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RESEARCH PRODUCT

A normative ‘due process’ in the creation of States through secession

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The choice and/or the balancing between effectivess and legality in the creation of States is, today, one of the most hotly debated issues in the international legal scholarship. Should a state-like entity formed in breach of the peremptory norm prohibiting the use of force or of the principle of self-determination (not) be considered as a State for the purposes of international law? The answer differs according to what theoretical premises are adopted. For those who believe that the State is a social person, and its creation basically a historical occurrence, the law cannot cancel its very existence. On the other hand, if State-creation is also a matter of law, one might agree that “[a]n apparently successful secession still has to pass the international law test”. The present writer expresses a somehow intermediate position,based on the view that a State is a real, not a legal person, but at the same time, taking note of the fact that the international community requires respect for some norms during the process of State-creation. Their violation, however, does not automatically transform the “illegitimately born” entity into a legally non-existent non-State. At most, it creates a situation of social isolation which gives rise to a factual limitation of its legal sphere.