A Response to Jean d’Aspremont by Brad Roth

Jean d’Aspremont’s supremely kind comments on my article require little response other than an expression of appreciation. Jean’s knowledge in this field is second to none, and the differences in our perceptions of these topics are minute. But it is, perhaps, worth clarifying my position on the recognition of coup regimes and the question of a democratic entitlement in international law.

There is no question that the international order has departed from the strict anti-interventionism that underlies what I have termed ‘the effective control doctrine’. Coups against ‘freely and fairly elected’ governments have, as Jean has demonstrated, systematically come to incur disfavor. What is unclear is whether it remains the exceptional case or is now the rule that this disfavor extends to denying a coup regime legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the sovereign entity that it purports to govern. The Haiti (1991–94) and Sierra Leone (1997–98) precedents were path-breaking but involved unusually egregious regime characteristics and have not been followed in cases of mere disrespect for election results.

Tellingly, Jean has conceded that once ‘authors of a coup d’etat … have gained effective power’, they become for legal purposes ’an organ of the state,’ and their subsequent breaches of international legal obligation ’are attributable to the state.’¹ And indeed, if a coup regime, notwithstanding widespread disapprobation, acquires permanence, it becomes dysfunctional for the international order to relate to it in any other way.

Given the continuing heterogeneity of ruling arrangements, old and new, it seems anomalous that the international order should make sacrosanct a particular formula for establishing a government. Moreover, ‘free and fair elections’ achieve general acceptance as the arbiter of political conflict only where antecedent questions, both procedural and substantive, have been resolved. Where there is no agreement about what fates electoral outcomes should be permitted to determine, the stakes of electorainl competition can be intolerably high. In addition, elections often pose a choice among options as to which there is little sense of popular ‘ownership,’ and elected governments may frequently be seen to have vitiated their mandates by provocative or ineffective conduct. Coups and other unconstitutional disruptions cannot be blanketly characterized as anathemas to popular will.

This is not to say that the proliferation of free and fair electoral processes is not to be encouraged nor that recognition practice should regard bullets and ballots as equivalent. Nor do international norms stand still. The Côte d’Ivoire crisis (2010–11) furnishes a new instance of regime repudiation, albeit distinctive for (1) having already been the object of Chapter VII resolutions aimed at resolving a sectional civil war, and (2) having been the site of an externally brokered agreement calling both for elections organized in a specific manner and for the parties to abide by an internationally-backed body’s judgment on the electoral outcome. Whether this episode augurs the long awaited normative transformation or represents just another exceptional case remains to be seen.

Notes:

¹ Jean D’Aspremont, ‘Responsibility for Coups d’Etat in International Law’ (2010) 18 Tulane Journal of International & Comparative Law 451, 473.