Thursday, June 9, 2011

No Offense to Josh Keating, but He’s Confusing “Recognition” with “Recognition”

Keating begins a post on Monday with “[n]o offense to Vanuatu or Abkhazia, but there's a slightly more high-profile international-recognition dispute taking place right now.” Keating is of course referring to the ongoing international debate as to whether to recognize the Transitional National Council as the government of Libya.

Keating’s introductory sentence is misleading because he’s confusing recognition of a government with recognition of a state. Though the distinction may seem esoteric, the two varieties have radically different policy and legal effects, as well as radically different restraints. Indeed, whether a putative state is in fact a state will govern whether it has international obligations; yet, whether a particular government is recognized (or not) does not impact the existing international obligations of the state that government represents, so long as there is no question of state succession.

Recognition of a state will, depending on the school of thought to which you belong, either announce or confer statehood on some swath of territory struggling to become one. Recognition of a government, on the other hand, merely alters what government the recognizer believes to be the legitimate government of an extant state whose existence is not in question. For example, as I have argued previously, I believe the United States should extend recognition to Somaliland. This would be an example of recognizing a new state—and, depending on your point of view, either finally renders Somaliland a state or merely announces that it is in fact one.

In the case of Libya, no one contests that it is a state--it satisfies the Montevideo criteria, is recognized by most if not all other states, and is a member of the United Nations. The only question, currently, is whether the Qaddafi government is still the legitimate government of the state of Libya or whether the Transitional National Council has replaced Qaddafi’s regime as that state’s legitimate government. 

Importantly, whether a government is recognized by the United States has important legal ramifications for that putative government's ability to access U.S. courts and the presumed validity of the actions taken by the would-be government. For example, an unrecognized government (that has not achieved de facto status) does not benefit from the Act of State doctrine or foreign sovereign immunity in U.S. courts.

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