A country’s relations with other subjects of international law are generally conducted through its government. If a government changes in a constitutionally accepted way the change does not alter international legal relations. However, when a country’s government is changed in extra-constitutional ways (e.g., by coups d’etat or foreign occupation), such changes do affect the country’s international legal relations. A key issue to be addressed in these cases is whether the new entity can be regarded as the country’s government in its relations with other subjects of international law.
This chapter reviews how international organizations, including the International Monetary Fund (IMF), reach decisions to recognize or deal with an entity as a member country’s governments when that member country experiences such extra-constitutional changes in its government. The first section of this chapter provides a context to the review. It initially clarifies the scope of the review, with particular reference to the object being recognized. It then turns to examine the criteria, if any, that countries apply when recognizing foreign governments that come to power by extra-constitutional means. It also examines the legal implications of such recognition. The second section contains a similar assessment, but of the criteria used in international organizations. It also examines the implications of such decisions for those other organizations. Finally, the discussion turns to the criteria applied in the IMF and the implications of such decisions to deal with an entity as a member’s government on relations between the member and the IMF.
Countries
The Object Recognized
“The recognition of a new government is quite different from the recognition of a new state.”1 Put another way, it is not possible to recognize an entity as a country’s government without recognizing the territory the entity governs as a country.2 However, it is possible to recognize a country but not recognize any government for that country.3
Sometimes, this distinction is given insufficient attention because many scholars tend to deal with both subjects in the same discussion (i.e., on the broader concept of “recognition” in international law).4 Such a conflated treatment of the two subjects is largely driven by convenience: some considerations that apply to discussions on the recognition of countries also apply to discussions on the recognition of governments.5 Still, these same scholars do highlight the distinction between the recognition of countries and the recognition of governments6 and it is important for present purposes to emphasize that distinction.7 This discussion deals exclusively with questions related to the recognition of governments; it does not deal with questions related to recognition of countries.
Criteria Influencing the Recognition of Governments by Countries
Certain concepts, such as effective control of a territory,8 or legitimacy,9 have frequently been identified as criteria that may influence decisions concerning the recognition of foreign governments by countries. However, these criteria have been applied inconsistently and there is no well-settled legal criterion applied by any country when determining its recognition of a foreign government that has come to power in an extra-constitutional manner.10
The absence of any clear criterion probably arises from three related sources. First, recognition is “founded” on the intent of the country extending recognition.11 Determining the existence and nature of any such subjective attribute is always a difficult and complex undertaking. Second, it is now widely accepted that when a country recognizes an entity as the government of another, such acts involve an exercise by the recognizing country of its sovereign rights.12 Each country is therefore free to recognize or to abstain from recognizing a government in another country,13 and one country’s recognition, non-recognition, or de-recognition of a foreign government cannot be challenged or disputed by another.14 Third, questions of recognition of governments by countries are dealt with and resolved as political questions rather than as legal questions.15
It is therefore not surprising that different countries have applied different criteria when recognizing foreign governments established in extra-constitutional ways. For that matter, even different governments of the same country may have applied inconsistent criteria when recognizing foreign governments.16
The predominantly political nature of recognition has not merely resulted in the absence of legal criteria for recognition of governments by countries. It has materially diluted the legal significance of formal statements in which the word “recognition” (or a variant) is used with respect to an extra-constitutionally established entity administering another country. It has also complicated attempts to identify whether one country has or has not recognized an entity as the government of another.
For example, to avoid problems of imputing legitimacy to entities that come to power by extra-constitutional means,17 many countries have sought since the 1970s to deemphasize the concept of “recognition of governments” in their public statements.18 These countries focus, instead, on whether they would be willing to “deal with” an authority as a government. This distinction leads to more than just political nuance. It can be the source of much confusion because some countries take pains to emphasize that dealing with an entity as a government need not imply recognition.19
A similar and related source of confusion is the attempt at distinctions between de jure and de facto recognition of governments or (in a more semantically accurate variant) between the recognition of de jure and de facto governments. There have been instances when a country declares that it “recognizes” an entity as another country’s de facto government.20 However, as one scholar notes, such statements are based on either “a purely political judgment” or “a legal determination of the existence of an effective government, but with reservations as to its permanence and viability.”21 Today, there is no material distinction in international law between de jure and de facto recognition (or between the recognition of de jure and de facto governments for that matter).22 If anything, the possible co-existence of two different governments for one country (i.e., one de facto and the other de jure), can only serve to render extremely tenuous the status of any international legal relations sought to be created by either. For example, if one entity were to enter into commitments that sought to bind the country it purported to represent, the validity of such commitments might be challenged by the other entity.
A third source of confusion is that the recognition of governments is most readily manifest through the designation of formal diplomatic status to the entity recognized as the government.23 Yet, recognition is distinct from maintaining diplomatic relations. Therefore, a country may recognize an entity as the government of another but refrain from maintaining any diplomatic relations with that other country.24 Conversely, dealings between an unrecognized entity and a consular office need not imply recognition of that entity as a government.25
These complexities, often based on politically expedient actions or statements, create the potential for significant legal pitfalls, and various theories on recognition have “deflected lawyers from the application of ordinary methods of legal analysis.”26 To avoid such pitfalls, and particularly since the issue is fundamentally a question of intention, the existence or absence of recognition by a country needs to be assessed by reference to “all … legally significant conduct and declarations.”27 Stated another way, a single act or declaration may be evidence (even strong evidence) of recognition, but the existence of such recognition can only be ascertained by regarding all legally relevant evidence. Further, such an assessment of recognition, that is, one based on a consideration of all legally relevant evidence, is consistent with ordinary methods of legal analysis used in situations where the existence or nonexistence of a legally critical fact has to be determined from conflicting statements, actions, or omissions.28
Implications Arising from the Recognition of Governments by Countries
One cannot adequately stress the need to consider all legally relevant evidence when determining the existence or absence of recognition, because recognition has significant implications in international law. Perhaps the most significant implication in the international legal realm is that only an entity recognized as a country’s government can represent the country in a way that creates international obligations that are binding on the country. In contrast, entities that are not recognized as governments have only been allowed to enter into agreements in their own name or on behalf of their movement, not on behalf of the country they purport to represent.29
There are other significant international law implications that arise when an entity is recognized as a country’s government—for example, whether the entity can legally exercise the country’s international rights, or whether the entity’s wrongful conduct can legally be attributed to that country under international law.30
Recognition of an entity as a foreign country’s government also has important practical consequences in the sphere of domestic law. Such recognition affects, among other things, the entity’s ability to assert sovereign immunity,31 access domestic courts,32 or seek entitlement to the foreign country’s property situated in the recognizing country.33 However, in these cases local courts are often obliged as a matter of public law to follow the advice of their executive branch of government. The local courts’ responses to questions of recognition therefore frequently reflect the (mainly political) policies of the country extending recognition. For this reason, one leading scholar urges “great caution … in using municipal cases to establish propositions about recognition in general international law.”34
International Organizations
Criteria Influencing the Recognition of Governments in International Organizations
The recognition of governments by countries may be resolved as a political matter. However, to the extent that international organizations are expected to be neutral, the resolution of this issue in international organizations should be founded on a firmer legal basis. Further, unlike international organizations, a country may “recognize” one entity as another country’s government but refrain from dealing with that entity.35 If an international organization recognizes an entity as a member’s government, it must then deal with that entity as a government.36
Consequently, the recognition of a government in an international organization is distinct from and may not be based on the recognition of the government by every single country that is a member of the international organization.37 Moreover, given the independence of international organizations from each other, the practices followed by different international organizations in recognizing or dealing with authorities as governments also differ. To demonstrate the nature of these differences, it is useful to compare the practice and policies of the United Nations (UN) with the practice and policies of the specialized agencies including the World Bank.
The United Nations relies on recognition established through a procedure involving its credentials committee. Under this system, when the credentials of a disputed government are filed with a UN organ, the question of recognition is discussed in the UN credentials committee. Based on the committee’s report, the credentials are then evaluated by the UN organ concerned. Pending this determination, and until the credentials are formally rejected, the delegation whose credentials are disputed can participate with full rights in that organ’s session.38
To avoid the possibility that different UN organs reach different determinations, the fifth session of the General Assembly recommended that when more than one authority claims to be the government entitled to represent a member at the United Nations, the matter should be considered by the General Assembly.39 It further recommended that the attitude adopted by the General Assembly should be taken into account in other UN organs and in the specialized agencies.40
The General Assembly resolution has had little impact on recognition of governments in the specialized agencies for various reasons. First, the specialized agencies are independent organizations with competence to take their own decisions.41 Second, General Assembly resolutions are recommendations that are not intended to bind even UN members.42 Third, the specialized agencies often have to make their determinations on recognition before the General Assembly makes its own determination, which typically only occurs at the end of the relevant General Assembly session.
As the 1993 case of Zaïre (now the Democratic Republic of the Congo) demonstrates, the specialized agencies’ conclusions can widely differ from the General Assembly’s conclusions. In 1993, questions arose as to whether Zaïre should be represented based on credentials issued by the Minister of Foreign Affairs in President Mobutu’s government or those issued by Zaïre’s Permanent Mission in Geneva on behalf of the transitional government of Prime Minister Tshisekedi. The World Health Organization’s general congress, the World Health Assembly, decided to accept the credentials of both delegations.43 The International Labor Organization decided that it had an insufficient basis to make a choice between the two sets of credentials, but that it would recognize the credentials issued by Zaïre’s Permanent Mission in Geneva on the understanding that such recognition “did not imply a recognition of the government whose representatives were included on those credentials, such recognition being a question for the United Nations General Assembly.”44 Later that year, the General Assembly decided by consensus to accept the credentials of the Mobutu government.45
The relationship between the acceptance of credentials and the recognition of governments needs some clarification. An international organization may recognize a government but not accept the credentials of a delegation purporting to represent that government; for instance, because of a formal defect in the credentials.46 On the other hand, it was generally assumed that, when an international organization accepted credentials, such acceptance signified the international organization’s recognition of the government issuing the credentials.47
However, recent events concerning the Iraqi delegation to the 58th session of the UN General Assembly test the limits of even this assumption. The (sole) Iraqi delegation to the General Assembly session was accredited by a letter dated September 17, 2003, signed by the Minister for Foreign Affairs designated by Iraq’s Governing Council. The UN credentials committee accepted this letter as credentials submitted in due form.48 On December 17, 2003, the General Assembly approved the UN credentials committee’s report, without comment. However, during this time, the provisions of Security Council Resolution No. 1483 (2003) were also applicable.
In this resolution, the Security Council, acting under Chapter VII of the UN Charter, explicitly recognized the specific authorities, responsibilities, and obligations under applicable international law of the United States and the United Kingdom “as occupying powers under unified command” (i.e., the Coalition Provisional Authority). Furthermore, Regulation 6 issued by the Coalition Provisional Authority only recognized the Governing Council “as the principal body of the Iraqi interim administration, pending the establishment of an internationally recognized, representative government by the people of Iraq, consistent with Resolution 1483.”49 (Italics added.) Since there was no internationally recognized government in Iraq when the credentials of the Iraqi delegation were accepted without comment, a question arises as to the capacity in which this Iraqi delegation participated in the General Assembly session.
Some specialized agencies have adopted operational policies that guide their work to deal with such situations. For instance, the World Bank has a specific operational policy on “Dealings with De Facto Governments.”50 (A copy of this policy is provided as Appendix II to this volume.)
Given the issues raised in the preceding discussion on recognition of governments by countries, it is not surprising that the policy explicitly clarifies that the Bank’s dealing with a de facto government pursuant to the policy “does not in any sense constitute Bank ‘approval’ of the government, nor does refusal indicate ‘disapproval.’”51 From the way the policy has been structured, it also appears that the policy is not intended to give rise to situations where the World Bank may be faced with having to deal with both a de facto government and a de jure government for the same member.
This World Bank policy sets out criteria for its staff to consider in relation to continuing existing loans or extending new loans to a country with a “de facto government.”52 The policy states at the outset that a “de facto government” is one that “comes into power, by means not provided for in the state’s constitution.”53 The policy requires Bank staff to assess two different sets of criteria in determining the World Bank’s position. The first set of criteria applies to dealings with a de facto government with respect to disbursements under loans made by the Bank before the government assumed power. These criteria focus on the government’s effective control of the country and its recognition of prior obligations. The second set of criteria are more stringent and apply to dealings with a de facto government when considering whether to extend new loans to the government. Under the second set of criteria, the Bank first allows a certain time to pass so that it can weigh various factors such as the legal and political risks associated with transacting with the de facto government, the recognition of the government by a number of countries (particularly neighboring countries), and the position of other international organizations toward the government.
That said, in the recent case of Iraq, however, press reports indicate that the Bank’s position with respect to the Iraqi authorities after June 2004 was not predicated on an application of this operational policy on “Dealings with De Facto Governments.” The Bank’s director for the Middle East is reported to have informed the Bank’s Executive Directors that “[f]ollowing UN Security Council resolution 1546, we determine that there is now a de jure government in Iraq.”54
Implications Arising from the Recognition of Governments in International Organizations
One possible reason for the difference in recognition criteria between international organizations is that the implications of recognition vary significantly between the organizations. Theoretically, in virtually all international organizations, questions of recognition should affect matters relating to the country’s representation in the organization, exercise of the country’s membership rights in the organizations (including voting rights), and both the undertaking and discharge of the country’s membership obligations.
However, in some organizations the practical implications of recognition might be limited to affecting the ability to attend meetings or to address the organization on behalf of a member country, while in other organizations, recognition could also have major financial implications for both the organization and the member country.
Further, the magnitude of these implications could also vary significantly. For example, the financial implications arising from recognition may relate only to the payment of membership dues in one organization, while in another international organization, such financial implications could affect the provision and repayment of multi-million dollar loans.
The practical implications of controversies surrounding the recognition of a government were demonstrated over a protracted period in connection with Poland’s membership in the International Civil Aviation Organization (ICAO). In 1945, the Polish authority based in London was recognized by the majority of the ICAO’s membership as the government of Poland. This entity ratified the ICAO convention in 1945. The regime in Warsaw did not recognize the ratification and subsequently refused to pay the resulting contributions. When the authority in Warsaw was subsequently recognized by the ICAO’s members as Poland’s government it submitted a fresh application for membership. This application was rejected on the ground that Poland was already a member of the ICAO. Polish delegates from the Warsaw government were admitted but their voting rights were suspended in 1952, because Poland’s subscriptions to the ICAO were in arrears. A settlement was finally reached only after five years, and in 1957 Poland paid part of the dues and had its voting rights restored.55
The IMF
Dealings with an Entity as a Member Government in the IMF
In the past, the decision to deal with governments in the IMF has normally been determined as an operational matter by its Managing Director and staff. Only rarely have difficult questions arisen that have had to be referred to the Executive Board or the Board of Governors.56 While the IMF does not have a formally documented operational policy on dealing with an entity as a member’s government, the consistent application of past IMF practice in the area renders the absence of such a document moot.
The IMF’s practice indicates that in arriving at a recommendation IMF staff have approached the issue in stages. As stated earlier, the application of these stages only arises when there has been an extra-constitutional change in a member’s government, that is, due either to internal power struggles or to foreign occupation.
In cases of internal power struggles such as coups d’etat, IMF staff have followed the views of the international community even if this results in not dealing with any authority as a member country’s government.57 If there is no clear guidance from the international community, staff will determine whether a majority of IMF members (in terms of voting power) recognize or deal with the authority as a government in their bilateral relations. In such cases, a variety of relevant acts and declarations would reflect the views of the IMF member countries—for example, statements made in discussions before other international organizations, positions taken on the issue, and bilateral dealings that may otherwise evidence recognition.58
There may be situations in which the IMF has to resolve the issue of whether an entity is to be dealt with as a member’s government before the views of the majority of IMF members (according to voting power) have been manifest. In such limited circumstances staff have recommended dealing with the entity in effective control of the country until such time as the views of the of the IMF’s members are determined.
The use of this criterion is not without risk. In one instance, the Board of Governors ultimately decided to deal with the authority in exile, rather than the authority in effective control, as the member country’s government. This happened in the case of Haiti, following the 1991 coup, when IMF staff recommended that the IMF deal with the government that exercised effective control over the country. This recommendation was made because the IMF had to address the issue at a time when the international community’s views on whether there was a government in Haiti were not clear. However, during the 1992 annual meetings of the Bank and IMF, the Chairman of the IMF’s Board of Governors, acting on the advice of the Joint Procedures Committee, accepted the credentials of the Haitian government in exile. The advice of the Joint Procedures Committee was based on the broad support of the IMF’s membership. Therefore, following the Chairman’s action all IMF relations were required to be conducted with the government in exile, including informing the government in exile of its responsibility for the prompt discharge of Haiti’s overdue obligations to the IMF. This incident only emphasizes the principle that the IMF’s practice has been to reflect the views of the international community, including the majority of its membership (according to voting power) when addressing questions relating to dealing with a member’s government.
While the above practices apply to changes in government for extra-constitutional reasons that are of an internal nature, they do not apply when the cause of the change is external. During the foreign military occupation of an entire country, the effective control criterion clearly cannot apply. This is because the international laws and usages of war provide that the status of a foreign state with effective control over a territory is that of an “occupant” or an “occupying power” and this status is distinct from that of a government.59 In such cases, the international community may choose not to deal with any government or it may choose to deal with a government in exile, if there is one. The same issue arises in cases of annexations that are not recognized by the international community.60
Accordingly, in cases of foreign occupation, the IMF’s only criterion is whether the international community, including at least a majority of IMF members (according to voting power), deal with an entity as the country’s government in their bilateral relations. On the operational aspects, it is useful to note that generally the IMF’s Executive Directors (and the Board of Governors) have supported the recommendations of the Managing Director and IMF staff. However, as previously indicated, there has been one exception.
Implications Arising from Dealing with an Entity as a Member Government in the IMF
The question that remains to be answered is whether dealing with an entity as a member’s government in the IMF implies that the entity is then automatically entitled to exercise all rights and incur any obligations on behalf of the member in the IMF. While dealing with an entity as a member government is clearly a necessary condition for that government to exercise rights in and incur obligations to the IMF, it may not be a sufficient condition. The sufficiency of the condition has to be tested against other provisions in the IMF’s Articles of Agreement and in IMF policies related to the right or obligation in question.
For instance, dealing with an entity as a member government would generally be both necessary and sufficient for the government to exercise the right to appoint the member’s Governor and an Alternate Governor to the IMF, or participate in the election of Executive Directors.61 On the other hand, it would only be a necessary condition, that is, not a sufficient condition, for the entity to have access to IMF resources. This is because provisions in the IMF’s Articles and its policies contain additional conditions that must be met for the IMF to provide financial assistance (e.g., the requirement to adequately safeguard IMF resources when providing financial assistance). These conditions vary depending on the level of access sought and the policy under which access is contemplated.
In addition to affecting issues surrounding the exercise of rights and the incurring of obligations, recognition also affects the resolution of issues related to the performance of certain obligations of membership, the attribution of responsibility for nonperformance of those obligations, and related issues of sanctions.
Under the IMF’s Articles of Agreement, the performance of nonfinancial obligations—for example, the provision of information or the avoidance of exchange restrictions—typically requires specific actions or forbearance by the member country. If the government of a member has no control over its territories or when there is no government or when the country is under foreign occupation, the member cannot be responsible for breaches in the performance of these obligations. However, financial obligations, such as those arising out of outstanding purchases or loans or a negative position in the IMF’s Special Drawing Rights Department, can continue to accrue against a member without any act or forbearance by the member. Therefore, these obligations are unaffected by the presence or absence of a government.
In any event, sanctions for failure to meet membership obligations have not been imposed on a member that has no government. One of the reasons is that the IMF’s procedures for the imposition of sanctions require an invitation to the member to be represented at the meeting of the IMF where sanctions are considered.62 If there is no government, such meetings cannot be held.
Conclusion
Certain general conclusions may be drawn from the above review of IMF law and practice. Clearly, questions with regard to dealing with governments in the IMF only arise in cases of extra-constitutional changes to a member country’s government. The resolution of these questions depends initially on whether the change is internal (e.g., coups d’etat) or external (e.g., foreign occupation). However, in both cases the resolution is closely linked to the views of the international community, including, in particular, the IMF’s membership.
Further, the decision to deal with an entity as a member’s government is based on the total evidence of the international community’s dealings and relations with that entity, including evidence of IMF members’ bilateral dealings and relations with the entity. Therefore, situations cannot arise in which IMF members (or at least a majority according to voting power) deal with an entity as a government for IMF purposes only, but do not deal with the same entity as a government in their own bilateral or other relations.
The IMF’s past practice has not been to deal with an entity as a government for some purposes but not for others. This is particularly important because dealing with an entity as a member country’s government is a necessary condition for the entity to exercise the member’s right in the IMF or for the entity to incur international obligations associated with membership in the IMF. At the same time, such action may not be a sufficient condition because of other provisions in the IMF’s Articles and relevant IMF policies.
Notes
Malcolm N. Shaw, International Law (New York: Cambridge University Press, 1997) at 303.
Throughout the discussion the terms “country” and “state” are used interchangeably. Although some legal commentators prefer the term “state,” the term “country” is used in the IMF’s Articles of Agreement.
See U.S. Restatement (Third) of Foreign Relations Law § 203, comment a (1987) [hereinafter “3d U.S. Restatement”].
See, e.g., Marjorie Whiteman, Digest of International Law, Vol. 2, at 1–132 (1963). See also Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 1998) at 86–89.
A good example of an issue that arises in both discussions, and one that is substantively beyond the scope of this chapter, is whether recognition in international law is constitutive (i.e., creates a legal status) or declaratory (i.e., merely acknowledges the existence of such status).
See, e.g., Whiteman, supra note 4, at 119–241 (discussing examples concerning the recognition of countries) and 242–485 (discussing examples concerning the recognition of governments); and Brownlie, supra note 4, at 91 (stating that although “recognition of government and state may be closely related, they are not necessarily identical”).
The importance of this distinction is not restricted to legal issues—it is also critical to considering economic policy issues from a political perspective. See, e.g., Bimal Jalan, The Future of India: Politics, Economics and Governance (New York: Viking, 2005), at 4–5 (suggesting that the conceptual distinction between governments and countries is vital because it explains the basis for the accountability of governments).
See, e.g., 3d U.S. Restatement, supra note 3, § 203 (stating that one country is required to treat a regime in effective control of another country as the government of that other country unless such control has been effected by the threat or use of armed force in violation of the UN Charter).
See Brownlie, supra note 4, at 91.
See Whiteman, supra note 4, at 68.
Shaw, supra note 1, at 310. See also Brownlie, supra note 4, at 91 (“everything depends on the intention of the recognizing government and the relevant circumstances”); and Whiteman, supra note 4, at 48 (“recognition is largely a matter of intent on the part of the recognizing government and cannot be lightly imputed”).
See Shaw, supra note 1, at 253. See also 3d U.S. Restatement, supra note 3, § 203.
Some earlier scholars, like Lauterpacht and Guggenheim, adopted the view that there is a legal duty to recognize. However, this standpoint has been vigorously criticized; not least because it bears no relation to state practice. See Brownlie, supra note 4, at 90.
See generally Whiteman, supra note 4, at 5–18.
See, e.g., Latvian State Cargo & Passenger S.S. Line v. Clark, 80 F. Supp. 683, 684 (stating that questions “of recognition or non-recognition of foreign governments are beyond the reach of the courts”); and Brownlie, supra note 4, at 89 (stating that questions of recognition or non-recognition are political both in the sense of being voluntary and in the sense of not having to rest on any legal basis at all).
See M. J. Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (New York: St. Martin’s Press, 1997), at 52.
The controversy over imputing legitimacy to governments became quite contentious during the middle of the last century with conflicting doctrinal positions, espoused by two Latin American statesmen, at the center of the debate. On the one hand, the Tobar doctrine contended that no country’s government resulting from a revolution or coup should be recognized until that country’s people have established its constitutional legitimacy. On the other hand, the Estrada doctrine contended that one country could not pass judgment on the legal capacity of another country’s government as this was derogatory to the dignity and sovereignty of the other country. Instead, a government, at its sole discretion, should simply maintain or recall its diplomatic representatives to another country and accept accreditation of that other country’s representatives. See Whiteman, supra note 4, at 84–89.
See, e.g., [1974] Digest of U.S. Practice in International Law 13 (stating that the U.S. State Department’s repeated response to queries on the issue was “The question of recognition does not arise: we are conducting our relations with the new government”). Similar practices have been followed by many other countries since the 1980s, for example, Australia, Belgium, Canada, France, the Netherlands, New Zealand, and the United Kingdom. See also Shaw, supra note 1, at 307; and Stefan Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile (Oxford: Oxford University Press, 1998), at 275–85 (setting out responses received to questions on recognition practices from The Bahamas, Belgium, Bolivia, Dominica, Finland, Ghana, Greece, Iran, Italy, New Zealand, Solomon Islands, Sri Lanka, and Switzerland).
See, e.g., 3d U.S. Restatement, supra note 3, § 203, comment b (stating that treating “a regime as a government includes accepting its acts as creating international rights and obligations; it does not require according to the regime the prerogatives commonly accorded to recognized governments, for example the right to sue in domestic courts”).
See, e.g., Luther v. Sagor [1921] 3 K.B. 532 (referring to the U.K. Foreign Office recognizing the Soviet government as the de facto government of Russia in 1921); and The Arantzazu Mendi [1938] 4 All E.R. 267 (referring to the U.K. Foreign Office recognizing the Nationalists under General Franco “as a Government which at present exercises de facto administrative control over the larger portion of Spain”).
Brownlie, supra note 4, at 92.
See also John Basset Moore, “The New Isolation,” 27 American Journal of International Law 607 (1933) (stating that the accreditation of diplomatic representatives to the de jure or de facto government of any country would “savor of burlesque”). Cf. Shaw, supra note 1, at 308 (stating that there are “few meaningful distinctions between a de facto and a de jure recognition, although only a government recognized de jure may enter a claim to property located in the recognizing state”).
Such diplomatic status may be accorded by the recognition of an envoy as a representative of the government of the country, by the grant of related diplomatic privileges and immunities to such functionaries, or by entering into agreements with the authority acting on behalf of the country it represents. See Shaw, supra note 1, at 255.
See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (demonstrating that while the United States recognizes the Castro regime as Cuba’s government, it has not maintained diplomatic relations with Cuba’s government since 1961).
For instance, a British consul has operated in Taiwan, but the United Kingdom does not recognize the Taiwanese government. See Shaw, supra note 1, at 311.
Ian Brownlie, “Recognition in Theory and Practice,” 53 British Yearbook of International Law 197 (1982).
See Brownlie, supra note 4, at 86 (emphasis in original). See also Shaw, supra note 1, at 312 (stating that “all the relevant surrounding circumstances will have to be carefully evaluated before one can deduce the intention to extend recognition”); and Whiteman, supra note 4, at 48 (stating that recognition cannot be imputed lightly).
Cf. Haile Selassie v. Cable and Wireless Ltd (No. 2) [1939] 1 Ch. 182 [hereinafter “Haile Selassie”] (determining an entity’s legal rights as a foreign government before English courts, in circumstances where evidence available indicated the simultaneous recognition of different de jure and de facto governments for Ethiopia).
See Talmon, supra note 18, at 118 (1998); and Shaw, supra note 1, at 251.
See, e.g., Article 10, para. 1, Draft Articles on State Responsibility for Internationally Wrongful Acts, Annex to UN Doc. A/Res/56/83 (January 28, 2002) (stating the “conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law”).
See, e.g., The Arantzazu Mendi, supra note 20.
See, e.g., 3d U.S. Restatement, supra note 3, § 205 (1) (stating that “a regime not recognized as the government of a state, is ordinarily denied access to courts in the United States”).
See id. § 205 (2) (stating that “a regime not recognized as the government of a state, is not entitled to property belonging to that state located in the United States”); and Haile Selassie, supra note 28 (stating that only the recognized de jure government had access to Ethiopia’s property located in the United Kingdom).
Brownlie, supra note 4, at 97.
See supra notes 17–19 and accompanying text.
These distinctions raise an interesting question. Many authors state that the recognition of governments is a “subjective concept,” i.e., based on discretion. See, e.g., Talmon, supra note 18, at 14; and Whiteman, supra note 4, at 6. Clearly this is true in the case of recognition of governments by other governments. However, it is questionable whether such subjectivity is legally tolerable in the case of international organizations, to the extent such organizations are required to be neutral.
See Talmon, supra note 18, at 175.
See Henry G. Schermers and Niels M. Blokker, International Institutional Law (Boston: Kluwer Law International, 1995), at 177–86.
UN Doc. A/Res/5/396 (December 14, 1950).
Id. In General Assembly discussions on recognition of governments, member delegations have used arguments based on the authorities’ effective control and arguments concerning the authorities’ legitimate right to represent the member state. See Schermers, supra note 38, at 179.
See Joseph Gold, Membership and Non-Membership in the International Monetary Fund (Washington: IMF, 1974), at 66 (stating that the resolution “does not purport to declare that the attitude of the General Assembly on a disputed question of representation would bind the specialized agencies, of which the [IMF] is one”).
On occasion, Security Council resolutions have “recognized” an entity as a UN member country’s government (see, e.g., UN Security Council Resolution No. 1453 (2002), adopted on December 24, 2002, recognizing the “Transitional Administration as the sole legitimate Government of Afghanistan”) or called on countries to “not recognize” an entity as a government (see, e.g., UN Security Council Resolution No. 661 (1990), adopted on August 6, 1990, calling on countries to not recognize any regime in Kuwait established by the occupying power). In this connection, it should be noted that while Security Council resolutions are binding on UN member states, if taken under Chapter VII of the UN Charter, such resolutions are not binding on the IMF, which, as an independent international organization, is only required to have due regard for Security Council resolutions under Articles 41 and 42 of the UN Charter. See Agreement between the United Nations and the International Monetary Fund, Articles I and VI, reprinted in IMF, Selected Decisions of the International Monetary Fund, Twenty-Eighth Issue (Washington: IMF, 2004), at 749.
See WHO Docs. A46/41, A46/44, and A46/51 (1993). The World Health Oranization (WHO) decision to recognize the credentials presented by both delegations has been criticized and found to be “highly unsatisfactory” from both a legal and practical standpoint as it did not resolve the issues of which delegation was to exercise Zaïre’s vote or represent Zaïre on WHO committees. See Schermers, supra note 38, at 181.
International Labor Organization, Second Report of the Credentials Committee, Provisional Record No. 14, 80th Session—June 1993.
See UN Doc. A/48/512 (December 21, 1993).
See, e.g., Gold, supra note 41, at 61 (stating that a “distinction must be observed between questions of the recognition of governments and problems of the credentials of delegations attending meetings”).
See, e.g., Schermers, supra note 38, at 1162–63. Cf. supra note 44.
Report of the Credentials Committee, UN Doc. A/58/625 (December 11, 2003), para. 5 (listing Iraq among the UN member countries that submitted credentials in due form).
CPA/Reg/13 July 2003/06, section 1.
World Bank Operational Policies, Dealings with De Facto Governments, OP 7.30, July 2001. The World Bank’s operational policies are “prepared for use by World Bank staff and are not a complete treatment on the subject.” Id.
Id., para. 2.
The policy defines loans to include both credits and grants. Id., n. 1. However, it is unclear whether the policy applies to other dealings between the World Bank and a member country’s authority that has come into power by extra-constitutional means (e.g., nonfinancial dealings such as participation in the election of Executive Directors to the World Bank’s Executive Board).
Again, it is not obvious that every situation in which an authority comes into power by means not provided by the country’s constitution triggers application of the policy.
“World Bank Says Recognizes Iraq Interim Government,” Reuters, June 29, 2004.
See Schermers, supra note 38, at 1163.
See Gold, supra note 41, at 61.
For example, in the case of Somalia in 1992, IMF staff followed the practice of the international community and recommended not recognizing any authority as the government of Somalia.
In 1975, IMF staff recommended dealing with the Provisional Revolutionary Government of the Republic of South Vietnam on the basis that a substantial number of members of the IMF with a substantial portion of the total voting power of the IMF had recognized the Provisional Revolutionary Government of the Republic of South Vietnam.
See 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex to the Convention, Article 43; and 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War.
For instance, in 1990–91 the attempted annexation of Kuwait by Iraq was not recognized by the international community, and Kuwait was regarded as a state that was illegally occupied by a foreign power and represented by its government in exile.
See IMF, Articles of Agreement of the International Monetary Fund, Article XII, http://www.imf.org/external/pubs/ft/aa/index.htm. However, the sufficiency of this condition would not exist in a situation in which the member’s voting rights have previously been suspended (pursuant to Article XXVI of the IMF’s Articles of Agreement).
See IMF, Articles of Agreement of the International Monetary Fund, Article XXVI, http://www.imf.org/external/pubs/ft/aa/index.htm, and IMF, ByLaws Rules and Regulations of the International Monetary Fund, Fifty-Ninth Issue, Sections 19 and 22, http://www.imf.org/external/pubs/ft/bl/blcon.htm.