Within the summer edition of the prestigious Chicago Journal of International Law was published a detailed piece explaining the implications of Liberland with regard to international law. Author Gabriel Rossman’s 35 page essay explains the history of statehood under international law as well as the Croatian-Serbian historical border conflict and then weaves together an explanation of the ways in which Liberland both qualifies and does not yet qualify as an official state.
Rossman begins by explaining the concept of terra nullius (no-man’s land/unclaimed land) and points out that neither Croatia nor Serbia claim this land and have not claimed it over the course of decades. Despite this fact, we are reminded that Croatia recently put out a statement claiming that Liberland is somehow not terra nullius. Croatia’s statement stops short of claiming the land as its own, instead insisting that the land belongs to Serbia. Serbia likewise put out a statement that the land is not within the borders of Serbia. As Rossman put it:
“If the territory that Liberland claims as its own is rightfully Croatia’s under international law, it might now be terra nullius; Croatia’s insistence that Liberland is part of Serbia could constitute a renunciation of Croatia’s legal rights to Liberland. Conversely, if the territory that Liberland claims as its own is Serbian, the Serbian government’s renunciation of its title to that land could also be a quitclaim that would transform the legal status of the land to terra nullius. In both instances, the territory would belong to the first entity—in this case Liberland— to claim it.”
Rossman seems to be indicating that even if the land was not well-defined as terra nullius previous to Liberland’s declaration, the official responses from both Croatia and Serbia have likely transformed it legally into terra nullius , with Liberland being the first and currently only entity to claim it.
Rossman also explores the four criteria of statehood as defined by the Montevideo Convention. For the uninitiated, Article 1 of the Montevideo Convention declares:
“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.”
Though Liberland has many dedicated and enthusiastic citizens, Liberland does not currently have a permanent population within the borders of the claimed territory. While it’s true that many Liberlanders have spent full days and nights within the territory since Vít Jedlička first declared the nation, and though there have been many attempts at permanently settling the land, Croatia has consistently sent police into Liberland with the clear mission of preventing Liberland from having a permanent population. Judging these facts under established international law, Rossman ponders:
“Should it matter to the Montevideo analysis that the reason why Liberland is yet to have a permanent resident population is because Croatia has prevented Liberland settlers from entering Liberland and arrested those that have been able to temporarily evade the authorities and actually reach Liberland? More generally, should an existing state be able to thwart the statehood aspirations of a nonviolent secessionist group by repressing that group and preventing its members from even accessing the territory that the secessionist group claims as its own? This dynamic is, to the author’s knowledge, a completely novel situation.”
Rossman seems fully convinced that Liberland qualifies for the second criteria however:
“Croatia’s unwillingness to assert title to Liberland also means that Liberland clearly has defined borders; Liberland is bordered by the Danube to the East, and Croatia on the West.”
On the third qualification Rossman explains:
“The government of Liberland lacks the ability to physically occupy and govern its own territory because Croatian police are stationed in Liberland around the clock, preventing citizens of Liberland from entering and setting up a permanent settlement. This, by itself, should not disqualify Liberland from being deemed a sovereign State.” [editors note: Croatian forces are not in fact stationed in Liberland around-the-clock, though they do enter and exit as they please, especially when they notice a Liberlander entering the territory.]
Rossman then offers what seems to be a strong condemnation of Croatian activity in Liberland:
“States should not be able to engage in ad hoc military campaigns to violently suppress peaceful peoples from congregating in areas of a country where they hope to establish their own state. This is particularly true in the case of Liberland. Croatia does not even claim the land that Liberland hopes to colonize. Croatia is preventing Jedlicka and his followers from accessing uninhabited land that Croatia has not claimed.”
However Rossman concludes that Liberland essentially meets the third criteria:
“Liberland arguably possesses the ability to effectively govern its territory, even if the government is not currently located within Liberland’s borders. Liberland has a draft constitution, a domestic court system, a currency, a (very active) president, a cabinet, and a sophisticated process for granting citizenship. At least on paper, if not yet in practice, Liberland has all the necessary components of a modern liberal democratic state and may be able to effectively govern its territory.”
Finally Rossman examines the forth criteria of statehood and finds:
“Liberland has established permanent diplomatic missions in numerous states, such as the United Kingdom, France, Germany, the United States, Hungary, Croatia, and Serbia. While Liberland has all the formal capacities needed to engage in relations with other states, the simple fact is that Liberland has not been recognized by any sovereign nation.”
Pieced together, Rossman concludes that “Liberland arguably satisfies the Montevideo Criteria” though it does not “strictly” satisfy all of its criteria. Rossman also seems to find it troubling that Liberland has not yet been formally recognized by any sovereign state. Rossman further posits:
“It is evident that Liberland would have both a permanent resident population, and an effective government, if Croatia stopped preventing would-be Liberlanders from setting up a permanent settlement.”
Going forward Rossman foresees two viable albeit difficult paths towards official statehood. Firstly, Liberland could convince other nations that its claims over the land due to terra nullius are valid under historical legal norms and from that achieve traditional recognition from other states. Rossman concedes that even with any such recognition, Liberland would still have to eventually reach a strict application of the Montevideo Criteria, including a permanent population, in order to fully achieve statehood. Alternatively Rossman suggests that Liberland could gain recognition by convincing others states to relax the strict interpretations of the Montevideo Criteria. The hope would be that other nations would see the value of the right to self-determination and agree that when Croatia disallows Liberlanders to settle within land Croatia doesn’t even claim, it sets a dangerous precedent for other peoples who may seek safety, security and freedom in future statehood movements. As Rossman puts it:
“The international community must consider the incentives created by a strict permanent population test. If the permanent population criterion requires a permanent resident population or a permanent population of citizens within the territory claimed by the aspiring state, the existing state has a perverse incentive to prevent the would-be permanent residents of the aspiring state to enter the territory they claim. This incentive structure could embolden repressive regimes to exacerbate the abuses and injustices that motivated the aspiring state to attempt to secede from the parent state in the first place.”
Not mentioned in the article, and perhaps unknown to Rossman at the time of publication, are the recent court decisions from appeals courts in Zagreb. Croatian judges have ordered retrials for those accused of illegal border crossings, and have ruled that the lower courts have “committed a fundamental breach of misdemeanor proceedings” and that the lower courts must examine all evidence and to rule on the border. It is hoped by Liberland supporters throughout the world that the new rulings will result in a clear and well defined border by Croatia that will henceforth be respected by Croatian police. As covered above, the evidence is clear that Liberland is not part of Croatia and is not claimed by Croatia. With a favorable ruling, Liberlanders may be able to freely and permanently reside on this piece of land.
Also related to these discussions is news from this past week that seven members of Poland’s parliament have formally urged the Polish Ministry of Foreign Affairs to officially recognize Liberland. Minister Waszczykowski is expected to respond within 21 days according to parliamentary procedures. There are many similar diplomatic efforts underway throughout the world in the many dozens of countries in which Liberland has set up its diplomatic offices. It is hoped that with these continued efforts recognition from numerous nations will be achieved.
Gabriel Rossman’s article is impeccably researched and makes for a most fascinating read. A link to the journal can be found here from which the article can be downloaded free of charge.