This book analyses the emerging practice in the post-Cold War era of the creation of a democratic political system along with the creation of new states. The existing literature either tends to conflate self-determination and democracy or dismisses the legal relevance of the emerging practice on the basis that democracy is not a statehood criterion. Such arguments are simplistic. The statehood criteria in contemporary international law are largely irrelevant and do not automatically or self-evidently determine whether or not an entity has emerged as a new state. The question to be asked, therefore, is not whether democracy has become a statehood criterion. The emergence of new states is rather a law-governed political process in which certain requirements regarding the type of a government may be imposed internationally. And in this process the introduction of a democratic political system is equally as relevant or irrelevant as the statehood criteria. The book demonstrates that via the right of self-determination the law of statehood requires state creation to be a democratic process, but that this requirement should not be interpreted too broadly. The democratic process in this context governs independence referenda and does not interfere with the choice of a political system. This book has been awarded Joint Second Prize for the 2014 Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship.
Table of contents
Chapter 1 Democracy and Statehood in International Law 1 Introduction 2 International Law and (Non-)democratic States 3 The Emergence of States in International Law Chapter 2 The Practice of Post-Cold War State Creations: The Statehood Criteria, Democracy and Human Rights 1 Introduction 2 The Emergence of States as a Result of Domestic Consensus 3 The EC Guidelines and EC Declaration: Beyond the Statehood Criteria 4 The Independence of Montenegro 5 International State-making and Democracy-making in East Timor 6 Kosovo as an Attempt at Informal Collective Creation of a Democratic State 7 Conclusion Chapter 3 Democratic Aspects of the Right of Self-Determination 1 Introduction 2 Self-determination: Development, Democratic Pedigree and Limitations 3 Self-determination, Governmental Representativeness and Multiparty Democracy 4 The Right of Self-determination, Political Participation and Choice of Political System 5 Democracy and the exercise of the Right of Self-determination in its Internal Mode 6 The 'Safeguard Clause' and Remedial Secession 7 Democratic Principles and External Exercise of the Right of Self-determination 8 Conclusion Chapter 4 Delimitation of New States and Limitations on the Will of the People 1 Introduction 2 The Creation of New States and the Uti Possidetis Principle 3 The Nature and Relevance of Internal Boundaries in the Post-1990 Practice of New International Delimitation 4 Conclusion Chapter 5 Democratic Statehood: Conclusions 1 Democracy and Statehood: An Analysis from Two Perspectives 2 The Emergence of New States in the Post-Cold War Practice 3 Contemporary International Practice and the Legal Status of the Statehood Criteria 4 The Operation of and Limits on Democratic Principles Within the Right of Self-Determination 5 Final Remarks: The Place of Democracy within the Process of State Creation
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Published by Hart Publishing (March 28th 2013) - Copyright © 2013