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Article Excerpt
UNLAWFUL TERRITORIAL SITUATIONS IN INTERNATIONAL LAW: RECONCILING EFFECTIVENESS, LEGALITY AND LEGITIMACY BY ENRICO MILANO (LEIDEN, THE NETHERLANDS: MARTINUS NIJHOFF PUBLISHERS, 2006) 300 PAGES. PRICE US$133.00 (HARDCOVER) ISBN 9004149392.
This is an excellent book. It is the most thorough and comprehensive examination of the doctrine of 'effectiveness'--the occupation and control of a territory for the purpose of establishing international legal recognition--that I have read to date. It is clear and logical in its exposition, organised, and exceptionally well researched and documented. The doctoral thesis that was the precursor to this book was the deserving recipient of both the 2004 Alberico Gentili Prize and the 2005 Georg Schwarzenberger Prize.
As the substantive issues of the doctrine of effectiveness are so expertly treated by Milano, I shall largely refrain from any critical assessment of the book's handling of the 'black-letter' aspect of the principle. Instead, I would like to focus on a number of theoretical points and issues that this book raises. Although the 'Preface and Acknowledgements' section of a text should not ordinarily be invested with significant critical weight, there is one passage that is highly revealing of what is to come. The author declares of his experience writing his doctoral thesis at the London School of Economics, 'I was lucky enough to find myself in a British academic environment that would be naturally suspicious of purely theoretical or doctrinal work.' (1) It shows.
I UNLAWFUL TERRITORIAL SITUATIONS
As the author rightly declares, 'the concept of unlawful territorial situation[s] is a relatively unexplored subject'. (2) As the topic of the book may not be familiar to the general reader, a few words of explication may be in order. Milano correctly defines a territorial situation as 'a state of affairs where an international actor displays actual control and general authority over a certain territory'. (3) The distinction between 'control' and 'authority' is crucial. An illegal territorial situation arises precisely where control has been established but the state of control is itself devoid of authority. Both Palestine (4) and Kosovo (5) are outstanding examples of such situations. The 'international actor', or 'international person', may be a state, an intergovernmental organisation ('IGO'), a national liberation movement or, most timely, 'potentially even a terrorist group'. (6) 'Territory', in turn, is usefully defined as 'the spatial framework within which a general legal authority is exercised' (7)--this explicit linkage between the juridical and the spatial, introducing an under-utilised geographic set of concerns, is one of the most attractive features of the book. Finally, we come to the 'bright-line distinction', that which objectively demarcates the juridical difference between lawful and unlawful territorial situations: the presence of 'illegal authority'. (8) Milano states:
When referring to 'illegal authority', I do not refer to an authority exercised in accordance with the law, or, more specifically, in accordance with international law, but an authority capable of displaying juridical effects, regardless whether the legal basis [of the occupation] is valid or invalid. (9)
Here we encounter, in microform as it were, the fundamental philosophical problem that dogs the entirety of Milano's work: the inconsistent and uncertain slippage between normative and factual modes of analysis, producing unsustainable frissons within the text. One asks: how can truly lawful juridical effects exist within a territorial situation the 'legal basis' of which is itself invalid? To pose this question is to invoke a straightforward natural law appraisal that uses foundational norms and values to invalidate the material action of the state in a given situation. The problem with this approach is precisely that it is naturalist: states understand the existence of their own legal personality in terms of positivism and can, therefore, maintain the presupposition of 'illegal authority' by shifting the terms of reference to the positive constitution of the actor implementing the juridical effects. Of course, the difficulty here is that the certainty of the presence of an objective unlawful territorial situation is put at risk, for the entire issue becomes one of auto-interpretation by the state actor.
Here, Milano, perhaps unconsciously, flags his extreme dependence upon the work of the leading new stream international legal scholar Martti Koskenniemi. The essence of Koskenniemi's brilliantly simple argument is that international legal discourse is nothing other than rhetoric, perpetually alternating between naturalist and positivist modes of discourse. Consequently, international law is never self-grounding; a wholly positivist or a wholly naturalist approach will yield incoherence. International law, therefore, evades this discursive bind by shifting rapidly and continuously between the two poles, but always--and this is most important--with a sense of deliberate unawareness of its own stratagems. (10)
Milano's indebtedness to Koskenniemi is revealed in his attempt to resolve the paradox of 'illegal authority', as a sign of an unlawful territorial situation, by acknowledging the presence of an unstable synthesis of naturalism and positivism:
This is possibly due to the perception that international law had reached a stage of development, where its function was no longer to accept social reality as it is [positivism], but rather to promote and occasionally impose common values and normative standards of international justice [naturalism]. (11)
As Milano realises, the danger of relying upon an exclusively positivist approach is that it creates the intolerable situation wherein...
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