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Towards a Declaratory School of Government Recognition

PDF · Joshua Downer · Apr-11-2013 · 46 VAND. J. TRANSNAT’L L. 581 (2013)

Recognition of governments has historically been a political matter. Governments could choose to recognize or not to recognize any other government, free from the auspices of international law. However, in the wave of prodemocracy optimism after the dissolution of the Soviet Union, a group of international legal scholars declared the existence of a universal democratic entitlement, which implied that recognition of governments had legal significance. These scholars, known collectively as the Manhattan school, are generally regarded as having vastly overstated the legal implications of the shift toward democratic governance. While it is true that there is scant evidence of a general democratic entitlement, this Note argues that there is a strong preference against the reversal of democracy. This preference is reflected, in part, in a norm against the recognition of coup regimes that displace democratically elected governments. This norm represents a partial but critical vindication of the Manhattan school’’s assertion that a government’’s legality depends on its democratic character. It also has important theoretical implications, as recognition of governments is no longer merely political, but rather must reflect governments’’ underlying legal status. This shift aligns the theory of recognition of governments with the declaratory school of state recognition, in which recognition is said to merely ““declare”” the underlying legal status of the state. This Note proposes that the UN Credentials Committee, which already adheres to the principle of nonrecognition of coup regimes that displace democratic governments, formally adopt this norm as a rule guiding representation disputes before the United Nations.

 




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The Vanderbilt Journal of Transnational Law hosted a symposium called “The Role of Non-State Actors in International Law” at Vanderbilt University Law School in February 2013.

The October issue of the Journal will showcase articles by distinguished symposium guests including:

  • Mr. Ian Smillie, “Blood Diamonds and Non-State Actors”
  • Professor Jean d’Aspremont, “Cognitive Conflicts and the Making of International Law from Empirical Concord to Conceptual Discord in Legal Scholarship”
  • Professor Peter J. Spiro, “Constraining Global Corporate Power: A Very Short Introduction”
  • Professor Suzanne Katzenstein
  • Professor Peter Margulies
  • Professor Harlan G. Cohen

 

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