An Argument for the International Recognition of Liberland
Christopher Balch, Vol. 37 Associate Editor
Along the shores of the Danube and wedged between Croatia and Serbia there exists a small tract of territory unclaimed by either nation.[1] Enter Vit Jedlicka and his proclamation of the nation of Liberland complete with a constitution, a flag, and a motto, which is appropriately “to live and let live.”[2] This bizarre episode begins with a 20th century engineering project to straighten the winding Danube in order to accommodate large boat transit through the river.[3] Such straightening, however, has caused confusion as to the appropriate border between Croatia and Serbia as the Danube has been the customarily recognized boundary between the two nations since the 19th century when the area was under Austro-Hungarian control.[4] Serbia is happy to recognize the straightened Danube as the new boundary as it receives an increase in overall territory.[5] Croatia feels that is has gotten the short end of the bargain and refuses to claim the area now claimed by Liberland because this would validate Serbia’s claim to the territory on the other side of the river.[6] To date, no State has yet recognized Liberland’s existence, but this may not be of consequence.[7] According to Article 3 of the Montevideo Convention, the prevailing treaty on recognition of states, “the political existence of the state is independent of recognition by the other states.”[8] Article 1 outlines that a state simply needs to have (a) a permanent population, (b) a defined territory, (c) a government, and (d) capacity to enter into relations with other states.[9] Jedlicka claims Liberland satisfies each of these elements.[10] Some scholars believe that a new territory would need more than simply to satisfy the Montevideo Convention; it would need to have real and substantial independence and then sovereignty.[11] For example, despite perhaps fulfilling all of the characteristics of a state, Taiwan is not a state because it does not have real independence vis-à-vis China which asserts sovereignty over Taiwan. Currently, Croatia has restricted passage into Liberland’s claimed territory, which could be argued to be a fatal pitfall to Liberland’s independence.[12] Yet Tawain and Liberland are distinct in at least two critical facets. First, Liberland has formally declared its independence and Taiwan has not.[13] Second, Liberland claims otherwise unclaimed territory whereas China maintains its claim on Taiwan. The latter feature is critical because it means that Liberland does not have to acquire the requisite “substantial independence, both formal and real” that customary international law would dictate in the event of one state seceding from another.[14] If Liberland truly is a country, then Croatia blocking access into the territory may be an attempt too late to prevent the birth of a new nation and its actions may be construed as a violation of international legal principles of sovereignty. Even Jedicka has been detained by Croatian authorities while attempting to access Liberland, which may be a violation of international diplomatic immunity given to officials of other States.[15] Jedicka was elected president in a landslide 2 votes to none in 2014. Recognition from a body such as the United Nations, which holds its membership to “all other peace-loving states which accept the obligations in its charter,” may be imperative for Liberland to achieve its sovereignty in a world where realpolitik often prevails over legal theory.[16] The United Nations should act to recognize Liberland not only for reasons of international law, but also for reasons of public policy. Jedicka refers to the homestead principle, whereby one gains ownership to an unowned resource by putting it to active use, to support his claim.[17] Waste is a common feature in the property laws of many legal systems and is ingrained in American law in the principle of adverse possession. Jedicka envisions Liberland as a tax haven to attract wealthy corporations and developers into Eastern Europe.[18] Such schemes have contributed greatly to the development of Monaco and various States in the Middle East, so in some respect Jedicka’s plan does not seem so outlandish. Croatia does not make use of the territory and apparently does not even want it, notwithstanding the desire to prevent the creation of another state on its border. The Island of Palmas Case of 1928 serves as an example which might bolster Jedicka’s case.[19] There, the United States lost a claim on the island near the Philippines to the Netherlands because, despite title via treaty with Spain following the Spanish-American War, the Dutch were peacefully and continuously displaying their territorial sovereignty.[20] “Territorial sovereignty cannot limit itself to the negative side, i.e., to excluding activities of other states,” the opinion writes.[21] The tactic of disclaiming territory and simultaneously forcibly blocking access to that territory does not accord with notions of fair play, nor international legal precedent. The United Nations should follow a course of action with respect to Liberland that favors productivity, ingenuity, and economic growth by recognizing Liberland as a sovereign state and applying diplomatic pressure on Croatia to preserve Liberland’s international rights.
[1] Gideon Lewis-Kraus, Welcome to Liberland, the World’s Newest Country (Maybe), NY Times, (Aug. 11, 2015), http://www.nytimes.com/2015/08/16/magazine/the-making-of-a-president.html?_r=0. [2]Kalyeena Makortoff, Meet Europe’s Newest Tax Haven and Micro-State, CNBC, (May 4, 2015), http://www.cnbc.com/2015/05/04/meet-europes-newest-tax-haven-and-micro-state.html; See, Liberland, About Liberland, (accessed Oct. 1, 2015), https://liberland.org/en/about. [3] NY Times, supra note 1. [4] Id. [5] Id. [6] Id. [7] CNBC, supra note 2. [8] Montevideo Convention on the Rights and Duties of States, Dec. 16, 1933, 165 LNTS 19, 49 Stat. 3097. [9] Id. [10] NY Times, supra note 1. [11] See James Crawford, The Creation of States in International Law (2006) in Transnational, supra note 8, at 47-48. [12] NY Times, supra note 1. [13] Independence Debate, BBC (accessed Oct. 1, 2015), http://news.bbc.co.uk/2/shared/spl/hi/asia_pac/04/taiwan_flashpoint/html/independence_debate.stm. [14] Crawford, supra note 10 at 47. [15] NY Times, supra note 1. [16] U.N. Charter, art. 4 para. 1. [17] NY Times, supra note 1. [18] CNBC, supra note 2. [19] The Island of Palmas (United States v. The Netherlands), 2 U.N. Rep. Int’l Arb. Awards 829 (1928) reprinted in Transnational, supra note 8, at 54. [20] Id. [21] Id.
