Chicago Journal of International Law


The creation of smaller new states by partition or secession from larger ones is among the most notable trends in the postwar international system. This trend has often been peaceful-as in the former Czechoslovakia-but conflict and discord seem to be the norm, with the breakup of and resulting war in the former Yugoslavia as perhaps the most tragic example. To the extent that the purpose of international law is, among other things, to promote peaceful relations and mutually beneficial agreements between international actors, it has largely failed to achieve this goal in cases where new states are created. This is not entirely surprising; partition and secession are at root political issues, and are particularly likely to inflame nationalist sentiments. The trend toward dissolution and devolution has probably also developed more quickly than law can adapt. Although international law cannot provide a complete solution to these problems, it can play a greater role. International law would be more influential and beneficial in the process of new-state creation if it were implemented in a form similar to that of default rules in private contract law. In many ways, parties considering creation of a new state are in a similar position to that of private actors negotiating a contract. They seek agreement, if possible, on a wide range of substantive and procedural issues, lack the information and ability to plan for every contingency, and want to avoid a costly breakdown in talks. There are important differences, of course-above all, that breakdown often results in armed conflict in the international context-but the analogy is useful. Private actors have the benefit of an extensive background of contract law that provides a framework for their negotiations. It is usually possible to contract around these background principles, or default rules, but their presence provides a starting point for negotiations, reduces the costs of those negotiations, and ultimately helps prevent negotiation breakdown. [CONT]

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