Recent cases of government recognition, such as those concerning Libya (2011), Venezuela (2019), Afghanistan (2021), or Niger (2023), have proved controversial. The controversy partly stems from the argument that recognition of an entity that does not exercise effective control over the territory and population of a state as its government, or non-recognition of an entity that does, violates the prohibition of intervention in the internal or external affairs of other states.Footnote 1 At first sight, this argument appears categorical in that it implies that an expression of recognition or non-recognition per se can violate the prohibition of intervention. However, as the recent scholarship indicates, determining the circumstances under which a recognition decision violates the prohibition is a more complicated question, requiring attention to the effects of the particular decision.Footnote 2 This essay attempts to shed further light on the matter by examining it against the backdrop of recent illustrative cases. It ultimately argues that recognition should be viewed as a potential tool for intervention—dependent on the objectives a state seeks to achieve with it—rather than in and of itself being capable of amounting to impermissible intervention.
A caveat, however, needs to be made at the outset. The argument that recognizing an entity that does not exercise effective control, or denying recognition to one that does, violates the prohibition of intervention rests on the conventional view that effective control as a rule provides the legal basis for an entity to qualify for government status. The author believes that this view remains true, while accepting that recognition of an entity that does not exercise effective control by the international community as a whole may offset the requirement of control in a particular case. However, recent scholarship challenges the effective control doctrine by arguing for alternative or complementary criteria, such as democratic or constitutional legitimacy.Footnote 3 The answer as to when exactly recognition amounts to prohibited intervention, therefore, may vary depending on which criteria one adopts.
The Nature of Recognition and the Scope of the Prohibition of Intervention
It is generally difficult to make unequivocal arguments about recognition, as “recognition” is not a term of art in international law, “importing some standard legal significance.”Footnote 4 Its meaning, rather, depends on the intention of the state using it and, as such, is a matter of interpretation of all available evidence, including relevant public statements, in a given case.Footnote 5 Stefan Talmon’s review of state practice, for example, shows that—despite the impression sometimes given in the literature that it has a uniform meaning—states use the term “recognition” to convey a variety of different meanings, including as an expression of moral or political support for the recognized entity, depending on the factual and legal circumstances of each case. More commonly, states use recognition to indicate their willingness or unwillingness to enter into diplomatic relations with the entity in question, or, as more often referred to in the literature, to manifest their opinion on whether it fulfills the legal criteria to qualify for government status.Footnote 6
The different objectives recognition may be used for must be borne in mind when examining whether granting or denying recognition in a specific instance amounts to unlawful intervention. This is because the prohibition of intervention does not proscribe any type of influence a state may exert on another, but only coercive measures “on matters in which each State is permitted, by the principle of State sovereignty, to decide freely,” as famously formulated by the International Court of Justice.Footnote 7 In other words, what is prohibited is the use of measures that are “able to undermine the agency of the target state and impair its decisional sovereignty” in matters where it enjoys the liberty of action within the bounds of international law.Footnote 8 Recognition, on the other hand, given the different objectives it may serve, does not necessarily affect a state’s freedom of action, let alone coercively.
Indeed, a distinction is drawn, albeit sometimes impliedly, in the literature between two types of recognition decisions in terms of whether or not they affect the rights of a state.Footnote 9 No wrongfulness arises, for example, from a recognition decision that results only in withholding from the non-recognized government optional relations, such as sending or receiving diplomats or concluding treaties, or privileges, such as the right to initiate lawsuits in the courts of the non-recognizing state or to have their acts given effect in those courts. The problem arises only when a state refuses to fulfill obligations owed to another state based on its decision not to recognize that state’s government, and with it, its legal capacity to assert those obligations on behalf of the state. This is sometimes facilitated by the discretionary and exclusive recognition power conferred by domestic law upon the executive branch, potentially with broad consequences.Footnote 10 However, that the identity of governments is an objective matter, not dependent on recognition by individual states, should prevent this power from being used without regard to international law.Footnote 11 When viewed in this light, and given what the prohibition of intervention proscribes, recognition is better understood as amounting to unlawful intervention only when it is relied on to undermine the ability of a state to exercise, through its rightful government, the rights it is entitled to by virtue of its sovereignty.
Recent Cases of Recognition
Recent recognition decisions serve as instructive examples to demonstrate when recognition may amount to unlawful intervention. A good case in point is the recognition, on constitutional grounds, of Juan Guaidó by more than fifty states as interim president of Venezuela in early 2019, while President Maduro remained in power after being sworn in for another term following controversial elections. Several states, indeed, criticized Guaidó’s recognition as an unlawful intervention in Venezuela’s internal affairs.Footnote 12 It is, however, difficult to accept this claim as applying to all the recognizing states. Relevant statements and subsequent conduct by many European states, such as accepting envoys appointed by Guaidó as his personal representatives, rather than as representatives of Venezuela, for example, showed that their recognition was intended to be a form of political support for Guaidó rather than to affirm his legal status as president of Venezuela.Footnote 13 While some Latin American states went further by recognizing Guaidó’s appointees as Venezuela’s representatives, they refrained from revoking the accreditation of Maduro’s envoys or handing over the Venezuelan diplomatic premises to Guaidó’s appointees.Footnote 14 It is difficult to regard such recognition as a violation of the prohibition of intervention, as neither extending political support to an opposition figure nor entertaining diplomatic contacts with his envoys—without necessarily impacting the rights of the state concerned under the law of diplomatic relations—is likely to have coercive effects on its affairs.Footnote 15
Some of the recognizing states, such as the United States and Costa Rica, on the other hand, not only accepted Guaidó’s appointees as the representatives of Venezuela but also handed them Venezuela’s diplomatic premises within their territory.Footnote 16 The United States and the UK, moreover, granted Guaidó control over Venezuela’s financial assets within their jurisdictions.Footnote 17 The U.S. authorities took a further step by indicting Maduro on criminal charges and offering a reward for information leading to his arrest, deeming him ineligible for head-of-state immunity for not being recognized by the United States as president of Venezuela.Footnote 18 A case with arguably similar consequences is France’s refusal to withdraw its troops and its ambassador from Niger after being requested to do so by the military junta, which seized power following a coup against President Bazoum in July 2023. France refused to comply with the junta’s demands arguing that the troops and the ambassador were in Niger with the consent of the legitimate authorities that it continued to recognize as the government of Niger.Footnote 19 However, insofar as control over diplomatic premises, access to state property abroad, immunity from foreign jurisdiction, and consent to the presence of foreign diplomats or troops within their territory are matters within each state’s sovereign discretion, denying these on the basis of non-recognition of their governments is likely to constitute unlawful intervention.
Another illustrative case is the non-recognition of the Taliban which came to power in Afghanistan at the end of a long-lasting civil war in August 2021. Many states explicitly refused to recognize it unless it fulfilled certain conditions, such as respecting the rights of women, being inclusive of different political and ethnic groups, or not allowing Afghan territory to be used against the security of other states.Footnote 20 The Taliban viewed its non-recognition as politically motivated and criticized the demands made for its recognition as an interference in Afghanistan’s internal affairs.Footnote 21 It is worth noting that this has not been the first time in history where recognition was leveraged to extract concessions from a new regime in an attempt to influence its policies—a practice that has already drawn criticism in the scholarship.Footnote 22 It is also important to point out that compelling a state to do or not to do something by threatening it with harm unless it complies with certain demands is a typical way in which states intervene in the affairs of other states.Footnote 23 The key point, however, is that while the threatened harm does need not to be explicit or reach its objective, it must be clear, specific, and serious enough to impair the agency of the target state, in order to violate the prohibition of intervention; a threat to sever diplomatic relations, for example, would not suffice.Footnote 24 Viewed in this light, making recognition conditional on the fulfillment of some demands is unlikely to be considered coercive if such recognition merely results, or is meant to result, in the withholding of optional relations or privileges from the non-recognized government, or in demonstrating political disapproval.
In the case of the Taliban, for example, some states, despite explicitly refusing to recognize it as the government of Afghanistan, did not mind engaging with it on matters concerning Afghanistan, including by concluding bilateral agreements and establishing formal diplomatic relations.Footnote 25 Indeed, some states later made clear the political nature of their recognition decision by stating that they “do not politically recognize” it “as the legitimate representation of the Afghan population,” leaving intact its legal recognition as the government of Afghanistan.Footnote 26 It would be difficult, therefore, to argue that these states’ non-recognition amounted to unlawful intervention. The same cannot be said, however, of some of the non-recognizing states that have frozen the Taliban’s access to Afghanistan’s overseas assets, or of the U.S., which authorized unrelated individuals to dispose of some of those assets.Footnote 27
One last example to mention is the recognition of the National Transitional Council (NTC) as the government of Libya in July 2011, while the civil war was still ongoing. A number of states in a joint statement, and some individually, granted recognition to the NTC before it was able to secure victory over the incumbent Qaddafi forces.Footnote 28 As the UN General Assembly’s landmark Declaration on Friendly Relations sets forth under the principle of non-intervention: “no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.”Footnote 29 Recognition has, indeed, historically been used at times to influence an opposition group’s prospects of gaining power from the incumbent government during a civil war.Footnote 30
Given the different objectives it may serve, however, it is difficult to regard a mere expression of recognition as one of the prohibited measures referred to in the Declaration. Nonetheless, this does not mean that recognition of the opposition should be accompanied with material support for it to give rise to a violation of the prohibition of intervention, as “foment[ing]” or “incit[ing]” the opposition toward the violent overthrow of the government may also amount to prohibited intervention. Therefore, so long as it can be inferred from the available evidence that recognition in question serves the purpose of fomentation or incitement, it could be considered amounting to unlawful intervention, even before giving rise to any material consequences. Recognition of the NTC arguably exemplifies this. In the joint statement concerning the NTC, the participating states not only “agreed to deal with” it “as the legitimate governing authority in Libya” but also outlined the practical steps to be taken upon this decision and “for Qaddafi to go,” including extending economic and financial support to the NTC and accepting its authority over Libya’s natural resources and overseas assets.Footnote 31
Conclusion
In sum, when recognition is extended to an entity not exercising effective control, or denied to one that does, a case-by-case analysis is needed to determine if such recognition has coercive effects in the affairs of the state concerned, thereby constituting a violation of the prohibition of intervention.Footnote 32 The prohibition is not violated, for example, when such recognition merely results in withholding from the rightful government optional relations or privileges, or is meant to express political disapproval. In contrast, a violation of the prohibition arises when such recognition effectively results in denying the state the rights it is entitled to exercise through its rightful government, such as immunity from foreign jurisdiction, access to state property abroad, control over diplomatic premises, or consent to the presence of foreign troops or diplomats within its territory. However, even though such consequences could be decisive in determining whether recognition in a specific instance amounts to prohibited intervention, they need not always occur for the prohibition to apply. In the contexts of using recognition to extract concessions, or incite the violent overthrow of a government, for example, the prohibition applies so long as it can be inferred from the circumstances that recognition is used for these purposes. Given this possibility and the fact that the threshold for coercion is “variable and contextual,”Footnote 33 it is better to avoid making rigid generalizations and accept the possibility that, in the presence of the appropriate evidence, a recognition decision may prove to have coercive effects, that is, it may undermine the agency of the target state, even before giving rise to any material consequences.
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