Recognition of Government in International Law

In international law, the recognition of government is the act by which a state acknowledges the existence of a new regime in another state. This act involves deciding whether a new government controls the state effectively, honors international obligations, and adheres to peremptory norms of international law. This recognition can be explicit or implied through diplomatic actions and treaties. Various doctrines, like the Tobar, Betancourt, and Estrada doctrines, offer differing criteria and philosophies for the process of recognition. However, this process is inherently political, often reflecting the discretion of the executive branch of states and broader international relations dynamics.

What Is the Recognition of Government?

In international law, the recognition of a government is the unilateral act by which a state formally acknowledges that a new regime has come into power within another state. This scenario emerges particularly when a political upheaval such as a revolution or a coup d’état disrupts the constitutional order of a nation, or when a government is only able to control a part of a state’s territory. This is distinct from recognizing a change in government that adheres to constitutional procedures or when the incumbent government itself orchestrates a coup to remain in power. In such cases, recognition is considered automatic and does not require a formal act.

Recognizing a new government differs significantly from recognizing a new state. The former does not change the identity or the legal status of a country, but it does mean a change in the administrative authority of said country. Yet both recognitions can occur at the same time, such as when a state comes into being. For example, the United States and United Kingdom recognized Israel by acknowledging its de facto government, implying recognition of the state itself.

A state cannot be compelled to recognize the government of another state — rather, it has the freedom to decide whether or not to do so. Moreover, the recognition of a government does not always need to be explicitly stated. It can be implied through certain actions and circumstances, based on the intent of the state extending recognition. This means that a state might implicitly recognize a government by acting in a specific way, even without making a formal declaration. These are some circumstances in which recognition may be implied and their exceptions:

• Maintaining formal diplomatic relations with a state after a change in government implies recognition. However, maintaining informal and unofficial contacts, like those between the United States and Communist China in the 1960s and 1970s, does not.
• Issuing a consular exequatur to a representative of an unrecognized government generally amounts to recognition, though there are exceptions. For instance, the UK operates a consulate in Taiwan without recognizing its government.
• Concluding a bilateral treaty or participating in a multilateral treaty along with the new government of a state might imply recognition. However, there are several agreements between governments that do not recognize each other, among which the Charter of the United Nations.

States typically prefer to maintain control over the act of recognition and avoid allowing it to be inferred from their actions. They generally favor formal acts of recognition, made after careful consideration. Each situation requires a detailed examination to determine if recognition is implied.

To avoid unintended recognition, states might explicitly state that certain actions should not be interpreted as recognizing another state or government. For instance, Arab countries have maintained this stance regarding Israel. This approach avoids implied recognition but indicates that without a clear disclaimer, some international actions might result in recognizing an entity.

Criteria for Recognition

There are three primary criteria that must be met for a government to be recognized:

• Effective control: Recognition must not be withheld if the new government effectively controls the country, and this control seems likely to continue. This means that the government must control the state’s institutions and must not face significant armed resistance from the populace in substantial parts of the territory. The United Kingdom has used this approach, such as in recognizing the communist government of China and the Soviet-backed government in Hungary in 1956.
• Compliance with International Obligations: The new government is expected to honor the international obligations of its predecessor, because although the government changed, the state has remained the same. However, the new government can renegotiate the international obligations of the state.
• Non-violation of the jus cogens: The new government must not have risen to power by means of violating the peremptory norms of international law, also known as jus cogens. When a government overthrows another one while violating such norms, these violations are considered too important to be overlooked by the international community.

When a government is not recognized, it typically means that it has not attained the criteria for recognition under international law.

The Tobar, Betancourt and Estrada Doctrines

In Latin America, two doctrines about the act of recognizing a government have emerged. They are concerned with imposing additional criteria for the act of recognition, in order to ensure the political stability of countries:

• Tobar Doctrine: It was proposed by former Ecuadorian Foreign Minister Carlos Tobar, who asserted that governments that do not have popular legitimacy should not be recognized. This doctrine aimed to reduce the frequency of coups in Latin America, and it has been widely used by the United States in its diplomatic relations with countries surrounding the Panama Canal.
• Betancourt Doctrine: It was by proposed by former Venezuelan President Rómulo Betancourt, who advocated for the non-recognition of undemocratic governments. This doctrine aimed to discourage regional governments from instituting autocratic or dictatorial regimes that impinge upon the rights of the people.

The problem with these doctrines is that states are largely free to apply their own interpretations of legitimacy or democracy. These are extremely subjective criteria that can lead to self-serving judgments by recognizing states, potentially influenced by their interests.

In opposition to both Tobar and Betancourt, former Mexican Foreign Minister Genaro Estrada put forward what came to be known as the Estrada Doctrine. According to it, the sole entity responsible for determining the legitimacy or the democratic character of a government is the population ruled by it. Therefore, refusing to recognize a government amounts to an intervention in the domestic affairs of said state. Because of this, Estrada believed that all governments had to be automatically recognized — that is, the formal act of recognition did not have to take place, for it was always implied. If a state believed a government was illegitimate or undemocratic, the most it could do was to sever diplomatic relations with the state controlled by said government. However, this doctrine is impractical, particularly because it prevents the act of recognizing only one government out of several governments vying for such recognition within a state. For instance, in 2019, Juan Guaidó proclaimed himself the legitimate president of Venezuela while Nicolás Maduro continued to effectively rule the country.

Currently, international customary law allows the recognition of governments, either explicitly or implicitly, provided that countries refrain from interfering in the domestic affairs of another state. This modern approach strikes a balance between acknowledging new regimes and respecting the sovereignty and self-determination of nations.

The Political Aspects of Recognition

The recognition of a government is a fundamentally political act. Because of this, it is reserved to the executive branch of states. This means that the legislative branch and the judiciary have to accept the discretion of the executive and give effect to its decisions. Additionally, the act of recognizing a government often succumbs to political deliberations rather than strict rules:

• There are governments that have effectively gained control of a state, but that have not been recognized by others. For instance, during the Cold War, the United Kingdom never recognized North Vietnam or the German Democratic Republic (East Germany). To this day, the British still do not recognize the North Korean regime.

• There are governments that have refused to comply with a state’s international obligations, but gained international acceptance regardless. A case in point was the rise of the Bolshevik government in Russia, in 1917. At first, the new regime refused to honor previously-incurred debts, thus several countries refused to recognize it. Over time, the Bolsheviks eventually gained international recognition — including by the United States, more than a decade later, in 1933.

• There are governments that have come to power by means of serious violations of peremptory international law, but were eventually recognized anyway. For example, the Khmer Rouge seized power in Cambodia in 1975 while being responsible for a genocide and several other human rights abuses. Despite this, this regime was recognized by some states, and its representatives continued to hold Cambodia’s seat at the United Nations until 1993.

In addition, while the recognition of a government is not contingent upon it having popular legitimacy or being democratic, the lack of these elements complicates matters politically. As a general rule, countries are usually loath to officially recognize governments that do not abide by the rule of law. However, unofficial, informal or, perhaps, secret relations are not uncommon. Traditionally, that has been the case during wars, such as the Vietnam War, when the United States engaged in talks with the Vietcong even though not acknowledging its control over the Vietnamese territory.

Another problem is that recognition of a new government can imply that a state approves it. To avoid this issue, both the United States and the United Kingdom have declared that they would de-emphasize recognizing government changes, focusing instead on whether to maintain diplomatic relations with the new government’s state. This policy, stating that relations do not imply approval or disapproval, aimed to simplify interactions with new governments and avoid condoning human rights violations that these governments have committed. Other countries, including Belgium, France, Australia, and Canada, have adopted similar approaches.

Legal Effects of Recognition

The act of recognizing a new government signifies acceptance of a specific situation by the recognizing state, and this act carries legal repercussions:

• The act of recognition is retroactive: It applies to actions and situations that occurred before the recognition was officially given. In practice, it means to acknowledge that the government was in charge of a given country all along, even before the recognizing state formally said it was.
• The act of recognition is irrevocable: It can only be withdrawn if the new government itself were to be overthrown.
• The act of recognition paves the way for the granting of privileges and immunities: The recognizing state must concede sovereign, diplomatic and consular privileges and immunities to the representatives of the new government within the domestic legal order.

Conclusion

In international law, the recognition of government is a nuanced process that reflects both legal principles and political realities. It happens when an unconstitutional administrative change happens within a state, and this change is acknowledged by other states — either explicitly or implicitly. In theory, the act of recognition depends upon certain criteria, but political considerations usually prevail over them, because states have the freedom to recognize governments as they see fit. After recognition is granted, the state who granted it is bound to a series of legal effects, among which the duty not to withdraw recognition unless the recognized government ceases to hold effective control over a country. Even though countries have been avoiding to explicitly recognize changes of government elsewhere, this act remains a part of current international law.