The United Nations Charter-based international order sought to reconcile the self-determination of peoples with the inviolability of state boundaries by presuming sovereign states to be manifestations of the self-determination of the entirety of their territorial populations. This presumption, albeit nationally rebuttable, traditionally prevailed even where states could only by a feat of ideological imagination be characterized as “possessed of a government representing the whole people belonging to the territory without distinction.” But the international reaction to fragmentation in the former Yugoslavia—regarding both the initial “dissolution” and the subsequent struggle over Kosovo—called into question the rigid doctrines of the past and opened the door to secessionist claims theretofore dismissible as beyond the pale. Although no vindication of Russian intervention in Ukraine can properly be drawn from the Yugoslav cases, the Ukrainian crises help to surface the hidden dangers of an emerging jurisprudence that would allow previously inadmissible considerations—whether ethnic, historical, constitutional, or “democratic”—to compromise the territorial inviolability norm.

Thomas M. Franck's The Emerging Right to Democratic Governance has lived a dual existence. On the one hand, it is almost universally cited as having brought international lawyers into the freewheeling debate of the early 1990s among scholars of international relations, comparative politics, and political theory about the so-called “Third Wave” of democratization. On the other hand, the article is not infrequently described as a legal avatar of post-Cold War Western triumphalism, often sharing a sentence or a footnote with Francis Fukuyama's The End of History and the Last Man. From the standpoint of the two authors of this essay—one a long-time defender of Franck's thesis and the other a long-time critic—both of these broad-brush characterizations of the article contain elements of truth, but both are also woefully incomplete.

Erika de Wet has provided a useful and balanced assessment of the current state of the international law of governmental illegitimacy. Her account quite rightly concludes that “democratic legitimacy is not yet a requirement for the recognition of a de jure government under customary international law.” What follows below seeks to expand on her observations in two ways: by developing somewhat further the doctrinal linkages to which she alludes; and by explaining the failure of a consistently legitimist state practice to materialize, in light of the dynamics of the legal order within which the question of governmental illegitimacy is embedded.

A quarter-century ago in the Nicaragua judgment, the International Court of Justice insisted that to disallow a state's adherence to any particular governmental doctrine ‘would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State’ (para 263). The Court invoked the 1970 Friendly Relations Declaration and related documents that ‘envisage the relations among States having different political, economic and social systems on the basis of coexistence among their various ideologies’ (para 264). Although the continued relevance of this model of sovereign equality has since been called into question – above all, in the name of human rights, international criminal justice, and the ‘responsibility to protect’ – no systematic replacement has emerged. Notwithstanding some modification and erosion, the sovereign equality principle continues to have significant (and worthy) implications for legal relations between liberal and non-liberal states.

Although retribution for past human rights violations has its place in post-conflict processes of transition and reconciliation, there are many present and foreseeable circumstances in which the case for immunity, amnesty, or sheer forbearance is significantly stronger than Juan E. Méndez' approach to this question can admit.

Disagreement about justice is an ineradicable part of political life and a leading cause of violent conflict. Reconciliation cannot always presuppose or await a shared moral understanding; frequently enough, it requires an agreement to disagree, even about fundamental principles – at least with respect to their retrospective application. Where the parties to violent conflict have seen fit to set aside issues of retrospective justice in the service of peace and reconciliation, outsiders, who do not bear the costs of conflict and instability, should second-guess that decision only with the greatest reluctance. They should not look to international human rights standards and mechanisms for a universal solution.

Roth argues that much of the current discourse on the diffusion of democratic norms is misleading and that only a realistic assessment of the progress of societies in transition will focus attention on the problems that remain to be solved. Only in this way will normative evaluation contribute to progress in the achievement of democratic ends.

Marxian thought retains its relevance in the current period, not as a comprehensive replacement for liberal human rights theories, but as a source of critique that challenges those theories on the basis of the very values of human freedom and dignity that they espouse. The Marxian approach entails no general rejection of human-rights-oriented constraint, procedural or substantive, on efforts to achieve social change, but rather serves the human rights project by demonstrating how contradictory class interests manifest themselves as contradictions within the effort to apply liberal principles in a class-divided society.