Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine
Roth, Brad R., Melbourne Journal of International Law
Attempted secessions (for example, Kosovo and Somaliland) and coups d'etat (for example, Madagascar and Honduras in 2009) prompt contestation over whether or not legal status is to be conferred on local exercises of de facto authority. International legal standing has traditionally been established by victory in a trial by ordeal: a region initially integral to an existing state succesffully establishes itself as an independent sovereign unit only where its secession movement creates--usually by decisive victory in an armed struggle--facts on the ground that appear irreversible; an insurgent faction successfully establishes itself as a government where it overthrows an existing constitutional structure and secures--even if at bayonet-point--widespread popular acquiescence. Insofar as it is perceived as little more than an imprimatur for 'might makes right' at the local level, this 'effective control doctrine' is manifestly offensive to a rule-of-law sensibility. Notwithstanding the international order's disposition to defer to the outcome of internal conflicts, alternative solutions are available where a state manifestly fails to embody the self-determination of the entirety of the territorial population, or where a government manifestly fails to represent the political community that the state encompasses. These alternative solutions, however, far from generating new generally applicable doctrines, tend ineluctably to have an ad hoc character.
CONTENTS I Introduction II Effective Control and the Assessment of Secession Questions A 'Recognition' and International Legal Status: Constitutive and Declaratory Approaches B Effectivity as an Aspect of the Traditional Criteria of Statehood C Self-Determination of Peoples in Non-Colonial Contexts D Non-Consensual Dissolution of Federal States: The Badinter Improvisation E Kosovo and Beyond: The Inevitability of Ad Hoc Responses to Secession Crises III Effective Control and the International Status of Coup Regimes A Popular Sovereignty, Ideological Pluralism, and the Effective Control Doctrine B Toward a Doctrine of Governmental Illegitimacy in International Law: The Haiti and Sierra Leone Cases C The Anti-Coup Proclamations of Regional Organisations D The New Wave of Rejection of Coup Regimes: Honduras and Madagascar IV Conclusion: The Decline of the Effective Control Doctrine and the Absence of a Coherent Substitute
Although 'recognition' is frequently discussed as a political or diplomatic rather than a legal matter, no task is more fundamental to the international rule of law than that of identifying both the primary units of the global order and the institutions that have standing to act in the name of" those units. International law acknowledges 'states' as bearers of a distinctive package of rights, obligations, powers and immunities (that is, 'sovereignty'), and attributes to each state a 'government' with the legal capacity (for the time being) to assert rights, incur obligations, exercise powers, and confer immunities on the state's behalf. (1) Where contestation arises over whether an entity has the legal properties of a state or whether a particular governmental apparatus acts validly in the state's name, legal relationships of all kinds are called into question. (2) Legal doctrines are thus needed to govern international conferral of legal status on local exercises of de facto authority, whether carried out in the name of new sovereign units (for example, Kosovo and Somaliland) or of new leaderships asserting rule over existing sovereign units (for example, new regimes coming to power by force in Madagascar and Honduras in 2009).
The international legal order's repudiation of 'might makes right' in relations among states masks a critical component of that order's traditional doctrines governing what is cognisable as an exercise of state authority: an emphasis on present or past patterns of 'effective control'. …