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Vol 21 No 9 Sept/Oct 2016

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Governmental Illegitimacy in International Law

Brad RothAssistant Professor of Legal Studies and Political Science, Wayne State University, Detroit, USA

ISBN13: 9780198268529
ISBN: 0198268521
Published: April 2001
Publisher: Oxford University Press
Format: Hardback
Price: £140.00

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When is a de facto authority not entitled to be considered a ""government"" for the purposes of international law? International reaction to the 1991-4 Haitian crisis is only the most prominent in a series of events that suggest a norm of governmental illegitimacy is emerging to challenge more traditional notions of state sovereignty. This challenge has dramatic implications for two fundamental legal strictures: that against the use or threat of force against a state's political independence, and that against interference in matters ""essentially"" within a state's domestic jurisdiction. Yet although human rights advocates have begun to speak of state sovereignty as an ""anachronism"", with some expansively proclaiming the emergence of an international ""right to democratic governance"", international law literature lacks systematic treatment of governmental illegitimacy.;This work seeks to specify the international law of collective non-recognition of governments, so as to enable legal evaluation of cases in which competing factions assert governmental authority. It subjects the recognition controversies of the United Nations era to a systematic examination, informed by theoretical and comparative perspectives on governmental legitimacy.;The inquiry establishes that the category of ""illegitimate government"" now occupies a place in international law, with significant consequences for the legality of intervention in certain instances. The principle of popular sovereignty, hitherto vague and ambiguous, has acquired sufficient determinacy to serve, in some circumstances, as a basis for denial of legal recognition to putative governments. This development does not imply, however, the emergence in international law of a meaningful norm of ""democratic governance"", nor would such a norm serve the purposes of the scheme of sovereign equality of states embodied in the United Nations Charter.

Preface by Oscar Schachter; Acknowledgements; 1. International Politics, International Law, and the Legitimacy of Domestic Governments; A. The Issue: Illegitimate Governments as a Legal Category; B. Legal Norms and International Security; C. The Paradox of Sovereignty in International Law; 2. Legal Legitimacy in Theoretical Perspective; A. The Question of Legitimate Authority; B. Legal Legitimacy and International Political Morality; 3. Popular Sovereignty and Domestic Constitutional Orders; A. Vehicles of Legitimation; B. The Constitutional Order and Its Limits; C. The Primacy of the Legitimating Vision; 4. The Rise and Fall of Revolutionary-Democratic Dictatorship; A. Theoretical Foundations of Revolutionary Democracy; B. Teleological Democracy and Vanguard Dictatorship; C. Revolutionary-Democratic Dictatorship and Contemporary International Discourse; 5; A. Recognition Doctrine; B. Recognition and Intervention in Internal Armed ct; C. Legitimacy Contests and Modes of Collective Resolution; 6. Ascertaining the Will of 'Peoples': Governmental Illegitimacy and Self-Determination; A. From Principle to Right: Self-Determination in the Scheme of Sovereign Equality; B. Self-Determination and Popular Will; C. Local Deprivations of Self-Determination: Rhodesia, South Africa and Beyond; 7. Two Governments, One State: Recognition Contests and the Use of Force; A. UN Credentials and Collective Legal Recognition; B. Intervention by invitation of the Legitimate Government; C. Governmental Illegitimacy and Foreign Intervention: Three Cases; D. Recognition Contests, 1950-89; 8. Governmental Illegitimacy and Political Participation; A. Political Participation in Human Rights Law; B. Legitimacy and Quasi-Plebiscitary Elections; C. Participation and the Basis of Governmental Authority; 9. Haiti and Beyond: Popular Will and De-Legitimation in the 1990s; A. Collective Responses to the Breakdown of Electoral Arbitration; B. The Broader Context: Sovereignty and Internal Crises in the 1990s; C. Governmental Illegitimacy and Collective Practice; 10. Conclusion: Sovereignty and Popular Will; A. The International Law of Governmental Illegitimacy; B. The Dangers of Liberal-Democratic Legitimism; C. Conclusion; Notes; Index