Peters: Statehood after 1989: 'Effectivités' between Legality and Virtuality

Anne Peters (Univ. of Basel - Law) has posted Statehood after 1989: 'Effectivités' between Legality and Virtuality (Proceedings of the European Society of International Law, forthcoming). Here's the abstract:

The period since 1989 has seen both statehood at its peak, and at its low point. On the one hand, a quasi-colonial (soviet) empire dissolved, and numerous new states emerged. Moreover, secessionist movements all over the world seek to become independent states. On the other hand, the globalisation of markets and the emergence of global problems have, especially in the 1990s, led to the perception of a weakening or even decline of the nation state. Global governance, the strengthening of transnational or even supranational regimes, large scale privatisation and the rise of “non-state actors” have been both a cause and effect of this trend. The concomitant international legal discourses have been those on secession and ethno-nationalism on the one hand, and those on the transformations or disaggregation of states, on transnational networks and multilevel governance, on the other hand. The paper brings together these discourses.

Already before 1989, the facticist concept of the state as a subject of international law had been overcome, and negative conditions of legality (non-use of force and non-violation of self determination) had been added as criteria of statehood (or at least of recognition). After 1989, legality has come to play a positive role, with the idea of a remedial secession, with self determination as a legal title to statehood.

The state, as an international legal subject, of course needs a factual basis. But for the purpose of legal analysis, statehood is a legal concept, and not a “primary fact”. The post-1989 concept of “failed state” refers to this factual side of statehood. And the post-1989 concept of “rogue states” relates to its legal side.

Effectiveness is a bridge-concept which brings together the factual and the legal side of statehood. Effectiveness means both real factual power as opposed to powerless or even virtual institutions. But effectiveness also means power (independent of the lawfulness of its exercise) as opposed to institutions satisfying standards of legality or even legitimacy.

The paper concludes that effectiveness is and should remain a necessary, but is not a sufficient criterion for statehood. Political entities which are arguably effective but not legal (e.g. Abkhazia in Georgia) should not count as states in terms of international law. But political entities which are legal but barely effective (such as Kosovo and Bosnia-Herzegovina) should probably not count as states either. However, the standards of effectiveness are a highly relative one. In the era of globalisation, no state is fully effective. If and only if the international legal rules on states continue to embody the concept of effectiveness in the sense just described, international law will perform well as a factor of order in international relations.