'From Statehood to Effectiveness: The Law of Unrecognised States in Private International Law' by Daniel Gruenbaum in (20220 86(3) Rabels Zeitschrift für ausländisches und internationales Privatrecht 577-616 comments
In 'International Law and Statehood: A Performative View' Janis Grzybowski and Martti Koskenniemi argueOne of the functions of private international law (PIL) is to determine the law that governs a legal relationship. Yet what occurs when the rules designated by PIL emanate from an entity that has not been recognised as a state by the government of the forum? This article aims firstly to identify and describe the major prevailing approaches to applying the law of unrecognised states in contemporary PIL practice. It then critically appraises the principal reasons justifying the application of foreign law despite it emanating from unrecognised states. The article finally argues that applying the law of unrecognised states reveals the potential for PIL to grapple with non-state rules and with interactions of normative orders of all different sorts, regardless of their state pedigree.
Twentieth-century international jurisprudence may be summarised as an extensive effort of trying to fit the view that states are sovereign with the view that they are still ‘bound’ by an international law. But the problem has not been limited to jurisprudence. Most international disputes involve one side invoking its sovereign right and the other side referring to some international rule allegedly overriding that right. Even today, international lawyers are both committed to statehood as the foundation of their field – and to the critique of that statehood as obstructive of their international projects on peace and security, human rights, free trade, clean environment, abolishing impunity for serious crimes, protecting investment, etc. Much of this ambivalence has a moral-political quality: is statehood good or is it bad? Are established states the pillars of a peaceful international and domestic order or the fig leaf of random rule by a specific social class or group? And are nationalist demands for new states signs of fragmentation, ‘ethnic’ or otherwise, or are they justified calls for the emancipation of ‘the peoples’? On the one hand, the right of identifiable communities to enjoy self-determination appears as a founding explanation for why there should be anything like international law in the first place. The idea that communities have a right to lead their own lives in accordance with their preferences – their religious or political commitments – and to rule themselves autonomously, with laws they have enacted and through officials of their own choosing, seems quite fundamental. One need not go further than the de-colonisation period to realise the political power of this idea. On the other hand, statehood also provides a protective veil to all kinds of moral and political abomination, shielding corrupt or oppressive governments from outside scrutiny, consolidating and protecting tyrannical regimes. Thus, while for some the state means peace and security from outside aggression and internal turmoil, a ‘home to one’s own people’, others regard it as a barrier to their own political (national or international) aspirations and an instrument of suppression. Hence the interminable recent debates on ‘responsibility to protect’ – that is, the question of the right or duty of the ‘international community’ to intervene in the government of states in internal turmoil. But whether the state is ultimately a promise for the emancipation of the ‘Wretched of the Earth’ (Frantz Fanon) or a means to preserve the status quo against endless ‘fratricidal struggles’ (ICJ Burkina Faso vs. Mali 1986) cannot be decided a priori. The diverging views that are involved in any dispute are accepted or rejected as part of broader – read political – considerations. For example, the question of the statehood of Slovenia, Croatia, and Bosnia and Herzegovina in the 1990s turned on disagreements about how to react to the violent fragmentation of the former Socialist Federal Republic of Yugoslavia (SFRY). The problem resurfaced with the Kosovo question, intensely debated within the advisory proceedings of the International Court of Justice in 2009, with the twist that Kosovo had not been a constituent republic of the SFRY. The recent history of the Balkans shows nicely that whether ‘the state’ is to be defended or challenged is no question answerable in abstracto but depends on context and vantage-point; we could also say that it is political.
Further
Statehood is not only morally contested and caught in an ambiguous relationship with international law; its very ontology lingers uncomfortably between notions of empirical fact and power, and notions of legal validity and moral purpose. What is statehood? After centuries of debate, intellectuals still disagree about this – is statehood a social fact or a social norm? Nobody has of course ever ‘seen’ states. They are constructions, pieces of human imagination, forms of shorthand by which aspects of experience are rationalised. And yet, of course, this does not signify that they could be simply wiped out of our world without something quite important being lost. As C. A. W. Manning once pointed out, to think of the world without reference to statehood would be like thinking of a fleet at sea only by reference to a lot of sailors acting – without any reference to the performance of ships. But if we cannot understand the world without statehood, what character has it? According to a ‘realist’ tradition, the state is a ‘fact’, the fact of power above all, finding expression in the ability of the ‘Machiavellian’ Prince to seize, retain and extend control over a city, in the ‘Hobbesian’ Sovereign’s ability to pacify his warring subjects, or in the ‘Weberian’ government’s monopoly of legitimate force over a population on a definite territory. To contemplate the ‘deeper’ moral purpose of statehood would only dangerously conceal the reality of power. But then, a whole tradition from Aquinas onwards points out that mere ‘facts’ do not create the moral compulsion we associate with statehood – that instead we understand statehood as a particular kind of ‘authority’ vested in men (indeed, almost always men) by a set of principles through which coercion is translated into legally valid control. Indeed, in this ‘idealist’ tradition it is utterly absurd to claim that the state is real in any factual sense; rather, empirical behaviour, causes and materials take a coherent shape only to the extent to which this shape has a legal or ideal form. But whether we can make this formal assumption in any specific case depends on whether it is lawful or justified; validity, not power, defines ‘the essence’ of the state. The juxtaposition of the two views is as old as theorisation about statehood, reminding us of the controversies between Grotius and Hobbes, Leibniz and Pufendorf, Kant and Hegel, Kelsen and Schmitt, and most of the twentieth-century controversy between ‘idealists’ and ‘realists’. Which one is right? The answer to this question has not accidentally been deferred from one round of debate to the next. Ambiguity persists. There is no reason to re-enter the debates; in some respect both positions are right – and wrong.
