Andrew Ashworth, Lucia Zedner, Preventive Justice, Oxford: Oxford University Press, 2014, 306 pp, hb £50.00.
| DOI | http://doi.org/10.1111/1468-2230.12121_3 |
| Author | Henrique Carvalho |
| Published date | 01 March 2015 |
| Date | 01 March 2015 |
REVIEWS
Jure Vidmar,Democratic Statehood in International Law: The Emergence of
New States in Post-Cold War Practice, Oxford: Hart Publishing, 2013, 281 pp,
hb £65.00.
The travel advice section of the United Kingdom’s Foreign and Commonwealth
Office (FCO) website lists 224 ‘countries or territories’ that British citizens can
visit on their overseas forays (https://www.gov.uk/foreign-travel-advice). The
FCO’s use of the terms ‘countries and territories’ instead of ‘states’ is deliberate.
Statehood is a privileged status that comes with certain rights and duties that a
country or territory does not have. At present, there are 193 member states of the
UN. Accordingly, there are an additional thirty-one ‘countries or territories’ that
could conceivably become states one day, after which they might successfully
apply to join the UN, politics notwithstanding. In the aftermath of decolonisa-
tion, identifying states has become a particular problem, as it has become difficult
to discern when a state comes into being when secession, the most common
mode of establishing states in the post-Cold War era, leads to state-like entities
being established within boundaries that do not conform to the boundaries that
were hastily drawn up in the age of empire. During decolonisation it was easier
to identify states because the colonies emerging as independent states tended to
retain their colonial boundaries. They also tended to emerge after lengthy and
protracted negotiations with the metropolitan colonial power. Democracy as the
sine qua non of contemporary international relations has also complicated matters.
Jure Vidmar’s Democratic Statehood is an attempt to address these very difficult
issues by examining what he describes as an emerging practice of the creation of
democratic political systems along with the creation of new states following the
end of the Cold War.
Democratic Statehood is based on Vidmar’s PhD thesis at the University of
Nottingham, where his external examiner was Professor James Crawford whose
own PhD thesis was also on statehood and international law. Apart from the
lengthy introduction and concluding chapter, the book is comprised of three
substantive chapters thematically arranged. Chapter 2 examines state practice
following the end of the Cold War; chapter 3 examines what Vidmar calls
‘democratic aspects of self-determination’, and chapter 4 looks at the delimitation
of new states and ‘the limitations on the will of the people’. Rather than
describing the book, this review focuses on Vidmar’s central and underlying
thesis that statehood is a ‘legal status’ that occurs as a result of a ‘law-governed
political process’, in which he understand states to be ‘legal constructions, not
physical facts’ (63), an argument that Vidmar repeats throughout the book. In
this regard, Democratic Statehood embodies all the hallmarks of mainstream legal
scholarship on statehood, relying primarily on the scholarship produced by
international lawyers in their treatises and articles on various aspects of statehood
in international law, as well as primary sources of law such as UN resolutions,
statutes and treaties. The book reflects prodigious and careful research, attention
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© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(2) MLR 394–410
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
to detail and careful reasoning, which is to be expected from a top quality thesis,
although some of Vidmar’s arguments can appear rather circular and his central
thesis remains unconvincing. Although Democratic Statehood augments the exist-
ing literature, some of its arguments and omissions are also disconcerting for
reasons that are explained below.
Vidmar’s central thesis is that ‘the emergence of a new state is not a factual
occurrence but a law-governed political process which leads to a change in the legal
status of a certain territory’ (10). For Vidmar, this process requires some democratic
procedures to be followed. By democratic procedures Vidmar is referring to ‘demo-
cratic vote at referenda’ in which the expression of the will of the people ‘is free and
genuine’ (201). What he means when he says that statehood is not a factual
occurrence is that statehood is not attained by meeting the Montevideo criteria of
statehood, namely, that a state must have a permanent population, with a defined
territory, a government, and a capacity to enter into relations with other states.
According to Vidmar, Montevideo is important as a guide, but no more than that.
He quotes Harris who argues that Montevideo is customary international law (39)
but doubts that it has such a status in his conclusion (241). In Vidmar’s words, ‘states
cannot emerge automatically as a matter of object fact; they can only emerge in the
legal circumstances where the claim to territorial integrity is either overcome or
becomes inapplicable’ (238). He seeks to prove this argument by examining post-
Cold War international involvement in the process of new state creations. His
analysis of this practice, leads him to conclude that ‘the emergence of a new state
needs to be seen as a process which requires adherence to some legality-based
requirements and the principles of democratic decision-making’ (235). This process
should not be conflated with democracy as a political system, however. Vidmar is
not suggesting that democracy is a requirement of statehood. He recognises that
states can emerge even if they are undemocratic. However, he argues that they can
also emerge if they do not meet the Montevideo criteria. In his opinion, ‘Democ-
racy in contemporary international law is therefore equally relevant or irrelevant as
the Montevideo criteria’ (242).
One of the problems with the topic of statehood in international law is that
there is little coherence. This may be a reflection of the anarchic state of
international relations. But a lack of coherence is also one of the problems with
Democratic Statehood. Vidmar’s thesis that ‘a state is a legal concept, not a physical
fact’, and his argument that the ‘emergence of a new state can only be a question
of law and not a matter of an objective fact’ (48), appears incoherent. Why can’t
they be both? The existence of a state is a question of fact, first and foremost, but
it only becomes a state when it is recognised as such, which often occurs as a
result of a political process, in which international law will have a role to play.
Whilst the manner in which political communities decide to organise themselves
will have legal implications, Vidmar goes too far in arguing that it is a law-
governed process. At most, statehood is a political process with legal implica-
tions. Law forms a framework of analysis in which competing claims can be
assessed but it cannot create a state, the existence of which is a question of fact
that is often dependent on popular political agitation and the seizure or retention
of territory. Similarly, overcoming a competing claim to territorial integrity is a
question of fact. Thus, Ian Brownlie argued that disputes regarding the creation
Reviews
© 2015 The Authors. The Modern Law Review © 2015 The Modern Law Review Limited. 395(2015) 78(2) MLR 394–410
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