Which government represents a state? In most cases, the answer is obvious—but looking around the world, there are an alarming number of disputed situations. Afghanistan, Libya, Myanmar, Niger, and Venezuela are just some of the countries that have been sites of contestation in recent years. And the trendlines suggest that we may see more in the years ahead. One NGO that tracks conflicts finds that their prevalence has doubled over the last five years and rates fifty countries as currently having turbulent, high, or extreme levels of conflict.Footnote ¹ While conflict does not always trigger disputes over which government represents a state, it raises the likelihood of these disputes. And the resolution of these disputes is often of critical practical importance, since recognition of a government as representing a state can give that government international standing, ownership of diplomatic premises, sovereign immunity, authority over assets, and control over other aspects of the state’s international legal personality.

At the same time, international consensus around what international law requires for recognition of governments feels fragile and potentially fraying. The old principle of effective control remains legally and practically important. But how to apply it is not always obvious, and we also see increased debate about the extent to which recognition of governments can or should be influenced by democracy, constitutionalism, and compliance with core principles of international law. The lack of de jure recognition for the Taliban as the government of Afghanistan is a notable example. In the years ahead, we may see not only more conflict but also more debate around the ground rules of governmental recognition.

This symposium brings together scholars and practitioners with expertise on various aspects of the recognition of governments. Their essays cover a fascinating set of issues. Some engage with the overarching question of what international law is and should be regarding recognition of governments. Others focus on more targeted settings such as international organizations and international arbitral tribunals. One essay looks at the interplay between domestic law regarding who within a government can make recognition decisions and international law regarding what recognition decisions are internationally lawful. Each contribution draws on recent examples and brings an expert’s eye to current debates.

Scott Anderson looks at the interplay in international and domestic law on the recognition of governments through a case study of the United States. A fellow at the Brookings Institution in the United States and a leading commentator on U.S. foreign relations law, Anderson takes as his starting point the U.S. Supreme Court’s 2015 decision in Zivotofsky, which held that the president has exclusive power to make recognition decisions on behalf of the United States. Anderson seeks to understand the potential scope of this decision and, in particular, what levers might be available for Congress and the U.S. courts if the president uses this recognition power in ways that are deeply problematic or inconsistent with international law. He argues that these other branches of government may have considerable power to take steps that accord with de facto recognition of foreign governments that have effective control of their states—and that this may serve as a buffer against otherwise unconstrained presidential power.

Seyfullah Hasar’s contribution considers the extent to which the denial of recognition to a government will violate the prohibition against intervention in a state’s internal affairs. An assistant professor at Dicle University in Türkiye, Hasar argues that recognition is actually a bundle of issues—and that the international legality of denying recognition to a government in effective control of the state’s territory depends on what parts of this bundle are being withheld. He argues, for example, that recognizing a government that does not have effective control (as opposed to the government that does have effective control) is not by itself a violation of the prohibition against intervention. But he suggests that it would be a violation were a state to hand over diplomatic premises to this government or to treat it as authorized to consent to military intervention. Hasar illustrates his argument with recent examples regarding the non-recognition of governments in Afghanistan, Libya, Niger, and Venezuela.

Niko Pavlopoulos’s contribution builds on his recent book on The Identity of Governments in International Law. Pavlopoulos, currently a judicial assistant at the UK Supreme Court but writing in his individual capacity, is the guiding force behind this symposium. His essay explores the vexed question of whether international law possesses a single framework for the recognition of governments—and what this framework might be. Pavlopoulos argues that there is such a single framework and that it must be based on objective criteria. He argues that a government that claims power based on the state’s existing constitution is accorded preferential treatment, while also recognizing that, in the absence of such a government, effective control continues to perform a central role, with the other traditional factor of autonomy remaining important throughout for reducing the risk of “puppet” governments.

Christiane Ahlborn’s contribution discusses how international organizations handle contestations over which government represents a state. An assistant professor at the School of Law of Trinity College in Dublin, Ahlborn focuses on practice at the United Nations and describes its complex and sometimes messy decision-making processes. She notes in particular the varying practices of the General Assembly and its Credentials Committee, as well as the ways in which other UN organs and specialized agencies have sometimes differed from the General Assembly in determining what government to treat as representing a state. Ahlborn explains that the variation in practices can be explained by international organizations’ struggle to balance idealistic goals, like condemning illegitimate regime changes, with the practical demands of fulfilling their mandates.

Réka Àgnes Papp brings a practitioner’s eye to how international arbitral tribunals do and should determine which of two contested governments can represent the state in arbitral proceedings. A special counsel at the Archipel law firm in Switzerland, Papp argues that arbitral tribunals have a duty to determine which government is the representative and that they should base their selection on international law, with particular attention to the issue of effective control. She focuses on recent cases from Venezuela and Yemen. Papp closes by emphasizing that these determinations have high stakes and relatively high risks of error. She therefore notes the importance of having meaningful paths to annulment or non-enforcement of arbitral awards where the arbitral tribunal may have erred in determining which government represents the state.

Finally, Patrick Dumberry, a professor at the University of Ottawa in Canada, focuses on how international arbitral tribunals dealt with identifying the proper government of Libya in 2011. He looks in particular at the Cengiz case that arose under the bilateral investment treaty between Turkey (its name at the time) and Libya. The underlying facts involved vandalism of a Turkish claimant’s property by Colonel Gaddafi’s troops on the same day that, elsewhere in Libya, the forces of the new National Transitional Council (NTC) had breached Tripoli. Dumberry critiques the tribunal’s determination that the NTC was the government of Libya on that date given the ongoing and unsettled power struggle. He uses this case and some other examples from Libya to illustrate the challenging questions that international arbitral tribunals can face regarding the recognition of governments.

Collectively, these essays bring cutting-edge perspectives to the issue of recognition of governments. They are timely and important contributions to the field. And regrettably, as instability continues to wrack our globe, their importance may become all the greater in the uncertain years ahead.