Towards a declaratory school of government recognition.

Author:Downer, Joshua
 
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ABSTRACT

Recognition of governments has historically been a political matter. Governments could choose to recognize or not to recognize any other government, free from the auspices of international law. However, in the wave of prodemocracy optimism after the dissolution of the Soviet Union, a group of international legal scholars declared the existence of a universal democratic entitlement, which implied that recognition of governments had legal significance. These scholars, known collectively as the Manhattan school, are generally regarded as having vastly overstated the legal implications of the shift toward democratic governance. While it is true that there is scant evidence of a general democratic entitlement, this Note argues that there is a strong preference against the reversal of democracy. This preference is reflected, in part, in a norm against the recognition of coup regimes that displace democratically elected governments. This norm represents a partial but critical vindication of the Manhattan school's assertion that a government's legality depends on its democratic character. It also has important theoretical implications, as recognition of governments is no longer merely political, but rather must reflect governments' underlying legal status. This shift aligns the theory of recognition of governments with the declaratory school of state recognition, in which recognition is said to merely "declare" the underlying legal status of the state. This Note proposes that the UN Credentials Committee, which already adheres to the principle of nonrecognition of coup regimes that displace democratic governments, formally adopt this norm as a rule guiding representation disputes before the United Nations.

TABLE OF CONTENTS I. INTRODUCTION II. THE DECLARATORY SCHOOL AND THE LEGAL BASIS OF STATE RECOGNITION A. The Constitutive School B. The Declaratory School III. GOVERNMENT RECOGNITION: FROM A POLITICAL TO LEGAL BASIS A. The Age of Effective Control: The Political Character of Recognition Practices from 1950-1991 1. The China Dispute: An Example of the Nonbinding Nature of the Effective Control Doctrine 2. The Cambodia Dispute: An Example of the Nonbinding Nature of the Effective Control Doctrine 3. Analysis of the Effective Control Doctrine for Government Recognition B. The Manhattan School: The Aspiration of a Broad Democratic Entitlement IV. IDENTIFYING THE RISE OF A DECLARATORY SCHOOL OF GOVERNMENT RECOGNITION A. The Norm of Nonrecognition of Coup Governments 1. The UN Credentials Committee as Arbiter of Government Legitimacy 2. The Credentials Committee and the Norm of Nonrecognition of Coup Governments i. Two Coups in Cambodia Demonstrate This Norm ii. Reaction to Recent Coups Confirm the Trend iii. State Practices Suggest a New Norm of Customary International Law B. Proposal for a Clear Standard of Nonrecognition Before the Credentials Committee V. CONCLUSION I. INTRODUCTION

Recognition by governments of other governments has long been viewed as a political rather than legal act. (1) Governments were free to recognize any government as the legitimate representative of a state based on whatever political and diplomatic considerations were relevant to them. (2) However, disputes about the proper basis for evaluating government legitimacy would nevertheless arise in situations in which multiple governments claimed equal status as a state's legitimate representative. While the outcome of these disputes has serious legal consequences, such as the right to represent a state before the United Nations, they have historically been determined by resort to political considerations. (3) This situation contrasts starkly with the legal nature of state recognition. Recognition of states by governments is considered to be governed by law: states are obligated to recognize other states that meet the legal criteria of statehood, and such recognition is merely "declaratory" of those states' underlying legal status. (4)

Since the dissolution of the Soviet Union, however, some scholars have argued that international law protects a universal right to democracy, an assertion that introduces the possibility of legal obligations to decisions regarding government recognition. (5) Proponents of this view, known collectively as the Manhattan school, have not been vindicated on the existence of a broad democratic entitlement. (6) However, this Note argues that there exists a narrower entitlement against the reversal of democracy through coups, as evidenced by a norm against recognizing coup regimes that displace democratically elected governments.

This narrower entitlement can be seen in the shift in doctrines used to settle representation disputes. Prior to the rise of the Manhattan school, the primary theory used to settle such disputes was the effective control doctrine, which asserts that the proper government to represent a state in international forums is the one that has authority and control over the vast majority of a state's territory and population. (7) Not only was this doctrine based primarily on political considerations, (8) there was also never a suggestion that recognition on such a basis was legally required. (9) In contrast, assertions of a democratic entitlement are grounded in normative standards of what states and international organizations ought to do, rather than what they are merely allowed to do out of political preference. (10) Thus, while originally aspirational, asserted norms under the Manhattan school at least had the potential to become binding under customary international law. (11)

The primary context for the crystallization of this norm against recognition of coup regimes that displace democratic governments has been the UN Credentials Committee. (12) The Credentials Committee has long been the UN body that arbitrates questions of government legitimacy. (13) This Note argues that since the fall of the Soviet Union, the Credentials Committee has shifted from settling credentialing disputes based on primarily political considerations to making such decisions based on democratic legitimacy. When faced with a representation dispute between a coup government that maintains effective control of a state and a

displaced, democratically elected government, the Committee will credential the latter. (14) However, the Committee has not formally codified this rule, and the lack of transparent standards for determining representation in credentialing disputes has created confusion and undermines the perceived legitimacy of the Committee's actions. (15)

This shift from political to legal criteria for credentialing in certain instances also affects the expectations placed on member governments regarding their individual recognition practices. (16) The United Nations has reversed its previous practice of leaving government recognition to the political discretion of individual governments and has made, in a number of cases, firm calls for nonrecognition of coup governments that clearly lack democratic legitimacy. (17) While consistent refusal to recognize coup governments does not vindicate a broad democratic entitlement, it does reflect a norm against the reversal of democracy through coups.

In Part II, this Note explores the legal basis of state recognition. The well-established declaratory school of state recognition, which asserts that there exists legally binding criteria for state-recognition practices, (18) provides the theoretical framework from which this Note evaluates the shift to a legal basis of government recognition. Against this backdrop, Part III presents an analysis of the political nature of the effective control doctrine and the legal nature of claims by the Manhattan school. This Note argues that the effective control doctrine did not bind states' or international organizations' recognition-of-government practices, while assertions of a democratic entitlement did imply binding rules on government-recognition practices. In Part IV, this Note advocates for a declaratory school of recognition of governments. The norm of nonrecognition of coup regimes that displace democratically elected governments justifies conceiving of recognition of governments as a legal act that must reflect the underlying legitimacy of such governments. Such a rule against the reversal of democracy through coups, and the concomitant requirement of states to reject governments that force such a reversal, represents a partial but significant vindication of the Manhattan school's assertion of a democratic entitlement. (19)

Finally, this Note proposes that the Credentials Committee explicitly embrace this norm by formally adopting a rule against credentialing regimes that displace democratically elected governments through coups, unless the coup governments subsequently "cure" their actions by holding elections.

  1. THE DECLARATORY SCHOOL AND THE LEGAL BASIS OF STATE RECOGNITION

    Doctrines surrounding the recognition of states have a venerable intellectual tradition in international law, and divide primarily along two lines. (20)

    1. The Constitutive School

      The constitutive school of state recognition is comprised primarily of realists and legal positivists who assert that recognition itself provides the basis of statehood. (21) The constitutive school lost the day among international legal scholars because its elevation of the political decisions of states in determining the status of other states undermines the legal nature of national personality, a bedrock principle of international law. (22) However, Brad Roth, an imminent scholar of statehood and recognition, argues that the constitutive school deserves more credit than many scholars recognize. (23) Roth contends that, without recognition, a state cannot exercise the many rights and obligations of statehood. (24) Thus, while "[a] foreign state may acknowledge (or take cognizance oh the entity's legal status, even while being unwilling to make what looks like...

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