourne Journal of International Law deserves the greatest attention. Twelve years after his seminal Governmental Illegitimacy in International Law. Brad Roth shows that his knowledge and analysis of questions of governmental legitimacy and state creation remains unequaled. He remains a voice that still resonates with authority – and rightly so in the international academy. This article is just one more illustration thereof. Although I have occasionally taken different paths than those suggested by Brad, most of the time I have reached similar conclusions. On the whole, I find myself in agreement with the call for prudence that permeates his scholarship and, in particular, his rejection of the all-out and unbridled embrace of the so-called principle of democratic legitimacy promoted by the Manhattan School in the first half of the 1990s.

This article is no exception. In particular, I concur with Brad’s conclusion regarding the place of the effective control doctrine in situation of state creation and secessions. Indeed, Brad correctly thwarts the often naïve, in my view, legalism infusing the international legal scholarship pertaining to state creation and secession and rejects the tendency to elevate what scholars commonly but misleadingly present as the ‘statehood criteria’ into rules regulating state creation and secession. In that sense, he rightly backs away from what I have called elsewhere the ‘Montevideo Illusion’, whereby it is thought that states are necessarily created under and in accordance with international law. state creation and secession remains primarily a question of — as I used to distinguish them — external and internal effectivité, the former being directly determined by recognition and the latter being the result of the actual territorial control which the entity concerned can establish. Likewise, Brad rightly keeps at bay progressive interpretations of the principle of self-determination (see, eg, the oral statement of the only African country participating in the advisory procedure before the International Court of Justice pertaining to declaration of the unilateral declaration of independence in respect of Kosovo: http://www.icj-cij.org/docket/files/141/15738.pdf) as well as the contention that self-determination has grown into a principle that regulates secession. There is no doubt that self-determination has significantly impacted the creation of states in the second half of the 20^th century. That legal principle bears upon factual developments which are the essence of the political project behind international law. It is however going one step too far to claim that the factual effect that self-determination can bear automatically elevates it into a legal rule governing statehood. This is why, as far as Brad’s treatment of state creation and secession is concerned, there is thus not much I would disagree with.

The conveners of this symposium would probably not relish having me concurring with all the points made by Brad. Legal blogging owes its raison d’être to, among other things, its provision of a platform for discussion (http://www.ejiltalk.org/in-defense-of-the-hazardous-tool-of-legal-blogging/). I shall accordingly seize this opportunity to spot the few issues with respect to which my views depart from those of Brad. While agreeing with most of his positions in terms of state creation and secession, I find myself slightly more uncomfortable with some of his conclusions pertaining to situations of coup d’etats. I entirely share his caution and his contention that we must resist the temptation of legalism and over-reading individual cases, for these situations are most of the time sui generis and the following reactions simply ad hoc. Likewise, I agree that the cases of Honduras and Madagascar can be the object of diverging interpretations. However, as I have argued elsewhere, and despite the fact that, in my view, coups d’etat can never be attributed to the states because authors of coups cannot be acting in the capacity of an organ of the state, one cannot turn a blind eye to the contemporary systematic practice whereby putschists almost always fail to secure recognition — unless they commit themselves to organize free and fair elections — and undergo a wide range of sanctions. Putschists most of the time fall short of being recognized and are subject to sanctions, but that does not necessarily mean that there is the ‘invisible hand of a rule’ behind it. It simply means that there are some well entrenched standards in practice and that free and fair elections have become one of the central yardsticks in terms of legitimacy of government (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265527). It is true — and this probably is the major divergence between Brad and I – that I have gone as far as to claim that not only conventional law (the ICCPR and regional conventions), but also customary law, now enshrine a very minimal requirement pertaining to the organization of free and fair elections. Yet, even if one rejects that idea, as Brad does, it seems difficult to ignore that the practice bespeaks a solid trend towards the non-recognition of putschists — and hence a systematic denial of legal standing and the capacity to speak and act on the behalf of the state by those that seize power by virtue of a coup.

This being said, irrespective of whether practices pertaining to coups d’etat are the manifestation of the existence of a customary rule, as I have just indicated, it does not necessarily need to be so. Making the claim that free and fair elections have become central standards in recognition of governments does not prejudge that this practice may currently be waning and that the commitment of states for procedural democracy after the Cold War may soon be superseded by other considerations (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729786). While disagreeing on the ambit of past and present practice, it may well be that in the future, Brad and I will eventually come to share a similar cold-eyed take on the matter.