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AN IMPOSSIBLE DREAM:
USING THE STANDARD OF FREE AND FAIR ELECTIONS FOR GOVERNMENT RECOGNITION
MARIA GUDZENKO[*]
The extent to which the standard of ‘free and fair’ elections is relevant for government recognition is highly debated in legal scholarship. Enthusiasts view it as an indicator of the emergence of the right to democratic governance in international law. Sceptics dismiss it as a mere policy consideration. This paper seeks to explain the role of ‘free and fair’ elections in the process of government recognition and to introduce conceptual clarity in the scholarly debate on the topic. It does so by proposing a tentative analytical framework that would account for circumstances in which electoral legitimacy is likely to be the dominant consideration for government recognition. In the absence of at least one of these factors, election‑based government recognition becomes either too sporadic or takes the shape of political, not legal, recognition. The forms and consequences of election‑based political recognitions are studied to underscore their difference vis‑a‑vis government recognition in the legal sense. The influence of the ‘free and fair election’ standard on understanding the concept of government in international law thus appears modest, with this concept still mainly informed by effectiveness considerations. It is finally argued that it would be undesirable to further broaden the scope of the electoral legitimacy argument due to the lack of conceptual coherence of the benchmark in question. The unambitious yet clear criteria for freedom and fairness established in treaty law are rarely considered as part of the government recognition acts of states and international organisations.
CONTENTS
Various combinations of the terms ‘recognition’, and ‘free and fair’ or ‘democratic’ elections have flooded the recent political discourse on changes of government. Up to 57 states declared they recognised Juan Guaidó’s claim to represent Venezuela internationally in 2019,[1] triggering a major presidential crisis. Guaidó’s interim government was recognised by many due to the perceived illegitimacy of the 2018 Venezuelan presidential election, secured by Nicolás Maduro.[2] Several states and international organisations[3] declared that they would continue to recognise Guaidó until ‘free and fair elections, in accordance with international democratic standards’,[4] are held in Venezuela. In 2020, following Aleksander Lukashenka’s re-election as the President of Belarus for his sixth term, the Council of the European Union issued a statement of nonrecognition of this result, deeming it fraudulent.[5] The European Parliament pledged to stop recognising Lukashenka ‘as president of Belarus once his current term of office expires’ and expressed its support for the runner-up, Sviatlana Tsikhanouskaya,[6] who formed an opposition Coordination Council for the Transfer of Power and, ultimately, a government-in-exile. The neighbouring state of Lithuania has accredited Tsikhanouskaya’s team as the ‘democratic representation of Belarus’.[7] Since 2021, both the military government of Myanmar and the Taliban in Afghanistan, despite being in control of public institutions, have been denied seats in the United Nations General Assembly.[8] The Assembly has kept vacant Afghanistan and Myanmar’s seats for delegates representing the overthrown constitutional governments.[9] In October 2023, the Parliamentary Assembly of the Council of Europe called on its member states ‘to recognize Vladimir Putin as illegitimate after the end of his current presidential term’ due to the further extension of presidential term limits by the 2020 constitutional reform,[10] designed to provide him with an opportunity to run for the office for the fifth time. Most recently, in the wake of the Nigerien coup d’état of 26 July 2023, the Economic Community of West African States (‘ECOWAS’) Court of Justice declared inadmissible the request for provisional lifting of ECOWAS sanctions filed by the military junta. This was due to the military’s lack of standing as a government of Niger. The Court considered it ‘an entity resulting from an unconstitutional change of government, and not acknowledged by ECOWAS as a government of a member state’.[11]
Reliance on the electoral legitimacy argument in government recognition discourse and practice has outlived the democratic momentum of the 1990s and early 2000s when it attracted significant scholarly interest.[12] Most recognition crises featuring the ‘free and fair election’ argument, be it legal or rhetorical, have occurred post-2006 when the third wave of democratisation was famously declared to be waning.[13] Grounding recognition in the electoral mandate also seems to be a universal line of argumentation: both arguably democratic[14] and authoritarian[15] states have made it part and parcel of their foreign policy rhetoric. Even though such inquiries can be traced back well before the post-Cold War era,[16] electoral legitimacy appears to have resurfaced nowadays as an extensively invoked criterion for government recognition. Ever since the well-known and overstudied UN Security Council reactions to the power crises in Haiti in 1991 and Sierra Leone in 1997,[17] statements on the electoral legitimacy of foreign governments — or lack thereof — are widespread and not limited to the undemocratic coup d’état scenario. The idea that recognition could be denied to unelected governments has inspired several proposals de lege ferenda on the matter. These range from recommendations to deny representation within international organisations,[18] to think pieces that advocate for the strategic use of the tool to bring to justice those responsible for human rights violations.[19]
By vocally relying on electoral legitimacy, states derogate from the nearly unanimous Estrada-inspired avoidance of public statements on foreign governments.[20] Although implicit recognitions are more frequent,[21] typically embodied in maintaining diplomatic relations with the successor government, major internal power crises frequently prompt them to choose sides[22] explicitly.[23] From a legal standpoint, such inconsistency is anything but problematic. Government recognition, which is an act of acceptance of an entity as the lawful representative of a state in its international affairs,[24] is a unilateral act of states. As much as the recognition of states, government recognition is, in principle, a discretionary act. It can thus be informed by any political considerations the recognising authority deems essential. The only limits[25] to states’ otherwise unfettered discretion in these matters seem to derive either from the principle of ex injuria jus non oritur[26] or a binding resolution of the UN Security Council containing an obligation not to recognise a specific situation.[27]
Government recognition cannot be avoided when states, and particularly international organisations, are confronted with the choice of dealing with one of several entities claiming to act and speak on behalf of the state. Recognition acts bear significant consequences on the legal status of governments in the international order and the internal law of the recognising states.[28] These mainly pertain to: privileges and immunities of the foreign government[29] and of its acts[30] within the recognising state’s jurisdiction; control of its assets in foreign jurisdictions;[31] participation in international treaty regimes;[32] standing before international courts and tribunals;[33] and the capacity to request (via its government) and receive foreign military assistance.[34] The latter issue partly explains the growing tendency of international organisations to make public statements on government recognition, the other factor being the development of international and regional treaty-based obligations regarding the rules of internal power devolution and its exercise.
However, the proclivity to tie government recognition to the attainment of an electoral mandate seems too sporadic. Placed in a bigger picture, these condemnations of un-free and unfair electoral processes are mere drops in the sea of governments enjoying widespread recognition despite ostensibly lacking a (genuine) electoral mandate. International law still needs to embrace the idea that, to act and speak on behalf of the state, its government must be freely and genuinely elected by the people. It has been established that the UN General Assembly, in cases of ‘disputed governance’, ‘has favoured the democratically elected government, or at least an internationally recognised one, irrespective of the question of effective control’.[35] However, its decisions on credentials are limited to the issue of representation within its midst and cannot be seen as acts of collective recognition.[36] Against this backdrop, one can perfectly understand the overwhelming scholarly scepticism[37] when tackling the question. The extent to which such a line of reasoning bears normative implications on government recognition in international law has been an object of several critical studies.[38] The main takeaway is that election-based recognitions have been too infrequent or inconsistent in state practice to establish a legal criterion. Likewise, the International Law Association’s (‘ILA’) Committee on Recognition and Non‑Recognition in International Law has concluded that there are no ‘firmly established criteria for assessing governmental legitimacy’ in cases where multiple entities seek recognition as a government of a state.[39]
Still, by publicly invoking electoral legitimacy as a recognition criterion, states and international organisations consider it as much a legal argument as effective control or willingness to respect the international obligations undertaken by the previous government.[40] Such an attitude is particularly apparent from the 2009 press conference of the UN Secretary-General, who declared that
[a]s a matter of principle, as we have been publicly stating, ... the constitutional process should be respected. When a leader [is] elected constitutionally, through a transparent election process, then his authority and office should be protected and guaranteed. This is the principle of the international community and the United Nations.[41]
Even if one should answer negatively to the question of whether electoral legitimacy constrains government recognition, there remains a larger question of the impact of the ‘free and fair election’ standard on such acts. Based on the analysis of arguably inconsistent yet ever-growing post-1990 practice,[42] could one identify recurring traits of situations where electoral legitimacy is likely to be used as the primary justification for (non)recognition? To what extent has such reliance on the free and fair election standard transformed the basic premises of government recognition? Finally, to what extent could the free and fair election standard, over time, evolve into an eventual normative criterion?
The present article draws on existing scholarship as well as post-Cold War practice to propose a tentative analytical framework that would account for the place of the free and fair elections argument in the government recognition practice. Such a framework can only be descriptive and, just like every explicative model, artificial. Moreover, it highlights the reasons why the normative consolidation of the free and fair elections consideration as a government recognition criterion is neither foreseeable nor desirable. The purpose here is to untangle the international legal practice coherently using a scholarly interpretation that in no manner pretends to be exhaustive or the only interpretation possible. The intention of this study is to identify trends in the practice of states and international organisations rather than to delve into the reasons — arguably specific to each case studied and undeniably influenced by political considerations — behind their decisions on government recognition. While it means one must engage in an exercise that has already resulted in writings on the subject, this work is still relevant in light of recent recognition controversies, as well as due to the conceptual indeterminacy that remains frequent in the scholarship, particularly concerning the content of the free and fair elections benchmark.
First and foremost, when tackling the subject, one should consider the distinction between the practice of government recognition on the one hand, and the discourse on government recognition on the other.[43] When states claim they recognise a government, do they mean it as a political endorsement or an acknowledgment of an entity’s capacity to act and speak on behalf of a state? When international organisations claim they do not recognise a government or label it a ‘de facto regime’, does that mean a rival entity in its midst will represent the member state? Different wordings of recognition statements generate different legal effects. Although political recognition is often articulated by reference to legal terms, and (as we shall see from the Venezuelan case) is increasingly tied not only to electoral legitimacy but also to a particular vision of constitutional legality, it does not result in denying the effective government the capacity to act and speak on behalf of the state. The political nature of a recognition act can be deduced not only from the wording of the statement itself — a technique classically employed by the jurists — but also from the institutionalisation by the recognising state of ad hoc structures aimed at allowing the elected yet ineffective entity to enjoy a sort of shadow diplomatic representation.
Secondly, a distinction should be made between statements on the capacity of elected governments to act and speak on behalf of the state on the one hand, and the application of so-called ‘democratic sanctions’ or ‘defence-of-democracy’ mechanisms on the other. While the latter can indeed seek to vindicate the claim of an entity that claims to be the legitimate government as opposed to the one in effective control, such measures do not per se amount to acts of recognition. A state may be suspended within a regional organisation without its government’s capacity to act and speak on behalf of it being questioned.
Finally, and most importantly, most writings on the subject elude the question of what constitutes a free and fair election for the purpose of government recognition. When states and international organisations claim they recognise a government because it derives its legitimacy from a free and fair election, are these statements informed by the same understanding of freedom and fairness as applied to national electoral processes? One can dismiss the question altogether or plead the determinacy of the benchmark by referring to the ‘immense body of international practice directed precisely at that resolving question [of government legitimacy stemming from elections]’.[44] However, that the determinate standards of free and fair elections can be convincingly deduced from human rights instruments and international monitors’ practice does not necessarily mean states and international organisations adhere to it in their recognition practice. The extent to which such adherence is adequate is barely touched upon in the legal scholarship.[45]
Once these uncertainties are elucidated and the tentative framework established, it appears that there is a discrepancy between the prominence of the ‘e-word’ in the discourse on the ‘r-word’[46] on the one hand, and the actual influence of the former on the latter in the legal sense on the other. While the argument for free and fair elections is prominently featured in the discourse on government recognition, the international practice mostly uses it in a way consistent with the traditional benchmark of governmental legitimacy, namely effective control. Albeit of modest impact, the benchmark is still open to criticism as its content, although well-established in human rights law, is determined in a discretionary fashion as far as government recognition is concerned.
Part II seeks to untangle the post-1990 practice to deduce a model situation in which electoral legitimacy is likely to be the dominant consideration for government recognition. Such a model situation can indeed be identified in a particular and rare set of factual circumstances. Absent at least one of these factors, election-based government recognition becomes either too sporadic or takes the shape of political, not legal, recognition. Part III assesses the influence of the free and fair election standard on understanding the concept of government in international law, traditionally informed by effectiveness considerations. It further questions the conceptual coherence of the benchmark in question in order to assess its desirability as a legal criterion. It underscores the lack of conceptual clarity of the free and fair election as a standard for government recognition, falling short of the determinacy of the extent to which electoral legitimacy can legally override effective control, as well as of unambitious yet clear criteria for freedom and fairness established in the treaty law. As long as states and international organisations remain reluctant to overcome this indeterminacy, any normativity of this benchmark should remain an impossible dream for international lawyers.
That government recognition is and remains discretionary does not preclude one from systematising the argumentation developed in support of recognition acts and evaluating the recurrency of reliance on electoral legitimacy. The extent to which a particular set of arguments for (non)recognition decisions about the (lack of) electoral legitimacy of the (non)recognised entity is consistently invoked in certain circumstances can shed light on a potential development of international law. In which cases would states and international organisations base their recognition decisions predominantly on the electoral legitimacy of the recognised entity? How consistent and general is the adherence to the criterion of ‘free and fair elections’ in such cases?
An empirical analysis of recent (post-1990) recognition controversies shows that international practice frequently relies on the ‘free and fair election’ standard in a particular subset of situations and remains haphazard otherwise. When faced with a choice between two competing entities, states and international organisations would typically inquire into whether at least one of them enjoys electoral legitimacy. The individual or group of individuals who possess a popular mandate acquired through a free and fair electoral process in accordance with the national constitutional law is more likely to be granted recognition. The likelihood of electoral legitimacy-based recognitions decreases in the absence of a robust regional normative framework containing an obligation to uphold democracy.
All these conditions are typically met in cases of violent military coups against elected governments. Classic examples are the ouster of President Jean-Betrand Aristide in Haiti in 1991 and President Ahmad Tejan Kabbah in Sierra Leone in 1997. Both heads of state were deposed by the military leadership shortly after being elected. Both coups provoked mass protests domestically and widespread condemnation internationally,[47] with most states continuing to legally recognise the elected leaders.[48] Both ousted governments remained represented at the UN General Assembly despite the military governments submitting their credentials.[49] Haiti remained represented by the delegate of President Aristide’s government‑in‑exile in the Organization of American States (‘OAS’) General Assembly.[50] The common position of the OAS member states was to explicitly deny recognition to the military government.[51]
In both situations, the UN Security Council concluded that the consequences of the persistence of both military governments in power, such as the increased refugee flow in the case of Haiti and the failure of political transition efforts in Sierra Leone, amounted to a threat to international peace and security.[52] According to this qualification and due to the failure of both military governments to abide by peace agreements brokered under the auspices of the UN, the Security Council imposed sanctions — acting under Chapter VII of the Charter of the United Nations (‘UN Charter’).[53] Ultimately, the Council authorised a multinational force to restore the democratically elected government in Haiti, conceived as a means to restoring peace and security in the region.[54] This authorisation, however, was not intended to constitute a precedent as all resolutions insisted on the exceptional nature of the crisis at hand.[55] In the case of Sierra Leone, the Security Council has expressed no objections to both the Nigerian and ECOWAS interventions — rooted in the argument of self-defence and at the request of the ousted President[56] — and aimed to restore him to office. It remains debated whether resolutions on Haiti and Sierra Leone can be interpreted as containing an obligation not to recognise the military governments. Strong language pointing towards implicit recognition of the ousted government features in Resolution 841 on Haiti: the arms embargo against ‘the military authorities’ was decided upon taking note of the request by the Permanent Representative accredited by the Aristide government.[57] Likewise, the authorisation to use force to restore the elected government cited Aristide’s request for military assistance.[58] Although the consent of the host government is not legally necessary for the implementation of the Chapter VII measures — nor was it deemed sufficient as the autonomous legal basis of the intervention in the Haitian case[59] — its invocation cannot but reinforce the argument for implicit recognition of both ousted governments by the Security Council.[60] Though the resolution’s wording cannot be interpreted as implying an obligation to recognise or not to recognise, it is difficult to conceive how a UN member state could avail itself of its obligations to abide by a Chapter VII resolution authorising the use of ‘all necessary means to facilitate the departure from Haiti of the military leadership’[61] while explicitly recognising the military government as the lawful representative of Haiti.
The preference for the electoral legitimacy criteria is also palpable when an incumbent government refuses to acknowledge an electoral defeat and to yield power to the winner of a free and fair election. Examples of this scenario include the refusal by Côte d’Ivoire’s longtime President Laurent Gbagbo to relinquish power after his defeat by Alassane Ouattara at the 2010 presidential election and a similar reaction by the Gambian President Yahya Jammeh at his surprise loss to the opposition candidate Adama Barrow at the 2016 presidential election.
The overwhelming majority of states legally recognised the leaders enjoying electoral legitimacy.[62] The UN General Assembly accredited representatives appointed by Ouattara and Barrow.[63] In the case of Côte d’Ivoire, as the free and fair election was a crucial step in implementing the peace process negotiated under the auspices of the UN,[64] the Security Council unsurprisingly deemed Gbagbo’s refusal to relinquish power as a factor justifying the continued identification of the situation as a threat to international peace and security.[65] The Council has also welcomed the African Union’s decision to recognise the election result and Ouattara’s presidential authority.[66] Although the Gambian crisis has not received a similar identification,[67] the Security Council has condemned the coup, referred to Barrow as the ‘President’ of The Gambia, and used strong language pointing towards its wariness to recognise Jammeh’s perpetuation in office.[68] Consequently, it had no issue with Barrow requesting and receiving an ultimately successful ECOWAS intervention by invitation aimed at restoring him to office.[69] This precedent echoes the ECOWAS intervention twenty years before the Gambian crisis. Despite not being called for by the UN Security Council,[70] both operations have been implicitly approved ex post facto. One cannot but conclude that, lacking any support for the theory of pro-democratic intervention in customary international law, the Council has deemed valid both interventions by invitation of the ousted leaders[71] and, henceforth, their capacity to request military assistance on behalf of the states whose territory and population they have not been controlling at the time.[72]
This subset, however, is marginal and infrequent in practice. When one of the features identified in these relatively clear-cut situations is lacking, recognition practice is far from unanimous. Although coups against elected governments and rigged elections frequently attract adverse political statements, they are not necessarily followed by questioning the effective authorities’ standing to represent the state internationally.[73]
In most cases, a military overthrow of the elected government does not result in two entities claiming to represent the state internationally, rendering government nonrecognition an impracticable avenue to pursue. Thus, in 2012, an aborted election in Guinea-Bissau attracted international scrutiny,[74] with the local military seizing power shortly ahead of the second round of the presidential elections. However, there was no elected government to oust in the first place, as the 2012 election was organised in the aftermath of the death of President Malam Bacai Sanhá. In a similar vein and in the same year, the coup d’état in Mali, overthrowing the democratically elected government, was condemned as a threat to international peace and security by the UN Security Council.[75] Neither has resulted in a recognition crisis stricto sensu. Both the interim President of Guinea‑Bissau, Raimundo Pereira, and the President of Mali, Amadou Toumani Touré, refrained from pressing an alternative claim to act and speak on behalf of their respective states. In the presence of only one entity claiming governmental status, it is unsurprising that most other states and international organisations could do was to condemn the coup and broker a political transition from military to civilian rule featuring ‘free, fair and transparent elections’.[76]
As for regional organisations, the best responses available to them are generally statutory sanctions of suspension[77] or exclusion[78] generally provided for in their constitutive acts. In this respect, the Constitutive Act of the African Union and the Charter of the Organization of American States prohibit any unconstitutional change resulting in the removal of a democratically elected government.[79] A similar prohibition is implicit in art 8 of the Statute of the Council of Europe. None of these provisions, however, require member states to not recognise the entity in control of the state apparatus that has accessed power through unconstitutional means.[80] Nor can the UN Security Council’s sanctions against effective but illegitimate governments be interpreted as an implicit obligation not to recognise the targeted entities. In brief, as intolerant as states are of military coups nowadays, they seem even more intolerant of power vacuums.[81] This attitude explains why most military juntas end up recognised in the absence of a democratically elected government-in-exile pressing an alternative claim.
The reaction of the ECOWAS Court to the military coup against the elected government of Mohamed Bazoum in Niger seems, however, to stand out as it was explicitly framed in terms of recognition. On the one hand, by declaring the State of Niger responsible for the detention of Bazoum and by ordering his liberation, the Court has implicitly recognised the military junta’s acts as attributable to the State of Niger.[82] On the other hand, the military junta is deemed to lack standing before the ECOWAS Court due to its unrecognised status.[83] One could undoubtedly deplore a fragmented notion of ‘government,’ the content of which varies between the law of international responsibility and the law of recognition. The question remains whether the ECOWAS Court will consistently reject the military’s standing in the long run, especially since Bazoum is practically impeded from pressing an alternative claim due to his continued detention. Provided that the ECOWAS has lifted its sanctions against the Nigerien military junta despite the latter not freeing Bazoum,[84] the Court’s position is likely to evolve as well. It should moreover be stressed that the ECOWAS Court remains isolated in its refusal of standing: the near‑universal (political) condemnation of the Nigerien military coup[85] did not affect the representation of Niger in the UN General Assembly.[86]
Similarly, state reactions tend to fluctuate when presented with anything less black-and-white than the alternative between an entity constituted via a free and fair electoral process and an entity that has overthrown the former by force to take control of public institutions. For instance, both rival governments can lack plausible electoral legitimacy. Recognition acts can thus hinge on the promise that one of the entities would bring about a democratic transition, thus indirectly contributing to the idea that the legitimate government is the one elected by its people. However, considerations other than popular legitimacy can come into play, such as standing by the entity tasked with the national peace process under a peace agreement brokered by the UN.
A prominent illustration of how the hope of seeing a democratic government can impact state behaviour is the widespread recognition of the Libyan National Transitional Council (‘NTC’), a non‑elected entity that emerged in the wake of the 2011 civil war, and the simultaneous derecognition of Muammar Gaddafi’s government. Several states went beyond political recognition of the NTC as the ‘legitimate representative of the people’[87] and phrased their statements as destined to bear legal effects. Italy’s legal recognition was issued[88] shortly after an ‘interim government’ had been formed within the NTC.[89] France rushed to recognise the NTC on 10 March 2011,[90] prior to giving legal recognition on 7 June 2011.[91] The Libya Contact Group proceeded to do the same in mid‑July,[92] more than a month before the NTC had taken control of the capital and Gaddafi’s government had collapsed. The preference for the NTC was explicitly rooted both in the international community’s wariness of the human rights violations of Gaddafi’s regime and in the NTC’s ‘efforts to broaden its popular base to embrace all Libyan people’.[93] The promise of an elected government in Libya which was respectful of human rights, articulated in the NTC’s ‘Road Map’, fuelled a series of solidifying recognitions aimed at helping the opposition become the effective authority. Ultimately, the importance of the NTC’s ‘commitment to democracy, good governance, rule of law and respect for human rights’ has been underscored by the UN Security Council.[94] These considerations notwithstanding, the collective recognition was framed in legal terms only when the NTC was controlling, at the time, if not Tripoli, some part of the Libyan territory.[95] The Security Council refrained from referring to the NTC as the ‘legitimate government’ until it established effective control over the capital: the infamous Resolution 1973, fallaciously interpreted as a call for regime change,[96] referred to the Gaddafi government as ‘the Libyan authorities’.[97]
Conversely, the Houthi takeover in Yemen in January to February 2015, resulting in the dissolution of the national Parliament and the formation of a new government, has not been recognised by the international community.[98] By welcoming the Saudi intervention by invitation of the ousted government, led by Abd Rabbu Mansour Hadi, the Security Council’s Resolution 2216 validates Hadi’s capacity to speak and act on behalf of Yemen.[99] The continued recognition of Hadi’s government as the legitimate representative[100] of Yemen was not due to its democratic credentials.[101] Even if Hadi indeed assumed office as a result of a presidential election in 2012, there were no names other than his on the ballot. Hadi’s presidency was, however, pivotal to the implementation of the national peace process in accordance with the Peace and National Partnership Agreement signed by both the government and the Houthi movement on 21 September 2014, under close supervision of the UN,[102] in an attempt to stabilise the never‑ending internal turmoil. Peace process considerations aside, one could also argue that the Hadi government has benefitted from the presumption of continuity of existing legal rights.[103]
Similarly, state practice offers no clear guidance in cases such as intra‑institutional conflicts resulting in the removal from power of the head of state. In general, impeachment proceedings rarely give rise to recognition contests. Only two cases stand out. In 2009, Honduran President Manuel Zelaya was removed from office by an affirmative vote of 124 out of 128 members of the National Congress after he attempted to alter the constitutional provision on the presidential term limit.[104] Shortly before the vote, Zelaya was arrested and forced into exile in Costa Rica. The ouster has been denounced as a military coup by the US[105] and triggered Honduras’ suspension from participating in the OAS.[106] The UN General Assembly went along with this approach, issuing a call to nonrecognition of the transfer of power to the President of the National Congress, Roberto Micheletti.[107] Micheletti’s representatives failed to obtain accreditation within the General Assembly.[108] Likewise, while deciding to maintain their diplomatic representation in Honduras, the Swedish Presidency of the EU specified that such a decision ‘in no way implied recognition of the country’s de facto government’.[109]
No such reaction occurred, however, when the Ukrainian President Viktor Yanukovych, elected in 2010, was voted out of office in 2014 by a majority of 328 out of 450 members (with no votes against) of the national legislature, the Verkhovna Rada, as a culmination of mass anti‑government protests.[110] Yanukovych fled the capital shortly after the protesters established control over the presidential palace’s perimeter. The following day, the Rada established that Yanukovych had ‘unconstitutionally removed himself from the exercise of constitutional powers and is not fulfilling his duties’, thus confirming the ‘self‑removal’ and scheduling a new election.[111] The presidential powers were transferred to the speaker of the Rada, Oleksandr Turchynov. The resolution sanctioning Yanukovych’s removal was not in accordance with the constitutional provision on impeachment,[112] nor was it meant to be. The ominous ‘self‑removal’ is not a destitution procedure provided for in the Constitution of Ukraine. However, most of the international community barely questioned the constitutionality of the Rada’s actions.[113]
Both ousted heads of state enjoyed electoral legitimacy. So did both legislatures who voted for their removal. Both interim Presidents rushed to schedule new elections. Moreover, the Honduran National Congress’s vote on Zelaya’s removal appears to have been more in line with the constitutional text, referred to as a ‘poison pill’[114] for those attempting to extend their time in office, than the procedure of ‘self‑removal’ improvised by the Verkhovna Rada. Finally, Zelaya seemed as far ideologically from the West as Yanukovych did, the former being politically aligned with Hugo Chávez of Venezuela and the latter with Vladimir Putin of Russia.
The factor that seems to have come into play to benefit Zelaya’s claim to legitimacy was that his ouster from the country was perpetrated by the military. Yanukovych’s escape from Ukraine, first to Kharkiv and then to Russia, did not appear forced by the Ukrainian military. Nor did the Ukrainian military play a decisive role in the 2014 regime change.[115] It should also be noted that the near‑unanimous disqualification[116] of Yanukovych’s continued claim as the legitimate President stemmed less from the constitutional validity of the Rada’s vote than from the purpose of his continued recognition by the Russian Federation. It is worth remembering that Russia had initially used the electoral legitimacy argument to frame its occupation of the Crimean Peninsula as an intervention by invitation.[117]
Finally, although both the UN and OAS General Assemblies called for nonrecognition of the Micheletti government, several states did not go further than extending political recognition to Zelaya’s government-in-exile. For example, while recognising Zelaya ‘as the only legitimate president of Honduras’, the US has not recalled its ambassador, thus continuing to deal with the effective regime.[118] Similarly, Canada has maintained relationships with both entities.[119]
Are there any consequences of an apparently sham election regarding government recognition? In general, rigged elections do not trigger recognition crises.[120] At best, states and international organisations can voice their disapproval of how the internal political process was organised, typically relying on the international observers’ criticism. This, however, does not lead them to question the capacity of the government thus elected to represent its state in international relations. In recent practice, it was only explicitly questioned in two cases: the 2019 Venezuelan presidential crisis and the aftermath of the 2020 contested presidential election in Belarus. The EU[121] and the USA[122] adopted targeted sanctions aimed at persons and entities responsible for the election fraud, the crackdown on the rule of law and the post‑electoral violence in Belarus (the former also targeting the President, Aleksander Lukashenka). Similarly, the EU and the USA[123] have also sanctioned the Venezuelan effective government for ‘undermin[ing] democracy or the rule of law’.[124] However, only the Guaidó shadow interim government has been received as representative of Venezuela by these actors, accredited within the OAS[125] and ‘recognised’ — or so it seems — by at least 57 states to the detriment of the effective authorities. During the debate within the UN General Assembly on the credentials of representatives to the 74th session, 20 states made it clear that accepting the credentials of the delegation of the Maduro government by the Assembly should not be interpreted ‘as a tacit recognition’ of his claim to represent Venezuela.[126]
The most plausible explanation for differing reactions is the US’ persistence in vindicating Guaidó’s claim in international fora[127] and bilateral relations with its allies. However, the American and OAS argument relied on legalistic reasoning that, albeit not without its incoherencies, was challenging to construe for the Belarusian opposition’s benefit. The line of reasoning supported by the US and the OAS can be summarised as follows. The 2018 presidential election was manifestly un-free and unfair because it was deemed to have taken place ‘without the necessary guarantees for a free, fair, transparent, and democratic process’.[128] The head of state thus elected is, consequently, illegitimate. Hence, his claim to the presidential mandate lacks validity in domestic constitutional law. Absent a validly elected head of state, the constitutional provisions on vacancy should apply, namely art 233 of the Constitution of the Bolivarian Republic of Venezuela 1999 (‘Venezuelan Constitution’), among others. According to this provision:
When an elected President becomes permanently unavailable to serve prior to his inauguration, a new election by universal suffrage and direct ballot shall be held within 30 consecutive days. Pending election and inauguration of the new President, the President of the National Assembly shall take charge of the Presidency of the Republic.[129]
This procedure was followed by Guaidó’s shadow government. Guaidó’s interim presidency seems, therefore, rooted in the constitutional law. However, even barring the question of the legitimacy of foreign actors substituting their appreciation of constitutional legality for that of domestic courts, this argumentation is fragile in at least two respects. The obvious flaw is the problematic link between an election’s conformity with ‘international standards’ and the validity thereof in domestic law. A less obvious flaw is that art 233 of the Venezuelan Constitution defines presidential vacancy as the outcome of any of the following events:
death; resignation; removal from office by decision of the Supreme Tribunal of Justice; permanent physical or mental disability certified by a medical board designated by the Supreme Tribunal of Justice with the approval of the National Assembly; abandonment of his position, duly declared by the National Assembly; and recall by popular vote.[130]
The competence of the National Assembly to declare a ‘usurpation of the Presidency of the Republic’ based on an extensive interpretation of various provisions of the Venezuelan Constitution[131] may thus appear problematic. This interpretation was strengthened by Juan Guaidó’s claim that Nicolás Maduro is a usurper in terms of art 138 of the Venezuelan Constitution, according to which ‘[a]n usurped authority is of no effect, and its acts are null and void’. However, the text is silent on the identity of the ‘legitimate’ government in cases where usurpation takes place. Moreover, it seems difficult to argue that an authority emanating from the National Assembly elected in 2015 is a form of realisation of the Venezuelan people’s duty to ‘disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights’, according to art 350 of the Venezuelan Constitution.
Still, what cannot be taken from Guaidó’s argumentation is that the National Assembly enjoys electoral legitimacy thanks to its victory in the 2015 parliamentary election. On the contrary, Tsikhanouskaya’s claim to represent Belarus internationally derives its justification solely from the purported illegitimacy of the process that resulted in her electoral defeat. No formal evidence of popular support was thus available at her disposal to strengthen her argument. The prominence of the constitution‑based argument has also been evidenced by the fact that the EU stopped (politically) recognising Guaidó when his constitutional term as President of the National Assembly elapsed.[132]
Despite being more successful than its Belarusian counterpart, Guaidó’s claim to represent Venezuela internationally was anything but unanimously acclaimed. As of the end of 2020, at the peak of the presidential crisis, only 11 out of 57 countries that declared for Guaidó have also effectively ended their relations with the Maduro government.[133] Most ‘recognitions’ extended to Guaidó were worded as political endorsements and could by no means have been read as questioning Maduro’s capacity to act and speak on behalf of Venezuela. Even within the OAS, although most Latin American countries recognised Guaidó’s government,[134] the decision to accredit his representative within the OAS General Assembly provoked multiple objections.[135] The resolution of the OAS Permanent Council on the issue was adopted by a thin majority of member states. In fine, as much as both electoral crises have attracted significant international attention and generated burgeoning political discourse, neither succeeded in supporting the idea that, in some cases, a manifestly sham election could lead to derecognition.
Finally, government recognition practice tends to be less informed by the free and fair election standard when the state in question is outside the regional defence‑of‑democracy mechanisms’ ambit.[136] This seems to partially explain the significant hesitation to recognise Afghanistan and Myanmar’s governments‑in‑exile consisting of elected officials but denied effective control by, respectively, the Taliban and the military junta. On one hand, the UN General Assembly continues to seat the representatives of ousted governments.[137] In respect of Myanmar, the language used in the Security Council Resolution 2669 strongly suggests that the effective government, referred to as ‘the military’, does not represent ‘the people of Myanmar’.[138] Likewise, the EU has adopted a wide‑ranging package of restrictive measures against the effective government of Myanmar.[139] On the other hand, neither the Afghani government-in-exile led by the first Vice-President under the Islamic Republic of Afghanistan, Amrullah Saleh, nor the National Unity Government (‘NUG’) of Myanmar managed to gain recognition. The NUG’s quest for recognition is grounded in an ambitious interpretation of art 21(3) of the Universal Declaration of Human Rights (‘UDHR’) as bearing consequences on the recognition of governments.[140] Despite expressing solidarity and establishing contacts with the NUG,[141] most states do not recognise it de jure.[142] Instead, they tacitly maintain dealings with the effective Myanmar government.[143] The dominant attitude of most states amidst the Taliban takeover on 15 August 2021 was that of political nonrecognition powered by mostly human rights‑based legitimacy concerns. They did not, however, rush to recognise Saleh’s government-in-exile, despite its claim being rooted in Afghani constitutional law. Instead, most states preferred statements on conditional recognition of the Taliban.[144]
Although Myanmar’s National League for Democracy’s electoral legitimacy is often cited as grounds for establishing contacts with NUG, it does not seem to be the overriding concern. The hesitation to formally recognise the current Afghanistan and Myanmar effective leadership stems more from the grave violations of human rights[145] they have been perpetrating than from their lack of electoral mandate compared to the governments-in-exile.
Such a correlation seems to be a conjunctural, rather than legal, explanation. It is essential to note that the regional defence‑of‑democracy framework cannot be considered as a legal warrant for any foreign state to enforce its clauses through government recognition. On the one hand, treaty obligations regarding internal political structure, if they can indeed be unequivocally interpreted as such,[146] are inter partes. On the other hand, no defence‑of‑democracy mechanism can be interpreted as implying a member state should be sanctioned for breach by collectively denying its government the capacity to act and speak on its behalf.
Human rights concerns are just as present in all the cases surveyed as in the last two: the mere fact of winning an election is far from the only reason one would favour an elected government over an effective one.[147] Factors such as the outstanding electoral score of the ousted entity (Myanmar, Haiti, Sierra Leone), mass protests in favour of the ousted entity and against the effective government (Haiti, Sierra Leone, Venezuela, Belarus), the effective government’s track record of human rights violations (Afghanistan, Myanmar) and political or strategic considerations (Myanmar, Yemen, Ukraine) should be accounted for as well. These processes, taken separately, never suffice for foreign states to question the effective government’s capacity to speak on behalf of its state.[148]
Once political endorsements and applications of defence‑of‑democracy mechanisms are distinguished from government recognitions in the legal sense of the term, the extent to which the latter is informed by the ‘free and fair election’ standard appears relatively modest. However, the repeated reliance on electoral legitimacy and attempts to broaden its relevance beyond black‑and‑white contests between popular democrats and unpopular military juntas inevitably raises the question of its impact on the international legal understanding of government.
While accounting for the circumstances in which the attainment of an electoral mandate is likely to become the legal recognition criterion, the present explanatory framework also showcases the overall reluctance of states to extend this category further. This setting, particularly given the resurgence of the political recognition practice, indicates the general attachment of most states to the traditional benchmark of effective control. To some extent, exceptional reliance on electoral legitimacy can be compatible with this benchmark. There are, however, at least two reasons why the use — and the abuse — of the criterion can trigger adverse consequences. These pertain to the substantial indeterminacy of the benchmark, both in terms of coming up with an agreed‑upon definition of what a free and fair election is for the purposes of government recognition, as well as with a threshold that would allow for discarding the lack of effective control.
It is nearly impossible to draw normative implications from the free and fair election standard as somehow constraining recognition given its limited ambit and important variations in state practice otherwise. Nor could the quest for electoral legitimacy of governments be seen as an indicator of the existence of a right to democratic governance in customary international law. Despite a scholarly trend towards affirming that the state’s free choice of its political system is currently reduced[149] — or will be reduced soon,[150] or, at least, should be reduced[151] — to different variants of electoral democracy, there is little evidence that customary international law endorses such a reading.[152] Nor do the handful of cases cited above build up to a convincing argument in favour of such democratic entitlement.
Moreover, election‑related recognitions are frequently seen by states as unlawful interferences in their domestic jurisdiction.[153] Numerous OAS member states have voiced objections in this vein when the issue of representation of the Guaidó government within the organisation’s General Assembly was put to vote.[154] Prominent writings on the doctrine follow suit. Foreign governments’ judgments on the quality of internal political processes and the compliance thereof with the domestic legal framework on elections have recurrently been treated as problematic by international legal scholars.[155] Such incursions seem at odds with the peoples’ right to self‑determination as encompassed in the 1970 Friendly Relations Declaration, namely with the right of all peoples to freely determine, ‘without external interference, their political status and to pursue their economic, social and cultural development’.[156] The qualification seems particularly founded given the consequences of government recognition, particularly when powerful regional or global actors are implicated. The prospects of intervention by invitation of a government-in-exile[157] or that government’s ratification of international treaties on behalf of the state it claims to represent[158] can indeed amount to ‘coercion’, and thus, to unlawful interference.[159]
Such a qualification, however, is accurate only if we consider that (1) an international legal definition of what constitutes a ‘government’ exists and (2) the concern for electoral legitimacy is extraneous to this definition. Hans Kelsen suggests this in his 1941 article, later referenced in the ILA’s Third Report on Recognition/Non‑Recognition in International Law.[160] Kelsen defines the concept of government, ‘according to the norms of international law’, as ‘the individual or body of individuals which, by virtue of the effective constitution of a state, represent the state in its relations with other states’.[161] It stems from this definition that (1) only effective governments can validly act and speak on behalf of states and (2) electoral legitimacy does not impact the effective control thus required.
The first branch of the definition finds its confirmation in international legal practice, both before and after the end of the Cold War. As outlined by William H Taft in the oft‑cited[162] Tinoco Claims Arbitration, a government, in the international legal sense, is an entity that exercises ‘de facto sovereignty and complete governmental control’ over both the population and territory of the state.[163] Considerations such as ‘its illegitimacy or irregularity of origin’ would be irrelevant in this respect, particularly in the law of international responsibility.[164] Likewise, a state can be held responsible for breaches of international obligations by an effective but unrecognised government constituted on its territory.[165] Moreover, effective but unrecognised governments and local legal orders can enter into international agreements.[166] This practice is read by international legal scholarship as enshrining ‘effective control’ or ‘effectiveness’ as a ‘principle’ of international law[167] or ‘the key constraint imposed by customary international law’.[168] In a similar vein, the 1950 Memorandum on the Legal Aspects of the Problem of Representation in the UN insists that
[w]here a revolutionary government presents itself as representing a State, in rivalry to an existing government, the question at issue should be which of these two governments in fact is in a position to employ the resources and direct the people of the State in fulfilment of the obligations of membership. In essence, this means an inquiry as to whether the new government exercises effective authority within the territory of the State and is habitually obeyed by the bulk of the population.[169]
However, the post‑Cold War practice has yielded precedents of generally recognised but ineffective elected governments validly representing their states in universal and regional international organisations. As the Gambian case shows, such governments can go as far as to request and receive foreign military aid in order to unseat effective but unrecognised governments. From the OAS perspective, elected but ineffective governments can enter into international agreements binding on the state they claim to represent. In light of the recent practice, it appears challenging to continue to regard effective control as the sole objective condition of governmental legitimacy that would generally be indifferent to the foreign states’ judgments on its legitimacy.[170]
Moreover, several precedents seem to suggest a discrepancy between the identification of the government for the purposes of the law of international responsibility on the one hand, and that for the purposes of identifying an interlocutor capable of speaking on behalf of the state in international relations on the other. From the perspective of the ECOWAS Court of Justice, an effective but unelected government can be a respondent, but not a claimant, before an international tribunal. At the UN, Myanmar is represented by the government‑in‑exile in the General Assembly. However, it is the military government that is representing Myanmar before the ICJ in The Gambia v Myanmar case.[171] The military government of Myanmar was also invited to the UN Human Rights Council ‘special session’ on 12 February 2021, the purpose of which was to address the human rights implications of the crisis in Myanmar.[172]
Still, effective control remains relevant. The resurgence of the political recognition practice illustrates the continued reliance on effectiveness as a dominant, if not exclusive, benchmark for government recognition. In their government recognition policies, states frequently pursue two competing goals: stability of international relations on the one hand and electoral democracy promotion on the other. The need to accommodate both has pushed states and international organisations to embrace the distinction between legal and political recognition. Contrary to pre‑UN Charter practice, contemporary recognition acts seldom specify whether they are legal — pertaining to recognition stricto sensu — or political.[173] Their nature can be deduced from the language used: (non)recognition declarations can generate different legal effects depending on their wording.[174] As stressed above, numerous states have extended political recognition to Guaidó while simultaneously maintaining diplomatic relations with Maduro as the legal representative of Venezuela.[175] This is also the case of the NUG of Myanmar: despite being granted representation within the UN General Assembly, it has mostly been harnessing political, not legal, recognition. In this respect, national courts are not infrequently confronted with distinguishing between political endorsement and recognition stricto sensu.[176]
The most telling illustration of distinguishing between legal and political recognitions is the proclivity of regional organisations to use the ‘r‑word’ when imposing defence‑of‑democracy sanctions. While it is entirely possible that an international organisation would accompany its decision to suspend a member state from participating in its bodies with an exhortation ‘to bring about the diplomatic isolation of those who hold power illegally’[177] and would label its government as ‘the de facto authorities’,[178] these declarations do not amount per se to automatic derecognition. Furthermore, it does not seem entirely unreasonable to suggest that, in some events, suspension and exclusion of a member state from an international organisation may amount to tacit recognition of its government as it is that government (and not any competing entity) which is held responsible for the breach of the organisation’s charter.[179] While regional organisations such as the African Union and the OAS systematically tend to endorse elected governments over effective ones, a more nuanced inquiry into the legal nature of their responses warrants more nuanced conclusions regarding this tendency. It is only occasionally that declarations on (non)recognition issued by the African Union bear consequences on the issue of representation within their midst or in bilateral relations with them.
Relevant also is how the African Union dealt with the 2010 Ivorian and 2017 Gambian election crises. Although it issued a statement of recognition of Ouattara ‘as the President‑Elect of Côte d’Ivoire’, it proceeded to suspend the member state ‘until such a time the democratically elected President effectively assumes State power’.[180] This solemn declaration of recognition seems to reflect the political consensus on the desirability of Ouattara’s accession. At the same time, the Gbagbo government’s capacity to act and speak on behalf of Côte d’Ivoire was presumed, as this government had been targeted by the suspension. The Gambian crisis, which was similar except for the absence of UN involvement, was treated differently by the pan‑African organisation. The African Union did not stop at issuing political recognition of Barrow as the new President but also acknowledged his capacity to represent The Gambia within its organisation.[181] In other words, the African Union acted upon a presumption of a transfer of power when, in fact, there was none. At the time the African Union recognised him, Barrow lacked effective access to his office as the head of state just as much as Ouattara did when Côte d’Ivoire was suspended.
In this respect, the OAS recognition practice is more consistent. Although the 2009 Honduran military coup and the 2019 Venezuelan constitutional crisis triggered different reactions on the organisation’s behalf, both resulted in the denial of governmental legitimacy to the entity in effective control. In 2009, while the UN General Assembly gave teeth to its political declaration of nonrecognition by continuing to accredit the ousted government’s representatives within its organisation, the OAS General Assembly decided to suspend Honduras altogether. This suspension from representation may have amounted to an implicit acknowledgment of the effective power succession. However, such an acknowledgment did not prevent the OAS from considering as null and void the notification of withdrawal deposed by the Micheletti government on the ground that government was ‘not recognized as the legitimate government of Honduras’,[182] thus denying it the capacity to terminate international agreements in respect of the state it claimed to represent. In 2019, however, instead of suspending Venezuela, the OAS Permanent Council added to its condemnation of Maduro’s new presidential term as lacking legitimacy with the accreditation of the rival government’s representative, Gustavo Tarré.[183] Provided that Tarré’s accreditation helped secure Venezuelan membership in the OAS, notwithstanding the notification of withdrawal issued by Maduro’s government[184] before its derecognition by the OAS, such a difference in treatment can be explained by considerations of political expediency.
The current practice does not stop at mere expressions of political preference for elected but ineffective governments to the detriment of unelected but effective governments. Numerous election‑based political recognitions have resulted in alternative arrangements for the former without effectively derecognising the latter. The most prominent examples are parallel accreditations and representation of elected governments as ‘legitimate representatives of the people’[185] or ‘democratic representation’ of the country.[186] Creating various fora[187] or representative offices[188] for entities acting as legitimate governments-in-exile allows for cooperation and assistance without undermining the continuous course of relations with effective authorities, particularly when the chances of the effective authorities’ downfall are slim. The rediscovery of political recognition as a pressure tool has thus led to a proliferation of new forms of representation of elected but ineffective governments, neither of which amounts to diplomatic representation in the legal sense.[189] However, it should be noted that political qualification of opposition groups as ‘legitimate representatives’ can also be granted to unelected, ideologically affiliated entities absent clear criteria of representativity in state practice.[190]
The resurgence and fine‑tuning of the political recognition practice only underscores the attachment to the effective control benchmark by most states, primarily due to its practicality. Though not a principle that would be binding on states in their recognition practice,[191] effective control remains the most practical criterion[192] in light of the very purpose of government recognition, ie, establishment and maintenance of stable international relations[193] in a decentralised[194] and ideologically heterogeneous legal order.[195] A government appears, in general, to be more able to fulfil the state’s international obligations when it is in control of public institutions, capable of engendering obedience of the population, and doing so consistently. In other terms, an effective government is more ‘en mesure d’engager l’Etat qu’ [il] [prétend] représenter’[196] than a government-in-exile. Moreover, the effectiveness–legitimacy nexus can be mutually reinforcing: the manifest denial of the electoral mandate to an entity in control of public institutions can constitute a relevant indicium of the absence of the consent of the governed, thus disproving the claim of full effective control.
In view of these developments, the current trend in international legal scholarship sees effective control as the general rule, which yields a rebuttable presumption of governmental legitimacy. In Stefan Talmon’s extensive account of government recognition practice, only in cases of international illegality of the effective government can a government-in-exile be regarded as the state’s lawful representative. He further observes that, to be granted recognition, the government-in-exile must claim to represent an existing state, be independent and convincingly demonstrate that it is generally representative of the state’s population.[197] The representative character of an entity can be deduced, inter alia, from the electoral legitimacy thereof. Following Professor Brad Roth’s line of reasoning, clear‑cut cases of military coups against elected governments, as in Haiti in 1991 or Sierra Leone in 1997, can be seen as rebuttals of the general presumption of representativeness bestowed by the effective control established via internal processes.[198] In such events, replacing a government produced via a free and fair election with an unpopular military junta or an incumbent refusing to abide by the election result can be conceived as a manifest repudiation of the popular will. Such a repudiation would contradict the principle of self‑determination as it would deny the people the right to have a representative government.
Thus, taking electoral legitimacy into account can prove helpful, in the event of power crises, to ascertain whether the government that claims itself effective has popular support. The effective exercise of state authority cannot be established without the acceptance[199] of the governed,[200] either formally expressed via domestic political process or substantially implied from the population’s habitual obedience.[201] The prospects of governments that manifestly lack popular support appear to be shaky. An effective domestic legal order emanating from a political community and respected by most of it also provides a general presumption of the former’s conformity with the popular will.[202] Classically, it has been affirmed that
[t]he stability and permanence of a government is certainly enhanced by the presence of popular support for it. A régime which has proved, by genuine elections, to enjoy such support may claim that it has given evidence of its stability.[203]
In the context of ever‑expanding treaty standards and the rise of international election monitoring, the score obtained at a free and fair election appears as a more reliable indicator of genuine popular support than passive acquiescence, especially amidst a power crisis.[204] Especially if accompanied by mass protests and refusals to cooperate with the unelected but effective regime,[205] it seems rational in borderline cases, to rely on electoral legitimacy as evidence of popular support of the ousted government and, consequently, of popular rejection of the seemingly effective authority.
This explanation aligns with the limited ambit of the free and fair elections standard for the purposes of legal recognition. It must, however, contend with the substantial indeterminacy of the latter that can result in arbitrary applications thereof.
Using the ‘free and fair election’ standard when inquiring into the regime’s popular approval can, however, appear pernicious for two intertwined reasons.
Even if one contends that the explicit denial of an electoral mandate may question the representative character of an effective government, the extent to which this circumstance may legally override any consideration of effectiveness remains unclear. The manifest repudiation scenario described above was perceptible in the oft‑cited cases of Haiti and Sierra Leone, with both military juntas being confronted with refugee flows, mass protests and a grave breakdown in law and order.[206] However, Jammeh faced no such threat to the effective control of state institutions when his refusal to relinquish power after the electoral loss was deemed illegitimate. The only threat he faced emanated from the ECOWAS intervention on Barrow’s invitation. Though attached in their general practice to the effective control benchmark, no member of the Security Council characterised the radical departure from it as ‘exceptional’ or ‘unique’ in the Gambian case, thus allowing it to be treated as precedent.[207] Moreover, the characterisation of Jammeh as a ‘former president’ was unanimous before the adoption of Resolution 2337. As Professor Olivier Corten observes, ‘[n]ever has an authority devoid of any effective control been able to issue an invitation capable of forming an autonomous legal basis for outside military intervention’.[208]
In this vein, one should ask whether the Gambian case can be interpreted as an instance of emancipation of the free and fair election criterion that would ultimately trump effectiveness in specific cases identified in our framework. Should international law support such a reading, a free and fair election should be validly considered as the autonomous indicator of popular support in cases of disputed authority triggered by coups against an elected government or refusals to relinquish power after electoral defeat. Consequently, in such cases, effective control would be completely irrelevant. Interventions by invitation in such cases would also be legal. On the one hand, one could see the wariness of international legal actors in fully embracing this position in a search for accessory legal grounds for the ECOWAS intervention in the Gambian case.[209] On the other hand, one could advocate for such substitution by arguing that
[a]n inquiry, where possible, into the fairness of elections and the position of international organisations should allow principled distinctions to be made. Where international opinion is united, no further resort to the legal fiction of protecting ‘choice’ is necessary.[210]
Thus, the question determining the exact extent to which electoral legitimacy can legally supplant effective control in borderline cases remains unanswered. If not outright illegal, a complete repeal of the ‘effective control through internal processes’ test in favour of the electoral legitimacy benchmark, even when advocated in the limited circumstances previously identified, may still be pernicious. If one systematically[211] assumes the capacity of an elected but overthrown government to request military aid aimed at restoring/installing it to power amid a large, internal turmoil and against, say, a widely popular military junta, whither self‑determination of peoples? Can one presume, beyond a reasonable doubt, that the bulk of the population intends to obey the elected government instead of a charismatic authoritarian military chief? Although it is a textbook case, this dilemma challenges the presumption that is currently gaining ground in international legal practice. The most reasonable solution in this respect seems to adhere to the principle of non-intervention in civil wars as developed in the workings of the Institut de Droit International.[212] Together with the prohibition of military assistance aimed at supporting an established government against its own population,[213] the principle appears as an adequate safeguard against intervention by invitation abuse. One should, however, be aware of insufficient support for the principle lex lata and of potential challenges in its practical implementation.[214] But even if the perspective of intervention by invitation is ruled out, the generation of adverse consequences due to the substantial indeterminacy must be considered.
The electoral legitimacy test contains an inherent limitation: it can only offer a presumption of public support rather than an empirical measure thereof. According to its logic, the extent to which a government represents the states’ citizens depends on the quality of the electoral process that has culminated in its investiture. The popular vote’s capacity to reflect the citizenry’s will is not subject to discussion. A free and fair procedure eliminates the need to inquire further into the existence of substantive discontents. After all, according to the understanding of democracy deduced from international legal instruments, self‑government can be satisfied by granting full voting and eligibility rights to the states’ citizenry. Questions of effective political equality and genuine political participation of all segments of the population rarely constitute a subject of international concern.[215]
Even if one is ready to accept such a presumption for the purposes of government recognition, there should be an agreement on what a free and fair election is. Such an agreement can, for example, be deduced from universal treaty standards, namely from the International Covenant on Civil and Political Rights (‘ICCPR’). It enshrines the right to free and fair elections as well as civil and political rights instrumental to the quality of the former. The guarantees of art 25 of the ICCPR, namely the right to participate in public affairs either directly or via a free and genuine electoral process by universal suffrage of adults and by secret ballot, are further specified in the General Comment No 25 of the UN Human Rights Committee (‘HRC’). It is true that this provision is subject to a wide range of limitations and is silent on the powers exercised by the elected authority, which can be pivotal in determining whether the executive can be held politically accountable.[216] Similarly, it is ambiguous on the requirement of multipartyism.[217] Although clearly falling short of requiring genuine political democracy,[218] the procedural guarantees required by this provision can be seen as the minimum agreed‑upon standard for an election to even be considered consistent with the object and purpose of an almost universally ratified treaty. As for regional organisations, it would seem logical to expect them to ground their assessments of freedom and fairness of national political processes in regional treaty standards and supplement them with non-binding best practices.
If one is hesitant to embrace such a watered‑down standard, the evidence of the quality of national electoral processes can be established via reports of international monitors.[219] Although not mandatory, and dependent on the consent of hosting states, election monitoring, especially when effectuated by a professional group abiding by a strict code of conduct, may provide foreign actors with relevant information. Most monitors also tend to collect firsthand evidence and analyse all stages of the electoral process against the backdrop of international best practices, allowing for more rigorous and comprehensive assessments than the HRC’s concluding observations.
When states and international organisations inform their recognition decisions by electoral legitimacy considerations, what does a ‘free and fair election’ mean in their discourse? Is such an understanding of ‘freedom’ and ‘fairness’ sufficiently consistent and uniform? To what extent does it match the loose treaty standard outlined in art 25 of the ICCPR or the international monitors’ conclusions?
An overview of the relevant international practice whereby the ‘free and fair’ standard was used for government recognition by states or international organisations yields at least four different understandings of this benchmark. There appears to be no dominant definition of ‘freedom’ or ‘fairness’ of an election for government recognition.[220] Furthermore, there is a modest development in favour of the common understanding of what an un-free and unfair election is to the point that it can affect (political) government recognition.
Judging the quality of a foreign state’s domestic political process can be particularly tricky, especially when no firsthand evidence is available. International observers’ judgements can be helpful in this respect. Similarly, one can consider an election to be ‘free and fair’ if it is deemed so by the UN. The UN may ascertain the quality of the national electoral process by engaging in substantive involvement in its monitoring. The 1990 Haitian presidential election was observed by a large UN mission authorised by the General Assembly.[221] The UN Secretariat also deployed an assistance mission to help organise the first open election in the nation’s history. The 2010 Ivorian presidential election featured even more extensive UN involvement. Being paramount for the implementation of the peace agreement endorsed by the UN Security Council,[222] the election was subject to certification by the Special Representative of the UN Secretary‑General.[223] The UN peacekeeping mission, deployed in Côte d’Ivoire since 2005, was tasked with assisting in the electoral process.[224] Prior to the electoral process, the Council issued a warning that
any threat to the electoral process in Côte d’Ivoire, in particular any attack or obstruction of the action of the Independent electoral Commission in charge of the organization of the elections ... shall constitute a threat to the peace and national reconciliation process ...[225]
These examples have led several authors to conclude that, by qualifying blatant disregard for the results of a UN‑certified election as a threat to international peace and security, the UN Security Council would enforce electoral outcomes thus obtained.[226] Such an interpretation seems inspired by the 1991 UN General Assembly resolution on Haiti that links previous electoral assistance to the call for restrictive measures against the military junta.[227] Determinacy of the criteria used by the UN observers was relied upon to appraise the efforts to restore the elected government in Haiti.[228] This argument has little explanatory value once placed in the context of similar cases treated differently by the UN. Firstly, the Sierra Leonean 1996 general election did not benefit from comparable international support. Sierra Leone did indeed request and receive the UN Development Programme’s assistance and President Kabbah’s electoral victory was indeed witnessed by the Secretary‑General’s Special Envoy.[229] However, no proper UN observation mission was deployed. Additionally, no reaction comparable to that in previous cases occurred when Angola descended into civil war after thwarting the result of a UN‑monitored general election in 1992.[230] Finally, there is no correlation between the degree of UN involvement in the electoral process and the Security Council’s reaction to the repudiation of its results. Power crises in Mali and Guinea‑Bissau in 2012 were qualified as threats to international peace and security despite no prior UN involvement in their respective electoral processes. The decisive criteria are, first and foremost, the impact of such disregard for the security situation and the extent to which the electoral process was instrumental in implementing a UN‑brokered peace process. Furthermore, as stressed before, not every such threat to peace and security yields a situation of rival governments and, henceforth, does not necessarily bear repercussions on government recognition.
The absence of legitimation via UN monitoring does not prevent government recognition acts from describing the results of national political processes as ‘free and fair’. Zelaya’s electoral legitimacy as the Honduran head of state was unquestioned in 2009, although his electoral victory in 2005 was narrow (49.90% against 46.22% obtained by the runner‑up). After all, the OAS commended the electoral process that provided him with the presidential mandate.[231] Conversely, the absence of (credible) international observers followed by the incumbent’s win seems to be an important factor leading foreign actors to doubt the overall legitimacy of the electoral process. The 2018 Venezuelan and 2020 Belarussian presidential elections are cases in point: both were conducted in the absence of respected observer groups.
Still, an election can be deemed ‘free and fair’ by foreign states even in the near absence of international monitors. The mere fact of an opposition victory against a powerful incumbent with autocratic tendencies is sometimes sufficient to gather support. The 2016 Gambian presidential election yielded a ‘shock election result’,[232] with the opposition candidate overpowering the longtime incumbent vying for his fifth term. Prior to the election, however, the ECOWAS refused to send an observation mission. Nor were the EU monitors invited. As Professor Erika de Wet reported, ‘the election results were monitored by only a handful of African Union election observers, and the results were also domestically contested’.[233] All other things notwithstanding, the 2016 election was deemed ‘transparent’ by the UN Security Council Resolution 2337.[234]
In a similar vein, the process that led to the Venezuelan opposition’s victory in the 2015 parliamentary election was not witnessed by international observers.[235] Various observer groups voiced concerns over the fairness of the process.[236] Furthermore, the election result was successfully challenged before the Supreme Tribunal of Justice of Venezuela.[237] As in the Gambian case, the absence of material evidence of ‘freedom’ and ‘fairness’ in the 2015 electoral process did not stop numerous Western and Latin American states from extending government recognition to Guaidó.
Finally, even a kind of election which has as its only virtue that it took place in accordance with the domestic legal framework and, eventually, with limited UN technical assistance, can sometimes be enough. In the aftermath of the Taliban’s takeover in Afghanistan in 2021, Canadian Prime Minister Justin Trudeau declared that ‘Canada has no plans to recognize the Taliban’ because ‘[t]hey have taken over and replaced a duly elected democratic government by force’.[238] Likewise, declarations stressing the NUG’s electoral legitimacy to represent Myanmar internationally gloss over the lack of international observers’ consensus on the fairness of the 2020 general election.[239] This understanding, however, does not harness substantial international support: most nonrecognitions of the Taliban and Myanmar’s military governments stem from their grim human rights track records and not from the electoral legitimacy of ousted governments.
When tying recognition to the quality of a national electoral process, states never explain why they believe the election to be ‘free’, ‘fair’, ‘democratic’, or conversely, ‘deeply flawed’.[240] The UN Security Council, the African Union Peace and Security Council, and the OAS General Assembly and Permanent Council resolutions rarely[241] explain that either. Neither treaty standards nor international best practices are relied upon in recognition acts. Moreover, in the Gambian and Venezuelan cases, the outcome — opposition victory — seems to legitimise the process. This approach is clearly at odds with the procedural understanding of the free and fair standard in the treaty law, the very understanding that the aforementioned organisations are promoting.
Even if some of the reported qualifications make sense politically, a major conceptual inconsistency remains from the legal standpoint. As long as states inform their understanding of freedom and fairness of electoral processes in foreign countries by vague and inconsistent criteria, no normative implications from its use should be drawn. An under‑developed benchmark as a mandatory reference point will not make government recognition practice more coherent and would, at worst, authorise impositions of foreign ideology legitimised as ‘interventions by invitation of a democratically elected government’. It is doubtful that such incursions are aimed at testing popular approval. It is even more doubtful that such incursions are an adequate means of promoting electoral democracy.
In 1947, Sir Hersch Lauterpacht famously outlined a solution to ascertain that a government is as representative of its state as it is of its people, by postulating that
only a vote accompanied by effective, ie internationally supervised, guarantees of electoral freedom both before and during the voting could afford some assurance of reflecting the considered wishes of the majority of the people and thus afford a satisfactory test of popular approval. There is no reason why, once collective recognition based on the principle of consent of the governed has become a rule of international law, the international organization of States should not develop organs and procedures for achieving that object. The practice of internationally supervised plebiscites provides some useful lessons in this respect. Pending that consummation, the test of subsequent legitimation will often remain deficient in its operation.[242]
Although human rights law and international monitors’ best practices have contributed to better determinacy of what a free and fair election is since 1947, this development bears modest and contradictory repercussions on government recognition practice. While this practice has undeniably moved towards the system envisioned by Lauterpacht and, to some extent, has even endorsed its logic, international law still falls short of endorsing it as a rule. Relying on the free and fair election standard for the purposes of government recognition is not mandatory and may, in some circumstances, raise legitimate doubts about its legality. Although this benchmark has been heavily relied upon in recent political discourse, it is only in a limited set of circumstances that it has been used to grant government recognition in the legal sense of the term. A free and transparent electoral process provides a tangible presumption of popular support when two or more independent entities claim to represent an existent state internationally. One should, however, refrain from drawing normative implications from the repeated reliance on electoral legitimacy. In its present shape, the problem with its usage lies not as much in its very limited ambit as in the lack of conceptual determinacy that persists notwithstanding the acquis of the treaty law on the rights of political participation. In this sense, we are still far from Lauterpacht’s test of popular approval via a free and transparent electoral process. In the current state of international law, it remains — as it probably should — an impossible dream.
[*] PhD student, Aix-Marseille University. The abbreviated version of this research paper was presented at the workshop of the European Society for International Law (‘ESIL’) Interest Group on European and International Rule of Law, a side event to the ESIL 2023 Annual Conference (Aix-en-Provence) on 31 August 2023. All links were last accessed on 13 August 2024.
[1] ‘Interactive Map: Degrees of Diplomatic Recognition of Guaidó and Maduro’, Venezuelan Politics and Human Rights (Web Page, 15 October 2020) <https://www.venezuelablog.org/interactive-map-degrees-of-diplomatic-recognition-of-guaido-and-maduro/>, archived at <https://perma.cc/QQ9L-J6JZ> (‘Interactive Map’).
[2] See, eg, Organization of American States, General Assembly, Resolution on the Situation in Venezuela, Doc No AG/RES.2929 (XLVIII-O/18), 5 June 2018, para 1 (‘General Assembly Resolution on the Situation in Venezuela’) declaring the election of 18 May 2018 to have been held ‘without the necessary guarantees for a free, fair, transparent, and democratic process’. This was followed by United States of America: Draft Resolution, UN Doc S/2019/186 (28 February 2019) para 1, proposing that the UN Security Council express its ‘deep concern that the presidential elections of May 20, 2018 were neither free nor fair’. Belgium, the Dominican Republic, France, Germany, Kuwait, Peru, Poland, the United Kingdom and the United States voted in favour: 8476th mtg, UN Doc S/PV.8476 (28 February 2019) 3 (‘Situation in Venezuela’). See also Council of the European Union, ‘Declaration by the High Representative on Behalf of the EU on the Presidential and Regional Elections in Venezuela’ (Press Release, 22 May 2018) <https://www.consilium.europa.eu/en/press/press-releases/2018/05/22/declaration-by-the-high-representative-on-behalf-of-the-eu-on-the-presidential-and-regional-elections-in-venezuela/>, archived at <https://perma.cc/9HXC-WTKW>.
[3] Organization of American States, Permanent Council, Resolution on the Situation in Venezuela, Doc No CP/RES.1117 (2200/19), 10 January 2019; Organization of American States, Permanent Council, Resolution on the Situation in Venezuela, Doc No CP/RES.1124 (2217/19), 22 April 2019 (‘Permanent Council Resolution on the Situation in Venezuela’); European Parliament, European Parliament Resolution of 3 May 2018 on the Elections in Venezuela, Doc No 2018/2695(RSP), 3 May 2018. See also ‘Italy Blocks EU Statement on Recognizing Venezuela’s Guaidó: Sources’, Reuters (online, 5 February 2019) <https://www.reuters.com/article/us-venezuela-politics-europe-eu/italy-blocks-eu-statement-on-recognizing-venezuelas-guaido-sources-idUSKCN1PT1G2>, archived at <https://
perma.cc/8F2T-7YER>. For a collection of official statements on the Venezuelan presidential crisis, see the compilation on Twitter by Alonso Gurmendi: @alonso_GD (Alonso Gurmendi) (Twitter, 12 January 2019, 6:39am AEST) <https://twitter.com/Alonso_GD/status/ 1083810553498386432>, archived at <https://perma.cc/V6KQ-4GV3>.
[4] Jeremy Hunt, Foreign Secretary (UK), ‘UK Recognises Juan Guaido as Interim President of Venezuela’ (Media Release, 4 February 2019), cited in The “Maduro Board” of the Central Bank of Venezuela v The “Guaidó Board” of the Central Bank of Venezuela [2020] EWCA Civ 1249, [21] (‘“Maduro Board” of the Central Bank of Venezuela’). See also Government of Canada, ‘Declaration of the Lima Group’ (Declaration, 24 January 2019) <https://web.archive.org/web/20190825092556/https://www.international.gc.ca/world-monde/international_relations-relations_internationales/latin_america-amerique_latine/ 2019-01-23-lima_group-groupe_lima.aspx?lang=eng>.
[5] Council of the European Union, ‘Belarus: Declaration by the High Representative on Behalf of the European Union on the So-Called “Inauguration” of Aleksandr Lukashenko’ (Press Release, 24 September 2020) <https://www.consilium.europa.eu/en/press/press-releases/ 2020/09/24/belarus-declaration-by-the-high-representative-on-behalf-of-the-european-union-on-the-so-called-inauguration-of-aleksandr-lukashenko/>, archived at <https://perma.
cc/BP52-5T3K>.
[6] European Parliament, European Parliament Resolution of 17 September 2020 on the Situation in Belarus, Doc No 2020/2779(RSP), 17 September 2020.
[7] ‘Lithuania Designates Tikhanovskaya’s Team as “Democratic Representation of Belarus”’, Lithuanian National Radio and Television (online, 5 July 2021) <https://www.lrt.lt/en/news-in-english/19/1445436/lithuania-designates-tikhanovskaya-s-team-as-democratic-representation-of-belarus>, archived at <https://perma.cc/4PU8-W86U>.
[8] In 2021, the UN General Assembly postponed for a second time the decision on the credentials of representatives from the Myanmar military government and the Taliban, leaving in place the current envoys from previous governments in accordance with r 29 of Rules of Procedure of the General Assembly, UN Doc A/520/Rev.20 (2022): Credentials of Representatives to the Seventy-Sixth Session of the General Assembly, UN GAOR, 76th sess, 44th plen mtg, Agenda Item 3(b), UN Doc A/76/PV.44 (6 December 2021); Credentials of Representatives to the Seventy-Sixth Session of the General Assembly, GA Res 76/15, 76th sess, Agenda Item 3(b), UN Doc A/RES/76/15 (7 December 2021, adopted 6 December 2021).
[9] Credentials of Representatives to the Seventy-Seventh Session of the General Assembly, UN GAOR, 77th sess, 55th plen mtg, Agenda Item 3(b), UN Doc A/77/PV.55 (16 December 2022) 1; Credentials of Representatives to the Seventy-Seventh Session of the General Assembly, GA Res 77/239, 77th sess, Agenda Item 3(b), UN Doc A/RES/77/239 (10 January 2024, adopted 16 December 2022). However, on the political bargain to keep Myanmar’s seat unoccupied, see Kelley Currie, ‘Democracies Must Stop Playing Games with Myanmar’s Representation at the United Nations’, Just Security (Blog Post, 21 October 2022) <https://www.justsecurity.org/83714/democracies-must-stop-playing-games-with-myanmars-representation-at-the-united-nations/>, archived at <https://perma.cc/43XA-NHFK>.
[10] Council of Europe, Parliamentary Assembly, Examining the Legitimacy and Legality of the Ad Hominem Term-Limit Waiver for the Incumbent President of the Russian Federation, Resolution 2519, 24th sitting, 13 October 2023.
[11] Economic Community of West African States Court of Justice, ‘ECOWAS Court Declines to Grant Request for Interim Measures in Suit Brought by Niger against the ECOWAS Authority of Heads of State and Government’, (Press Release, 7 December 2023) <https://web.archive.org/web/20231220143359/http://www.courtecowas.org/2023/12/07/ecowas-court-declines-to-grant-request-for-interim-measures-in-suit-brought-by-niger-against-the-ecowas-authority-of-heads-of-state-and-government/> (‘ECOWAS Court Declines to Grant Request for Interim Measures’).
[12] See, eg, the comprehensive studies by Brad R Roth, Governmental Illegitimacy in International Law (Oxford University Press, 1999); Sean D Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (Cambridge University Press, 2000) 146; Jean d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’ (2006) 38(4) New York University Journal of International Law and Politics 877, 901–2. Cf Stefan Oeter, ‘Democracy: Fundamental Building‑Block of the International Order?’ in Daniel‑Erasmus Khan et al (eds), Democracy and Sovereignty: Rethinking the Legitimacy of Public International Law (Brill Nijhoff, 2023) 1, 3, highlighting ‘a strong disillusionment with the “right to democratic governance” discourse’. See also Jan Klabbers et al, ‘International Law and Democracy Revisited: Introduction to the Symposium’ (2021) 32(1) European Journal of International Law 9, 14, considering that the subject is nowadays ‘dead or hibernating’.
[13] See Larry Diamond, ‘Facing Up to the Democratic Recession’ (2015) 26(1) Journal of Democracy 141, 142.
[14] See, eg, Marise Payne, Minister for Foreign Affairs (Cth), ‘Statement on Venezuela’ (Media Release, 28 January 2019) <https://www.foreignminister.gov.au/minister/marise-payne/media-release/statement-venezuela>, archived at <https://perma.cc/2HR6-934J>. For the Brazilian position in matters of recognition of government, see International Law Association, Third Report on Recognition/Non-Recognition in International Law (Report, 2016) 8.
[15] See, eg, statements by representatives of Kazakhstan and the Russian Federation on the 2017 Gambian constitutional crisis and in support of SC Res 2337 (2017), 7866th mtg, UN Doc S/RES/2337 (19 January 2017) (‘Resolution 2337’): 7866th mtg, UN Doc S/PV.7866 (19 January 2017) 3–4 (‘7866th mtg’). See also the statement of the Russian Federation after the removal from office of Viktor Yanukovych in 2014: 7124th mtg, UN Doc S/PV.7124 (1 March 2014) 4 (‘7124th mtg’).
[16] For examples of British and US practice, see Hersch Lauterpacht, Recognition in International Law (Cambridge University Press, 1947) 122–4. For examples of French practice, see Alexandre‑Charles Kiss, Répertoire de la Pratique Française en Matière de Droit International Public, (Éditions du Centre National de la Recherche Scientifique, 1965) vol III, 39, 42, 44–5, 47. It should however be noted that considerations of electoral legitimacy in these declarations are often intertwined with constitutional legitimacy issues. Though both arguments appear interdependent in practice inasmuch as elections (as means of accessing power) are generally provided for in the domestic constitution, they may warrant different inquiries and should hence be distinguished: see Brad R Roth, ‘Whither Democratic Legitimism?’ (2015) 108 AJIL Unbound 213, 214–15.
[17] See, eg, Yves Daudet, ‘L’ONU et l’OEA en Haïti et le Droit International’ (1992) 38(1) Annuaire Français de Droit International 89; Thomas M Franck, ‘The Democratic Entitlement’ (1994) 29(1) University of Richmond Law Review 1, 23; Olivier Corten, ‘La Résolution 940 du Conseil de Sécurité Autorisant une Intervention Militaire en Haïti: L’Émergence d’un Principe de Légitimité Démocratique en Droit International’ (1995) 6(1) European Journal of International Law 116 (‘La Résolution 940 du Conseil de Sécurité Autorisant une Intervention Militaire en Haïti’); Karsten Nowrot and Emily W Schbacker, ‘The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone’ (1998) 14(2) American University International Law Review 321; d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’ (n 12) 905; Thomas M Franck, ‘Legitimacy and the Democratic Entitlement’ in Gregory H Fox and Brad R Roth (eds), Democratic Governance and International Law (Cambridge University Press, 2000) 25, 36; Murphy (n 12) 123, 150; David Wippman, ‘Pro‑Democratic Intervention’ in Marc Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015) 797, 807–8; Amichai Magen, ‘The Democratic Entitlement in an Era of Democratic Recession’ (2015) 4(2) Cambridge Journal of International and Comparative Law 368, 377; Francesco Mancini, ‘Promoting Democracy’ in Sebastian von Einsiedel, David M Malone and Bruno Stagno Ugarte (eds), The UN Security Council in the 21st Century (Lynne Rienner Publishers, 2016) 235, 240.
[18] Christine Chinkin et al, ‘In Re: United Nations Credentials Committee: Challenge to the Credentials of the Delegation of the State Peace and Development Council to Represent Myanmar/Burma’ (Opinion, 2008) <http://www.birmaniademocratica.org/GetMedia.aspx?id =cda0962d94b244a18dcf8a6124e68608 & s=0 & at=1> , archived at <https://perma.cc/K5Q2-6Z2A>.
[19] See, eg, Ralph Wilde, ‘Can the National Unity Government (NUG) of Myanmar Represent that State for the Purposes of Accepting the Jurisdiction of the International Criminal Court?’, Opinio Juris (Blog Post, 17 August 2022) <http://opiniojuris.org/2022/08/17/can-the-national-unity-government-nug-of-myanmar-represent-that-state-for-the-purposes-of-accepting-the-jurisdiction-of-the-international-criminal-court/> , archived at <https://perma.
cc/25BR-XBZL>.
[20] Third Report on Recognition/Non‑Recognition in International Law (n 14) 2–3, 5–6.
[21] See Joe Verhoeven, ‘La Reconnaissance Internationale: Déclin ou Renouveau?’ (1993) 39 Annuaire Français de Droit International 7, 16–20.
[22] Lauterpacht (n 16) 98. They are, however, not bound to do so: see Stefan Talmon, ‘Recognition of Governments: An Analysis of the New British Policy and Practice’ (1992) 63(1) British Yearbook of International Law 231, 236 n 32 (‘Recognition of Governments’).
[23] For different forms of explicit recognition of governments, see Talmon, ‘Recognition of Governments’ (n 22) 243–4.
[24] International Law Association, Fourth (Final) Report on Recognition/Non‑Recognition in International Law (Report, 2018) 15. See also Chinkin et al (n 18) 1, mentioning the acceptance of an entity ‘as entitled to act on behalf of a Member State’.
[25] But see Hans Kelsen, ‘Recognition in International Law: Theoretical Observations’ (1941) 35(4) American Journal of International Law 605, 614–17 (‘Recognition in International Law’); Stefan Talmon, ‘Who Is a Legitimate Government in Exile?: Towards Normative Criteria for Governmental Legitimacy in International Law’ in Guy S Goodwin‑Gill and Stefan Talmon (eds), The Reality of International Law: Essays in Honour of Ian Brownlie (Clarendon Press, 1999) 499, 500–1 (‘Who Is a Legitimate Government in Exile?’), arguing for effectiveness as the legal condition of governments’ existence.
[26] Responsibility of States for Internationally Wrongful Acts, UN GAOR, 56th sess, 83rd plen mtg, Agenda Item 162, UN Doc A/RES/56/83 (28 January 2002) annex (‘Responsibility of States for Internationally Wrongful Acts’) art 41(2). However, on this principle’s problematic application to changes of governments, see Jean d’Aspremont, ‘The Pipe Dream of Constraining Recognition through Democracy: International Lawyers’ Regulatory Project Continued’ (2015) 108 AJIL Unbound 219, 219 (‘The Pipe Dream of Constraining Recognition through Democracy’).
[27] See SC Res 661, 2933rd mtg, UN Doc S/RES/661 (6 August 1990) para 9(b) (‘Resolution 661’): ‘Not to recognize any régime set up by the occupying Power’. This pertained to the Iraqi invasion of Kuwait. See also International Law Association, Committee on Recognition and Non‑Recognition in International Law, Resolution 3/2018, 19–24 August 2018, para 4 (‘ILA Resolution 3/2018’).
[28] See Oxford University Press, Oxford Bibliographies (online at 13 August 2024) Recognition in International Law, ‘International Law’ <https://www.oxfordbibliographies.com /display/document/obo-9780199796953/obo-9780199796953-0009.xml>, archived at <https://perma.cc/8BMV-LEE6>, defining recognition as a political act that has significant legal effects.
[29] See, eg, Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] 2 All ER 821, 830–2 (‘Sierra Leone Telecommunications’) on the issue of access to assets held in British banks by the government of Sierra Leone.
[30] See Kiss (n 16) 87, citing a 1923 French case where the Court refused to consider as an act of state a confiscation ordered by the recently installed Soviet government, referring to the confiscation instead as ‘un acte d’usurpation’.
[31] “Maduro Board” of the Central Bank of Venezuela (n 4).
[33] ‘ECOWAS Court Declines to Grant Request for Interim Measures’ (n 11).
[34] Responsibility of States for Internationally Wrongful Acts (n 26) art 20; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, 246 (‘Military and Paramilitary Activities in and against Nicaragua’). Conversely, satisfying the opposition’s request is out of the scope of intervention by invitation and is therefore illegal.
[35] Rebecca Barber, ‘The Role of the General Assembly in Determining the Legitimacy of Governments’ (2022) 71 International and Comparative Law Quarterly 627, 643. See also Matthew Griffin, ‘Accrediting Democracies: Does the Credentials Committee of the United Nations Promote Democracy through Its Accreditation Process, and Should It?’ (2000) 32 International Law and Politics 725, 725–6.
[36] Trygve Lie, Letter Dated 8 March 1950 from the Secretary‑General to the President of the Security Council Transmitting a Memorandum on the Legal Aspects of the Problem of Representation in the United Nations, UN Doc S/1466 (9 March 1950) (‘Memorandum on Legal Aspects of the Problem of Representation in the UN’). See also Vienna Convention on the Representation of States in their Relations with International Organisations of a Universal Character, UN Doc A/CONF.67/16 (adopted 14 March 1975, not yet in force) art 82, explicitly distinguishing the two.
[37] Talmon, ‘Who Is a Legitimate Government in Exile?’ (n 25) 534–5; d’Aspremont, ‘The Pipe Dream of Constraining Recognition Through Democracy’ (n 26) 220; Roth, ‘Whither Democratic Legitimism?’ (n 16).
[38] Jean Salmon, ‘Internal Aspects of the Right to Self‑Determination: Towards a Democratic Legitimacy Principle?’ in Christian Tomuschat (ed), Modern Law of Self‑Determination (Martinus Nijhoff Publishers, 1993) 253; Murphy (n 12); Roth, Governmental Illegitimacy in International Law (n 12); Brad Roth, Sovereign Equality and Moral Disagreement (Oxford University Press, 2011); Erika de Wet, ‘From Free Town to Cairo via Kiev: The Unpredictable Road of Democratic Legitimacy in Governmental Recognition’ (2015) 108 AJIL Unbound 201.
[39] ILA Resolution 3/2018 (n 26) para 6.
[41] Press Conference by Secretary‑General Ban Ki‑moon at United Nations Headquarters, UN Doc SG/SM/12458/Rev.1 (17 September 2009).
[42] The choice to limit the present case study material to post‑1990 recognition controversies is influenced by feasibility considerations rather than by a conviction that the current practice represents a substantial novelty as part of a ‘sea change in international law’ as famously argued in Thomas M Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86(1) American Journal of International Law 46, 50. See also above n 16, stressing that invoking electoral legitimacy for government recognition is far from being a post-Cold War world invention. Instead, the criterion appears to resist scholarly tendencies to split the history of international law on governmental change in two periods (before and after the end of the Cold War — the ‘turning point’ being symbolically located in the fall of the Berlin Wall: see the criticism in Işıl Aral, ‘International Lawyers as Hope Mongers: How Did We Come to Believe that Democracy Was Here to Stay?’ (2024) 26(2) Journal of the History of International Law 161, 170) or even in three periods (respectively, indifference towards governmental change before the end of the Cold War, the democratic momentum shortly after the end of the Cold War and the ‘democratic recession’ that has dawned after 2006: see, eg, Amichai Magen, ‘The Democratic Entitlement in an Era of Democratic Recession’ (2015) 4(2) Cambridge Journal of International and Comparative Law 368, 378).
[43] This distinction has been extensively studied in respect of the practice of recognition of opposition groups as ‘legitimate representatives of the people’. However, studies have not tackled the interplay within the legal–political nexus as far as the electoral legitimacy argument is concerned. See Stefan Talmon, ‘Recognition of Opposition Groups as the Legitimate Representative of a People’ (2013) 12 Chinese Journal of International Law 219.
[44] Gregory H Fox, ‘Invitations to Intervene after the Cold War: Towards a New Collective Model’ in Dino Kritsiotis, Olivier Corten and Gregory H Fox (eds), Armed Intervention and Consent (Cambridge University Press, 2023) 179, 258.
[45] See generally Erika de Wet, Military Assistance on Request and the Use of Force (Oxford University Press, 2020) 63; Olivier Corten, ‘Intervention by Invitation: The Expanding Role of the UN Security Council’ in Dino Kritsiotis, Olivier Corten and Gregory H Fox (eds), Armed Intervention and Consent (Cambridge University Press, 2023) 101, 165–6 (‘Intervention by Invitation’).
[46] Talmon, ‘Recognition of Opposition Groups as the Legitimate Representative of a People’ (n 43) 226.
[47] See especially The Situation of Democracy and Human Rights in Haiti, GA Res 46/7, 31st plen mtg, UN Doc A/RES/46/7 (11 October 1991); The Situation of Democracy and Human Rights in Haiti, GA Res 47/20, 47th sess, Agenda Item 22, UN Doc A/RES/47/20 (22 March 1993); The Situation of Democracy and Human Rights in Haiti, GA Res 48/27, 48th sess, Agenda Item 31, UN Doc A/RES/48/27 (10 December 1993); Sierra Leone Telecommunications (n 29) 832.
[48] Brad R Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ [2010] MelbJlIntLaw 14; (2010) 11(2) Melbourne Journal of International Law 393, 428–30 (‘Secessions, Coups and the International Rule of Law’).
[50] de Wet, Military Assistance on Request and the Use of Force (n 45) 40. For OAS reactions and restrictive measures coordinated by the organisation, see also Organization of American States, Ad Hoc Meeting of Ministers of Foreign Affairs, Support to the Democratic Government of Haiti, Doc No MRE/RES.1/91, 3 October 1991 (‘Support to the Democratic Government of Haiti’); Organization of American States, Ad Hoc Meeting of Ministers of Foreign Affairs, Support to the Democratic Government of Haiti, Doc No MRE/RES.2/91, 8 October 1991; Organization of American States, Ad Hoc Meeting of Ministers of Foreign Affairs, Restoration of Democracy in Haiti, Doc No MRE/RES.3/92, 17 May 1992; Organisation of American States, Ad Hoc Meeting of Ministers of Foreign Affairs, Reinstatement of Democracy in Haiti, Doc No MRE/RES.4/92, 13 December 1992; Organization of American States, Ad Hoc Meeting of Ministers of Foreign Affairs, Support for the Haitian People, Doc No MRE/RES.5/93, 6 June 1993.
[51] See the statement by the representative of Canada in Provisional Verbatim Record of the 31st Meeting, 46th sess, 31st mtg, UN Doc A/46/PV.31 (18 October 1991) 24 that ‘[a]ll OAS members will refuse to recognize any Government set up under these circumstances or any Government elected as a result of these illegal actions’. See also statements by the representatives of Dominica on behalf of the Caribbean Community and of the US: at 33, 59.
[52] SC Res 841, 3238th mtg, UN Doc S/RES/841 (16 June 1993) (‘Resolution 841’); SC Res 1132, 3822nd mtg, UN Doc S/RES/1132 (8 October 1997).
[53] See also SC Res 867, 3282nd mtg, UN Doc S/RES/867 (23 September 1993); SC Res 875, 3293rd mtg, UN Doc S/RES/875 (16 October 1993); SC Res 917, 3376th mtg, UN Doc S/RES/917 (6 May 1994).
[54] SC Res 940, 3413th mtg, UN Doc S/RES/940 (31 July 1994) (‘Resolution 940’).
[55] Corten, ‘La Résolution 940 du Conseil de Sécurité Autorisant une Intervention Militaire en Haïti’ (n 17) 128–9.
[56] A limited ECOWAS military presence was established after the military coup took place to supervise the implementation of the Conakry Agreement: see Ibrahim A Gambari, Letter Dated 28 October 1997 from the Permanent Representative of Nigeria to the United Nations Addressed to the President of the Security Council, UN Doc S/1997/824 (28 October 1997). This was signed between the ECOWAS Ministerial Committee and the military junta and provided for Kabbah’s authority to be re-established six months following the signature. Shortly after, a series of armed altercations took place between the ECOWAS military presence (‘ECOMOG’) and the junta’s forces. The ECOWAS justified its use of force by invoking self-defence: see Olivier Corten and François Dubuisson, ‘L’Hypothèse d’une Règle Émergente Fondant une Intervention Militaire sur une “Autorisation Implicite” du Conseil de Sécurité’ (2000) 104(4) Revue Générale de Droit International Public 873, 898. The self‑defence argument has not been challenged by the Security Council. However, the Council seems to have supported the intervention by invitation thesis as it commended ‘the positive role of ECOWAS and ECOMOG in their efforts to restore peace, security and stability throughout the country at the request of the Government of Sierra Leone’: see SC Res 1181, 3902nd mtg, UN Doc S/RES/1181 (13 July 1998) para 5 (‘Resolution 1181’). See also SC Res 1156, 3861st mtg, UN Doc S/RES/1156 (16 March 1998) para 1 (‘Resolution 1156’), welcoming the return of Kabbah as Sierra Leone’s ‘democratically elected President’ and noting Fode M Dabor, Letter Dated 9 March 1998 from the Chargé d’Affaires AI of the Permanent Mission of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc S/1998/215 (9 March 1998). This letter reported to the Council that the military junta was ousted by ECOMOG.
[57] Resolution 841, UN Doc S/RES/841 (n 52), citing Fritz Longchamp, Letter Dated 7 June 1993 from the Permanent Representative of Haiti to the United Nations Addressed to the President of the Security Council, UN Doc S/25958 (16 June 1993).
[58] Resolution 940, UN Doc S/RES/940 (n 54), citing Fritz Longchamp, Letter Dated 29 July 1994 from the Permanent Representative of Haiti to the United Nations Addressed to the Secretary-General, UN Doc S/1994/905 (29 July 1994) annex (‘Letter Dated 29 July 1994 from the President of the Republic of Haiti Addressed to the Secretary-General’).
[59] Corten, ‘Intervention by Invitation’ (n 45) 162.
[60] See Resolution 1156, UN Doc S/RES/1156 (n 56); Fode M Dabor, UN Doc S/1998/215 (n 56).
[61] Resolution 940, UN Doc S/RES/940 (n 54) para 4.
[62] Nico Colombant, ‘Despite Growing Pressure, Ivory Coast Incumbent Gbagbo Still Has Outside Allies’, VOA (Blog Post, 26 December 2010) <https://www.voanews.com/a/despite- growing-pressure-ivory-coast-incumbent-gbagbo-still-has-outside-allies-112528679/132832 .html>, archived at <https://perma.cc/KC4W-56RV>; Jean d’Aspremont, ‘Duality of Government in Côte d’Ivoire’, EJIL:Talk! (Blog Post, 4 January 2011) <https://www.ejiltalk.org/duality-of-government-in-cote-divoire/>, archived at <https://perma.cc/CT9D-W3E9>; Antenor Hallo de Wolf, ‘Rattling Sabers to Save Democracy in The Gambia’, EJIL:Talk! (Blog Post, 1 February 2017) <https://www.ejiltalk.org/rattling-sabers-to-save-democracy-in-the-gambia/>, archived at <https://perma.cc/8X6K-EXLN>.
[63] In respect of The Gambia, see United Nations, ‘New Permanent Representative of Gambia Presents Credentials’ (Press Release BIO/4961, 3 May 2017), taking note of Adama Barrow’s decision to reappoint Mamadou Tangara, overriding Jammeh’s decision to discharge the latter from his duty as the permanent representative of The Gambia to the UN General Assembly. In respect of Côte d’Ivoire, see Credentials of Representatives to the Sixty‑Fifth Session of the General Assembly: Report of the Credentials Committee, 65th sess, Agenda Item 3(b), UN Doc A/65/583/Rev.1 (22 December 2010) 2 [7]. This report was adopted by the UN General Assembly the following day: Credentials of Representatives to the Sixty‑Fifth Session of the General Assembly, 65th sess, 73rd plen mtg, Agenda Item 3(b), UN Doc A/RES/65/237 (5 April 2011, adopted 22 December 2010).
[64] For a detailed account of the context and timeline of the Ivorian peace process, see Gilles Cottereau, ‘Côte d’Ivoire: L’Impossible Alternance Pacifique’ (2011) 57(1) Annuaire Français de Droit International 23.
[65] SC Res 1962, 6458th mtg, UN Doc S/RES/1962 (20 December 2010). This resolution also renewed and expanded the mandate of the peacekeeping force already present in the country. See also SC Res 1975, 6508th mtg, UN Doc S/RES/1975 (30 March 2011) (‘Resolution 1975’) which urged all the Ivorian parties to respect the election of Alassane Ouattara ‘as recognized by ECOWAS, the African Union and the rest of the international community’: at para 1.
[66] Resolution 1975, UN Doc S/RES/1975 (n 65).
[67] Resolution 2337, UN Doc S/RES/2337 (n 15).
[68] Ibid.
[69] See Statement by the President of the Security Council, UN Doc S/PRST/2017/10 (24 July 2017) 1, commending ‘the diplomatic efforts by ECOWAS Heads of State, supported by the SRSG, on the basis of resolution 2337 (2017), resulting in the peaceful transition of power to the democratically elected President Adama Barrow’.
[70] See the language used in Resolution 2337, UN Doc S/RES/2337 (n 15), particularly para 6, supporting the ECOWAS efforts ‘to ensure, by political means first, the respect of the will of the people of The Gambia as expressed in the results of 1st December elections’ (emphasis added).
[71] Although the ECOWAS itself relied on self-defence in respect of its monitoring group that had been stationed in Sierra Leone prior to the coup (see ibid) it does not stem from the text of Resolution 1156, UN Doc S/RES/1156 (n 56) and Resolution 1181, UN Doc S/RES/1181 (n 56) that the Security Council embraced this argument while dismissing the thesis of intervention by invitation. The intervention by invitation thesis has neither been explicitly validated nor condemned.
[72] This conclusion is even more significant in respect of The Gambia as Barrow was not in control of the public institutions prior to requesting military assistance. The invitation to intervene was his first act as President‑Elect after his swearing‑in ceremony at the Gambian embassy in Senegal: see de Wet, Military Assistance on Request and the Use of Force (n 45) 89; Corten, ‘Intervention by Invitation’ (n 45) 167.
[73] Roth, Sovereign Equality and Moral Disagreement (n 38) 208.
[74] The UN General Assembly deferred its decision on credentials, continuing to seat the delegation representing the ousted government: see Barber (n 35) 641. The UN Security Council condemned the coup. Considering the situation as a threat to international peace and security, it imposed sanctions on the coup government and issued a vague incitement not to recognise this government: see SC Res 2048, 6774th mtg, UN Doc S/RES/2048 (18 May 2012).
[75] See SC Res 2056, 6798th mtg, UN Doc S/RES/2056 (5 July 2012) para 3, taking note of the ECOWAS nonrecognition of the military government ‘as a legal entity in the transition, [deciding] that the said [military government] shall be dissolved and ... [demanding] that its members refrain from any interference in political matters and in the work of the Transitional authorities’.
[76] In respect of Mali, see SC Res 2100, 6952nd mtg, UN Doc S/RES/2100 (25 April 2013) para 3. In respect of Guinea-Bissau, see SC Res 2103, 6968th mtg, UN Doc S/RES/2103 (22 May 2013) para 1(b).
[77] Statute of the Council of Europe, opened for signature 5 May 1949, 87 UNTS 103 (entered into force 3 August 1949) art 8; Charter of the Organization of American States, opened for signature 30 April 1948, 119 UNTS 3 (entered into force 13 December 1951) art 9 (‘OAS Charter’); Constitutive Act of the African Union, opened for signature 11 July 2000, 2158 UNTS 3 (entered into force 26 May 2001) art 30 (‘AU Constitutive Act’).
[78] Statute of the Council of Europe (n 77) art 8.
[79] The anti-democratic nature of the coup is required by the OAS Charter (n 77) art 9. The AU Constitutive Act (n 77) art 30 targets any unconstitutional change of government. However, the mechanism of its application by the African Union’s Peace and Security Council (as specified in the Protocol Relating to the Establishment of the Peace and Security Council of the African Union, opened for signature 9 July 2002 (entered into force 26 December 2003) art 7(1)(g)) is governed by the Lomé Declaration: Organization of African Unity, Declaration on the Framework for an OAU Response to Unconstitutional Changes of Government, Doc No AHG/Decl.5 (XXXVI), 36th ord sess, 10–12 July 2000. The declaration defines the concept of ‘unconstitutional change of government’ by reference to different eventualities of upsetting a democratically elected government. A slightly expanded definition is contained in African Charter on Democracy, Elections and Governance, opened for signature 30 January 2007 (entered into force 15 February 2012) art 23. These provisions, as well as the general reluctance of the African Union to sanction coups perpetrated against constitutional but authoritarian governments, have led several authors to conclude that the African Union practice embraces the distinction between ‘good coups’ and ‘bad coups’ — a notable evolution since its early years: see Ozan O Varol, ‘The Democratic Coup d’État’ (2012) 53(2) Harvard International Law Journal 291; Solomon A Dersso, ‘The Status and Legitimacy of Popular Uprisings in the AU Norms on Democracy and Constitutional Governance’ (2019) 63(S1) Journal of African Law 107. However, for reservations regarding its recent practice, see Ioannis Prezas, ‘Democratic Sanctions and International Law’ in Daniel-Erasmus Khan et al (eds), Democracy and Sovereignty: Rethinking the Legitimacy of Public International Law (Brill Nijhoff, 2023) 235.
[80] Such a reading cannot be deduced from their literal meaning or from the subsequent practice of their application. Cf Obiora Chinedu Okafor, ‘Democratic Legitimacy as a Criterion for the Recognition of Governments: A Response to Professor Erika de Wet’ (2014–15) 108 AJIL Unbound 228, 229, arguing for ‘an implied, subsidiary rule of international treaty law prohibiting or discouraging the recognition of undemocratically installed governments’.
[81] This attitude remains unchanged since Talmon, ‘Who Is a Legitimate Government in Exile?’ (n 25) 513 observed that ‘the large majority of states still seems to be of the opinion that any government is better than no government’.
[82] Bazoum v Niger (Judgement No ECW/CCJ/JUD/57/23, 15 December 2023) (Community Court of Justice of the Economic Community of West African States) [97]–[100],
[112]–[116].
[83] ‘ECOWAS Court Declines to Grant Request for Interim Measures’ (n 11).
[84] ‘ECOWAS Lifts Sanctions on Niger amid Tensions in West Africa Bloc’, Al Jazeera (online, 24 February 2024) <https://www.aljazeera.com/news/2024/2/24/ecowas-lifts-sanctions-on-niger-amid-tensions-in-west-africa-bloc>, archived at <https://perma.cc/K284-PAM9>.
[85] See, eg, Secretary-General, ‘Secretary-General Strongly Condemns Unconstitutional Change of Government in Niger’ (Press Release SG/SM/21891, United Nations, 26 July 2023) (emphasis added): ‘The United Nations stands in solidarity with the democratically elected Government and the people of Niger.’
[86] Report of the Credentials Committee, 78th sess, Agenda Item 3(b), UN Doc A/78/605, (6 December 2023) [6], adopted by the UN General Assembly: Credentials of Representatives to the Seventy-Eighth Session of the General Assembly, GA Res 78/124, 78th sess, 48th plen mtg, Agenda Item 3(b), UN Doc A/RES/78/124 (21 December 2023, adopted 18 December 2023).
[87] At the time, most states issued statements of political recognition of the NTC: see statements cited in Dapo Akande, ‘Which Entity Is the Government of Libya and Why Does It Matter?’, EJIL:Talk! (Blog Post, 16 June 2011) <https://www.ejiltalk.org/which-entity-is-the-government-of-libya-and-why-does-it-matter/>, archived at <https://perma.cc/D2VN-VZNY>.
[88] Ministry of Foreign Affairs (Italy), ‘Focus-Libya: Frattini, the NTC is Italy’s Only Interlocutor’ (Press Release, 4 April 2011) <https://web.archive.org/web/ 20120306034136/http://www.esteri.it/MAE/EN/Sala_Stampa/ArchivioNotizie/Approfondimenti/2011/04/20110404_FocusLibia_frattini_Cnt.htm>.
[89] ‘Libyan Rebels Form ‘Interim Government’, Al Jazeera (online, 23 March 2011) <https://www.aljazeera.com/news/2011/3/23/libyan-rebels-form-interim-government>, archived at <https://perma.cc/7X9M-BH87>.
[90] ‘La France Reconnaît le Conseil National de Transition Libyen’ (online, 18 March 2011) <https://www.france24.com/fr/20110310-france-reconnaissance-conseil-national-transition-libye-kadhafi-cnt-tripoli-ambassade-benghazi>, archived at <https://perma.cc/2HZE-S5BQ>. The Prime Minister of France seems to have confirmed this reading, stating before the National Assembly that France recognises the NTC as ‘our political interlocutor’ (‘la France tient à rendre homage à l’action du Conseil national de transition libyen, que nous avons reconnu comme notre interlocuteur politique’) and avoiding any references to the NTC as the ‘government’ of Libya: see France, Parliamentary Debates, Assemblée Nationale, XIIIe Legislature, Session Ordinaire de 2010–2011, 22 March 2011 (François Fillon, Prime Minister) <https://www.assemblee-nationale.fr/13/cri/2010-2011/20110144.asp>, archived at <https://perma.cc/5YLN-PQWC> [tr: author].
[91] Consulate General of France in Calcutta, ‘Libya/National Transitional Council — Statement by Alain Juppé, Ministre d’Etat, Minister of Foreign and European Affairs’ (Statement, 7 June 2011) <https://in.ambafrance.org/Libya-National-Transitional>, archived at <https://perma.cc/F6MQ-HB3G>.
[92] Libya Contact Group Chair, ‘Fourth Meeting of the Libya Contact Group Chair’s Statement’ (Statement, 15 July 2011) <https://www.mfa.gov.tr/fourth-meeting-of-the- libya-contact-group-chair_s-statement_-15-july-2011_-istanbul.en.mfa>, archived at <https://perma.cc/HST2-7XGF> (‘Libya Contact Group Statement’). See also Dapo Akande, ‘Recognition of Libyan National Transitional Council as Government of Libya’, EJIL:Talk! (Blog Post, 23 July 2011) <https://www.ejiltalk.org/recognition-of-libyan-national-transitional-council-as-government-of-libya/>, archived at <https://perma.cc/T7G8-9KW3>.
[93] ‘Libya Contact Group Statement’ (n 92) [4].
[94] SC Res 2009, 6620th mtg, UN Doc S/RES/2009 (16 September 2011) para 2 (emphasis added).
[95] Akande, ‘Recognition of Libyan National Transitional Council as Government of Libya’ (n 92).
[96] Olivier Corten and Vaios Koutroulis, ‘The Illegality of Military Support to Rebels in the Libyan War: Aspects of Jus contra Bellum and Jus in Bello’ (2013) 18(1) Journal of Conflict and Security Law 59.
[97] SC Res 1973, 6498th mtg, UN Doc S/RES/1973 (17 March 2011).
[98] Stefan Talmon, ‘Germany Mistakenly Attributes Acts by the Houthi Rebels to the State of Yemen’, German Practice in International Law (Blog Post, 14 April 2020) <https://gpil.jura.uni-bonn.de/2020/04/germany-mistakenly-attributes-acts-by-the-houthi-rebels-to-the-state-of-yemen/>, archived at <https://perma.cc/AY7J-NWLZ>.
[99] SC Res 2216, 7426th mtg, UN Doc S/RES/2216 (14 April 2015).
[100] It is noteworthy that the UN Security Council referring to a government as ‘legitimate’ does not always imply that its legitimacy is necessarily contingent upon an electoral mandate. This is evident in the comparison between Resolution 940, UN Doc S/RES/940 (n 54) para 1 and Resolution 661, UN Doc S/RES/661 (n 27) paras 1–2.
[101] Cf Fox (n 44) 248–9, coding the 2015 Saudi intervention in Yemen as a pro‑democracy intervention by invitation.
[102] SC Res 2140, 7119th mtg, UN Doc S/RES/2140 (26 February 2014). See also Secretary‑General, ‘Secretary-General Welcomes Signing of Peace, National Partnership Agreement in Yemen, Expects Its Implementation without Delay’ (Press Release SG/SM/16168, United Nations, 21 September 2014).
[103] Talmon, ‘Who Is a Legitimate Government in Exile?’ (n 25) 512, arguing that the presumption of continuity of existing legal rights could be regarded as a general principle of law.
[104] Pursuant to Constitución de la República de Honduras 1982 [Constitution of the Republic of Honduras 1982] (Honduras) arts 374–5. See Congressional Research Service (US), Honduran Political Crisis, June 2009–January 2010 (Report, 1 February 2010) 4 n 17.
[105] ‘Obama Says Coup in Honduras Is Illegal’, Reuters (online, 30 June 2009) <https://www.reuters.com/article/us-honduras-usa-sb-idUKTRE55S5J220090629>, archived at <https://perma.cc/WB8W-ZCZX>.
[106] Organization of American States, General Assembly, Suspension of the Right of Honduras to Participate in the Organization of American States, Doc No AG/RES. 2 (XXXVII-E/09), 37th spec sess, 2nd plen sess, 16 July 2009, adopted on 4 July 2009.
[107] Situation in Honduras: Democracy Breakdown, GA Res 63/301, 63rd sess, 93rd plen mtg, Agenda Item 20, UN Doc A/RES/63/301 (1 July 2009, adopted 30 June 2009) para 3.
[108] Roth, ‘Secessions, Coups and the International Rule of Law’ (n 48) 435.
[109] ‘EU Countries Send Envoys Back to Honduras’, France 24 (online, 26 September 2009) <https://www.france24.com/en/20090926-eu-countries-send-envoys-back-honduras-zelaya>, archived at <https://perma.cc/5QRZ-YMK7>.
[110] Daisy Sindelar, ‘Was Yanukovych’s Ouster Constitutional?’, RadioFreeEurope RadioLiberty (online, 23 February 2014) <https://www.rferl.org/a/was-yanukovychs-ouster-constitutional/25274346.html>, archived at <https://perma.cc/VDD2-PCED>.
[111] On Self-Removal of the President of Ukraine from the Exercise of Constitutional Powers and Appointment of Extraordinary Elections of the President of Ukraine (Ukraine) Resolution of the Verkhovna Rada of Ukraine, No 757-VII, 22 February 2014.
[112] Конституція України [Constitution of Ukraine] (Ukraine) 1996, art 111.
[113] See especially Council of Europe, Parliamentary Assembly, Recent Developments in Ukraine: Threats to the Functioning of Democratic Institutions, Resolution 1988, 15th sitting (9 April 2014) para 3 (emphasis added):
The Verkhovna Rada played an important and constructive role in resolving the crisis when, with unity and consensus, it managed the change of power and implementation of the main provisions of the 21 February 2014 agreement, in line with the overall tenets of the agreement and with due consideration for constitutional principles. The Assembly therefore fully recognises the legitimacy of the new authorities in Kyiv and the legality of their decisions. It regrets attempts to question the legitimacy of the new authorities, which can only serve to destabilise the country.
[114] Tom Ginsburg, Democracies and International Law (Cambridge University Press, 2021) 107.
[115] Sam Frizell, ‘Ukraine Protestors Seize Kiev as President Flees’, Time (online, 22 February 2014) <https://world.time.com/2014/02/22/ukraines-president-flees-protestors-capture-kiev/>, archived at <https://perma.cc/9LA4-CVPZ>.
[116] Territorial Integrity of Ukraine, GA Res 68/262, 68th sess, 80th plen mtg, Agenda Item 33(b), UN Doc A/RES/68/262 (1 April 2014, adopted 27 March 2014).
[117] For the statement of the Russian Federation after the removal from office of Viktor Yanukovych in 2014, see ‘7124th mtg’, UN Doc S/PV.7124 (n 15).
[118] United States Government Accountability Office, Review of US Response to the Honduran Political Crisis of 2009 (Report, 20 October 2011) 5–6 <https://www.gao.gov/products/gao-12-9r>, archived at <https://perma.cc/4DPH-S9PN>.
[119] See Todd Gordon and Jeffery R Webber, ‘Canada and the Honduran Coup’ (2011) 30(3) Bulletin of Latin American Research 328, and the documents cited throughout.
[120] See, eg, various OAS resolutions on Nicaraguan electoral processes, describing the processes as lacking legitimacy but not questioning the capacity of the Noriega government to represent Nicaragua internationally: Organization of American States, Permanent Council, The Situation in Nicaragua, Doc No CP/RES.1175 (2324/21), 15 June 2021; Organization of American States, Permanent Council, The Situation in Nicaragua, Doc No CP/RES.1182 (2346/21), 20 October 2021; Organization of American States, General Assembly, The Situation in Nicaragua, Doc No AG/RES.2978 (LI-O/21), 4th plen sess, 12 November 2021, para 2.
[121] Council Decision (CFSP) 2021/353 of 25 February 2021 Amending Decision 2012/642/CFSP concerning Restrictive Measures against Belarus [1993] OJ L 68/189.
[122] US Department of the Treasury, ‘Treasury Sanctions Additional Belarusian Regime Actors for Undermining Democracy’ (Press Release, 23 December 2020) <https://
home.treasury.gov/news/press-releases/sm1222>, archived at <https://perma.cc/C3ZS-Z35J>.
[123] Blocking Property of the Government of Venezuela, 84 Fed Reg 38843 (5 August 2019).
[124] Council Decision (CFSP) 2017/2074 of 13 November 2017 concerning Restrictive Measures in View of the Situation in Venezuela [2017] OJ L 295/60, Preamble para 7. The EU updated its restrictive measures after the 2020 parliamentary election in Venezuela that ‘regrettably went ahead without a national agreement on electoral conditions, failed to comply with the minimum international standards for a credible process, and failed to mobilise the Venezuelan people to participate’: see Council Implementing Regulation (EU) 2021/275 of 22 February 2021 Implementing Regulation (EU) 2017/2063 concerning Restrictive Measures in View of the Situation in Venezuela [2021] OJ L 60I/1, Preamble para 2. The US sanctions were explicitly motivated by ‘ongoing attempts to undermine Interim President Juan Guaido and the Venezuelan National Assembly’s exercise of legitimate authority in Venezuela’: ibid.
[125] Permanent Council Resolution on the Situation in Venezuela, Doc No CP/RES.1124 (2217/19) (n 3).
[126] Credentials of Representative to the Seventy-Fourth Session of the General Assembly, UN GAOR, 74th sess, 51st plen mtg, Agenda Item 3(b), UN Doc A/74/PV.51 (18 December 2019) 1–2.
[127] See, eg, United States of America: Draft Resolution, UN Doc S/2019/186 (n 2) paras 1–2, expressing ‘deep concern that the presidential elections of May 20, 2018 were neither free nor fair’ and calling for new ‘free, fair, and credible presidential elections, with international electoral observation, in conformity with Venezuela’s Constitution’. The draft resolution was vetoed by both China and the Russian Federation: Situation in Venezuela, UN Doc S/PV.8476 (n 2) 3.
[128] General Assembly Resolution on the Situation in Venezuela, Doc No AG/RES.2929 (XLVIII‑O/18) (n 2) para 1.
[129] Constitución de la República Bolivariana de Venezuela [Constitution of the Bolivarian Republic of Venezuela] (Venezuela) 1999, art 233 [tr William S Hein et al, ‘Venezuela (Bolivarian Republic of) 1999 (rev 2009)’, Constitute (Web Page, 2012) <https://www.constituteproject.org/constitution/Venezuela_2009>, archived at <https://perma.cc/ZP5W-CJ9C>].
[130] Ibid.
[131] National Assembly of Venezuela, ‘Acuerdo sobre la Declaratoria de Usurpaciónde la Presidencia de la República por Parte de Nicolas Maduro Moros y el Restablecimiento de la Vigenciade la Constitución’ (Declaration, 15 January 2015) <https://www.asambleanacionalvenezuela.org/actos/detalle/acuerdo-sobre-la-declaratoria-de-usurpacionde-la-presidencia-de-la-republica-por-parte-de-nicolas-maduro-moros-y-el-restablecimiento-de-la-vigenciade-la-constitucion-331>, archived at <https://perma.cc/XJG3-G6W3>.
[132] Robin Emmott, ‘EU No Longer Acknowledges Venezuela’s Guaido as Interim President’, Reuters (online, 7 January 2021) <https://www.reuters.com/article/us-venezuela-election-eu-idUSKBN29B2A9>, archived at <https://perma.cc/A59X-YGG9>. That being said, the EU has doubled down on restrictive measures targeting the key officials of the Maduro government: Council of the European Union, ‘Venezuela: 19 Officials Added to the EU Sanctions List’ (Press Release, 22 February 2021) <https://
www.consilium.europa.eu/en/press/press-releases/2021/02/22/venezuela-19-officials-added-to-the-eu-sanctions-list/>, archived at <https://perma.cc/4MXT-L5ED>. The US has followed suit by dropping recognition of the Guaidó government after the National Assembly voted to dissolve the interim government: see Dave Lawler, ‘US No Longer Recognizes Guaidó as Venezuela’s President, Biden Official Confirms’, Axios (online, 4 January 2023) <https://www.axios.com/2023/01/04/us-stops-recognizing-juan-guaido-venezuela>, archived at <https://perma.cc/C4HJ-VSN2>.
[133] ‘Interactive Map’ (n 1).
[134] Alexander Ma, ‘Almost Every Country in Latin America Sided with Trump against Venezuela’s Embattled President Maduro’, Business Insider (online, 24 January 2019) <https://www.businessinsider.com/venezuela-almost-all-latin-america-like-trump-supports-maduro-rival-2019-1>, archived at <https://perma.cc/7Q2W-PSSR>.
[135] See the footnotes to the Permanent Council Resolution on the Situation in Venezuela, Doc No CP/RES.1124 (2217/19) (n 3).
[136] See generally Magen (n 17) 377, observing that ‘[t]he existence of collective mechanisms for protecting democracy ... lend credence to the notion of the international community is at least resisting authoritarian backsliding and seeking to lock in existing democratic gains’.
[137] Neither delegation took part in the general debate of the 76th session: see records available at ‘General Debate of the 76th Session: 21 to 25 September and 27 September 2021’, General Assembly of the United Nations (Web Page) <https://www.un.org/en/ga/ generaldebate/archive/generaldebate76/en/>, archived at <https://perma.cc/FMF9-AT2G>.
[138] SC Res 2669, 9231st mtg, UN Doc S/RES/2669 (21 December 2022) 1.
[139] Council Decision (CFSP) 2021/482 of 22 March 2021 Amending Decision 2013/184/CFSP concerning Restrictive Measures against Myanmar/Burma [2021] OJ L 99I/37.
[140] Catherine Renshaw, ‘The National Unity Government: Legitimacy and Recognition’ in Makiko Takeda and Chosein Yamahata (eds), Myanmar’s Changing Political Landscape (Springer, 2023) 225, 227.
[141] For an example of political recognition of the NUG, see Letter from Elizabeth Truss, Secretary of State for Foreign, Commonwealth and Development Affairs (UK) to Tom Tugendhat, Foreign Affairs Committee, House of Commons (UK), 27 April 2022, 3 <https://committees.Parliament.uk/publications/22284/documents/164905/default/>, archived at <https://perma.cc/2HQG-X64M>, which states:
We are clear in our condemnation of the coup and stand in solidarity with all those calling for a return to democracy. One of our key objectives in Myanmar is to support and sustain a plurality of voices which includes the National Unity Government (NUG) ...
[143] See Sean Bain, ‘Myanmar: With Military Lacking Legitimacy and Control, Elected Reps Seek Recognition as Government’, Opinio Juris (Blog Post, 11 May 2021) <http://opiniojuris.org/2021/05/11/myanmar-with-military-lacking-legitimacy-and-control-elected-reps-seek-recognition-as-government/> , archived at <https://perma.cc/QAM5-TE2Q>. For instance, the US has frozen the funds held by the Government of Myanmar at the Federal Reserve Bank of New York to prevent withdrawals by the military junta. However, the NUG has no access to these assets: see Simon Lewis and Humeyra Pamuk, ‘Exclusive: US Blocked Myanmar Junta Attempt to Empty $1 Billion New York Fed Account — Sources’, Reuters (online, 5 March 2021) <https://www.reuters.com/article/us-myanmar-politics-usa-fed-exclusive-idUSKCN2AW2MD>, archived at <https://perma.cc/9743-S7NM>.
[144] ‘Recognition and the Taliban: Session 15 of the Congressional Study Group’, Brookings (Summary, 30 September 2022) <https://www.brookings.edu/research/recognition-and-the-taliban-2/>, archived at <https://perma.cc/83Z2-R7SQ>. See also statements cited in Tess Bridgeman and Ryan Goodman, ‘Expert Backgrounder: Recognition and the Taliban’, Just Security (Blog Post, 17 August 2021) <https://www.justsecurity.org/77794/expert-backgrounder-recognition-and-the-taliban/>, archived at <https://perma.cc/T2Y7-MKU8>.
[145] See also Renshaw (n 140) 228, referring to Aung San Suu Kyi’s policy on the issue of persecution of Rohingya amongst the factors accounting for Western states’ hesitation to recognise the NUG.
[146] This was famously not the case for art 3(d) of the OAS Charter (n 77). This provision expresses the member states’ commitment to ‘the effective exercise of representative democracy’. However, in Military and Paramilitary Activities in and against Nicaragua (n 34) 131–2 [259]–[261], the Court found that this clause does not amount to a legal undertaking on Nicaragua’s behalf to organise free elections.
[147] See, eg, Roth, ‘Secessions, Coups and the International Rule of Law’ (n 48) 42, referring to, amongst factors having triggered adverse reactions to anti-democratic coups in Haiti and Sierra Leone, ‘the landslide victory of the ousted President in a very recent, internationally monitored election, and the notorious brutality and demonstrable unpopularity of the forces involved in the coup’. These factors are fully descriptive of the situation in Haiti. As for Sierra Leone however, the degree of international involvement was not as significant. No UN observation mission was mandated to monitor the general elections of 26–27 February and 15 March 1993. Instead, a ‘small secretariat’ was established to coordinate the activities of international observers: see Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections, Report of the Secretary-General, 52nd sess, Agenda Item 112(b), UN Doc No A/52/474 (16 October 1997) 19–20.
[149] See the discussion in Christian Pippan, ‘Democracy as a Global Norm: Has It Finally Emerged?’ in Matthew Happold (ed), International Law in a Multipolar World (Routledge, 2012) 203, 223; Christian Tomuschat, ‘Concluding Remarks’ in Daniel‑Erasmus Khan et al (eds), Democracy and Sovereignty: Rethinking the Legitimacy of Public International Law (Brill Nijhoff, 2023) 419, 420.
[150] For different accounts of the ‘emerging’ right to democracy in international law, see generally Franck, ‘The Emerging Right to Democratic Governance’ (n 42); Franck, ‘Legitimacy and the Democratic Entitlement’ (n 17); Anne Peters, ‘Dual Democracy’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (Oxford University Press, 2011) 263.
[151] Anne-Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6(3) European Journal of International Law 503.
[152] Jean d’Aspremont, ‘Émergence et Déclin de la Gouvernance Démocratique en Droit International’ (2009) 22(2) Revue Québécoise de Droit International 57, 73; Susan Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’ (2011) 22(2) European Journal of International Law 507, 516; Magen (n 17) 384–7.
[153] See, eg, the position of the Cuban delegation in the UN General Assembly in support of accrediting representatives of the Maduro government, stating that ‘[s]upporting the Government of Venezuela is also a vote for peace, respect for the sovereignty of States and non-interventionism in their internal affairs’: UN GAOR, 74th sess, 51st plen mtg, Agenda Item 3(b), UN Doc A/74/PV.51 (18 December 2019) 2.
[154] See the declarations and reservations by Antigua and Barbuda, Barbados, Dominica, Guyana and Suriname, as well as by Venezuela itself, in the footnotes to Permanent Council Resolution on the Situation in Venezuela, Doc No CP/RES.1124 (2217/19) (n 3). It is noteworthy, however, that other reservations stemmed from the contestation of the competence of the OAS Permanent Council, rather than the OAS General Assembly, to decide on the matter. See, eg, El Salvador: at 1, 4 n 2; Mexico: at 1, 4 n 3.
[155] See, eg, Joe Verhoeven, Droit International Public (Larcier, 2000) 57, 92, 105; Roth, Governmental Illegitimacy in International Law (n 12) 413.
[156] Declaration on Principles of International Law concerning Friendly Relations and Co‑Operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, 1883rd plen mtg, UN Doc A/RES/2625(XXV) (24 October 1970) annex art 1.
[157] Ralph Janik, ‘Intervention (by Invitation) in Venezuela?’, Opinio Juris (Blog Post, 11 February 2019) <http://opiniojuris.org/2019/02/11/intervention-by-invitiation-in-venezuela/> , archived at <https://perma.cc/4DRE-GF2R>.
[158] One of the first foreign policy decisions of the Guaidó government, on 31 July 2019, was to depose a new instrument of ratification of the American Convention of Human Rights, signed 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978): see ‘American Convention on Human Rights “Pact Of San Jose, Costa Rica” (B-32)’, Organization of American States (Web Page) <https://www.oas.org/dil/treaties_B-32_ American_Convention_on_Human_Rights_sign.htm>, archived at <https://perma.cc/S8FM-SBUD>. The Convention was previously denounced by Venezuela in 2012: Letter from Nicolás Maduro Moros, Minister of Popular Power for Foreign Affairs of the Bolivarian Republic of Venezuela to José Miguel Insulza, Secretary General, OAS, 6 September 2012 <https://www.oas.org/DIL/Nota_Rep%C3%BAblica_Bolivariana_Venezuela_to_SG.English.pdf >, archived at <https://perma.cc/Z65K-44HH>.
[159] Military and Paramilitary Activities in and against Nicaragua (n 34) 107–8 [205].
[160] Third Report on Recognition/Non-Recognition in International Law (n 14) 2–3, citing Kelsen, ‘Recognition in International Law’ (n 25) 614–15.
[161] Kelsen, ‘Recognition in International Law’ (n 25) 614–15.
[162] See, eg, HM Blix, ‘Contemporary Aspects of Recognition’ (1970) 130 Collected Courses of the Hague Academy of International Law 587, 610.
[163] Aguilar-Amory and Royal Bank of Canada Claims (Great Britain v Costa Rica) (Opinion and Award) (1923) 1 RIAA 369, 381 (‘Tinoco Claims Arbitration’).
[164] Ibid.
[165] Treves Case (United States v Italy) (Decision) (1956) XIV RIAA 262, 266–7.
[166] See practice cited in MJ Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (Palgrave Macmillan, 1997) 112–13.
[167] Lauterpacht (n 16) 115; Hans Kelsen, General Theory of Law and State, tr Anders Wedberg (Harvard University Press, 1945) 219.
[168] de Wet, Military Assistance on Request and the Use of Force (n 45) 31.
[169] Memorandum on the Legal Aspects of the Problem of Representation in the UN, UN Doc S/1466 (n 36) 6.
[170] See the distinction between ‘recognition’ and ‘cognition’ in Blix (n 162) 637. The contradiction between effective control as an international legal principle and the discretionary character of government recognition acts is overcome by asserting that the government’s status for the purposes of international law is not affected by legitimacy-based recognition acts. In other words, the criteria unrelated to considerations of effectiveness ‘are extraneous to [an authority’s] quality as a government in the international law sense’: at 644.
[171] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Order) (International Court of Justice, General List No 178, 6 April 2023) 2.
[172] See Human Rights Council, Report of the Human Rights Council on Its Twenty-Ninth Special Session, 29th spec sess, UN Doc A/HRC/S-29/2 (12 February 2021) 5; Office of the United Nations High Commissioner for Human Rights, ‘Deputy High Commissioner for Human Rights to the Special Session of the Human Rights Council on Myanmar: Seizure of Power by the Military Constitutes a Profound Setback for Myanmar’ (Press Release, 12 February 2021) <https://www.ohchr.org/en/press-releases/2021/02/deputy-high-commissioner-human-rights-special-session-human-rights-council?LangID=E&NewsID=26746>, archived at <https://perma.cc/XRB7-WU2Z>. This departure from the UN General Assembly’s approach to the representation of Myanmar appears striking because the Human Rights Council is a subsidiary body of the General Assembly.
[173] On the distinction between de jure and de facto recognitions, see Blix (n 162). Writing in 1970 and citing mainly historical evidence, the author denotes the rarity of explicit qualifications of foreign government actions as ‘de facto’ or ‘de jure’: at 600–3.
[174] Talmon, ‘Recognition of Opposition Groups as the Legitimate Representative of a People’ (n 43) 226.
[175] See, eg, Ralph Janik, ‘European Recognition Practice on Venezuela: The Devil in the Details’, Opinio Juris (Blog Post, 8 February 2019) <http://opiniojuris.org/2019/02/08/ european-recognition-practice-on-venezuela-the-devil-in-the-details/> , archived at <https://perma.cc/9LNV-ZXGK>.
[176] For an example of the distinction between de jure recognition of Guaidó and de facto recognition of Maduro, see “Maduro Board” of the Central Bank of Venezuela (n 4) [123]. This was subsequently overturned in “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela [2021] UKSC 57, [93], [110(2)].
[177] Support to the Democratic Government of Haiti, Doc No MRE/RES.1/91 (n 50) [5].
[178] African Union, Peace and Security Council, Communiqué of the 25th Meeting of the Peace and Security Council, 25th mtg, Doc No PSC/PR/Comm.(XXV), 25 February 2005.
[179] See, eg, the African Union Peace and Security Council’s decision to suspend Mali after the military coup of 22 March 2012: African Union, Peace and Security Council, Communiqué, 316th mtg, Doc No PSC/PR/Comm.(CCCXVI), 3 April 2012. This states that the ‘Council holds the members of the junta personally and collectively responsible for the actions that they have taken, as well as for the security and safety of all political personalities, including the legitimate President...’: at [7]. Although Mali was not readmitted until October 2012, in June 2012 the Peace and Security Council referred to its then-suspended authorities as ‘the Malian Government’: see African Union, Peace and Security Council, Communiqué, 323rd mtg, Doc No PSC/PR/Comm. (CCCXXIII), 12 June 2012, [13].
[180] African Union, Peace and Security Council, Communiqué of the 252nd Meeting of the Peace and Security Council, 252nd mtg, Doc No PSC/PR/COMM.1(CCLII), 9 December 2010,
[3]–[4].
[181] See African Union, Peace and Security Council, Communiqué, 654th mtg, Doc No PSC/PR/COMM. (DCLIV), 20 January 2017, [5], which states that the body ‘[l]ooks forward to the participation of President Adama Barrow in the upcoming 28th Ordinary Session of the Assembly of the Union’.
[182] Roth, ‘Secessions, Coups and the International Rule of Law’ (n 48) 437, citing Ginger Thompson and Marc Lacey, ‘OAS Votes to Suspend Honduras over Coup’, The New York Times (online, 4 July 2009) <https://www.nytimes.com/2009/07/05/world/ americas/05honduras.html>, archived at <https://perma.cc/5A7G-827K>.
[183] Permanent Council Resolution on the Situation in Venezuela, Doc No CP/RES.1124 (2217/19) (n 3) para 2.
[184] Philippe Frumer, ‘“Je Suis Venu Te Dire Que Je M’en Vais...”: La Dénonciation des Traités Régionaux de Protection des Droits de l’Homme’ (2021) 125(2) Revue Générale de Droit International Public 253, 258.
[185] See, eg, Moe Thuzar and Htet Myet Min Tun, ‘Myanmar’s National Unity Government: A Radical Arrangement to Counteract the Coup’ (2022) ISEAS Perspective 8:1–25, 13.
[186] See, eg, ‘Lithuania Designates Tikhanovskaya’s Team as “Democratic Representation of Belarus”’ (n 7).
[187] See, eg, the official website of the Australian CRPH/NUG Support Group: ‘About Us’, CRPH/NUG Support Group (Australia) (Web Page) <https://crph-nugsupportaustralia.org/about-us/>, archived at <https://perma.cc/46XG-ADTG>.
[188] See, eg, ‘Myanmar Shadow Government Sets Up Office in South Korea’, Nikkei Asia (online, 18 September 2021) <https://asia.nikkei.com/Spotlight/Myanmar-Crisis/Myanmar-shadow-government-sets-up-office-in-South-Korea>, archived at <https://perma.cc/Z5U3-RV6E>.
[189] Joanne Lin and Moe Thuzar, ‘The Struggle for International Recognition: Myanmar after the 2021 Coup’, Fulcrum (Analysis, 12 December 2022) <https://fulcrum.sg/the-struggle-for-international-recognition-myanmar-after-the-2021-coup/>, archived at <https://perma.cc/ 624C-JDAN>.
[190] See Talmon, ‘Recognition of Opposition Groups as the Legitimate Representative of a People’ (n 43) 242.
[191] To draw a parallel with the international law of statehood, effective control for the purposes of government recognition is as binding on states and international organisations as the Montevideo criteria are for the purposes of recognition of states. See Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing, 2013) 242, observing that ‘not even the Montevideo criteria are a “legal checklist” that would tell whether or not an entity is a state; these criteria only influence the political process leading towards statehood’.
[192] Blix (n 162) 639–40. It has been stated in prominent writings on the subject that the main virtue of the effectiveness criteria would be in its axiological neutrality. Charles de Visscher, Les Effectivités du Droit International Public (A Pedone, 1967) 40–1, a classical account of effectiveness in international law, champions this benchmark as a rule dictated by reason, whose merit is to oppose the objective consideration of reality to practices that use recognition as an instrument of interference and political pressure. Compared to different legitimacy requirements, devoid of universally accepted meaning in the context of ideological pluralism and subject to arbitrary appreciation, effectiveness remains the best fit for an international legal system founded upon the principle of sovereign equality. See, eg, Roth, Sovereign Equality and Moral Disagreement (n 38) 273. See also Peterson (n 166) 51, which provides that
[d]efining effective control, no matter how acquired or maintained, as the necessary and sufficient criterion for recognition as a government affirms the sovereign autonomy of states in their internal affairs and bars international scrutiny of new regimes’ political ideologies and means of gaining power.
The salutary nature of the effective control criterion as a safety rail against ideologically driven recognitions appears overestimated from a practical perspective. It is doubtful that the states who pursue this doctrine do so out of concern for ideological neutrality. See the criticism by Florian Couveinhes Matsumoto, L’Effectivité en Droit International (Bruylant, 2014) 267–70. Effective control can be just as useful as a public justification for granting recognition to a friendly authoritarian regime as free and fair elections are for the international legal standing of a government-in-exile. To take this discussion one step further, the extent to which a government is effectively controlling the state apparatus, as well as its territory and population, is subject to concurring appreciations on foreign states’ behalf as much as the quality of the internal electoral process is. In other words, ‘effectiveness’ is far from being a determinate, clear-cut criterion that would be easy for foreign states to apply. Instead, it is a rather loose standard that can, as much as electoral legitimacy, accommodate the recognising of governments’ political preferences.
[193] See de Visscher (n 192) 23, observing that states extending government recognition do not confine their appreciation to the current situation. Instead, they consider the recognised government’s ability to remain in power.
[195] Roth, ‘Secessions, Coups and the International Rule of Law’ (n 48) 425–6.
[196] Translating to ‘capable of binding the state which it claims to represent’: Institut de Droit International, La Reconnaissance des Nouveaux États et des Nouveaux Gouvernements, Session de Bruxelles, 23 April 1936, art 10, tr ‘Institut de Droit International: Resolutions concerning the Recognition of New States and New Governments’ (1936) 30(4S) American Journal of International Law 185, 186.
[197] Talmon, ‘Who Is a Legitimate Government in Exile?’ (n 25) 523.
[198] Roth, Sovereign Equality and Moral Disagreement (n 38) 170.
[199] See Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, 44 [95], where the Court stated
[p]olitical ties of allegiance to a ruler, on the other hand, have frequently formed a major element in the composition of a State. Such an allegiance, however, if it is not to afford indications of the ruler’s sovereignty, must clearly be real and manifested in acts evidencing acceptance of his political authority. Otherwise, there will be no genuine display or exercise of State authority.
[201] Jansen v Mexico (United States v Mexico) (Award) (1876) XXIX RIAA 159, cited in Vincent Coussirat-Coustère and Pierre Michel Eisemann (eds), Répertoire de la Jurisprudence Arbitrale Internationale (Martinus Nijhoff Publishers, 1989) vol I, 107.
[202] See Roth, Governmental Illegitimacy in International Law (n 12) 142, stressing that one can regard effective control ‘as a potential application of the norm of popular sovereignty under adverse fact-finding conditions’.
[204] In a similar vein, see Lauterpacht (n 16) 139–40.
[205] See the reasoning in Sierra Leone Telecommunications (n 29) 831.
[206] Ibid. See also Roth, Sovereign Equality and Moral Disagreement (n 38) 85.
[207] ‘7866th mtg’, UN Doc S/PV.7866 (n 15).
[208] Corten, ‘Intervention by Invitation’ (n 45) 168.
[209] Ibid 168–9, observing that the ‘constant and resolute concern’ of ECOWAS ‘to refer to the Security Council is significant: the invitation itself does not seem to be an autonomous and sufficient legal basis for intervention’.
[211] As suggested in relation to Niger Russell Buchan and Nicholas Tsagourias, ‘The Niger Coup and the Prospect of ECOWAS Military Intervention: An International Law Appraisal’, Articles of War (Blog Post, 21 August 2023) <https://lieber.westpoint.edu/niger-coup-ecowas-military-intervention-international-law-appraisal/>, archived at <https://perma.cc/6JBR-AA8X>. This blog refers to a press statement of the UN Security Council ‘strongly condemn[ing] the efforts to unconstitutionally change the legitimate government of the Republic of Niger on 26 July 2023’: see United Nations Security Council, ‘Press Statement by the Security Council: The Situation in the Republic of Niger’ (Press Release, 28 July 2023) <https://main.un.org/securitycouncil/en/content/security-council-press-statement-situation-republic-niger>, archived at <https://perma.cc/C74P-6EYE>.
[212] Institut de Droit International, The Principle of Non-Intervention in Civil Wars, Session of Wiesbaden, 8th Commission, 14 August 1975.
[213] Institut de Droit International, Present Problem of the Use of Force in International Law: Sub-Group C — Military Assistance on Request, Session of Rhodes, 10th Commission, 8 September 2011, art 3.
[214] See Anne Peters, ‘Introduction: Principle and Practice of Armed Intervention and Consent’ in Dino Kritsiotis, Olivier Corten and Gregory H Fox (eds), Armed Intervention and Consent (Cambridge University Press, 2023) 1, 13–14, on the scarcity of state practice supporting the principle and the difficult distinction between civil wars and mere unrest, rendering impracticable its application.
[215] Susan Marks, ‘The End of History?: Reflections on Some International Legal Theses’ (1997) 8(3) European Journal of International Law 449, 471–2.
[216] See Human Rights Committee, General Comment No 25: Article 25 (Participation in Public Affairs and the Right to Vote), 57th sess, 1510th mtg, UN Doc CCPR/C/21/Rev.1/Add.7 (27 August 1996) [7], vaguely requiring that ‘those representatives do in fact exercise governmental power and that they are accountable through the electoral process for their exercise of that power’. See also Human Rights Committee, Decisions: Communication No 205/1986, 43rd sess, UN Doc CCPR/C/43/D/205/1986 (4 November 1991) [5.5], stating that the extent of the exercise is to be determined by the competent authorities and not by the people. In a similar vein, demonstrating the ambiguity on this issue, see Roth, Governmental Illegitimacy in International Law (n 12) 164, 330; Hilary Charlesworth, ‘International Legal Encounters with Democracy’ (2017) 8(S6) Global Policy 34, 37.
[217] Jure Vidmar, ‘Multiparty Democracy: International and European Human Rights Law Perspectives’ (2010) 23(1) Leiden Journal of International Law 209, 217.
[218] Sigrid Boysen, ‘Remnants of a Constitutional Moment: The Right to Democracy in International Law’ in Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights (Cambridge University Press, 2020) 465, 477–8.
[219] See generally Christina Binder, ‘International Election Observation by the OSCE and the Human Right to Political Participation’ (2007) 13(1) European Public Law 133; Christina Binder, ‘Election Observation and Assistance: Their Potential for Democracy Promotion with Special Focus on Challenges in Times of COVID-19’ in Daniel‑Erasmus Khan et al (eds), Democracy and Sovereignty: Rethinking the Legitimacy of Public International Law (Brill Nijhoff, 2023) 212.
[220] See Matthew Saul, ‘Creating Popular Governments in Post-Conflict Situations: The Role of International Law’ in Carsten Stahn, Jennifer S Easterday and Jens Iverson (eds), Jus Post Bellum: Mapping the Normative Foundations (Oxford University Press, 2014) 447, 456, deploring ‘the vague nature of many of the requirements and the grounds for contestation of the authentic meaning’ of art 25 of the ICCPR.
[221] Electoral Assistance to Haiti, GA Res 45/2, 45th sess, 29th plen mtg, Supp No 49, UN Doc A/RES/45/2 (10 October 1990).
[222] Ban Ki-Moon, Letter Dated 13 March 2007 from the Secretary-General Addressed to the President of the Security Council, UN Doc S/2007/144 (13 March 2007) annex (‘Ouagadougou Political Agreement’) 6.
[223] SC Res 1603, 5194th mtg, UN Doc S/RES/1603 (3 June 2005); SC Res 1765, 5716th mtg, UN Doc S/RES/1765 (16 July 2007) para 6; Ban Ki-Moon, Letter Dated 23 September 2010 from the Secretary‑General Addressed to the President of the Security Council, UN Doc S/2010/493 (24 September 2010) annex I (‘Statement on the Certification of the Final Voters List by Choi Young-Jin, Special Representative of the Secretary-General for Côte d’Ivoire’).
[224] SC Res 1739, 5617th mtg, UN Doc S/RES/1739 (10 January 2007) paras 2(d), 2(j).
[225] SC Res 1842, 6004th mtg, UN Doc S/RES/1842 (29 October 2008) para 6.
[226] Franck, ‘The Emerging Right to Democratic Governance’ (n 42) 85. See also Mancini (n 17) 240.
[227] The Situation of Democracy and Human Rights in Haiti, GA Res 46/7, 46th sess, 31st plen mtg, Supp No 49, UN Doc A/RES/46/7 (11 October 1991) Preamble para 5, paras 1–2, stressing ‘the importance of support from the international community for the development of democracy in Haiti’ before condemning the coup.
[228] Andrew Coleman and Jackson Maogoto, ‘Democracy’s Global Quest: A Noble Crusade Wrapped in Dirty Reality?’ (2005) 28(2) Suffolk Transnational Law Review 175, 192.
[229] Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections: Report of the Secretary-General, 50th sess, Agenda Item 112(b), UN Doc A/50/736 (8 November 1995) 17.
[230] Corten, ‘La Résolution 940 du Conseil de Sécurité Autorisant une Intervention Militaire en Haïti’ (n 17) 132.
[231] Freedom House, Freedom in the World 2006: The Annual Survey of Political Rights and Civil Liberties (Rowman and Littlefield Publishers, 2006) 312. The OAS reached this conclusion despite the 2006 presidential election being marred by violence and vote counting problems.
[232] ‘Gambia’s Jammeh Loses to Adama Barrow in Shock Election Result’, BBC News (online, 2 December 2016) <https://www.bbc.com/news/world-africa-38183906>, archived at <https://perma.cc/S78Y-RKCF>.
[233] de Wet, Military Assistance on Request and the Use of Force (n 45) 63.
[234] Resolution 2337, UN Doc S/RES/2337 (n 15).
[235] ‘A New National Assembly for Venezuela’, National Democratic Institute (Web Page, 16 December 2015) <https://www.ndi.org/venezuela-elections-2015>, archived at <https://perma.cc/87WC-LMNV>.
[236] See, eg, ‘OAS Chief Slams Venezuela over Election Observation’, Reuters (online, 11 November 2015) <https://www.reuters.com/article/us-venezuela-election-idUSKCN0SZ3 3U20151110#XPggHtHpqHDbYWkS.99>, archived at <https://perma.cc/Z883-XP59>.
[237] Reported in detail in “Maduro Board” of the Central Bank of Venezuela (n 4) [14].
[238] ‘Canada Will Not Recognize Taliban as Afghan Gov’t — PM Trudeau’, Reuters (online, 17 August 2021) <https://www.reuters.com/world/asia-pacific/canada-will-not-recognize-taliban-afghan-govt-pm-trudeau-2021-08-17/>, archived at <https://perma.cc/A3V2-D3H9>.
[239] For an appraisal, see The Carter Center, ‘Election Observation Mission: Myanmar, General Election’ (Preliminary Statement, 10 November 2020) <https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/myanmar-preliminary-statement-112020.pdf>, archived at <https://perma.cc/9BF3-BM8J>. See also criticism by Human Rights Watch: ‘Myanmar: Election Fundamentally Flawed’, Human Rights Watch (Web Page, 5 October 2020) <https://www.hrw.org/news/2020/ 10/05/myanmar-election-fundamentally-flawed>, archived at <https://perma.cc/TK5G-TZYQ>.
[240] When questioned by the British parliament on the legal grounds for recognising Guaidó, the British government didn’t deem it necessary to elaborate on its assessment of the 2018 presidential election in Venezuela as falling short of the free and fair standard: see “Maduro Board” of the Central Bank of Venezuela (n 4) [23].
[241] To explain why it considers the 2018 presidential election in Venezuela as un-free and unfair, the OAS General Assembly refers to the Inter-American Commission on Human Rights, Democratic Institutions, the Rule of Law, and Human Rights in Venezuela (Report No 209, 12 February 2018), evidencing the lack of independence and impartiality of the Venezuelan electoral administration: see Organization of American States, General Assembly Resolution on the Situation in Venezuela, Doc No AG/RES.2929 (XLVIII-O/18) (n 2) 1. However, the quality of the 2015 parliamentary election is never questioned in the OAS documentation on the Venezuelan presidential crisis.
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