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.
TABLE OF CONTENTS
Acknowledgements
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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