Contested Governments and State Representation before International Courts and Tribunals

Introduction

When the identity of a state’s government is contested or otherwise in doubt, who may represent the state for some specific purpose of international law is not-infrequently a contentious matter. While the question who may represent a state before or vis-à-vis an international adjudicative body does not arise often, there exists a number of decisions on the matter, perhaps most arising in the context of recent investment arbitration proceedings involving Venezuela. Prompted by the first of two questions posed by Professor Milanovic, this post concerns itself with controversies concerning the identity of a state representative for the purposes of the state’s engagement with an international adjudicative body (hereinafter referred to simply as a ‘state representative’) that arise from uncertainty as to the identity of that state’s government.

The post first discusses the power of international adjudicative bodies (hereinafter referred to simply as ‘adjudicative bodies’) to resolve controversies over the identity of a state representative (or ‘representation controversies’, for short). It then outlines the different approaches of such bodies to these controversies, from which it identifies a contemporary reluctance on the part of some adjudicative bodies to resolve these controversies by ascertaining the identity of that state’s government. Next, the post posits that this reluctance is unnecessary as a matter of law, and it suggests that an assessment of governmental status might comprise a preferable basis for the resolution of such controversies, even if the different approaches will not always yield different results.

The power to resolve a controversy over the identity of a state representative

Where there is more than one ostensible government purporting to represent a state before or vis-à-vis an adjudicative body, the possession by that body of the power to determine who, if anyone, qualifies for its purposes as a state representative is necessary for it to overcome a ‘procedural halt’ to those proceedings (Valores Mundiales v. Venezuela, Procedural Resolution No. 2, 29 August 2019, para 33) or, in positive terms, for it to perform its functions. Similarly, the possession by an adjudicative body of such a power is necessary for it positively to address the possibility—which may but need not be raised as a claim by another party to the proceedings—that the sole political authority purporting to represent a state in relation to the proceedings before it is not in a position as a matter of international law effectively to represent the state for the purpose of those proceedings.

In general, adjudicative bodies appear to possess the power to resolve for their respective purposes a representation controversy. While the express conferral of a residual power to resolve procedural questions might facilitate a finding in favour of a power to resolve a representation controversy (eg ConocoPhillips v. Venezuela, Order of 3 April 2020, para 30; and Valores Mundiales v. Venezuela, paras 33–34), the possession by an adjudicative body of the power to determine who qualifies for its purposes as a state representative appears uncontroversial even in the absence of the express conferral of a residual power to resolve procedural questions. Adjudicative bodies ordinarily possess the implied powers that are necessary for the performance of their functions (Reparation for injuries suffered in the service of the United Nations, 11 April 1949, p. 12) and, as already noted, the resolution of a representation controversy appears necessary for the performance by the adjudicative body of its functions. The express conferral on the International Criminal Court (‘ICC’) of the powers necessary for the exercise of its functions (Article 4(1) of the Rome Statute) is perhaps the reason why the Office of its Prosecutor saw no apparent need to explain the basis of the power it appears to have deemed itself to possess in assessing whether or not the political authority operating under Mohamed Morsi’s leadership qualified as Egypt’s government (‘The determination of the Office of the Prosecutor on the communication received in relation to Egypt’, 8 May 2014 (‘ICC determination’), para 4).

Approaches to controversies over the identity of a state representative

The resolution by adjudicative bodies of representation controversies have generally been based on one of the following approaches, even if regard has sometimes been had to more than one of these approaches (see eg Mobil Cerro Negro v. Venezuela, Decision on the Respondent’s Representation in this Proceeding, 1 March 2021, paras 53­–54).

One approach consists simply of allowing the only or each rival ostensible state representative to represent the state without any substantive assessment of the claim or claims to being a state representative. For example, in the ConocoPhillips v Venezuela Decision on Rectification, where the two rival ostensible representatives of Venezuela presented no ‘conflicting position of submission’, it was held that ‘the correct designation of [Venezuela’s] representatives … does not require any decision from the Tribunal’, resulting in each of the two persons speaking in Venezuela’s name in the context of those proceedings (29 August 2019, para 25).

A second approach consists of treating the ‘status quo’—that is, the person or persons already representing the state in a particular case—as determinative of who may represent the state in subsequent proceedings of the same case, at least insofar as this does not undermine procedural fairness or the equality of the parties (eg ConocoPhillips v. Venezuela, Order on the Applicant ’s Representation, 3 April 2020, paras 31, 35–37).

A third approach involves an assessment of the governmental status of the political entity under whose authority a person acts in determining whether or not that person qualifies as a state representative. An example in this regard is the aforementioned decision of the ICC. A variation of this approach has also been adopted in some of the recent cases concerning Venezuela, but with only the political entity under whose authority Venezuela had not already been represented in earlier stages of the same case having its governmental status assessed. The status quo as regards the identity of Venezuela’s representative operated as the basis for determining which ostensible representative benefits from a presumption in their favour, with the other ostensible representative bearing the burden of proof to demonstrate their qualification and, consequently, the other person’s non-qualification as a state representative (eg Valores Mundiales v. Venezuela, para 42). The incumbent representative of Venezuela could, insofar as the other party had not discharged the burden of proof, continue to represent Venezuela without an assessment of the governmental status of the political authority under which they operated.

A fourth possibility is for an adjudicative body to resolve a representation controversy by deferring entirely to the decision of some other body as regards the identity of a state’s representative, whether that other decision is based on the identification of a state’s government or on some other consideration. This approach has recently been considered by one tribunal, which deemed there to be no representation ‘on the relevant institutional level’ to which it could have regard but which did not dismiss the approach in principle (Mobil Cerro Negro v. Venezuela, para 62). It is perhaps worth clarifying that this approach is distinct from the treatment of a decision by some other body on the identity of a state representative as evidence of who qualifies for governmental status in the context of an assessment under the third approach. Examples where such decisions are taken to have evidential value as regards the enjoyment of governmental status appear to include the ICC determination (para 3), as well as the findings of the International Court of Justice (‘ICJ’) in Bosnia v. Serbia (Preliminary Objections, 11 July 1996, para 44) and of the European Commission of Human Rights (‘ECommHR’) in ‘Decision of 26 May 1975 on the admissibility of  the applications (App Nos 6780/74 and 6950/75’ (‘ECommHR decision’) (p. 135).

Certain other matters, such as the obligation of non-recognition in respect of a serious breach of an obligation arising under a peremptory norm and the municipal law of the state whose representative’s identity is in question, have sometimes featured in the consideration by adjudicative bodies of representation controversies. But these factors have not proved and, for reasons concerning the law on the identity of the governments of states, are unlikely to be influential in resolving such controversies (eg Mobil Cerro Negro v. Venezuela, paras 55 and 59; Valores Mundiales v. Venezuela, paras 45–46).

Rather than seeking to resolve as representation controversy on any of the above or other bases, an adjudicative body may instead decide to take no action on a case pending the resolution of the underlying controversy concerning the identity of a state’s government (eg the ICJ’s decision in relation to the application in 2009 to institute proceedings against Brazil). The possession by an adjudicative body of the power to resolve a representation controversy does not necessarily indicate that an adjudicative body ought to resolve such a controversy. Indeed, there is no apparent reason why an adjudicative body may not defer its consideration of a case pending the resolution of a representation controversy.

The range of ways in which adjudicative bodies have responded to representation controversies suggests that there is no general contemporary willingness on the part of adjudicative bodies to resolve such controversies by ascertaining the identity of that state’s government, even though there are cases in which an assessment of governmental status has informed, if not provided the basis for, the resolution of such a controversy.

Is the avoidance of an assessment of governmental status necessary?

The reluctance on the part of some adjudicative bodies to resolve a representation controversy by assessing a political authority’s governmental status appears to relate to the view that they lack the power to make such an assessment, a view which is seemingly informed by the belief that the identity of a state’s government is a matter of politics and not law (eg ConocoPhillips v. Venezuela, 3 April 2020, para 29). But as evidenced by, inter alia, some of the aforementioned decisions, the absence of both an objective international legal framework for the identification of a state’s government and the lack of a power of adjudicative bodies to assess governmental status is far from certain. Indeed, the identity of a state’s government is at least prima facie the appropriate basis for ascertaining the identity of a state representative, since, according to customary international law, each state possesses no more than one government which ordinarily represents the state. In the ICJ’s words, ‘in general, in international law and practice, it is the Executive of the State that represents the State in its international relations and speaks for it at the international level’ (Georgia v. Russian Federation, Preliminary Objections, 1 April 2011, para 37).

Is the avoidance of an assessment of governmental status permissible?

The resolution of a representation controversy on a basis other than the identification of the state’s government (a ‘government-agnostic’ approach) might on its face appear to be an impermissible divergence from the rules of customary international law on the representation of states. Some of the decisions concerning representation controversies might be seen as supporting this conclusion. For example, in deciding that a person did not qualify as a state representative by assessing the governmental status of the political entity under whose authority that person operated, the Office of the Prosecutor of the ICC purported to act on the basis of ‘international law’ (ICC determination, para 4). Moreover, one party to investment arbitration proceedings involving Venezuela suggested ‘that the participation of people who do not have the competence of representing Venezuela violates its sovereignty’ (ConocoPhillips v. Venezuela, Order on the Applicant’s Request for Reconsideration dated 3 August 2020 on the issue of Venezuela’s legal representation, 2 November 2020, para 40).

But the Committee in that case held that its approach to the resolution of the controversy over the identity of Venezuela’s representative, which did not involve an assessment of governmental status, ‘cannot have negated in any manner the sovereignty of Venezuela’ (ibid). Indeed, a government-agnostic approach to a representation controversy might be legally unproblematic, perhaps because adjudicative bodies can be taken, at least in the absence of any indication to the contrary, to have been conferred the power to resolve by their own respective methods a representation controversy. As one tribunal put it, an adjudicative body possesses the power to decide on the identity of a state representative ‘for the only purpose of assuring the proper conduct of the proceedings and protecting the rights of defence of the parties, which may also depend on criteria such as procedural fairness and efficiency different from those relevant to the recognition of … governments’ (Mobil Cerro Negro v. Venezuela, para 45).

Is the avoidance of an assessment of governmental status desirable?

A government-agnostic approach to a representation controversy might provide the basis for a decision that accords with ‘principles of procedural law’ (ibid, para 64). As one tribunal noted, ‘the status quo approach’ can operate in ‘the interest of orderly proceedings and the right of defence’ (ibid, para 52). But this might not be invariably so. Nor does it necessarily mean that an assessment of governmental status performs no valuable function to the resolution of a representation controversy. Without attempting to provide definitive guidance on how a representation controversy ought to be resolved in any concrete case, a few remarks can be made on the different approaches to the resolution of such controversies, including on the desirability or otherwise of an assessment of governmental status in this regard.

A government-agnostic approach to a representation controversy—particularly the first approach and, consequently, also the second approach identified above—might result in the dual or multiple representation of a state (that is, in the representation of a state by two or more rival representatives).

The dual or multiple representation of a state might be unproblematic, at least insofar as the rival representatives pursue the same aim in the proceedings, for example the annulment of an arbitral award, and insofar as the other party to the proceedings ‘agrees to respond to submissions from both sets of representatives’ (ConocoPhillips v. Venezuela, 3 April 2020, para 36). In the distinct case where each of the rival ostensible state representatives presents identical submissions on all issues, except perhaps on who may represent the state, ‘the correct designation of the [state’s] representatives’ has been deemed ‘moot’ (ConocoPhillips v. Venezuela, 29 August 2019, para 25). In either of these cases, an assessment of governmental status might have little value in deciding who may represent a state.

At the same time, the dual or multiple representation of a state might not accord with principles of procedural law when the rival ostensible representatives ‘are in conflict with each other’, especially if the other party to the proceedings has not agreed to respond to submissions from the state’s rival representatives. At least two tribunals have expressed the view that proceedings ‘cannot proceed’ in such circumstances (see Mobil Cerro Negro v. Venezuela, para 65). For this reason, the first approach and, consequently, also the second approach to the resolution of a representation controversy identified above cannot always be applied. Further, the second approach is inapplicable where there is no earlier stage of the proceedings to which regard can be had as the ‘status quo’. Additionally, as regards the fourth possible approach, there may not always be another body to which an adjudicative body can defer in resolving a representation controversy.

The apparent inability always to apply the first, second, or fourth approach might be one reason to favour an approach to the resolution of a representation controversy which is based on an assessment of governmental status. The identification of a state’s government involves a determination by objective reference to international law as to which, if any, political authority is in a distinctive position to represent the state for the purposes of international law. Accordingly, the identification of a state’s government provides, in principle, a generally-applicable basis for the resolution of representation controversies, even if the practice of recognition of governmental status provides valuable evidence on which adjudicative bodies can rely in assessing the governmental status of a specific political authority, as they have sometimes done (recall above on the ICJ, the ICC, and the ECommHR). The objective international legal enjoyment or otherwise of governmental status by some specific political entity suggests, moreover, that the resolution of a representation controversy through an assessment of governmental status would also tend towards consistency among different adjudicative bodies as to who may represent a state, for whatever that consideration is worth in assessing the desirability of such an approach.

All of this said, an assessment of governmental status might not always be straightforward, not least because the contemporary international legal framework for the identification of a state’s government is often seen as being unclear (see eg International Law Association, Resolution 3/2018, para 6). At least insofar as the ascertainment of this framework or its application to a particular situation proves impracticable, there may be good reason for an adjudicative body to adopt, if it exists, the existing status quo of a state’s representation as the basis for determining who benefits from a presumption in their favour as regards the qualification as a state representative, to adopt an alternative basis for resolving a representation controversy, or to postpone its consideration of a case pending the resolution of the underlying uncertainty concerning the identity of a state’s government.

More generally, it is perhaps noteworthy that the different approaches will not invariably yield a different result and, so, it may be unnecessary for an adjudicative body to specify only one approach as the exclusive basis on which it resolves a representation controversy (recall above on the approach in Mobil Cerro Negro v. Venezuela, at paras 53­–54).

Conclusion

Adjudicative bodies seem generally to possess the power to resolve representation controversies, a power which they often exercise when such a controversy arises. It appears legally unproblematic for them to do so without assessing governmental status, as some bodies have recently done in the context of investment arbitration cases. But the other approaches that have been adopted might not always yield a practicable outcome. As a result, and since it appears to be legally permissible for them to do so, it might be preferable for adjudicative bodies to resolve representation controversies through an assessment of governmental status, which in principle involves the application of a generally-applicable basis for resolving representation controversies. Since such an assessment is based on objective legal criteria, this approach would also tend towards consistency among decisions of different adjudicative bodies as to the political authority through which a state is represented. That said, there may be good reason for an adjudicative body to have regard to other considerations in resolving a representation controversy or to postpone its consideration of a case pending the resolution of the underlying uncertainty concerning the identity of a state’s government. Indeed, there is perhaps no singular correct approach to the resolution of all representation controversies, and an adjudicative body might not have to place exclusive reliance on any one approach in resolving such a controversy.