Governmental Illegitimacy in International Law

Governmental Illegitimacy in International Law

Governmental Illegitimacy in International Law

Governmental Illegitimacy in International Law

Synopsis

When is a de facto authority not entitled to be considered a `government' for the purposes of International Law? International reaction to the 1991-4 Haitian crisis is only the most prominent in a series of events that suggest a norm of governmental illegitimacy is emerging to challenge more traditional notions of state sovereignty. This challenge has dramatic implications for two fundamental legal strictures: that against the use or threat of force against a state's political independence, and that against interference in matters `essentially' within a state's domestic jurisdiction. Yet although human rights advocates have begun to speak of state sovereignty as an `anachronism', with some expansively proclaiming the emergence of an international `right to democratic governance,' international law literature lacks systematic treatment of governmental illegitimacy. This work seeks to specify the international law of collective non-recognition of governments, so as to enable legal evaluation of cases in which competing factions assert governmental authority. It subjects the recognition controversies of the United Nations era to a systematic examination, informed by theoretical and comparative perspectives on governmental legitimacy. The inquiry establishes that the category of `illegitimate government' now occupies a place in international law, with significant consequences for the legality of intervention in certain instances. The principle of popular sovereignty, hitherto vague and ambiguous, has acquired sufficient determinacy to serve, in some circumstances, as a basis for denial of legal recognition to putative governments. This development does not imply, however, the emergence in international law of a meaningful norm of `democratic governance,' nor would such a norm serve the purposes of the scheme of sovereign equality of states embodied in the United Nations Charter.

Excerpt

In the fall of 1991, when the Haitian military ousted the democratically- elected government of President Jean-Bertrand Aristide, I had the good fortune to be a student of Oscar Schachter at Columbia University, where I was pursuing a graduate degree in international and foreign law. The combined promptings of that historical event and that great scholar led me to the questions that ultimately inspired this work.

In the 1980s, I was among the many who marched under the banner of "human rights and non-intervention". That slogan, though glossing over complexities and differences of opinion, was not perceived at the time to embody a paradox. Animating the present project is the conviction -- suddenly quite unfashionable -- that this combination of doctrines remains valid and viable today. Simplistic though it would have been to suppose that the two doctrines were in stable harmony, it would be equally simplistic now to suppose that the two are contradictory, and that the former negates the latter.

Central to the relationship between human rights and non-intervention is the question of whether a government, when it asserts rights against the coercive intervention of foreign states, is irrebuttably presumed be speaking for the true right-holders, the people over whom it maintains effective control. Yet governmental illegitimacy, a concept hardly unfamiliar in the political realm, has been underexplored and undertheorized as a question in international law. Indeed, the legal significance of recognition of governments, so well appreciated by Sir Hersch Lauterpacht half a century ago, has been largely neglected during precisely the half-century that has seen the great legal developments in the areas of human rights and collective security. This neglect has not been accidental, but rather is traceable to widely-held misconceptions that this book seeks to illuminate and dispel. Although a truly comprehensive treatment of this topic is beyond the capacity of any one book, what follows is a long-overdue effort to subject collective non-recognition of governments to painstaking and systematic examination.

Although the views expressed in this work are mine alone, my thinking reflects intellectual influences from four of the finest educational institutions in the United States, and from a range of other sources. No summary can do justice to all those who have contributed, directly and indirectly, to this project.

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