How Should Governments Decide Whether or not to Recognise other Governments, and can the General Assembly Help?

Last week, the General Assembly’s Credentials Committee met to assess the credentials of delegates claiming the right to represent their States at the General Assembly. As discussed previously on this forum, normally this is a formality. On this occasion, however, as is well known, the Committee had two contentious cases to consider. In the case of Myanmar, competing credentials claims were submitted by representatives of the National Unity Government and the military junta. In the case of Afghanistan, competing claims were submitted by the deposed government-in-exile, and the Taliban. In relation to both cases, the Credentials Committee has now recommended to the General Assembly that it defer its decision.

It is certainly a relief that, assuming the Committee’s recommendation is accepted, neither the Taliban nor Myanmar’s junta will be represented at the General Assembly. While this worst-case scenario has been avoided, however, States must still contend with the difficult question of who they should regard as the governments of Afghanistan and Myanmar. On that question, the recommendation of the Credentials Committee that the decision on representation be deferred is of little assistance.  

Many governments today have policies of not formally recognising new governments. Such policies notwithstanding, though, following political transitions in foreign States, governments do still need to decide – for purposes of diplomatic, economic and trade relations, and myriad other reasons – whether they will treat the incoming authority as the new government. Moreover, in contentious situations, governments sometimes feel compelled to publicly announce whether or not they ‘recognise’ a new government – as was evident in the statements made by States in the Security Council meeting on Afghanistan in August this year.

In legal scholarship and state practice, there is a seemingly well-established view that it is the prerogative of governments to decide whether to recognise other governments. The clearest affirmation of this is the fact that in the first half of the twentieth century, many States had policies of formally recognising (or not recognising) other governments. When governments abandoned these policies, such moves were not prompted by the notion that they were not legally entitled to make such decisions, but by the desire not to have to publicly communicate those decisions in difficult cases. The general consensus regarding State discretion vis-à-vis recognition is further illustrated by statements made over the years by governments, announcing unilaterally (or in groups) that they will recognise or not recognise other governments. In relation to Libya in 2011, for example, a group of 32 States issued a statement declaring that ‘the Qaddafi regime no longer has any legitimate authority’, and that they would ‘deal with the National Transitional Council as the legitimate authority in Libya’. In 2016, five States and the EU issued a statement describing Libya’s new Government of National Accord as the ‘only legitimate government in Libya’. In August this year, Canada’s Prime Minister announced that his government would not recognise the Taliban. As Lord Atkin said in the UK House of Lords in 1939, ‘our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states’ (Arantzazu Mendi, para 264).

The problem with this seemingly well-established state of play regarding the discretion of governments vis-à-vis recognition is that recognition has legal consequences. And these consequences concern the international community at large. They include, to name just a few: who is entitled to immunity; who gets access to State assets held in foreign banks; who can enter into multilateral treaties; and who can request foreign military intervention.

With these implications in mind, it seems necessary to assert that it cannot be the case that governments may unilaterally determine the rights enjoyed by other governments in international law. Thus, if we must accept the prerogative of governments to recognise / not recognise, we must at the same time understand that ‘recognition’ in this sense cannot of itself be determinative of legal status.

That governments cannot unilaterally determine the legal status of other governments has been recognised by the British courts. In Kuwait Airways v Iraqi Airways (2002) and later Secretary of State for the Home Department v CC (2012), British courts considered the relevance of the position taken by the British Government to, respectively, the governments of Kuwait and Somaliland. In both cases the courts held that the position taken by the Government was not in itself determinative of the legal status of the government in question. In both cases, the courts applied a four-part test to determine the government’s status: constitutionality; administrative control; dealings with the British Government; and ‘international recognition’.

That governments cannot unilaterally determine the legal status of other governments is also highlighted by the international reaction to requests for foreign military intervention. In 2014, Russia intervened militarily in Ukraine at the request of ousted President Yanukovych. Yanukovych was not regarded internationally as representing the Ukrainian Government, and the intervention was widely regarded as illegal (see here). In other words, Russia was not at liberty to unilaterally decide upon the legitimacy of the ousted President, and to intervene militarily at his request. Conversely, France’s intervention in Mali in 2012 at the request of the ousted Malian President was widely regarded as legal (see here and here). In justifying the intervention, France stressed that it had ‘international political support’ and the support of the UN. In other words, France did not assume that it was at liberty to respond to the request for intervention based solely on its own assessment of the requesting government’s legitimacy, but it did assume that it was at liberty to respond to a request from a government whose legitimacy was internationally recognised.

In short, governments cannot unilaterally determine the legal status of other governments. In order to make such determination, the question of international recognition is important.

The problem, though, is that there is no established process for collectively determining the status of governments. And this brings us back to the General Assembly’s credentials process.

In international law and practice, the credentials process has traditionally been understood as being about compliance with the General Assembly’s procedural rules, and not the broader political (and legal) question of a government’s legitimacy and status. Such was the view articulated in a 1970 memorandum by the UN Legal Counsel, which said that the credentials process did not involve questions of ‘recognition’ or ‘substantive issues concerning the status of governments’. The General Assembly has also stressed that the ‘attitude adopted by the General Assembly’ on matters of representation ‘shall not of itself affect the direct relations of individual member States with the State concerned’.

The problem, though, is that so long as there is no other process for collectively establishing the status of governments, the credentials process will inevitably be looked upon to fill the gap. In cases such as Afghanistan and Myanmar, as noted above, a recommendation by the Credentials Committee that decisions on representation be deferred is particularly unhelpful; but even if the Credentials Committee had made a bolder recommendation, that is still – according to the UN Legal Counsel and the General Assembly – not designed to guide States on matters of recognition. So this begs the question, what can serve as a guide to States on such matters?

The General Assembly seems the most appropriate forum through which States can collectively determine the status of governments. As the Assembly has itself affirmed: 

‘the General Assembly is the organ of the UN in which consideration can best be given to the views of all member States in matters affecting the functioning of the organisation as a whole’.

Accepting that the General Assembly is the most appropriate organ to consider questions of governmental status does not mean, however, that the credentials process is the most appropriate mechanism for such consideration. To look to the credentials process as a guide for States regarding the status of governments is to disregard statements by the UN Legal Counsel, the General Assembly and individual States (see Ciobanu, p 364) explicitly cautioning against doing so. While it may be so that absent any alternative process, the credentials process must inevitably be looked upon as expressing the position of the international community on such matters, it is possible to avoid the credentials process being stretched in this way. The General Assembly is competent to pass resolutions expressly communicating its view on the legitimacy of governments, and to make recommendations to States and international organisations regarding their engagement with the government/entity in question. The Assembly does not need to obscure its guidance on such matters in decisions regarding the credentials of representatives.

The General Assembly has previously passed resolutions on matters of government legitimacy, unconnected with the credentials process. Following the military coup in Haiti in 1991, for example, the Assembly passed a resolution ‘affirm[ing] as unacceptable any entity resulting from [the coup]’ and demanding the ‘restoration of the legitimate Government’. Following the coup in Honduras in 2009, the Assembly similarly demanded the ‘restoration of the legitimate and Constitutional Government’ and called upon States to ‘recognise no Government other than that of the Constitutional President’. Earlier examples of the Assembly expressing its views on matters of government legitimacy include Korea (1948), Southern Rhodesia (1960s-1970s), and Namibia and South Africa (1970s-1980s).

Albeit not binding, such resolutions have on occasions served as a guide for actors inside and outside the UN system. Following the Assembly’s resolutions on Haiti, for example, the Security Council adopted a resolution referencing the Assembly’s resolutions, and imposed sanctions on the junta. Following the Assembly’s resolution on Honduras, the Organisation for American States (OAS) suspended Honduras from participation in the OAS.

There is no reason in international law that the Assembly cannot pass a resolution explicitly expressing its view on the legitimacy of governments whenever the international community requires guidance on such matters. Recent events in Afghanistan and Myanmar highlight that there are, indeed, occasions when such guidance is required.

A General Assembly resolution of this nature would not eliminate contention on matters of government legitimacy. But it might enable greater consistency and coherence in the international response to contentious situations, than the credentials process being looked upon to provide answers it was not designed – and is ill-equipped – to provide.