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

by Melbourne Journal of International Law

[Brad Roth is an Associate Professor of Political Science and Law at Wayne State University]

The effective control doctrine that, in different forms, has governed the recognition of states and governments is unappealing at its core.  Based on the principle of non-interference in civil strife within established international borders, the doctrine’s essential logic is that, with regard to internal efforts to create new states by secession or to overthrow existing constitutional orders, the international rule of law reduces to respect for the outcomes of trials by ordeal.  Traditionally, international law has not established any pathway by which secession can be peacefully achieved without the consent of the original state, nor has it systematically predicated a governmental apparatus’s standing to exercise the state’s legal prerogatives on anything other than victory in an internal power struggle.

In these fundamental ways, international law has seemed to lack a ‘rule of law’ character.   Nonetheless, alternatives are elusive, and not merely because of realpolitik considerations.  Appeals to the idea of ‘popular’ rather than ‘state’ sovereignty miss the point that opposing sides in internal conflict typically claim this mantle.  The right of peoples to self-determination is associated with non-fragmentation as much as with independence; respect for majority rule presupposes an answer to the very question being contested — the ‘majority of whom?’ problem — and respect for minority rights presupposes straightforward resolutions to clashes, not only between legitimate majority and minority interests, but also between minorities and minorities-within-minorities, between territorially concentrated and dispersed minorities, and between ‘national’ and ‘non-autochthonous’ minorities.

What counts as a democratic outcome in any given instance is highly dependent on contested normative conceptions.  From one perspective, in conditions of extreme economic disparity and social stratification, liberal-democratic constitutional forms are consistent with a substantive political inequality that belies the ‘democratic’ imprimatur; in the face of concentrations of economic and social power, a concentration of political power may be necessary to change the game.  From another perspective, adherence to a particular constitutional formula may allow for demagoguery or deadlock to win the day at a critical historical moment, with potentially severe and lasting social costs.  Where such assertions are facially plausible and are embraced by substantial constituencies, the words ‘essentially within the domestic jurisdiction,’ expressing the principle of sovereign equality so central to the international legal order that we have lately known, seem apt.

That said, the existence of twilight does not refute the distinction between day and night.  There remains an underlying moral logic to the international legal order, and the plurality of interpretations, while substantial, is not unlimited.  A cross-cutting consensus in the international community is frequently achievable, if not about what popular sovereignty is, then about what it is not.  Where the outcome of a local trial by ordeal is widely perceived to be in blatant contradiction to the notion of the state as embodying the self-determination of the entirety of the territorial population, or to the notion of the government as an authentic representative (for the time being) of the political community that the state encompasses, international institutions may repudiate that outcome and champion an alternative solution.  That alternative solution, however, tends ineluctably to have an ad hoc character.

The full article can be accessed here.

http://opiniojuris.org/2011/05/18/secessions-coups-and-the-international-rule-of-law-assessing-the-decline-of-the-effective-control-doctrine/

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