Why recognition concept is important
Story by GITAU GIKONYO
Publication Date: 1/26/2008
Following the violence occasioned by the December 2007 disputed elections, questions have been raised as to whether the Government of President Kibaki who was sworn in is legitimate.
He receives President Yoweri Museveni at the JKIA when he arrived this week for the mediation talks. Photos/FILE.
The European Union, Britain, and the United States are yet to formally recognise the Kibaki government as legitimate. The United States, which had been the first country to congratulate Kibaki upon re-election later withdrew citing election anomalies.
In Britain, Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Ms Meg Munn, stated recently during a session in the House of Commons that "Our Government has not recognised the (Kibaki) Government and is calling on both leaders to co-operate in a process of mediation."
Diplomatic row
This remark caused a diplomatic row between Kenya and Britain and the Kibaki Government summoned the British High Commissioner to voice its anger.
Closer home, President Museveni became the first African leader to congratulate Kibaki on his "re-election as President of Kenya."
President Museveni's hasty endorsement raised eyebrows, prompting accusations and allegations that his government had something to gain from a Kibaki win. He stood his ground justifying it thus: "I, as required by Diplomatic Conventions, called to congratulate him."
Why then is recognition important? The concept of recognition emerged in the mid 18th Century. Prior to this, recognition was not an issue since the concept of sovereignty meant the location of the supreme power within a particular territory ruled by kings, monarchs or leaders of the times.
With the emergence of revolutionary states came the need for recognition by former states.
The recognition of a state under international law is a declaration of intent by one state to acknowledge another power as a "state" within the meaning of international law. Recognition constitutes a unilateral declaration of intent. It is entirely at the discretion of any state to decide to recognise another as a subject of international law. Recognition thus presupposes that a state really exhibits the characteristics of a state within the meaning of international law.
According to the prevailing three-element doctrine, this requires state territory, a state people and state power – a government that is effective and independent both externally and internally as an expression of state sovereignty.
Three elements
In addition to the three elements mentioned, a state or an international organisation can also set further conditions for recognition – for example compliance with the UN Charter or the observance of human rights. If a state is recognised before all the preconditions for recognition are met (premature recognition), this is contrary to international law and legally ineffective.
New states are generally recognised as such by other states if their origin is considered legitimate and irreversible. A state that prematurely recognises another is in breach of the prohibition of interference in the internal affairs of a state (Art. 2 no. 4 of the Charter of the United Nations).
The recognition of states must however be distinguished from the recognition of governments as different considerations apply in each. Where the recognition of governments is concerned, the central element is the exercise of sovereign power over the state. A change of government makes no difference to statehood or to the recognition of the state as such. When a state recognises a government, it acknowledges a group of persons as competent to act as an organ of the state in question and to represent it in terms of international law.
Usually, a change of government in a state is recognised as a matter of course by the international community. But in cases of coups d'etat, or other inconsistencies with the general principles of the state's constitution, recognition becomes questionable.
The only precondition for the recognition of a government under international law is its effective exercise of sovereign power; first and foremost, control of a substantial part of the territory and of the apparatus of administration. Special cases arise where a legitimate government loses all or part of its power over the state and even flees abroad, becoming a government in exile.
Legitimate government
In practice, the former government sometimes continues to be recognised as the legitimate government (the de jure government), even if it has lost effective control of the state – at least temporarily – and this control is being exercised on the ground by a new, different government (the de facto government).
If a state maintains normal diplomatic relations with a new government, this is merely a declaration that the new government is effective, not that it is legitimate.
One doctrine holds that a government that has come to power by coup d'état or revolution should not be recognised or regarded as legitimate until it has received democratic confirmation by referendum, for example.
When discussing the recognition of government, it is implied the state remains physically the same even if it is given a new name and only the government or head of state changes. The question of recognising a new government is the question of acknowledging a new representative of a state to the international community, nothing more. But this is not a trifle matter since the only way for the state to do business with other states is if it has a recognised representative.
A recognition doesn't necessarily imply that diplomatic relations will be established or maintained, though, the only limitation the recognising state brings upon itself is that it can hardly recognise any other government of the state unless the already recognised government falls from power. What this means is that whereas the Kibaki government may not be recognised by USA, EU, Britain etc, these states cannot recognise another government in Kenya until the Kibaki government falls from power and a new government is sworn in.
When can change of a government be called into question? International law allows states to exercise great discretion when granting or withholding recognition, especially when a new government comes into power by violent means.
Generally, a change of government isn't called into question as long as the Head of State remains the same. Recognition is accorded to the Head of State, and so no problem of recognition arises when a revolution does not affect the Head of State. For instance in 1967 in Greece, the government was overthrown by a military coup, but the formal Head of State, the king, remained and there was no question of recognition. However when the military deposed the king in 1973 and thus changed the Head of State, the question of recognition arose. No problem of recognition arise when there is a constitutional change in the Head of State, for example, when a British monarch dies and is succeeded by the eldest son.
States have often used recognition as an instrument of policy; for instance USA uses it as a mark of approval. Indeed during the Cold War, the recognition of governments were often relative to the policy of the new government. If the government's alignment in the Cold War was unchanged, the powers often saw little need to question the change, regardless of how the change of government came to be.
However, where a country undergoes a parliamentary and presidential vote, the new government that is voted in is usually recognised through messages of congratulations to the Head of State from other heads of state. It does not matter that the incumbent is re-elected. If the change is unconstitutional or is seriously questioned, other countries make statements of recognition depending entirely on political and not legal considerations.
The criterion for the recognition of a new government is debatable. Some argue it is only a matter of politics. However some of the criteria that have been used at one time or another includes public support/democracy which is at times ambiguous. It can safely be argued that the non-recognition of Kibaki government so far is largely because it is viewed as lacking public support.
Another criterion is legitimacy and human rights. What is legitimate will usually found in the state's Constitution. Thus in the case of Kenya, it would be a question of the government winning in a free and fair election following guidelines as laid out in the Kenyan Constitution.
In a situation where the international community does not recognise the legitimacy of a constitution, they usually compare the situation with what is constitutional in their own states. Nowadays however, under the hegemony of liberal democracy, the criterion of public support often surpasses legitimacy as criteria.
Even though issues of human rights are often brought up in international politics as a tool to discredit and condemn states, it has only rarely been used as criteria for recognition of governments. At present, it is in practicality supplanted by the criteria of public support.
There are therefore no discernible patterns when one criterion is used over another but it is clear that public support/democracy is highly rated.
There are a few restrictions in regard to recognizing governments. For instance, a premature recognition can be considered an unlawful intervention in the internal affairs of a state. This was the case when Germany and Italy recognised the nationalist government of Franco in 1936 when the Spanish Civil War was far from decided.
Unlawful intervention
Failing to recognise a change of government when the old has obviously fallen from power could also be considered an unlawful intervention. The insistence by which imperial China, France, Italy and the United States maintained diplomatic relations with the government of the Tsar long after the Russian revolution is an example of this. The western powers' recognition of the Taiwanese government in lieu of the communist Beijing as the true government of China after World War II might also be an example.
Non recognition is usually combined with economic sanctions in an effort to destabilise or at least delegitimise, governments that have lost favour from the recognising state, or never had it.
However the use of sanctions against an entire population to effect regime change, whether the target is Iraq or Cuba or any other country, is both immoral and ineffectual.
Withholding recognition has been used in an attempt to force changes of policy on a new government, as illustrated by the non-recognition of the Communist government in China in 1949 by the United States. The United States normally follows a policy known as the Stimson Doctrine which was established by Secretary of State Henry Stimson in 1931.
Recognition gives legitimacy. However it should not, and need not, indicate approval. Generally speaking, where a new government is in effective control of the territory and seems likely to continue, recognition should not