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Saturday, August 6, 2022

Confirming Liberland’s Legitimacy

An article based on the thoughts of Professor Miloš Petrović on the elements of State legitimacy and how these apply to Liberland; how Liberland continues to promote its status as a State.

Preface

The following is based on a publication by Professor Miloš Petrović, a professor of Legal Studies at the State University in Novy Pazdar. His article, currently only available in Serbian, concerns many topics supporting the legitimacy of Liberland and the theory necessary for an informed reader to understand the subject matter. We are presenting certain ideas from that article here to the international audience.

What is a State?

States are entities which exercise sovereign power on a given territory and over a given populace. 

State power is sovereign, meaning supreme on that territory. People exposed to it are its subjects and must comply with it, under the penalty of enforced compliance. State power is supreme but should not be legally unlimited (the democratic rule of law).

A well-defined territory must be obtained on which the State’s power is supreme, and there should be no other State of a higher or equal power acting on that territory.

There must be a permanent population that inhabits the State territory. This population should be able to reproduce itself. It should form a coherent nation, sharing certain historical and cultural characteristics, the individuals seeing themselves as a part of this national community.

Whereas all States are such territories, not all such territories are States, despite the lip service the International Community pays to the so-called Principle of National Sovereignty. According to this principle, nations (the people living in a certain territory with certain socio-cultural commonalities) should be entitled to form States. However, not all nations (by far) can reap the benefits of Statehood.

States are the most important and, in many ways, the only true subjects of Public International Law (next to the likes of international organizations). You and me, we are not truly subject to this supreme legal system of the world – our States are. They should represent and defend us in the international space. In theory. 

Whether an entity is a State or not is, therefore, a big deal. Who then decides whether a territory and a particular sovereign authority over this territory and its populace is a State or not?

There are two currently prevalent and mutually exclusive theories in the international community on how States come to be: the Constitutive Theory and the Declaratory Theory.

The Theories

Both theories have a close connection to the concept of recognition. Recognition means that other States consider the administration of a given territory to be a real State.

The theories differ in what the impact of recognition is as follows:

  • The Constitutive Theory states: Recognition makes a territory into a State; State is what other States recognize as a State.
  • The Declaratory Theory instead claims: A State must have a territory, a population, and State power and be able to represent itself before other States; then, it is a State, even when unrecognized by some, even by the majority of other States. Even when not a UN member!

Let us set matters straight: The Constitutive Theory is the one which is most often used by States in practice. 

Where States decide which diplomatic delegation should reap the benefits of the rights granted by the Vienna Convention on Diplomatic Relations of 1963 or with which States it is seemly to enter a bilateral Treaty, they look first at whether they recognize that State, then also whether their friends in the international community recognize it. 

The International Community as it currently works and the United Nations have not been construed as an absolute oligarchy of (the most powerful) States. The community was instead meant to work with States as “naturally emerging phenomena”, which means that States are such because they have certain characteristics and represent nations desiring self-determination. Otherwise, we would have no principle of Self-Determination.

Therefore, the theory on which the International Community is built implies the Declarative approach. As such, in their judgements and awards, courts, international jurists and lawyers in their opinions, and international organizations use this theory – or at least try their best to look as if they used it.

Therefore, we have a system where the Declaratory theory is used as an argumentation tool and explaining (away) one’s actions. At the same time, in day-to-day practice, the States (who, remember, are the most important international subjects) go by the Constitutive theory.

Even if we adhere staunchly to the Declarative Theory, Recognition is still important, although not as all-important as per the Constitutive Theory. Liberland needs to seek recognition in any event. What, then, is recognition? How does it work? How can Liberland best obtain it?

Recognition

Recognition authorizes a State to partake in all the rights under the Public International Law. 

An unrecognized State will still be judged according to all the duties and obligations of a State but has few if any, rights. 

Even an unrecognized state must therefore adhere to the likes of the prohibition of the use of force, the ban on aggression, etc. but will not bear the fruits or receive the support a recognized State would if obedient and is likely to be punished more readily by others where disobedient.

At the domestic level, recognition gives the State the right to enjoy the privileges granted to foreign states before national courts, which are not provided to other communities. Thus, if State A recognizes State B, it follows that the courts of State A will apply the law of State B and the acts enacted by State B in exercising its sovereignty.

Recognition of a State does not automatically mean that all other States have recognized it or are obliged to establish diplomatic relations. Diplomatic relations are connected to recognition but are not the same. For instance, the severance of diplomatic relations does not automatically lead to the withdrawal of state recognition. 

There are two types of recognition:

  • De Iure recognition is based on an explicit statement made by the recognizing State.
  • De facto recognition means that the other State treats the formally unrecognized State as if it was recognized, without making a statement about it, such as opening diplomatic relations with its representatives or recognizing them as a party to an International Treaty.

Certain States function as such without full, de iure recognition by the majority of the international community. Taiwan, for instance, Kosovo to a certain degree or Somaliland. They are recognized de facto by far more States than how many recognize them de iure.

This way, we can see that the Declaratory Theory scores a win. We see a clear path for Liberland: de facto and de iure recognition are important, but the ability to act as a real State and fulfil all the requirements placed on a State by (the Declaratory) theory is the first priority.

Liberland Statehood

Liberland has a robust populace, a nation of thousands of supporters and about one thousand initial citizens. 

These people see themselves as Liberlanders-in-exile, and their lives reflect that they feel the bond with each other as fellow nationals would.

Liberland also has a territory, well defined, a former terra nullius. It isn’t a separatist project and doesn’t seek to infringe on any other State – remember the national motto: Live and Let Live!

The Provisional Government is the recognized authority in Liberland. It makes the rules and enforces them; it represents the nation of Liberlanders internationally.

The challenge is to combine those elements – to put the land, the authority and the people together. This is incumbent on how well accepted and seriously taken Liberland will be in the international community. This presents a paradox – Liberland requires recognition to be best able to combine its elements of Statehood. Still, it needs these combined elements already present to hope for recognition.

Liberland will resolve this dilemma through outreach and further development, both in the land and in exile.

A Modern State

Liberland seeks to affirm its intention to be a “good neighbour” to the other States in North Balkans and the international community at large. It has established a charitable organization, the Liberland Aid Foundation, and is active worldwide, providing disaster relief and help to people in poverty.

Liberland sponsors sports and even products like the Liberbeer or Liberwine. It organizes internationally relevant events, both serious and entertaining: Liberlanders consider relaxation and humour very important, even amidst the business of diplomacy. So Liberland hosts every year the Floating Man Festival (https://floatingman.ll.land) or the anniversary cruise (https://anniversary.ll.land).

Liberland seeks to connect with Academia for scholarly analysis and promotion. The State has founded the University of Liberland and seeks to advance humanity’s collective knowledge in many subjects. 

The Ministry of Foreign Affairs communicates with States worldwide, seeking recognition and partnerships. Internally, Liberlanders are engaged in putting together a robust legal system, idealistic concerning the country’s aims of maximizing individual liberty, and realistic, able to withstand international scrutiny. 

Liberland also deals with international organizations and expands the scope of engagement in this regard; for instance, wishing to engage in closer dialogue with the WWF and other ecological initiatives regarding our commitment to protect the river Danube and the area’s unique wildlife.

Locally, Liberland maintains relations with municipalities in the surrounding countries and even further away. They organise tours and events and seek to be useful in the neighbourhood. 

Liberland is in the process of ratifying its own Constitution. The aim is no less than creating a startup State, and not just for its people – they aim to create a “free nation construction kit”, an open-source project which everyone can take and adapt to their needs. The ultimate aim is not “just” Liberland’s Statehood but the increase in liberty for all the people worldwide.

The Attainment

Through all the efforts, Liberlanders seek to bridge the waters of misunderstanding and counter the fear of novelty. Liberland is neither a joke nor a radical project in any sense of extremism. They aim towards what most humans in the west consider amongst our most cherished values: the maintenance and the advancement of the cause of liberty. 

Liberland wishes to become a serious partner to other western countries and aid them in this endeavour by providing a concrete example of what happens when freedom-loving people convene and set their affairs in ways conforming to their moral sensibilities. 

Liberland has already existed for seven years and shows no signs of weakening. The Provisional Government works daily to make the ultimate recognition of the State a reality. Liberlanders are patient – it is not every day that new States are made. Waiting for the opportune moment to claim the right to join the great family of nations, Liberland’s officials and supporters labour to prepare the most rational, modern methods of self-governance.

Based on ages-old principles like property, the sovereignty of the people and self-responsibility but powered by modern technology, Liberland brings a much-needed impulse of change into the contemporary governance space. 

However well many current States perform compared to their historical predecessors, many individuals experience that their States as they stand in the present are in certain ways lacking and not fulfilling their expectations for a State fit to build a life in. 

The average citizen suffers the consequences of their government’s actions, which can be painful and, at times, deadly. 

People feel unfree, and many, if not most, believe their governments and politicians to be less than ideal. Individuals will regularly point out corruption, mismanagement, and large-scale injustices perpetuate this sentiment.

What value do these individuals share? They yearn for greater freedom. These individuals are far from a minority, and their yearning for liberty only grows each day. 

Liberland is there to help all those people; to present a modern alternative to States grounded in early 20th-century principles which, as the Provisional Government asserts, are ill-equipped to deal with the problems of the 21st-century.

As a project transcending the traditional axes of liberal vs conservative and left vs right, Liberland strives to create a new basis for modern State development, grounded in the age-old principles of liberty and responsibility. Do you like this idea? Perhaps you may wish to help Liberlanders build up their community or even become one of us? 

Please visit www.liberland.org for more details, or you can write your questions to info@liberland.org. You can also visit Liberland directly this summer at the annual Floating Man Festival in Apatin, Serbia, see https://floatingman.ll.land.

See you in Liberland!

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