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Hey guys!

So I'm about to start my third-year this fall and I'm writing a dissertation as one of my optional modules in International law. The topic I'm considering to write on is the legal test employed in international law in recognising a legitimate government of a state in a situation of duality of governing entities.

Essentially, my topic questions how should we determine when an authority, claiming to be a government of a state, should be recognised as such, when there is another authority claiming to be the same.

I wanted to know what your position on this issue was because there is no determinative test in international law to answer this question.

To put it in context, most recently, the legally recognised and constitutional government of Mali was overthrown by a military coup d'état and the international community has taken action with the Security Council issuing statements about the return to the constitutional regime of Mali, as well as the AU taking decisive measures.

Conversely, in 2009-10, when a similar revolutionary uprising was taking place in Libya, Colonel Qadaffi's regime was universally denounced and the National Transitional Council (NTC) accepted as the new government of Libya despite not being constitutional nor democratically elected.

In earlier instances, the Communist government of China was not recognised as the legal government by the international community for nearly 25 years (the government of Taiwan was recognised by a bare majority of the international community as the legal government of China). In Cambodia the coup d'état government was not recognised, instead they continued to recognise Prince Sinahouk's government in exile for 12 years. In the International Court of Justice's (ICJ) judgment in the Amred Activities in Congo case, the court implicitly recognised the Kabilla government as the legal government of the Congo, despite the fact that they were not democratically elected representatives. In Haiti, from 1990-94, the first democratically-elected President Astride was illegally ousted from office by a coup d'état led by the police chief, François, and throughout Astride's exile he was recognised as the rightful government and leader of Haiti, and brought back into power with UN and OAS internvention in Haiti from '93-'94.

So there are two schools of thought: modern and traditional legal theory on the question of recognition of governments.

The Traditional theory says that for a government to be recognised it must fulfil the following three criteria:

1. Have effective control of state territory;

2. Have a reasonable assurance of permanence;

3. Have the acquiescence of majority of the state's population (preferably democratically, but not necessarily so).

The Modern approach is more restrictive in that they recognise governments based on a conglomeration of disjointed considerations such as, whether the overthrown regime was democratic or dictatorial, whether the new regime is the product of a coup d'état or people's revolution, etc.

Both approaches have significant instances in history to support and weaken them.

What do you guys think? It is a complicated question with a complicated answer. One that I aim to write about for 15,000 words this summer, but I was curious.


Edited by Arrowhead

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Wow, seriously intellectual stuff going on here :eek: I won't really pretend to have a personal answer (or even an answer at all) to this, but I rather like this discussion of international law, though I wouldn't want to be involved in resolving any of its thorny issues.

Mostly we recognise governments that are 'official' - as in we recognise the government that used to hold power, and the international community I guess there is generally resistant to change in recognising which body holds power over a country. However, I think that there may be a few conditions that are generally followed when considering the situation of the 'official government' vs. a group of 'rebels' who want to control the country.

1. Does the existing government have to use wide-scale military violence against civilians to maintain their control over a country? I guess you could look at Syria here, but Assad is still recognised as the official government by most of the world, not to mention Russia and China. You could argue that once you have to use violence on not direct military targets but civilians to maintain your control then you have lost some of your hold over the country's population and thus your right to rule.

2. Which group is more organised/cohesive? As in who actually has the economic and administrative abilities to actually run a country. This one would probably favour existing governments, but you could argue that rebel groups can eventually become a part of a functioning democratic government.

3. Which group does the international community like? Though probably not the most intelligent argument, this is probably the one that matters most. So whichever way the tide flows a lot of countries will want to follow. This could be based on whether that country's regime has fought a war with lots of countries before, its human rights record - and which ones the big countries support. Most countries tend to want to fall behind a large country in an international issue like this.

Yeah, and obviously who controls the majority of the territory and can command the most civilian support, though this is often difficult to determine. Not sure how useful any of this is, but it's been good to get some food for thought on such a complex issue. Have fun with the 15 000 words :)

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