15 octobre 2013

OUVRAGE : J. Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice

Catherine MAIA

This book analyses the emerging practice in the post-Cold War era of the creation of a democratic political system along with the creation of new states. The existing literature either tends to conflate self-determination and democracy or dismisses the legal relevance of the emerging practice on the basis that democracy is not a statehood criterion. Such arguments are simplistic. The statehood criteria in contemporary international law are largely irrelevant and do not automatically or self-evidently determine whether or not an entity has emerged as a new state. The question to be asked, therefore, is not whether democracy has become a statehood criterion.

The emergence of new states is rather a law-governed political process in which certain requirements regarding the type of a government may be imposed internationally. And in this process the introduction of a democratic political system is equally as relevant or irrelevant as the statehood criteria. The book demonstrates that via the right of self-determination the law of statehood requires state creation to be a democratic process, but that this requirement should not be interpreted too broadly. The democratic process in this context governs independence referenda and does not interfere with the choice of a political system.


Tables of Cases
Table of Materials

Chapter 1 : Democracy and Statehood in International Law

1. Introduction
1.1 Background
1.2 Context and Existing Literature
1.3 The Main Objectives of the Book
1.4 Structure of the Book

2. International Law and (Non-)democratic States
2.1 Democracy, Elections and Human Rights
2.2 Democracy and International Human Rights Law
2.3 A Democratic Bias in Post-Cold War International Law ?
2.4 The Place of Democracy in Post-1990 International Law

3. The Emergence of States in International Law
3.1 The Statehood Criteria
3.2 Recognition and Non-Recognition of States
3.3 Defining the State in International Law
3.4 Territorial Integrity and the Emergence of New States
3.5 The Development of the Obligation to Withhold Recognition in Practice
3.4 Territorial Integrity and the Emergence of New States
3.5 The Development of the Obligation to Withhold Recognition in Practice
3.6 The Emergence of New States as an Internationalised Process: a Place for Democracy?

Chapter 2 : The Practice of Post-Cold War State Creations:
The Statehood Criteria, Democracy and Human Rights

1. Introduction
2. The Emergence of States as a Result of Domestic Consensus
2.1 The Dissolution of the Soviet Union
2.2 The Dissolution of Czechoslovakia
2.3 The Independence of Eritrea
2.4 South Sudan: Independence Stemming from the Peace Agreement
3. The EC Guidelines and EC Declaration: Beyond the Statehood Criteria
3.1 Background to the Yugoslav Crisis and the EC Involvement
3.2 Substance of the EC Guidelines and the EC Declaration
3.3 Democracy, Human Rights and a Commitment to Peace in the EC Guidelines
3.4 The EC Guidelines and EC Declaration in Action 
4. The Independence of Montenegro
5. International State-making and Democracy-making in East Timor
5.1 East Timor: Historical Background
5.2 Transition to Statehood and Democracy
6. Kosovo as an Attempt at Informal Collective Creation of a Democratic State
6.1 Background to the Kosovo Crisis
6.2 Resolution 1244 and International Territorial Administration
6.3 Failed Attempts at Settlement of the Final Status
6.4 The ICJ’s Advisory Opinion on Kosovo
6.5 Issues of Statehood and Recognition
6.6 Kosovo: an Attempt at Collective Creation of a State and its Political System
7. Conclusion

Chapter 3 : Democratic Aspects of the Right of Self-Determination 

1. Introduction
2. Self-determination: Development, Democratic Pedigree and Limitations
2.1 Self-determination and its Democratic Pedigree: the Political Principle of Self-determination in the Twentieth Century
2.2 The Territorial Integrity Limitation: the Link Between Internal Self-determination and Democracy
3. Self-determination, Governmental Representativeness and Multiparty Democracy
3.1 The Scope of Governmental Representativeness in the ‘Safeguard Clause’
3.2 Self-determination, Representativeness and Non-democratic Governments
4. The Right of Self-determination, Political Participation and Choice of Political System
4.1 Self-determination and Political Participation
4.2 Self-determination: Realisation of the Right Through Democratic Elections ?
5. Democracy and the exercise of the Right of Self-determination in its Internal Mode
6. The ‘Safeguard Clause’ and Remedial Secession
6.1 The Theory of Remedial Secession
6.2 Effects of Remedial Secession Through Recognition
6.3 Remedial Secession and State Practice
7. Democratic Principles and External Exercise of the Right of Self-determination
7.1 Québec: Attempts at Secession and Popular Consultation
7.2 Popular Consultation Standards in the Territory of the SFRY
7.3 The Demise of the Soviet Union and Popular Consultation
7.4 The Absence of a Referendum in Czechoslovakia
7.5 The Independence Referendum in Eritrea
7.6 The Independence Referendum in East Timor under the Auspices of the UN
7.7 The Independence Referendum in Montenegro and EU Involvement
7.8 The Independence Referendum in South Sudan
7.9 The Absence of a Referendum in Kosovo
7.10 Procedural Standards at Independence Referenda Summarised
8. Conclusion

Chapter 4 : Delimitation of New States and Limitations on the Will of the People 

1. Introduction
2. The Creation of New States and the Uti Possidetis Principle
2.1 The Development of Uti Possidetis
2.2 The Application of Uti Possidetis Outside of the Process of Decolonisation
2.3 Non-colonial Situations: Internal Boundaries and International Borders
3. The Nature and Relevance of Internal Boundaries in the Post-1990 Practice of New International Delimitation
3.1 The Québec Situation and its Significance for the Determination of International Borders
3.2 Post-1990 State Creations and the Practice of Border- confinement 
4. Conclusion

Chapter 5 : Democratic Statehood: Conclusions 

1. Democracy and Statehood: An Analysis from Two Perspectives
2. The Emergence of New States in the Post-Cold War Practice
3. Contemporary International Practice and the Legal Status of the Statehood Criteria 
3.1 State Creation as a Political Process of Overcoming a ounterclaim to Territorial Integrity
3.2 The Obsolete Concept of Premature Recognition and the Legal Relevance/Irrelevance of Montevideo
3.3 Democracy in the Contemporary Theory of Statehood
4. The Operation of and Limits on Democratic Principles Within the Right of Self-Determination
4.1 Democracy and the Qualification of ‘Representative Government’
4.2 Secession, Human Rights and Democracy
4.3 The Will of the People and the Creation of New States
4.4 The Will of the People and the Delimitation of New States
4.5 State Creation, International Delimitation and Limitations on the Will of the People

Jure VIDMAR, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice, Oxford, Hart Publishing, 2013 (302 pp.)

Jure Vidmar is a Leverhulme Early Career Fellow in the Faculty of Law and a Research Fellow of St John's College, University of Oxford.

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