Recognition of governments: political or constitutive?

Author: Gulyaeva Kseniya Alexandrovna, third-year student of the Comparative Law Department of the Law Institute of the Siberian Federal University. Academic advisor: Tereshkova Valentina Vladimirovna, candidate in law, the Law Institute of the Siberian Federal University, law faculty, chair of international law The question of recognition of governments in international law arises in cases of replacement of one authority by another in a coup detat, revolution or any other circumstances and is of tremendous importance for international community. Such situations are not uncommon, taking events in Fiji, Mauritania, Chad or a recent revolutionary wave of demonstrations occurring in the Arab World and affecting a number of states so called Arab Spring1. In other words, recognition of governments matters in deciding which authority is entitled to represent the state in international relations. It refers to such issues as which entity is entitled to appoint ambassadors or representatives to international organizations, which entity is entitled to conclude international agreements that are binding on the State 2, as well as to which entity internationally wrongful act is attributable and which entity is responsible for such an act. Furthermore, recognition of governments matters in deciding which entity is entitled to control states assets, and that is, probably, the most frequent matter of dispute3. There is no precise definition of recognition, which definitely complicates the understanding of what exactly recognition is and what it is actually meant to imply in international law4. However, there are two fundamental theories of recognition of governments distinguished, each theory providing its own definition of recognition. The first is political or declaratory one, stating that recognition does not influence legal status of the government and only demonstrates other governments opinion5. The second (constitutive) theory establishes recognition as a conclusive evidence of the governmental status of authorities6. According to

1 2

See E. Michael Jones, Arab Spring, June 2011, < http://www.culturewars.com/2011/Arab%20Spring.htm >; Dapo Akande , Which Entity is the Government of Libya and Why does it Matter?, 16 June 2011, <http://www.ejiltalk.org/which-entity-is-the-government-of-libya-and-why-does-it-matter/>; 3 Ibid; 4 Leonard M. Hammer, A Foucauldian Approach to International Law: Descriptive Thoughts for Normative Issues, 2007,p.251; 5 See Akehurst, Modern Introduction to International Law, 1997, p.83; See Malcolm Shaw, International law 6th edition, 2008, p. 454; 6 See Akehurst, Modern Introduction to International Law, 1997, p.84;

this view, if authority is recognized by other governments - it is government, if it is not recognized then it is not government of the state. Let us consider both approaches. I. Declaratory (political) theory Within the scope of this approach recognition is expressed as the manifestation of the recognizing governments opinion on the legal status of the government in question7. The British Foreign Secretary Canning already in 1824 pointed out that by recognizing the independence of the Spanish Colonies in the South America the other state simply acknowledges the fact, or rather its opinion on the fact of independence.8 This definition describes recognition as a political act, based merely on the opinion of the recognizing government. Such political considerations may not affect governmental status of authority. Thus, recognition is regarded as a pure formality to confirm the status of the government, which already exists. In other words, authority is considered to represent the state as a government not as a result of other governments consent, but by virtue of its factual existence9. II. Constitutive theory Constitutive approach defines recognition of governments as willingness or unwillingness on the part of the recognizing government to establish or maintain official relations with the government in question10. Similar understanding may be found in a number of political documents, such as memorandum dated 17 May 1993 of the Legal Adviser to the US Department of State, Mr.Hackworth, which reads in the relevant part as follows11: By the term recognition, used in the sense of recognition of new governments, is meant the establishment of normal official relations by the recognizing government with the government recognized, or an indication of readiness to do so12. Constitutive theory implies using a certain criterion for granting recognition, otherwise it would be hardly possible to distinguish it from recognition as a political act. In support of this idea, Malcolm Shaw outlines that

Stefan Talmon, Recognition of Governments in International Law With Particular Reference to Governments in Exile, 2001, p.29; 8 Ibid, p.30; 9 See Godffrey Braxton, To what extent do the normative criteria influence the recognition of states and governments?, 2009, p.3-4; 10 Supra note 7, p. 23; 11 Ibid,p.24; 12 Whiteman, Digest of International Law, 1963, p.48;

recognition is granted if government in question satisfies the required conditions13. British government also takes the view, that recognition should be accorded when the conditions specified by international law are, in fact, fulfilled14.Additionally, governmental recognition should not depend on His Majestys government approval of government in question15. The distinction here is made between recognition of government and entering into diplomatic relations with it. The latter is considered to be entirely discretionary, i.e. based merely on political considerations, having no impact on the status of authority. Undoubtedly, where the question of granting recognition arises, political considerations play a crucial role. However in order for this process not to become absolutely arbitrary a number of publicists specify the legal criteria for governmental recognition. Otherwise, simple opinion of the government or its disapproval of the new regime will wrongly preclude certain authority to be regarded as a government of the state. Nevertheless there is no unity within the framework of the constitutive theory, since different criteria are suggested as the basis for granting recognition. 1. Effective control doctrine The most popular and widely recognized criterion is effective control. M. Shaw stresses, that once a new government effectively controlled the country and that this seemed likely to continue, recognition should not be withheld 16. Effective control implies control over the territory and population of the state. It is widely recognized in international legal doctrine, that the government shall possess control of all or most of the state17 for it to demonstrate effectiveness sufficient for granting recognition. Thus there is no need in absolute control over the territory. In 1940s UN Credentials Committee had to decide which authority should represent China: Communist or Nationalist Forces. Ultimately, the

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See Malcolm Shaw, International law 6th edition, 2008, p. 454-455; See, e.g. <http://hansard.millbanksystems.com/commons/1951/mar/21/foreign-governmentsrecognition#S5CV0485P0_19510321_HOC_158>; 15 Ibid; 16 Supra note 13, p.455; 17 Robert D. Sloane, The Changing Face of Recognition in International Law: A Case Study of Tibet, 16 Emory International Law Review 107, 2002, p.122; Supra note 13, p. 455;

Communist regime in control of the mainland was chosen, as it constituted the greater part of the state (Nationalist Forces controlled only Taiwan)18. One of the classical examples of effective control criterion application is Tinoco Arbitration case19. In this case Judge Taft decided that Tinoco government was the government of Costa Rica in spite of the nonrecognition, as it was wielding effective control over people and territory20. The same criterion was used to refuse granting recognition to National Transitional Council of Libya, which controlled only Libyas eastern part, while Qaddafi forces maintained order in Tripoli and western parts of the country21. Recognition of the NTC as the government of Libya seemed premature and would arguably constitute an illegal interference in the internal affairs of Libya22 due to the fact that Qaddafi forces were still in control of the capital Control over the population should be regarded as presence of popular support or the absence of popular opposition23. Thus an active support is not mandatory, and a mere acknowledgment of a revolutionary government24 without widespread and active opposition is sufficient for government to be recognized, relying on the criteria of effective control. This concept was reaffirmed in Tinoco arbitration where Judge Taft was looking for the existence of disorder of a revolutionary character25 in order to define status of a revolutionary government. 2. The doctrine of legitimacy or so called Tobar doctrine26 This doctrine was perceived particularly by the United States. Being a guideline to the Wilson policy of democratic legitimacy it was aimed at withstanding revolutionary governments27. This theory suggests that governments which came into power by extra-constitutional means should not be recognized, at least until the change

18

See Brad Roth, Governmental illegitimacy in International Law, 1999, p.21; Supra note 9, p.9; 19 See Costa Rica v. Great Britain, 2006, Reports of International Arbitral awards,p.371; 20 Ibid, p. 381; 21 See Stefan Talmon, Recognition of the Libyan National Transitional Council, 16 June 2011,p.3; 22 Ibid, p.4; Security Council resolution 2022, 2 December 2011; 23 M. Rafiqul Islam, The Recognition of the revolutionary regime of Fiji by Papua New Guinea, p.78; 24 See In Mitchell & Others v. Director of Public Prosecutions & Another, LRC (Const.) 35, 1986, 72; 25 George McGraw, History Repeats Itself? Costa Rican History Applied to the Honduran Conflict, Analysis II, 2009, p.1; 26 William R. Slomanson, Fundamental Perspectives on International Law,2006, p.62; Supra note 13, p. 457; 27 See Charles P. Kirchofer, Democratic Legitimacy as a Prerequisite for the Recognition of States and Governments in International Law,2009,p.4;

had been accepted by the people28. Based on the test of the will of the people or obedience of a bulk of the population it provides another legal criterion for granting recognition29. When revolutionary regime received approval of the population, it should be recognized, otherwise recognition should be withheld. The question is how to determine whether authority is supported or not. International legal doctrine states that popular support is unambiguously expressed through free and genuine elections30. Only governments that assume power by means of a free and fair electoral process merit recognition31. The criterion of legitimacy was applied in Somalia v. Woodhouse Drake & Carey (Suisse) case32, where the Court had to decide whether the plaintiff was the government of Somalia and, consequently, whether it was entitled to certain funds of the Republic of Somalia. Similar approach was applied in Sierra Leone Telecommunications v. Barclays Bank33 and Arantzazu Mendi34 cases. We cannot, nonetheless, ignore the fact, that in practice there are a number of revolutionary regimes that have been recognized by international community, but which still came to power in violation of the national legislation and in the absence of the popular support35. It may be argued that above mentioned criteria are ambiguous, however they do at any rate provide a necessary benchmark to distinguish between governments and other authorities, which have no capacity to represent the state in international relations36. III. Mixed Approach Notwithstanding the fact that constitutive and declaratory theories are regarded to be fundamental, state practice and international legal doctrine suggest a mixed approach to the recognition of governments. This approach combines propositions of both (constitutive and declaratory) theories. Stefan Talmon stresses the possibility of coincidence of declaratory and constitutive meanings of recognition. In this case recognition of a government will express both willingness on the side of recognizing government

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Malcolm Shaw, International law 6th edition, 2008, p.457 Supra note 23, p.78; 30 See H. Lauterpacht, Recognition in International Law, 1947, pp. 115, 1440. 31 Supra note 17, p.124; See Clayton L. Thyne, Jonathan M. Powell, Coup d'etat or Coup d'Autocracy? How Coups Impact Democratization, 1950-2008, p. 9; 32 See M. Dixon and R. McCorquodale, Cases and materials on International Law, Third edition, 2000, p.172; 33 Ibid, p.175; 34 See Government of Republic of Spain v. S. Arantzazu Mendi and Others, 1939, The American Journal of International Law, pp. 583-588; 35 Supra note 9, p.10; 36 Ibid, p.2;

to establish diplomatic relations with the government recognized, and its opinion on the existence of the government in question37. This coincidence may be derived from recognizing governments understanding that it should establish official relations with an authority, when the latter fulfils the criteria prescribed by international law for the status of government38. It seems hardly possible for us to consider recognition either declaratory or constitutive, because even being regarded as a constitutive phenomenon, recognition cannot be deprived of political considerations. Therefore, these theories are not incompatible and should coexist in order to reflect actual situation on the international arena. This brings us to a twofold definition of recognition: if recognition is based on certain criterion it is constitutive, otherwise purely political one and does not influence governmental status. This understanding is similar to the Tafts view of recognition, as the fact that Tinoco government, exercising effective control over the state, was not recognized by other countries, was dismissed as irrelevant. Shaw calls this mixed approach an interesting amalgam of the declaratory and constitutive theories39, where recognition flexibly changes its nature depending on the basis of decision taken.

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Supra note 7, p.33; Ibid; 39 Supra note 13, p.456;