Recognition of States in International Law: For Sale

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alfonso-portillo-1-sizedNews reports indicate that former Guatemalan president Alfonso Portillo (pictured left) recently pleaded guilty in federal court in New York to accepting $2.5 million in bribes from Taiwanese officials in exchange for assurances of continued diplomatic recognition during his tenure in office (see here, here and here). To what extent is the recognition of a state undermined by charges of corruption? In the context of Taiwan, the recognition of a government, and not a state, was at issue. But as an analytical exercise it is interesting to think through the implications of corruption on the recognition of statehood in international law.

Statehood and recognition are distinct legal concepts, but in practice recognition can be dispositive of whether an entity is a state.  In light of the importance of recognition for the creation and existence of states, the possibility of corruption influencing the recognition process is disconcerting. In the case of Taiwan, “dollar diplomacy” is an established phenomenon, and allegations similar to those raised against Guatemalan president Portillo seem to be surfacing in El Salvador as well. Nor does it seem implausible that other instances of recognition, of and by other states, may have been similarly motivated.

To be clear, the issue discussed here is not recognition based on inducement or incentive to the recognising state, but recognition based on inducement or incentive to key officials in the recognising state. States routinely make binding political and legal decisions based on political and economic, tangible and intangible, inducements and incentives: defence deals, monetary aid, concession agreements and diplomatic manoeuvres just a few examples.

The issue that forms the subject of this post is whether the validity of an act of recognition can be impugned on the grounds that it was induced through the corruption of key government officials? Is it possible for Guatemala, or China to argue that the original act of recognition is invalid by reason of President Portillo’s corruption? This question of possible invalidity has two aspects. First, does the act of recognition bind the recognising state, notwithstanding the fact that it was a result of a mala fide exercise of powers by a key government official? Second, does the act of recognition vest an irrevocable right or status in the recognised state, such that notwithstanding the taint of corruption on the act of recognition, it cannot be invalidated?

The first question deals with the effect of the act of recognition on the recognising state. I would argue that such recognition, even if motivated by the corruption of a particular official, retains its validity. To begin with, it is well established that “the conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions” (Art. 7, ILC’s draft articles on state responsibility). Further, analogies from other areas of international law support this conclusion. In the matter of ‘full powers’ for the conclusion of treaties, the actions of persons who appear to represent the state with the state’s consent bind the state (Art. 7, VCLT). Similarly, the concepts of immunity rationae personae and rationae materiae, in protecting senior government officials from prosecution by other states, assume that the senior officials of a state act in the name of the state and bind the state by their actions.

Conversely, it might perhaps be possible to analogise from the doctrine of ‘odious debt’ that actions taken by corrupt government leaders in the recognising state, in their own interest, against the interest of the people they represent, when the recognised state knows that the actions benefit the officials and not the recognising state, should not bind the recognising state. There are two problems with this argument: first, it is unclear whether the odious debt doctrine applies outside of government debts, strictly construed; second, in relation to the recognition of states, it would be rather onerous to prove damage to the interests of the people of the recognising state and knowledge by the recognised state of this damage.

Therefore, the recognising state probably cannot seek to void its recognition because it was induced by individual corruption. To be clear, Guatemala is not restrained from separately revoking its recognition of Taiwan; it is, however, constrained from arguing that its original recognition was invalidated by the corruption of President Portillo. This is a narrow distinction in theory, but a broad distinction in practice. For instance, the difference between revocation and invalidation will have an effect on the scope of involvement of third states. If the validity of the original act of recognition is capable of being impugned, it may be possible for third states (for instance, China in this case) to challenge the recognition. But if the original act of recognition can only be revoked and not challenged, then it is only Guatemala that can revoke the recognition.

The second question deals with the effects of the recognition on the recognised state. Is it possible for the recognised state to argue that the act of recognition vests an irrevocable right or status? At least two possible arguments to this effect come to mind.

First, it could be argued that such a revocation amounts to denial of self-determination, but this argument is not persuasive. The right to self-determination does not include an unqualified right to independent statehood. Moreover, the impact of a singular instance of revocation of recognition on the self-determination of a recognised state would probably be difficult to determine, and would require an analysis of how many states have recognised the state, what the effect of a single revocation would be, whether that revocation would produce a knock-on effect, and so on. A second, more plausible, argument focuses on the violation of sovereign equality. Once an entity meets the criteria of statehood, and is recognised as such, the ability of individual states, or the international community, to revoke recognition and statehood would infringe the fundamental right of sovereign equality. International law does provide for such ability in limited circumstances, for instance through directives of the UNSC, but those circumstances are very limited, and restricted to situations involving threats to international peace and security.

Neither of these arguments is ultimately persuasive. The recognition of states in international law is a political act; there is no duty in international law to recognise a state, nor a right to be recognised. Similarly, the revocation of recognition is a political act. However, if these two arguments, or other similar arguments, were to be accepted, they would have the effect of preventing the revocation of recognition of statehood. And that is contrary to the accepted position in international law.

In conclusion then, an act of recognition of statehood induced by the personal corruption of individuals in the recognising state is valid in international law. But it is difficult for the recognised state to argue that the recognition is permanently irrevocable, and it is possible tor the recognising state to separately revoke its recognition.

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Heiko Recktenwald says

April 21, 2014

I would hesitate to call it corruption. Isnt this sort of diplomacy the ordinary way in one way or the other? Why is this the business of a court in NY?

Heiko Recktenwald says

April 21, 2014

Recognition is only declaratory anyway. I would be interested in the question whether a secession as in the case of the Ukraine has to be declared if there is no effectiv state anymore.

Alice Yang says

April 21, 2014

Hi, interesting piece. However I would like to note that there has always been a formal diplomatic relation between Taiwan (Republic of China) and Guatemala. In this analysis you seem to say that Taiwan (ROC) bought Guatemala's recognition by bribing Protillo, but in fact the leaders before him already recognized Taiwan (ROC). Although this might not directly affect your arguments, it seems that's the Protillo example is not an appropriate illustration here.

Alexander Aizenstatd says

April 21, 2014

The point of bribery for State recognition is very interesting and well thought out in the article. I´m just not sure if Portillo´s case is the best example to discuss its effects regarding State recognition. As Alice pointed out the ROC has been recognized by Guatemala well before and after Portillo´s presidency and even by the current government after this issue came to be.

On the issue of jurisdiction. He is being tried for Money Laundering. The money received here in Guatemala from the ROC was laundered through NY Banks. That is the basis of jurisdiction in NY. Since money laundering requires that the money be obtained illegally in the first place, they needed to prove that it was illegal for him to receive money from the ROC. There is no specific law criminalizing money received for recognizing a State. Portillo there is referring to the general crime of Bribery (here called "cohecho") which is in the Criminal Code. This article makes it a crime for a government official to receive money (outside of his salary) for the performance or non-performance of his duties.

Hi! says

April 21, 2014

I won't even pretend I know much about the complexities of this case. My only question is why is the odious debt doctrine relevant and not art 50 VCLT? If a state can (theoretically) invalidate its consent to be bound by a treaty on such grounds why not take back a unilateral declaration? (that is, of course, if it wants to)

Abhimanyu George Jain says

April 22, 2014

Thank you all for your thoughtful comments. And thank you Alexander for your input on the jurisdictional aspects of the case.

Alice, Alexander: my argument does not pretend to use President Portillo, Guatemala and Taiwan as an example of recognition induced by corruption - it merely uses this instance as a springboard to consider that hypothetical issue. Guatemala and Taiwan are an imperfect analogy in any case, because, as I note in the first paragraph, recognition in this case is of a government, rather than a state.

'Hi!': you are quite right that Art. 50 of the VCLT will possibly be relevant here, to the extent that the analogy between treaty signing and recognition can be maintained. The doctrine of odious debt is invoked as an example of an international law doctrine which operates to mitigate satisfaction of prior obligations.