Book Reviews

Brad R. Roth, Governmental Illegitimacy in International Law. Oxford: Clarendon Press, 1999.

There is a refreshing aspect to Brad R. Roth's new work, Governmental Illegitimacy in International Law, and it starts with the title and the author's awareness of the irony in it. `Legitimacy' criteria, grouped around principles of liberal democracy and human rights, have reappeared in contemporary practice concerning how international law reacts to municipal governance. Writers and practitioners may herald this as essentially progressive - an advance toward the final frontier of human rights and world public order. But by involving themselves in decision-making processes of certain states, states and the various formations they constitute may equally be seen as returning to habits of intervention long identified as inimical to orderly and just global society. As Roth points out later in this impressive work, it was under the very rubric `legitimacy' that states in the past enforced odious ideologies on non-conforming members of the international community (at 136-137, 426-428).¹

So why is it - and to what extent is it - that states are returning to a variation of legitimacy doctrine today?

These are questions central to Roth's work, and from them stem closely related and useful Problemstellungen. Roth asks whether the principle of popular sovereignty - itself, he says, by now rooted firmly in international law - requires liberal democracy. In view of the pluralism of international society, Roth suggests that recent writers who identify the two too tightly are wrong.² Liberal democracy, though ascendant in the economically advanced states of Western Europe and North America, remains, Roth implies, a culturally-determined phenomenon and not a universal value necessarily suitable as a source of international legal directive. Policy aiming to impose liberal democracy, Roth argues, is frequently misguided and threatens violence to two core principles of the UN Charter: that force shall not be used or threatened against a state's political independence (Charter Article 2(4)); and that states shall not interfere in matters `essentially' within a state's domestic jurisdiction (Article 2(7)). `If the effective control doctrine [under which governments were recognized solely on the basis of the fact of their governing] is to give way', Roth writes, `its replacement will have to provide assurance to a world still leery of heavy-handed (and predatory) interventionism that the door will not be opened to new, and potentially even more dangerous, arbitrariness' (at 149). Yet recent state practice, Roth discusses at length (Chapter 9), has witnessed intensified international involvement in the reshaping of domestic governmental order. The discussions here of Haiti, Angola, Cambodia, Liberia, Somalia, and Sierra Leone are highly instructive, the last in particular, in view of the collective auspices under which West African states intervened there.³ Roth's views on NATO intervention in Kosovo and EU Member State measures toward Austria - developments too late for inclusion in the present work - would be welcome in a second edition.

Roth's work is thorough, not only in its coverage of state practice identified by many as indicative of the new `democratic entitlement' under international law. He also prepares the theoretical groundwork for discussion of that practice. This involves a bold, if brief, analysis of past writings on popular sovereignty and domestic constitutionalism (at 37-74), and a discussion of the chief competitor to liberal democratic legitimacy doctrine since World War II, socialist `revolutionary-democratic dictatorship' (at 75-120). The main point behind the latter seems to be to show the relativism inherent in selecting any particular governmental order as preferable to others. Roth admits that at the margins certain forms of force in domestic governance are rightfully deemed `illegitimate' (racist or foreign domination, chief among these). But beyond marginal cases like Rhodesia and Manchukuo, Roth wishes to raise the level of scepticism among international law writers and to suggest that liberal democratic legitimacy criteria are not practical - or necessarily valid - criteria by which to establish regimes of non-recognition of governments or programmes of intervention.

At least three prominent omissions struck the present reviewer in reading Governmental Illegitimacy. M. J. Peterson's Recognition of Governments falls quite squarely in Roth's brief, not least of all in light of the importance of the roll of effectiveness principles in that work.⁴ Stefan Talmon's Recognition of Governments in International Law covers quite different ground, but is equally relevant to Roth's inquiry. Talmon focuses on the status of governments in exile, a set of special cases that may well be argued to push effectiveness criteria to the margins.⁵ Where a government lacking any longer even the slightest territorial nexus to the state on behalf of which it claims to act nonetheless retains international recognition, it would seem plausible that something other than effectiveness criteria are at work. Finally, Christian Hillgruber, in Die Aufnahme neuer Staaten in die Völkerrechtsgemeinschaft (1998),⁶ stakes out a very strongly constitutivist position within a discussion of recognition of new states. Noting, in particular, cases of recognition that highlight the activism (or interventionism) that Roth identifies as a possible risk to international order, Hillgruber argues that existing states play an active role in creating new states, through the decisions they make as to which entities to treat as legal equals. Other writers who raise the constitutivist view to renewed prominence, if indirectly, include Colin Warbrick, Jorrri C. Duursma, and, Matthew Craven,⁷all identifying a `constitutivist' element in recognition in the 1990s (including recognition of the European micro-states and Bosnia and possibly Croatia). Fuller reference to such relevant literature would have filled an ellipsis in Roth's work. This, however, is a minor complaint. At least two matters of greater substantive concern strike this reviewer as noteworthy.

First, Roth argues that, in a world highly plural in its national social, political, and legal orders, it is difficult to form consensus as to `legitimacy' criteria, and, thus, an effectiveness test may be more desirable than alternative formulations.<sup>8</sup> And, second, Roth argues that obstacles to assessing empirically the `will of the people' in a foreign country are too great for such a venture to succeed in any event.⁹

While international law must accommodate diversity, one is free to wonder whether the formula Roth sets up invites reliance on a `tolerance' principle for inappropriate ends. It is certainly now the case that certain acts, even if contained within the borders of a state, are not immune from international sanction. States may even carry out armed intervention to stop them. Roth urges that intervention be limited to cases where there exists an `over-lapping consensus' (a construction he borrows from Rawls), and that international society not seek to impose `universal values' on states (at 31-32). It is not entirely clear to this reviewer what Roth here means. Does he mean to reduce international law to the set of propositions that every constituent of the system voluntarily ratifies? Roth approves a passage of the arbitral decision in the Tinoco matter, where Chief Justice Taft wrote, `[the legitimist principle that underlay the non-recognition of Costa Rica's short-lived revolutionary government] certainly has not been acquiesced in by all the nations of the world, which is a condition precedent to considering it as a postulate of international law'. (Roth quoting Taft, at 145-146). This resembles the notion, taken widely to be out of date, that international law is merely jus gentium voluntarum - the set of rules to which all states give their consent, and nothing more.¹⁰ A sense that the law must be just that seems however to underlie much of what Roth writes about intervention and legitimacy. It would be interesting to know the author's views on how law, in that sense of `law', could undergo the progressive development that so many writers have identified as necessary to strengthening a world order of human dignity.

Arising repeatedly in Governmental Illegitimacy is the idea that verifying popular will is a tricky business. (e.g., at 69, 141) His own experience as an election observer and visits to countries where elections have been internationally monitored gives Roth valuable perspective in this matter. It is with deference, then, that this reviewer asks whether Roth takes an overly pessimistic view of the fact-finding powers of international society. Roth argues that, so uncertain are our faculties of assessment when it comes to the constitution of governments in foreign lands and popular reaction to them, that international law regards effectiveness as the best indicator of consent. If a population is not in a tumult of opposition to a regime so intensive as to erode its effectiveness, then the population must be judged to consent to the regime. Supposing such an intelligence-gathering handicap is all the more curious in an age when the ability of communications technology to close gaps of distance and fill gaps of knowledge is signally famous. It may further be taken into account that the findings of fact that are likely to impel international action are not going to be `close calls'. They are likely instead to be cases of extreme breach of popular will, manifest in notorious fashion-though, in cases, short of leading to collapse of the regime's effectiveness. It would be interesting to know Roth's views on globalization and the impact in particular of new modes of mass communication (not least of them the internet) on the empirical task of assessing popular will.¹¹

Roth identifies effective control as a desirable measure for recognizing governments because it furnishes a stand-in in absence of agreement on legitimacy criteria - and, from it, Roth argues, we may draw presumptions about consent (at 69).¹² Roth admits the shortcomings of such a presumption, but he argues that those must be measured against an alternative that he identifies as even less desirable - second-guessing of internal processes of governance, which in turn may invite unregulated economic and military intervention into `sovereign' state affairs. Pointing out that alternative approaches carry risks, however, does not lift the burden from Roth's own proposal. There is something distinctly unsettling in a presumption that effective control means the controlling entity enjoys popular consent. It imposes a difficult standard indeed to require the citizenry openly to confront a well-armed ruling apparatus in order for the bona fides of that apparatus to be called into question at international level - all the more difficult when the citizenry is locked in a day-to-day struggle to meet its own basic economic needs. What is it fair to read from quiescence?

Yet insulation of internal governance from external scrutiny was widely reported to be a basic assumption of the United Nations system at its advent. Roth writes, `[W]hat counts as an articulation of [the will of the people] has generally been thought to be a matter "essentially within the domestic jurisdiction," to be resolved by the political community itself, free from external interference' (at 27). This is in reference to the Universal Declaration of Human Rights.¹³ It may well be a point with relevance beyond that instrument and questions of popular governance.

A question of general relevance to the progressive development of international law is how legal principles can be accommodated in a system that often admits reserves of discretion. I have noted this in connection with observed movement in state practice toward a requirement that recognition of new states take place within a collective framework. States during debate over whether and when to recognize new states in the space of the former Yugoslavia tended to agree publicly that recognition should be a collective action. Yet individual states also indicated that they retained the discretion to decide how many partners were required to participate in the action before it could be called `collective'.<sup>14</sup> Does it erode collective recognition to allow states to decide how many states are necessary before their decision is `collective'? Does it erode government by popular will to allow states to decide `what counts as an articulation of that will'? (at 27) At first blush, it may appear that such discretion is erosive of legal norms. But it could also be that such discretion gives the state, ever jealous of its `sovereignty', a device by which it can simultaneously support the emergence of a new area of international governance and protect itself from an over-rapid removal of authority from its own ambit. The state may support the development of the law at its own pace. Absent such a device, the state might well hesitate to subscribe even in part to the newly emergent principles. Many treaty systems permit states reservations, even of comparatively important parts of a treaty text. The availability of this option can help win parties to a treaty. The device noted by Roth and others may well be thought of as an analogue to treaty reservation, developed for the distinctive context of customary law formation. Just as without reservations states would have no choice but either to reject or to accept a treaty in whole, without the device, states would be left an `all or nothing' choice as to endorsing newly emergent customary norms. With it, they may endorse such norms yet protect values critical to their social and political systems that might not yet be ready to accommodate the norms in full force. Roth concludes that sovereign equality has indeed been revised by a principle of governmental illegitimacy, unclear in its specifics but real enough in practice. But he denies that that principle has liberal-democratic content. A liberal-democratic legitimism, he concludes, does not yet exist as a developed norm in international law, but, rather, remains an aspiration (at 412). Proposing further an ongoing need to `bolster' the `credibility' of international law (at 420), Roth cautions against a wishful thinking that might lead writers to characterize that aspiration prematurely as an accomplished fact. It may well be in the context of a developing norm such as governmental illegitimacy that reserves of domestic discretion such as these are at their most useful.

Thomas D. Grant

Max-Planck-Institute for International Law, Heidelberg, Germany;

St. Anne's College, Oxford University

1 In an earlier review, Alain Pellet regrets that Roth did not present a more detailed history of legitimacy principles. `Book Reviews and Notes,' 92 AJIL (2000) 419, at 420. Given the formidable scope of the work, however (consider its survey of political philosophy), Roth seems to have had little choice but to leave some things out. His omissions strike this reviewer as generally judicious. Governmental Illegitimacy is also reviewed at 25 Yale J. Int'l L. 233 (2000).

2 Roth identifies as primary exponents of the view that liberal democratic governance is becoming a norm of international law Thomas Franck, Lois Fielding, Malvina Halberstam, W. Michael Reisman, and Anthony D'Amato. He refers to these writers collectively as constituting a `democratic entitlement' school. (page 3, note 4). Roth might have mentioned in this context at least in passing the writings on this matter of James Crawford (whom he discusses at length elsewhere in connection with statehood and recognition). See James R. Crawford, `Democracy and International Law,' 64 BYIL 113 (1993); Democracy in International Law (Cambridge: Grotius, 1994).

3 Roth also reviews practice involving recognition and intervention from the late Cold War, including Nicaragua (290-303), Grenada (303-310), and Panama (310-318).

4 M.J. Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995 (New York: St. Martin's Press, 1997).

5 Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Clarendon Press, 1998).

6 See also Christian Hillgruber, `Admission of New States to the International Community,' 9 EJIIL 491 (1998).

7 Jorri C. Duursma, Fragmentation and the International Relations of Micro-States: Self-determination and Statehood (Cambridge: Cambridge University Press, 1996); Colin Warbrick, `Recognition of States,' 41 ICLQ 473, 480 (1992); Matthew C.R. Craven, `The European Community Arbitration Commission on Yugoslavia,' 66 BYIL 333, 375 (1995).

8 `No criteria of legitimacy could possibly garner common acceptance without abstracting from all ideological considerations. Acceptance, for legal purposes, of the legitimacy of those foreign governments holding effective control was the most natural solution to dissensus on principles of internal governance, combined with consensus on the need for a peace and security order.' (117)

9 Roth notes in a number of places that a lack of `determinate gauges and effective institutions for verifying popular consent' impose a limit on popular will tests of legitimacy. (148 and passim).

10 For a standard critique, see J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, Sixth Edition, Sir Humphrey Waldock, ed. (Oxford: Clarendon Press, 1963) 51-52. Relatedly, see Jochen Abr. Frowein, `Jus Cogens' in R. Bernhardt (ed.) Encyclopedia of Public International Law, Vol. Three (Amsterdam: Elsevier, 1997) 65-69 (`The notion of jus cogens became essential for the understanding of international law at a time when it was again realized that the individual and arbitrary agreement of States could not be the highest value in the international community.')

11 Roth expresses skepticism toward strong-form views about `the end of history.' (page 430, note 22).

12 The presumption Roth allows to be displaced only in cases where regimes have been installed by foreign invasion or are the result of `alien, colonial or racist domination.' Chapters Five and Six. Roth does not make clear why such cases do not pose the empirical obstacles that he so prominently identifies elsewhere as precluding assessments of popular will.

13 GA Res 217(A), UN Doc. A/810, at 71 (1948).

14 Thomas D. Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger, 1999) 188-193.

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