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.