Choice and Evasion in Judicial Recognition of Governments: Lessons from Somalia

II. International Law and the Recognition of Governments

One of the prerogatives of any legal system is to determine who or what are the entities entitled to derive benefits or to be subjected to duties under its jurisdiction. In this, as in other areas, international law has sought to imitate domestic law, but, as in other areas, the imitation is at best hesitant and incomplete, at worst unsuccessful and futile. This state of affairs is not unusual for international law, perpetually torn, as it is, between trying to regulate the relations between States on the one hand and relying on States to regulate themselves for its own definition and existence on the other. In these circumstances, the minimum requirement for the emergence of an international norm from the vagaries of the state of nature is an understanding between States that regulation, albeit an infringement on their freedom is, at least in the long term, in their own best interests.

It is the fact that this prerequisite has not been universally accepted in the field of recognition of governments that has made international law's attempts to regulate the entry of new entities into its system so problematic. Progress in this area has been hampered by States' unwillingness to be deprived of a valuable political instrument in their dealings with other States: extending or refusing recognition to an entity can, and is, of course used to obtain for oneself or to deny to another a political advantage. In addition, even if States acknowledge, albeit reluctantly, that international law may have an interest in regulating the entry of international persons (such as States) into its system, the case that governments, the all-too temporary agents of States, also merit or require such regulation has not been made to their satisfaction. Moreover, if the criteria international law has advanced over the years for the recognition of new States have been less than rigid, the criteria for recognizing new governments have, if anything, been even more fluid. Requirements such as constitutionality, respect for the wishes of the people, necessity, willingness to fulfil one's international obligations have all been put forward by different governments and at different times. Successive United Kingdom Governments relied on yet another criterion, that of effectiveness: an entity able to exercise effective control over a particular territory would be recognized as that territory's government, irrespective of whether the international community or Her Majesty's Government approved of that entity.³

None of these criteria, however, could claim to have attained the status of customary international law, especially as they were not being applied consistently even by the States purporting to enunciate them. Added to this is the argument that as international law regulates the affairs between but not within States, it would be insulting to, if not an unjustified interference in, another State's affairs to issue judgments as to the desirability, legitimacy or viability of its new government. It is such considerations that led an increasing number of countries to follow the lead of the Mexican statesman Estrada in ceasing to extend recognition to governments. This policy was adopted by the British Government in 1980.⁴ According to Lord Carrington, Her Majesty's Government would no longer accord recognition to governments: instead, the question whether it qualifies to be treated as a government would be left to be inferred from the nature of the dealings, if any, which Her Majesty's Government has with them. The decision of what dealings the British Government would have with regimes that came into power unconstitutionally would itself be taken on the basis of whether they are able of themselves to exercise effective control over the territory in question.⁵ The criterion of effectiveness, therefore, remained paramount.

The popularity of the Estrada doctrine stems from the fact that it relieves governments from having to make difficult, sensitive and often embarrassing choices between competing regimes. It enables them, if they so choose, to have dealings with more than one regime in the same State without having to express approbation or disapprobation of any of them. Such flexibility is not of course available to domestic courts that may be called, from time to time, to adjudicate on the validity of acts taken by entities whose authority to take such acts is unclear. When such a case arises the courts have no choice but to reach a decision which will involve making a judgment on the status of the new regime. The source and content of the criteria they use to make this judgment are not of course self-determining but a matter of choice: whether they seek guidance from international law, domestic law, Her Majesty's Government, or elsewhere, the selection, interpretation and application of that guidance remain theirs. The following section will look at how English courts have exercised this choice in the past and to assess whether any changes are likely to follow in the future.

3 Statement by Secretary of State Morrison in Hansard, H.C., Vol. 485, Cols. 2410-2411 (21 March 1951).

4 The United States have always claimed that recognition is a discretionary tool: see 1977 US Department of State Statement [1977] U.S.D.I.L. 19 and L.T. Galloway, Recognizing Foreign Governments: The Practice of the United States (1978). See also Peterson, `Recognition of Governments Should Not Be Abolished', 77 AJIL (1983) 31.

5 H.C. Deb. Vol. 983, Cols. 278-279; H.C. Deb. Vol. 985, Col. 385.

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