Milano, Enrico
(2004)
Unlawful territorial situations: Reconciling effectiveness, legality and legitimacy in international law.
PhD thesis, London School of Economics and Political Science.
Abstract
While the last few years have seen a strong attention by international lawyers towards alleged breaches of Article 2(4) of the UN Charter, much less attention has been devoted to the effects produced by such interventions upon the victim state. Article 2(4)'s main function is arguably to protect the 'territorial integrity or political independence' of states, and the aims and effects of military interventions often undermine states' territorial sovereignty well after the cessation of the hostilities. The thesis sheds light on the extent to which international law protects states' and peoples' territorial sovereignty by studying the phenomenon of unlawful territorial situations. An unlawful territorial situation can be defined as a territorial occupation established and maintained as a result of a violation of international law, such as in the case of the illegal use of force. The thesis analyses unlawful territorial situations through the lenses of the legal-normative concepts of effectiveness, legality and legitimacy. The concept of effectiveness as a device for transforming effective realities into law was considered one of the fundamental principles of international law during the 19th century and the first part of the 20th century. It deeply influenced the notions of statehood and territorial sovereignty as inherited by contemporary international law. However, the second part of the 20th century has seen the emergence of principles of substantive legality limiting the action of effectiveness as a source of territorial entitlement. The thesis shows how a situation of territorial unlawfulness can be defined with regard to four international legal principles: the prohibition against the change of territorial status through the use of force; uti possidetis iuris, self-determination; and territorial integrity. The thesis appraises the significance of effectiveness vis-a-vis these principles in the context of unlawful territorial situations. It argues that while effectiveness is no longer a fundamental principle of international law, it plays an important role when accompanied and enhanced by the legitimacy of the underlying claim, or by the external legitimation of an authoritative body, e.g. the Security Council. Whereas legitimacy is a concept supposedly built on the fundamental principles of the international community, it goes beyond positive legality, and it often represents a less objective, less transparent and less egalitarian device of power acceptance and recognition. However, adopting legitimacy as a device for transforming illegal effectiveness into a legal one, is paradoxically a way for the international community to safeguard the integrity of its principles of substantive legality, despite making them in some cases peripheral to the actual regulation of disputes.
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