by JanKlabbers
It would be tempting to join Opinio Juris’ discussion on soft law of a few weeks ago, but having written quite a bit on the topic going back to the mid-1990s, I thought I’d pay some attention to a lovely little story that ran in the New York Times about a month or two ago (I forgot to date my clipping… Typical). The story concerned the death of Prince Giorgio, ruler of what the NYTimes referred to as the Principality of Seborga. Prince Giorgio was apparently first elected prince in 1963 and then elected for life in 1995. He went through life as His Tremendousness (wouldn’t we all…), set up a cabinet and a constitution, minted money and stamps and even mobilized a standing army, albeit one consisting of a single individual (then again, Seborga counts only a little over 300 inhabitants). Being surrounded by Italy and close to France, Seborga had found recognition of sorts by some 20 states, mostly in the not-so-formal way of honorary consuls. And so as to underline his royal eccentricity, Prince Giorgio’s most noteworthy legislative act, it appears, was the adoption of a law to stimulate smoking.
The intriguing question the story represents is why few of us think of Seborga as an independent, sovereign state, whereas we have no problem in thinking of Canada, or Brazil, or even Luxembourg, as an independent state. Luxembourg is not much bigger than Seborga; Brazil is, arguably, far younger than Seborga (which, according to the NYTimes, has been a principality since at least the year 1079); and it is arguable that Canada does not, unlike Seborga, have its own head of state. So where does the difference stem from? It all seems rather arbitrary, really. The obvious formal answer would be to refer to recognition by other states, but this too seems to remain rather arbitrary: there seems to be no self-evident reason why the rest of the world should have recognized Luxembourg but not Seborga. In other words: even the category of statehood, much like many other international law categories, may be seen as somehow fluid.
With this in mind, shouldn’t we come to conceptualize statehood in gradations? This would allow us to come to terms with an entity such as Kosovo: not wishing to be part of Serbia, but not yet fully to be regarded as ‘hard state’ either. It would help us classify and categorize entities such as Somalia as a ’soft state’ - surely, this sounds much nicer than ‘failed state’ while conveying much the same message. It would make some sense of the Holy See, the one entity where the population cannot reproduce itself. And wouldn’t Belgium be better off divided into two, three or four soft states rather than one fragile hard state with a hopelessly complicated constitutional set-up the only thing preventing it from breaking up completely?
When writing about soft law in the mid-1990s I aimed to ridicule the concept of soft law by suggesting that surely, we would never come to speak of soft responsibility to be determined by soft tribunals, yet this is precisely what has happened in the intervening years: non-compliance procedures are established in order to assist states with ‘compliance problems’. With this in mind, recognition of the concept of soft statehood can only be a matter of time…
