Reasons for an Objective Framework of Governmental Status

A presumption against limitations of state sovereignty lies at the foundation of international law. As the Permanent Court of International Justice put it, “[r]estrictions upon the independence of States cannot … be presumed.”Footnote ⁴ In this light, the identity of a state’s government is a matter that the state is presumed free to choose for itself. As said in the Bolívar Railway Company Case, “a change of [nations’] rulers … are but expressions of a change of national will.”Footnote ⁵

Additional specific manifestations of the general presumption support the objectivity of governmental status, particularly as regards the constitution and form of government of a state.

In the words of the International Court of Justice, the political system of a state is a matter “which each State is permitted, by the principle of State sovereignty, to decide freely.”Footnote ⁶ Since the identity of a state’s government reflects the state’s political system, a restriction on a state’s freedom to choose its government would effectively limit a state’s freedom to choose its political system.

Moreover, as the International Law Commission said, “[i]t is a matter for each State to decide how its administration is to be structured.”Footnote ⁷ No matter the choice, the structure includes one or more persons to exercise executive authority on the state’s behalf—that is, its government.Footnote ⁸ So, if each state does indeed remain free to choose its structure (viz its constitution), it must also be free to choose its government. The absence of a state’s freedom to choose its government would effectively limit its freedom to choose its constitution.

This does not mean that the government of a state must be “constitutional,” a term used here with quotation marks to refer only to a government that has a valid basis in the existing power arrangement within a state. Indeed, if a government had to be “constitutional,” the state would be limited in its ability fundamentally to change its constitution, as it is through the success of an “unconstitutional” claim (that is, a claim with no valid claim to power in the state’s existing constitutional arrangement) that a state fundamentally changes its constitution.Footnote ⁹

This merely supports the presumption against international law limiting the state’s freedom to choose its government, whether by imposing specific criteria or by all together lacking an objective framework for identifying the government of a state.

The existence of an objective framework is supported by state practice too, since states tend to refer to the existence of settled criteria for the recognition of governmental status. For example, the UK government has stated that “international law … defines the conditions under which a Government should be recognised … and it is a matter of judgment in each particular case whether a régime fulfils the conditions.”Footnote ¹⁰ Similarly, Barbados has said that there exist “basic requirements in … international law for recognition [of governmental status].”Footnote ¹¹

Moreover, the suggestion that the enjoyment of governmental status depends on recognition of that status, rather than the satisfaction of objective criteria, creates potential for an entirely dysfunctional international legal framework. If recognition by an overwhelming majority of states is needed, a state may find itself unable to operate because other states do not recognize its government, for whatever reason. If lesser recognition would suffice, it would appear possible for one part of the world lawfully to accept as effective the consent to military force that is given by an ostensible government, while such consent would not render lawful the use of force as far as the remainder of the world is concerned. Worse still, different states could lawfully rely on consent emanating from rival authorities within a state to use force in the territory of that state. Similarly dysfunctional, not to say entirely unworkable situations could arise as regards the status of a state to a treaty, the waiver of its immunities, and so on.

How to Ascertain This Framework

As with other rules of customary international law, the content of an objective framework under customary international law for identifying the government of a state is to be ascertained by reference to the general practice of states and opinio juris.

The recognition of governmental statusFootnote ¹² has important evidential value in ascertaining the customary international legal framework for the assessment of governmental status. Not only is it state practice. Whether due to the presumption against limitations on state sovereignty or “the character of the issues” concerned,Footnote ¹³ the recognition by states of governmental status may be presumed to reflect the opinio juris of those states as to the applicable criteria. Even in the absence of such a presumption, the practice of states themselves reflects the view that their practice is based on objective international legal considerations. As Hersch Lauterpacht described the general position, “States attempt to relate their action in the matter of recognition of governments to some objective test for which they claim general validity.”Footnote ¹⁴

A state’s recognition of governmental status thus typically reflects its view as to the content of the law and its application to a specific situation. Accordingly, the general recognition by states of a specific claim to governmental status is, in effect, conclusive as regards the enjoyment by that claimant of governmental status.Footnote ¹⁵ Isolated instances of recognition, too, may have some probative value as regards the framework against which claims to governmental status are to be assessed. The precise evidential weight attached to any specific instance of recognition depends on various factors, including the extent to which it accords with both the recognizing state’s practice and the practice of other states.Footnote ¹⁶

Inconsistent views as to the identity of a specific state’s government might not provide clear guidance as to the identity of that state’s government. This does not necessarily suggest that there is no customary international legal framework for identifying a state’s government. As with virtually any legal standard, there may exist evidential or other difficulties in the application of this framework.Footnote ¹⁷ Yet even inconsistent practice may provide valuable evidence for the framework regulating governmental status. This is especially so if the divergence in states’ views results from disagreement on the application of a pertinent consideration, rather than the pertinence of that consideration. For example, between 2019 and 2023, states expressed different views as to whether Nicolás Maduro or Juan Guaidó enjoyed governmental status regarding Venezuela. At the same time, states supporting either of these claims often mention the perceived “constitutionality” of the claimant they supported, suggesting this is a relevant consideration.Footnote ¹⁸

The Content and Rationalization of the Framework

If the identity of a state’s government is a matter for the state itself to decide, the challenge for the purposes of international law is to ascertain the state’s choice, as it is generally through its government that a state expresses its views. Indeed, insofar as international law does not restrict the freedom of a state to choose its government, an objective framework can be understood as a means of ascertaining the state’s choice.

This can be illustrated in respect of the traditional framework for governmental status. It is uncontroversial that effective control over a state’s territory and population has historically been central to the attainment of governmental status. Indeed, this has been necessary for an “unconstitutional” claimant to attain governmental status, through which a state was taken to have opted for a fundamental change to its constitution and for a new government.Footnote ¹⁹ It has also been necessary for the enjoyment of governmental status that a claimant is autonomous. Even if this has been somewhat overlooked in the literature, it serves the important function of precluding so-called “puppet” governments, like the Samrin regime in Cambodia, or the Free Provisional Government of Kuwait in Iraq, from enjoying governmental status.Footnote ²⁰ This is reflected in the 1923 arbitral award of the Tinoco Case, which referred to “independence and control” as the “standard set by international law” for assessing a claim to governmental status.Footnote ²¹ In this way, international ensures that the government indeed reflects the state’s own choice.

In general, until the end of the 1980s, an autonomous claimant in effective control enjoyed governmental status, replacing any prior government. For example, in 1989, following Vietnam’s withdrawal from Cambodia, and prior to the Framework for a Comprehensive Political Settlement of the Cambodia Conflict, states were called on “to recognise the de facto Government of Cambodia.”Footnote ²²

Practice since the early 1990s nevertheless shows, with considerable consistency, that autonomous effective control no longer suffices for a claimant to enjoy governmental status where there exists a rival autonomous “constitutional” claimant. In other words, an autonomous entity with a valid claim to power in the state’s existing constitutional arrangement will retain or even attain governmental status, regardless of whether it has ever exercised effective control and no matter whether a rival claimant has secured such control. Beyond the earliest clear example of this in relation to Haiti between 1991 and 1994,Footnote ²³ more recent illustrations in this regard include the general acceptance of the governmental status of Alassane Ouattara in 2011Footnote ²⁴ and Adama Barrow in 2016Footnote ²⁵ in respect of Côte d’Ivoire and The Gambia, respectively, as well as the continued recognition of Manuel Zelaya as President of Honduras, subsequent to the 2009 “coup.”Footnote ²⁶ In each of these cases, there has been a rival autonomous claimant in effective control (that sometimes even comprises the incumbent government) that is denied governmental status due to the subsistence or emergence of the rival autonomous “constitutional” claim.

This development does not deprive the international legal framework for assessing governmental status from being understood as a means of ascertaining the state’s choice of government. Conversely, it further privileges the state’s pre-expressed choice, through its existing constitution, by limiting the circumstances in which an “unconstitutional” claimant reflects a state’s choice to opt for an “unconstitutional” government and thereby fundamentally to change its constitution. Illustratively, in light of Abdrabbuh Mansur Hadi’s continued claim as president, Yemen is taken not to have opted for a fundamental change to its constitution that reflects the power arrangement that the Ansar Allah (a.k.a. Houthi) claimant purports to exercise in respect of Yemen.Footnote ²⁷

This heightened significance of “constitutionality” even explains why states sometimes disagree on who comprises the government. For example, as previously suggested, the states that support Nicolás Maduro’s claim to the presidency referred to the perceived “constitutionality” of his claim, and the states that supported Juan Guaidó’s claim to the presidency referred to the perceived “constitutionality” of his claim.Footnote ²⁸ These states disagreed more on who is the “constitutional” government, rather than on whether the “constitutional” claimant enjoyed governmental status.

While reference is sometimes made to democratic representativity or other forms of “legitimacy,” caution must be exercised before readily accepting as part of positive international law any criterion that would limit the freedom of a state to choose its constitution or form of government. For example, to suggest that a claimant must be democratically representative in order to enjoy governmental status would limit the freedom of each state to choose its political system. While international law is, of course, conceptually capable of limiting this freedom, the presumptive sovereign freedom of states dictates in favor of an equally plausible alternative understanding of relevant practice. Of course, there is no limitation on the state’s freedoms in privileging a claimant that is “constitutional” because it has been democratically elected. International law then simply continues to give effect to the state’s choice.

Considerations of legal policy also inform the desirability of certain criteria. Illustratively, to suggest that a claimant must respect some or all human rights obligations to enjoy governmental status may result in a state not being responsible for conduct that would otherwise be attributed to it and for which its responsibility would be engaged.Footnote ²⁹ As for an ostensible government whose claim arises from or involves the breach of an obligation arising under a peremptory norm of general international law, other rules of general international law set the general direction in terms of legal policy, though practice and opinio juris remain necessary for this to be reflected in positive law.Footnote ³⁰