Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine

50 Pages Posted: 10 Jan 2011

See all articles by Brad R. Roth

Brad R. Roth

Wayne State University Law School

Date Written: January 7, 2011

Abstract

Attempted secessions (eg, Kosovo and Somaliland) and coups d'etat (eg. 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 successfully 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.

Suggested Citation

Roth, Brad R., Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine (January 7, 2011). Wayne State University Law School Research Paper No. 10-15. Available at SSRN: https://ssrn.com/abstract=1736718 or http://dx.doi.org/10.2139/ssrn.1736718

Wayne State University Law RPS Submitter (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Street
Detroit, MI 48202
United States

Wayne State University Law School ( email )

471 West Palmer Street
Detroit, MI 48202
United States

Brad R. Roth

Wayne State University Law School ( email )

471 West Palmer Ave.
Detroit, MI 48202
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
652
Abstract Views
2,665
rank
39,586
PlumX Metrics