Governmental Illegitimacy in International Law

The above chapters have established an emerging pattern of collective practice and opinio juris with respect to the legal aspects of non- recognition of governments. The result promises to disappoint both the adherents of traditional sovereign prerogative and the proclaimers of a new liberal internationalism. The pattern suggests that the traditional version of the effective control doctrine no longer represents current positive law, but that it has not been, and is not necessarily in the process of being, replaced by a new liberal-democratic legitimism.

This chapter will briefly summarize what the foregoing study submits to be the current state of the positive international law of governmental illegitimacy. It will further suggest, as has been suggested throughout the body of the work, that the absence of a meaningful "democratic entitlement" in the international system ought not to be lamented; though superficially attractive, assertions of a new, "democratic" legitimism pose serious dangers to international peace and security, and even to democracy itself.

Contrary to common belief, popular sovereignty need not be newly established as a principle of international law. It has been a part of positive international law for, arguably, as much as two centuries, and is without a doubt at the core of the system of sovereign equality embodied in the United Nations Charter. The question has been and remains how to give it effect.

Popular sovereignty has two distinct, if related, meanings. Externally, it refers to the sovereign equality of peoples espoused in the United Nations Charter, an equality that entails a principle of non-intervention in the internal affairs of foreign states and a rejection of any imposition of foreign views as to what constitutes the "legitimate" government of the state. Long discredited is the practice of recognition of "sovereigns", in the outmoded sense of monarchs bearing dynastic claims. In Thomas Jefferson's terms, recognition of a foreign government turns on the will of the subject people "substantially declared" -- i.e. declared by any perceived means of articulation, above all by trends of actual obedience vel

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