While questions of effective control’s relation to contested statehood remain pro-foundly confused in practice, questions of governmental legitimacy can viewed as more certain, if not less troubling. As a starting point, the ‘emerging right to demo-cratic governance,’ at least as it was intended a criterion for determining interna-tional legal standing, has failed to bring about the transformation many had hoped.84 A wide-range of explanations have been offered on this point. According to Jean d’Aspremont, this ‘emerging right’ was short-sighted in that it failed to distinguish
82 Somaliland represents the quintessential example of this phenomenon. Roth 2010, 421. For stud-ies on the question of Somaliland’s independence, see e.g. Carrol and Rajagopal 1992; Adam 1994;
Pijovic 2014.
83 Fabry 2010, 12-14.
84 However, it can be said that the ‘emerging right to democratic governance’ nevertheless has en-joyed a successful afterlife as a discourse of international legalistic morality apparent in the domains of development policy and the building of regional organisations, see Marks 2011; see also Charles-worth 2017.
between democratic ‘legitimacy in origin’ and ‘legitimacy in exercise’ thus empow-ering illiberal democracies who undermined its core values.85 According to Susan Marks, by only providing a ‘low-intensity’ and ‘pan-national’ version of democracy this ‘emerging right’ could not provide meaningful change for the people it was ostensibly intended to empower.86 According to Tarak Barkawi and Mark Laffey, defining ‘democracy’ in this context, especially as it applied to the ‘liberal demo-cratic peace hypothesis,’ required the actual structures of power in the world to be fundamentally misrepresented and thus could not succeed on its own terms.87 While there is much to be said for all of these explanations, one doctrinal point remains largely uncontroversial: the ‘emerging right to democratic government’ failed to displace, or even substantially qualify, the effective control doctrine.88
In observing contemporary (and politically consequential) situations where effec-tive control remains the determining rationale the examples are numerous. One ex-ample would be the ongoing civil war in Syria where, despite widespread condem-nation of the violence committed by the Assad Regime, any attempt to recognise an insurgent group as the rightful authority is open to substantial international legal challenge because Assad maintained a degree of effective control unmatched by any opposing faction.89 Moving over to Egypt, another example is the 2013 coup
85 d’Aspremont 2006.
86 On respective analyses of ‘low-intensity’ and ‘pan-national’ democracy, see Marks 2000, Chap-ters 3 & 4.
87 Barkawi and Laffey 1999.
88 However, this general failure of the ‘democratic legitimacy’ project should not be seen as a com-plete reversion to the effective control standard at its most traditional. Here it can be argued that a new class of cases is emerging where multiple factors that have gained attention within the ’inter-national community’ including repression of democratic process, systematic human rights abuses and support for ‘terrorism’ reduce a sitting government’s generally broad, and often fictitious, claim to maintaining effective control when its de facto territorial authority is under actual contestation.
On the Taliban and Qaddafi in this context, see Vidamar 2013b, 362-366.
89 On failure of any opposition group to achieve international legal recognition in the Syrian Civil War on the basis that no better claim to effective control relative to Assad’s had been attained, see Talmon 2013.
against Muhammad Morsi, a leader democratically elected in the aftermath of the popular uprising against Hosni Mubarak. Similar issues were raised by the 2014 ouster of the Ukraine’s President Victor Yanukovych in violation of the national constitution. As discussed above, given the absence of effective control by Yanu-kovych, his post-ouster invitation for Russian intervention likely lacked any inter-national legal validity.90 Turning to Sub-Saharan Africa, an expanding regional or-ganisation-based system of intervention by invitation has sought to promote democ-racy, protect human rights, and oppose coup regimes.91 However, in actual practice, effective control remains the overarching standard for such interventions despite these aspirations.92 This tension between principle and practice as it relates to re-gional governance and domestic popular will in Africa was recently illustrated by the 2017 overthrow of Zimbabwe’s Robert Mugabe.93 While there have been epi-sodes, such as the Gambia and Cote d’Ivoire, where regional organizations have removed rulers exercising effective control in violation of local constitutions, it can be argued that these were exceptional cases in that said rulers lacked widespread support.94 As such, they can be deemed the exceptions proving the rule that in a pluralist international legal order, effective control doctrine remains the best avail-able mechanism for determining popular will in the vast majority of cases.95
This continued relevance of the effective control doctrine is further demonstrated by the reality of recent political events in the nations that would have seemingly been the most dedicated to disseminating the ‘emerging right to democratic
90 On the illegality of Russian intervention on this basis, see Grant 2015, 54.
91 On these innovations, and their lack of attention from the West, see Levitt 2006.
92 De Wet 2015, 998.
93 For analysis of these tensions, see Aral 2017.
94 See Roth 2015a, 215.
95 Ibid.
ernance.’ While just part of a much larger turn to right-wing authoritarian through-out the world broadly (and problematically) labelled ‘populism’, the UK’s 2015 popular referenda to exit the European Union and the 2016 US Presidential election of Donald Trump represent a stark rejection of earlier cosmopolitan visions in the very heartlands of Western liberalism.96 In light of this turn, the more pressing task for the defenders of the norms/institutions of international law and human rights that became prominent in the 1990s is basic survival, not the grandiose universali-zation of a political system.97 Ironically enough, many of those challenging liberal internationalist norms throughout the world are doing so by consciously depicting the democratic will of the people as that which is under assault from the corrosive forces of cosmopolitanism.98 This stands in stark contrast to the view held by many liberal international lawyers that they are the would-be guardians of democracy against local despots who flout popular yearnings from behind the shield of sover-eignty.99
96 Amidst widespread concerns over election tampering (especially in the latter case), in retrospect, perhaps Tom Franck’s suggestion that, in a showing of good faith, established Western democracies open their own electoral procedures to international observers was not the worst idea anyone has ever had, Franck 1992, 90 (‘…the older democracies should be among the first to volunteer to be monitored in the hope that this will lead the way to near-universal voluntary compliance, thus grad-ually transforming a sovereign option into a customary legal obligation.’)
97 For an example of the rhetoric of ‘survival’ being invoked in this context, see Helfer forthcoming.
98 According to one assessment:
The greatest paradox of the current populist wave is that democracy is being subverted by leaders promising more, not less, democracy—but it is a democ-racy of a different kind. Populists embrace the “form” of democdemoc-racy and claim to speak for the people themselves. At the same time, however, by undermin-ing its liberal constitutional foundations, they erode the substance of democ-racy, and gradually transform it into various forms of illiberal and authoritarian regimes.
Bugarič 2018, 79
99 While the current ‘populist’ moment has led to a concerted defence of existing norms and institu-tions by many international lawyers, other have viewed it as an exposure of the existing order’s contradictions. This cannot be solved by international lawyers doubling-down on familiar attitudes and tropes. For the leading account from the latter perspective, see Schwöbel forthcoming.
Relatedly, a very real concern is the ways in which the turn to aggressive nationalist rhetoric may ultimately result in the degradation of international law’s general ban on the use of force. This is a particular concern in relation to the US, the world’s greatest military power, where open resentment of numerous international legal norms has included the return of devise individuals, namely John Bolton, with a long history of justifying unilateral policies.100 Responding to this trend (and in stark contrast to earlier interventionist arguments) a new liberal internationalist pro-ject is now placing the ban on war within a law-based progress narrative.101 With this turn, scholars once open to the idea of external intervention as a guarantor of local popular will have implicitly embraced the effective control doctrine, and its furnishing of sovereign legitimacy to the holder of de facto authority during internal strife, out of a commitment to condemning interstate war as the greater evil.102 At this particular juncture, it may be realistically asked what exactly the various post-Cold War liberal cosmopolitan legal innovations amounted to given the persistence of the ‘Charter liberalism’ animating the effective control doctrine; at least for now.
1.6. Conclusion
100 For a Bush Administration-era analysis of how the influence John Bolton represented a dramatic reconfiguration of the US’s relationship to its international legal obligations that is more relevant now than ever, see Mansell and Haslam 2005.
101 The key representative of this trend is Oona Hathaway and Scott Shapiro’s The Internationalists that claims efforts by American activists to outlaw war through the Kellogg-Briand Pact in the 1920s lead to a series of cascading legal innovations (including the Stimson Doctrine, the Atlantic Charter, the UN Charter, and the Nuremberg Judgment), that built the current world order premised on the general ban on war as a matter of national policy. This system is situated as under assault in the contemporary global moment, and according to this narrative, must be defended, Hathaway and Shapiro 2017. For critiques of this work as failing to confront the way in which this progressive narrative on the outlawing of war legitimizes uncritical attitudes towards deeply problematic prac-tices and institutions beyond interstate war, including: economic sanctions, free trade, and the global dominance of the US, see Peevers 2018; Barkawi 2018; Wertheim 2018; Mulder 2019.
102 For instance The Internationalists co-author Oona Hathaway was previously much more open to the idea of justifying interventions in support of localized political struggles, see Hathaway et al 2013.
Through the high-altitude overview presented above, we observed how the effec-tive control doctrine provides an ordering principle for a world where popular will forms the basis for domestic authority within an anarchic system of formally equal sovereigns. In light of both present disappointment and future uncertainty, the re-mainder of this thesis excavates the past as a means of explaining how we reached this present junction. Considering this thesis’s methodology, if we are to take ‘ju-ridical thinking’ as the force ascribed to law’s production of transcendent abstrac-tions, then the effective control doctrine acts as a lynchpin allowing its component juridical ideals of sovereign equality, non-intervention, and, most importantly, pop-ular will to coexist within a coherent structure. However, this production of abstrac-tion remains rooted in material condiabstrac-tions. Thus, the effective control doctrine, through its emphasis on ‘facts on the ground’, exists as an umbilicus between the abstract and the material.
It is certainly possible to analyse how the material nexus between international law, models of domestic government, and global political economy shaped the effective control doctrine’s consolidation, critique, and reconsolidation during the postwar era. 103 However, my purpose is to delve deeper. Towards this end, the next chapter will trace the emergence of the modern effective control doctrine’s core-constitut-ing features of sovereign equality, non-intervention, and ideological pluralism within the cannons of the classical law of nations. This sets the stage for this thesis’s historical analysis of why this argumentative formulation held so much appeal across numerous contexts in the eighteenth, nineteenth, and twentieth centuries.
The culmination of this variegated process is the present configuration of doctrinal and normative justifications detailed in this chapter as the ‘effective control doc-trine.’ Performing such a task allows us to observe how juridical thinking was not only a direct product of material conditions, but also how juridical thinking was also a direct producer of these conditions.
103 For an important study of the political economy of the shifting rhetoric of ‘democracy’-promo-tion, see Robinson 1996.