II. External Legitimacy and Representation from an International Legal Perspective
In the context with which this chapter grapples, legitimacy should be understood as the perception of the adequacy of, first, the origin of power (legitimacy of origin), and second, the aims for which it is wielded (legitimacy of exercising power).2 Legitimacy raises the question of how an actor exercising public authority is perceived as having a “right to rule”.3 In that sense, it can be said that the question of legitimacy in the exercise of public authority is, to a large extent, a moral question.4 Whether referring to the origin or the exercise of power, such moral perception can be internal or external.5 The internal legitimacy of a regime refers here to the perception of legitimacy by those subjected to the exercise of public authority of that particular regime. The external legitimacy, on the other hand, approaches such a question from the standpoint of international actors, namely states and international organizations. A few words must be said about each of these two facts of legitimacy for the sake of introducing the debate in which this chapter engages.
In its internal dimension, legitimacy of an authority usually relates to its achievement of social and distributive justice,6 and thus revolves around the existence of a government (p. 57) for the people.7 This is called the internal legitimacy of the exercise of power. It is this type of legitimacy that, as Max Weber famously explained in another context, enhances the stability of an authority and secures obedience.8 This means that in most political systems, it is the internal legitimacy of exercise that is constantly being tested on the basis of the authorities’ actual deeds, as such a continuous appraisal is an intrinsic part of any regime’s internal life. Alternatively, the legitimacy of origin, in its internal dimension, is traditionally not subject to any appraisal as long as the internal constitutional rules of power-transition are respected, and these (secondary) rules are themselves deemed legitimate. In its external dimension, legitimacy of origin traditionally remains unquestioned by a nation’s peers as long as the political life of that regime is not—knowingly9—disrupted by unconstitutional transition between its governments or a coup d’état, severe unrest, an unbridled insurgency, or grave and systematic violations of human rights. The legitimacy that is scrutinized in this case can pertain to both the origin and the exercise of power.
In the specific case this chapter focuses on, it is the way in which the Syrian regime has exercised its power—and not its autocratic origin10—which has generated controversies over its external legitimacy and over its external capacity to represent (and speak on behalf of) those on which it claims a monopoly of public authority. The question at stake here is thus that of (the consequences of) the Syrian regime’s external (il-)legitimacy of exercise.
At this preliminary stage, a few remarks must also be formulated about the discretionary character of the determination of external legitimacy, as in the case of the Syrian regime. In this respect, it should be recalled that the highly controversial character of any governments’ legitimacy mostly stems from the subjectivity of its evaluation. Indeed, there are no seemingly objective and formal criteria—whether legal or of any other kind—to determine a government’s legitimacy. That means that each state enjoys a comfortable leeway when asked to recognize the power of an entity that claims to be another state’s representative in their bilateral intercourse. As a result, the determination of the capacity of a given government to represent the state remains a highly political issue. International relations are therefore replete with situations where a government is deemed legitimate by some states and illegitimate by others. Despite being intrinsically a political matter, the issue of representation is not without consequence in the international legal order, which is why international lawyers have long made it a traditional object of their scholarly investigations. In other words, although acknowledging the primarily political nature of issues of representation, the present contribution addresses the situation in Syria through the lenses and cognitive tools international lawyers are familiar with.
(p. 58) Although the determination of the legitimacy of a regime is a fundamentally subjective and political test, practice shows that such a test is not carried out accidentally and randomly. Rather, past practice demonstrates that there are constant patterns as to when and how the legitimacy of governments is tested. In fact, government legitimacy is not constantly under scrutiny in the international legal order. The question of legitimacy only arises when there is an actual need to re-evaluate where the authority to act and speak on behalf of a given state is vested. Such a determination is only required in limited, but serious, situations. For instance, the authority that can speak and act on behalf of the state in the international legal order must be determined ahead of any recognition of government and when accreditation within international organizations is sought by two warring governments. These are the two specific questions on which the next section focuses in the context of the Syrian crisis. It is true that such tests of authority may occur in other contexts, for instance, when a state invites another state to carry out a military operation on its territory. The case study on which this chapter is based, however, has not yet provided any significant insights applicable to testing grounds of legitimacy other than the two that have been mentioned preliminarily. This is why this chapter will leave aside other hypotheses of examination of a regime’s legitimacy.
Before more specifically examining each of these situations in the case of the Syrian crisis, one final remark must be made about the need to distinguish between the qualification and disqualification of governments. If a new government secures international recognition or its delegates are accredited, it qualifies as the legitimate representative entitled to speak and act on behalf of the state. But legitimacy can also have a disqualifying function when a government, previously recognized as the legitimate representative entitled to act and speak on behalf of a state, loses this recognition. In other words, it is disqualified from being the representative of that state. In the case of intervention by invitation, disqualification occurs when the state’s request for intervention is refused, provided that the refusal is warranted by the inability of the government to speak and act on behalf of the state. In the case of the accreditation of delegates by international organizations, disqualification occurs when the state’s delegates are refused accreditation. The following observations are only concerned with the disqualifying role of legitimacy in the case of the Syrian crisis and especially the possible manifestations of a disqualification (and the consequences thereof) of the Syrian regime as the legitimate representative of Syria. In other words, questions of recognition and accreditation will only be approached from the standpoint of the disqualification of the Syrian regime. Yet, as the following section will demonstrate, contemporary practice—and especially that pertaining to the Syrian crisis—has witnessed the emergence of a new diplomatic narrative that leaves room for oscillation between qualification and disqualification of government: the (withdrawal of) recognition as the legitimate representative of the people.
III. Manifestations and Sanctions of Governmental Illegitimacy
As was explained above, the determination of the government that can legitimately speak and act on behalf of the state in the international legal order is principally carried out when the question of its recognition arises (Section A) or when accreditation within international organizations is sought by two warring governments (Section B). Each of these two questions deserves a few observations in connection with the Syrian crisis.
(p. 59) A. Recognition as a Government vs. Recognition as a Legitimate Representative
Withdrawal of recognition of a government is commonly implied in the recognition of a newly formed government. Withdrawal of recognition short of any recognition of another government, that is, when not simultaneously accompanied by the recognition of another body as the government of the state,11 is rare in practice.12 The situation in Syria nonetheless calls for an examination of the possibility of a withdrawal of recognition, with or without recognition of the opposition. In particular, it raises the question of whether the reactions following the uprising in Syria (and those following the humanitarian disaster unfolding as a consequence) qualify as withdrawal of recognition or should rather be perceived as a different form of disqualification.
Before examining the contemporary practice pertaining to the Syrian uprising, it is relevant to recall some of the important developments that were witnessed in the recent Libyan crisis (2010–2011). Indeed, controversy arose following a statement by the United Kingdom in February 2011, according to which it had revoked the diplomatic immunity of Libyan leader Muʿammar al-Qadhdhāfī and his family, which conveyed the impression that the British government had withdrawn its recognition of the Libyan government.13 However, analysts and experts demoted the statement to pure political grandiloquence that brought neither the revocation of diplomatic immunities nor a withdrawal of recognition.14 More remarkable than this declaration by the British government are the various declarations of recognition of the National Transitional Council (hereafter NTC) as the legitimate representative of (the people of) Libya, which were issued in the spring of 2011 by France, Australia, Gambia, Italy, Jordan, Malta, Qatar, Senegal, Spain, the United Arab Emirates, (p. 60) and the United States.15 Such recognitions of the insurgents as the legitimate representative of (the people of) Libya constitute a very original narrative discourse, for they were made short of a recognition as a government. In fact, they did not bring about a withdrawal of recognition of al-Qadhdhāfī’s government. It was not until April 2011 that recognition of the NTC as a government and the withdrawal of recognition of al-Qadhdhāfī’s government ensued.16 Italy recognized the NTC as “holding governmental authority in the territory which it controls”,17 and France subsequent declared—in an alleged contradiction with its official policy of nonrecognition of governments—that the NTC was the “only holder of governmental authority in the contacts between France and Libya and its related entities”,18 and the United Arab Emirates recognized the NTC “as a legitimate Libyan government”.19 Many other states followed suit during the summer,20 sometimes in similar contradiction with their declared policy of nonrecognition of governments.21
It is interesting that some facets of the practice observed concerning Libya have been replicated in the case of the Syrian regime’s crisis.22 It is true that no express withdrawal of recognition as a government has, at the moment of writing these lines, been observed with respect to Bashār al-Assad’s government in Syria. Even those states that have clearly (p. 61) expressed support for the opposition have fallen short of withdrawing their recognition of Assad’s government.
It is nonetheless interesting to note that these states are voicing support for the opposition, mirroring the above-mentioned practice observed in the case of Libya, and went as far as to disqualify the Assad regime as the legitimate representative of Syria—albeit not as the government of Syria. The August 2011 Declaration by France, the United Kingdom, and Germany is particularly noteworthy in this respect: “[…] President al-Assad, who is resorting to brutal military force against his own people and who is responsible for the situation, has lost all legitimacy and can no longer claim to lead the country”.23
According to such a position the Assad government is allowed to continue to enjoy recognition as the government of Syria, but, at the same time, has been declassed to an illegitimate representative. It is also worth mentioning that, at least at the outset, such a disqualification of the Assad regime as the “legitimate representative” of Syria was not automatically accompanied by a recognition of the opposition—and especially the Syrian National Council (hereafter the SNC) as the legitimate representative of the people of Syria. Indeed, at the beginning of the conflict, only a limited number of states recognized the SNC as a “legitimate representative of the Syrian people”.24 Libya has been the only country to recognize the opposition as the government of Syria.25 In the first phase of the conflict, a significant disconnect could thus be observed between the withdrawal of recognition of the Assad regime as the legitimate representative of the people of Syria, on the one hand, and the absence of general recognition of the SNC as the legitimate representative of the people of Syria on the other.
It is interesting to note, however, that the political standing of the SNC significantly evolved as the conflict grew more violent and long-lasting. A first change was witnessed when the French president declared, in August 2012, that once the opposition had grown into a provisional and representative government (un gouvernement provisoire, inclusif et répresentatif) France would recognize that entity as the government of Syria, thereby withdrawing its recognition of the current regime.26 The latest entreaties of the United States for the opposition to reform itself27 could similarly be seen as constituting a move similarly indicating that structuration and representativeness may be conditions for such an insurgency to secure international recognition as a government. Yet, the (p. 62) disqualification of Assad’s government as the legitimate representative of Syria and the indication of a readiness to recognize the opposition as government was not—unlike in Libya—accompanied by a wide recognition of the SNC as the legitimate representative of the Syrian people.
A more radical turning point toward the recognition of the opposition, however, came with the formation of the National Coalition of Syrian Revolutionary and Opposition Forces (hereafter the Syrian National Coalition) in November 2012. Indeed, following the formation of the Syrian National Coalition, close to twenty states—including, among others, France,28 Britain,29 the United States,30 Denmark,31 Turkey,32 Tunisia,33 Malta,34 and Australia35—as well as the European Union36—immediately moved to formally recognize the coalition as the legitimate representative of the Syrian people. It was also recognized in that capacity by the six member states of the Gulf Cooperation Council.37 For its part, the United States announced that it would recognize the Syrian Coalition as the legitimate representative of the Syrian people as soon as it fully developed its political structure.38 In doing so, these states and organizations, albeit belatedly and sometimes with diverging diplomatic wording,39 followed a similar move as the one observed in the Libyan crisis.
(p. 63) Like in the case of Libya, such a move toward a recognition of the Syrian National Coalition as the legitimate representative of the Syrian people fell short of a formal recognition of the Syrian National Coalition as the government of Syria and hence of a corresponding withdrawal of recognition of the Assad regime as government of Syria. Only Libya made such a move.40 It is, however, interesting to note that, in a more recent development, France indicated that such a recognition as the legitimate representative ushers in recognition of government—and thus withdrawal of recognition of the current regime. Indeed, the French president declared in November 2012:
I announce that France recognizes the Syrian National Coalition as the sole representative of the Syrian people and thus as the future provisional government of a democratic Syria and to bring an end to Bashar al-Assad’s regime.41
Such a declaration by the head of France seems indicative of the extent to which states and international organizations could have possibly construed recognition of a group as legitimate representatives as a form of intermediary step toward full recognition as a government and thus withdrawal of recognition of the current government. This is also mirrored in the practice pertaining to Libya, which was recalled above. Indeed, before recognizing the NTC in Libya, some states had issued statements disqualifying al-Qadhdhāfī’s government as the legitimate representative of Libya. Nonetheless, recognition of the NTC as a government came at a later stage. Could the practice pertaining to al-Qadhdhāfī’s government mean that the above-mentioned disqualification of the Syrian government and recognition of the Syrian National Coalition as the legitimate representative of the people of Syria foreshadow a withdrawal of the recognition of the Assad regime and a formal recognition of the Syrian opposition as the government of Syria? The Libyan practice and France’s 2012 declaration seem to support this conclusion. Yet, in later developments, particularly in 2013 and 2014, the idea that the recognition as a legitimate representative of the people could usher in a recognition as a government of Syria and constituted only a preliminary step thereto dramatically lost currency as the opposition to the Assad governments grew diverse and more inclusive of very radical groups. In particular, the rise of the so-called Islamic State of Iraq and the Levant (ISIS)—which is not a party of the Syrian National Coalition—led those governments having recognized the Coalition as the legitimate representative to preserve some minimal standing for the Assad government.42 In that sense, the most recent practice pertaining to Syria seems to indicate that recognition of one entity as legitimate representative of the people does not necessarily and automatically—in contrast to the Libyan practice—bring about a disqualification of the current government.
Be that as it may, it remains that contemporary practice pertaining to Syria and Libya shows the emergence of a new diplomatic narrative short of (withdrawal of) recognition as a government, in the disqualification of a body as the legitimate representative and the (p. 64) election of another body in that capacity. Such a new narrative seems to simultaneously manifest a growing multilayeredness and proceduralization of recognition processes, as granting and/or withdrawing recognition as the legitimate representative of the people become a new procedural step. This is an important development that deserves to be emphasized. Whether such a development—which is reminiscent of the practice pertaining to the recognition of national liberation movement43—is purely contingent on the Arab revolutions or is a sign of a new general practice is a question which cannot be answered at this stage.
B. Mechanical Accreditation vs. Legitimacy-Appraisals in Multilateral Fora
Leaving aside situations of express recognition of governments, it is important to point out that determination of the legitimacy of governments may also be carried out in the practice of accreditation in multilateral institutional fora. In this respect, and as was indicated above, it is noteworthy that such practice similarly involves an examination of governments’ legitimacy. Indeed, each international organization has to approve the credentials of the delegates sent by member states. It is true that, in theory, the approval of credentials was originally to be confined to a technical operation aimed at validating the power of delegates without engaging in any political appraisal.44 In practice, however, accreditation proceedings have been used to deny standing to some governments and resorted to as sanctions of (il-)legitimacy.45 This is exemplified by the UN General Assembly’s refusal to approve the credentials of the delegates of South Africa46 and Hungary.47 But there is more than that. As (p. 65) practice has shown, a test of legitimacy is somewhat inescapable in some situations. This arises when two contestants claim to represent a single state (usually due to a civil war). In such a scenario, the organization concerned is forced to determine which is the actual representative. It is therefore bound to engage in an assessment of the relative legitimacy of the warring representatives.48 In such situations, it would be much less problematic to rely exclusively on the effectiveness criterion to determine which of the competing parties constituted the legitimate authority to be granted standing within the organization.49 The practice of the United Nations and its specialized agencies has, however, demonstrated willingness to resort to other criteria.50 In particular, the United Nations has used a test of legitimacy based on the origin of the government concerned, and especially the criterion of constitutionality. This is well illustrated by the past accreditation of the delegates of Kuwait,51 Afghanistan,52 Haiti,53 and Sierra Leone,54 where delegates of the constitutional governments were accredited. The constitutionality of a government bears upon the origin of its power as the constitution classically contains the rules of how power is transferred from one government to the ensuing one. If a government is deemed legitimate because it has gained power in a manner prescribed by the constitution of the state concerned, only the origin of its power is considered. Focusing on the constitutionality of governments, legitimacy tests carried out in credentials controversies have thus revolved around the constitutional legitimacy without any consideration for the way in which the claimants have exercised their power. Until recently, legitimacy was never grounded in the democratic credentials of governments in the practice of the United Nations. In fact, in the rare cases where it would have been possible to defuse a credentials crisis on the basis of democratic criteria, the United Nations put the emphasis on the constitutional character of the government, as illustrated by the approval of Aristide’s credentials in 1992 (Haiti)55 and Kabbah’s credentials in 1997 (Sierra Leone).56 The situation in Ivory Coast (2010) probably constitutes an exception. Indeed, it is noteworthy that, on December 23, 2010, the UN General Assembly approved the November 2010 report of the Credentials Committee accepting (p. 66) the credentials of the representatives designated by Ouattara to represent Côte d’Ivoire for the 65th session of the General Assembly, at the expense of those presented by Gbagbo.57
In the light of these elementary reminders, the situation in Syria calls for a few observations. First, in the case of Syria, neither of the warring parties could point to democratic virtues in the credentials controversies that have arisen thus far in the United Nations. In that sense, the situation in Syria is not different from that of Libya. The Credentials Committee, at the 65th session of the General Assembly, in September 2011, recommended that the NTC represent Libya in the General Assembly—speaking and voting on its behalf. The General Assembly then went on to approve the Credentials Committee’s report, adopting the draft resolution contained therein by a recorded vote of 114 in favor to 17 against, with 15 abstentions.58 There is, however, one fundamental difference between the Syrian and Libyan crises. In the latter crisis, the delegates of the Qadhdhāfī government resigned and rallied the opposition. There was no competition of claims for representation at the United Nations between the warring parties.
This main difference between the case of Libya and Syria necessitates a second remark. Indeed, as was recalled above, refusal of the credentials can happen even if the credentials committee is not confronted with competing demands for accreditation. This was the case when South Africa was denied standing in the General Assembly because of its apartheid policy.59 In that sense, a denial of the credentials of the Assad regime is not necessarily contingent upon a similar claim by the delegates of the opposition—regardless of whether or not they were originally appointed by the Assad regime before rallying the opposition. In that sense, the Credentials Committee could simply unilaterally decide not to accredit the delegates of the Assad government, irrespective of the existence of a concurring claim by anyone to represent Syria at the United Nations.
Pleas for a unilateral rejection of Syria’s credentials by the UN General Assembly’s Credentials Committee without any accreditation of alternative delegates have been numerous.60 These pleas have so far remained scorned by the Credentials Committee.61
(p. 67) It is interesting to note that, in contrast with the positions espoused by other international organizations and especially the United Nations, the Arab League, where the membership of Syria had been suspended, decided in March 2013 to restore the membership of Syria and attributed its seat to the Syrian National Coalition.62
There is no doubt that the Arab League can autonomously and discretionally decide to depart from the position of the United Nations in this respect and is certainly not formally bound by the position of the UN General Assembly’s Credentials Committee.63 Yet, the decision of the Arab League remains remarkable because, as a matter of fact, UN member states tend to act consistently within each organization they are party to, many organizations factually aligning themselves to the positions of the General Assembly.
This being said, the decision of the Arab League in the case of Syria, just as the decision of the Credentials Committee in the case of Libya, comes as a good reminder that accreditation procedures in international organizations constitute a platform for the evaluation of the legitimacy of government.
IV. Concluding Remarks: Diversification vs. Legalization
Zeroing in on two of the situations where a regime’s external legitimacy is tested, namely questions of recognition and accreditation in international fora, this chapter has tried to examine the extent to which the practice pertaining to the regime’s crisis in Syria displays original and unprecedented features. As it was interpreted and reconstructed here, past practice, particularly in the recent case of Libya, has shown that a growing diversification and greater proceduralization of the recognition processes are currently at play in the international arena. In particular, the prior granting and/or withdrawing of recognition as a legitimate representative of the people seems to have consolidated itself into a new procedural step in recognition processes. Albeit reminiscent of the practice of recognition of the representative of colonial peoples engaged in a national liberation struggle observed during the decolonization process, such an intermediary step seems, in light of the Libyan and Syrian crises, to be crystallizing in contemporary practice of government recognition. Another important feature that ought to be emphasized concerns the recent developments pertaining to representation in international fora, especially at the General Assembly of the United Nations. Although such a move has not occurred in connection to the representation of the Syrian regime at the United Nations, contemporary practice has shown a consolidation of the resort to arguments of legitimacy and representativeness in order to refuse the credentials of a regime’s delegates, as is illustrated by the above-mentioned March 2013 decision of the Arab League.
It is certainly futile to speculate on the continuation of this practice beyond the crisis in Syria and Libya. In other words, it would be useless to try to speculate about whether such developments will remain limited to the regime’s crises that follow the Arab Spring. (p. 68) Rather, what is important to highlight here is the fact that the practice reported above manifests a growing multilayeredness of both recognition processes and, more generally, of the tests of external legitimacy in international practice. Indeed, tests of external legitimacy are growing more cryptic and heterogeneous at three levels. First, there is a great diversification of the object of recognition in the context of recognition of governments. Recognition is not necessarily limited to the governmental function of the body object of the recognition. There seems to now be a wide variety of capacities in which one can be recognized, ranging from government to legitimate representative of the people. Second, we seem to be witnessing a consolidation of the diversity of occurrences in which a regime’s external legitimacy is appraised. No longer limited to making a formal statement of recognition of government, external legitimacy-testing takes other forms, and more frequently manifests itself in the denial of the credentials in multilateral fora. This is certainly the case with respect to states which still allege that they do not recognize governments—a commitment that some states were prone to forget during the Libyan crisis. Third and lastly, the diversification of external legitimacy-testing can be observed at the procedural level, following the emergence of a practice of (withdrawal of) recognition of legitimate representative of the people. Indeed, the recent developments in Libya and Syria seem to indicate that withdrawals of recognition of government as well as recognitions of new governments are preceded by withdrawals of recognition of government as legitimate representatives of the people and the—sometimes deferred or withheld—recognition of the opposition as the new legitimate representative of the people.
Confronted with such intricacies of diplomatic practices pertaining to external legitimacy-testing—and especially with respect to recognition of governments—international legal scholars could be tempted to indulge in legalization, understood here as a construction of new legal categories and criteria to capture or explain such complex phenomena over which they have little control. More specifically, increasingly complex practices often generate a countervailing quest for legalization.64 In the present case, such a temptation could take the form of an attempt to translate the above-mentioned practice pertaining to (withdrawals of) recognition as legitimate representatives of the people into an obligatory procedural step in recognition processes. It could similarly manifest itself in an attempt to make such (withdrawals of) recognition of parties as legitimate representatives a legal act,65 subject to strict criteria, themselves elevated into legal criteria whose violation could be considered wrongful—for instance, because they would be considered an undue interference in internal affairs.66 Likewise, it is tempting to construe the hesitations of the United States to ground the legal basis of their (p. 69) military operations against ISIS in the consent of the Assad government as a consequence of its disqualification as the legitimate representative of the people of Syria.67
In the view of the present author, such a quest toward legalization in the context of determining a regime’s legitimacy needs to be very critically evaluated. First, because such an endeavor often expresses an aspiration by international lawyers to read the world and its practice in legal terms.68 It can also constitute a manifestation of an even more ambitious enterprise geared toward the control of otherwise unbridled diplomatic and political power struggles. This is the regulatory ambition behind most scholarly projects in this area.69 Second, and irrespective of the utter disconnect of such constructions from the practice of social actors, it is not certain that such legalization can be of any help when it comes to explaining and disentangling such intricate practices and discourses. Indeed, by subjecting themselves to—necessarily reductive—legal categories, international lawyers condemn themselves to read the practice of recognition with overly narrowing and oversimplifying lenses, thereby magnifying their complexity. It is true that law by itself leads to a binary reduction (and reconstruction) of complex realities.70 Yet, when it comes to intricate and multilayered practices of external legitimacy-testing as they have been examined above in the context of the Syrian and Libyan insurrections, the explanatory and descriptive handicaps of legalization are simply too conspicuous not to be taken into account by international lawyers who should instead show greater self-restraint in the deployment of their complexity-reducing categories.(p. 70)
Footnotes:
1 For instance, “The suspension of membership of Syria from the Arab League”, The Guardian (November 12, 2011), http://www.guardian.co.uk/world/2011/nov/12/syria-suspended-arab-league, accessed April 23, 2015, is only studied here because the seat was subsequently given to Syria’s opposition, see http://www.bbc.co.uk/news/world-middle-east-21949600 http://www.aljazeera.com/news/2013/03/2013325105453834.html, accessed April 23, 2015.
2 On this distinction, see Jean d’Aspremont, “Legitimacy of Governments in the Age of Democracy” (2006) 38 NYU J. Int’l L. & Pol. 877.
3 See Allen Buchanan, “The Legitimacy of International Law” in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press, Oxford 2009) 80; John Tasioulas, “The Legitimacy of International Law” in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law 97.
4 See Allen Buchanan (n 3) 80; Thomas Christiano, “Democratic Legitimacy and International Institutions” in Samantha Besson and John Tasioulas (n 3) 119; Philip Pettit, “Legitimate International Institutions: A Neo-Republican Perspective” in Samantha Besson and John Tasioulas (n 3) 139.
5 The distinction between internal and external legitimacy only relates to the position of the observer. It does not have any bearing upon the measures that are used to carry out the test of legitimacy. This means that external legitimacy can focus on the respect for the rights of the individual but as seen through the lens of foreign governments.
6 On the relationship between justice and democracy, see generally Ian Shapiro, Democratic Justice (Yale University Press, New Haven 1999).
7 This has been called the “output legitimacy” as opposed to the “input legitimacy” (i.e., a government by the people). For such a distinction, see Fritz W. Scharpf, “Legitimacy and the Multi-Actor Polity” in Morton Egeberg and Per Lægreid (eds), Organizing Political Institutions: Essays for Johan P. Olsen (Aschehoug 1999) 268.
8 Guenther Roth and Claus Wittich (eds), Max Weber, Economy and Society (University of California Press, Berkeley 1968) 31; see also John Austin, The Province of Jurisprudence Determined (1832) 200; Thomas M. Franck, “The Emerging Right to Democratic Governance” (1992) 86 AJIL 46, 48; Robert Grafstein, “The Legitimacy of Political Institutions” (1981) 14 Polity 51.
9 Some states may manage to keep such disruptions unknown to the international society.
10 On legal issues pertaining to the autocratic origins of governments, see generally Jean d’Aspremont, L’Etat non-démocratique en droit international (Pedone, Paris 2008).
11 For a classical example, see the withdrawal of recognition of the government based in Taiwan and the simultaneous recognition of the communist government based in Beijing as the government of China. See Hungdah Chiu, “The International Law of Recognition and the Status of the Republic of China” (1989) 3 Chinese J. Int’l L. 193; Victor H. Li, “The Law of Non-Recognition: The Case of Taiwan” (1979) 1 Nw J. Int’l L. & Bus. 134. On the legal status of dependent states, see generally James Crawford, The Creation of States in International Law (1979) 198–220.
12 For earlier examples, see, e.g., British government’s withdrawal of its recognition, for example, from Emperor Haile Selassie of Ethiopia in November 1938, the Polish Government of Unity and National Defence on July 5, 1945, or the government of Democratic Kampuchea on December 6, 1979. These examples are cited by S. Talmon, “Has the United Kingdom De-Recognized Colonel Qadhafi as Head of State of Libya?” (2011) 16 University of Oxford Legal Research Paper Series 2. See also C. Warbrick, “British Policy and the National Transitional Council of Libya” (2012) 61 ICLQ 258–259.
Although not concerning the government of a state properly so-called, the partial withdrawal of recognition of the branch of the Palestinian Authority controlled by Hamas could constitute one these situations. On this situation, see Steven R. Weisman and Craig S. Smith, “U.S. and Europe Halt Aid to Palestinian Government”, New York Times (April 8, 2006) at A6; Steven R. Weisman, “U.S. Digs in on Withholding Aid to Hamas Government”, New York Times (February 17, 2006) at A12. But see Joel Brinkley, “France Backs Putin on Speaking to Hamas”, New York Times (February 11, 2006) at A7; Steven Lee Myers and Greg Myre, “In Moscow, Hamas Delegation Gets a Warning and a Crash Course in Diplomacy”, New York Times (March 4, 2006) at A6.
14 On this question, S. Talmon, “Has the United Kingdom De-Recognized Colonel Qadhafi as Head of State of Libya?” (2011) 16 University of Oxford Legal Research Paper Series.
15 For a discussion of these declarations, see S. Talmon, “Recognition of the Libyan National Transitional Council” (2011) 38 University of Oxford Legal Research Paper Series 3.
16 For some critical remarks, see S. Talmon, “Recognition of the Libyan National Transitional Council” (2011) 38 University of Oxford, Legal Research Paper Series.
18 Press Release, French Ministry of Foreign and European Affairs, Libyan National Transitional Council: Statement by Alain Juppé (June 7, 2011).
20 Recognition by the United States in July of 2011: see Sebnem Arsu and Steven Erlanger, “Libya Rebels Get Formal Backing, and $30 Billion”, New York Times (July 15, 2011), http://www.nytimes.com/2011/07/16/world/africa/16libya.html?pagewanted=all&_r=0è, accessed April 23, 2015; cf. this critical article by John Bellinger III in The Atlantic (July 18, 2011), http://www.theatlantic.com/international/archive/2011/07/us-recognition-of-libyan-rebels-raises-legal-questions/242120/, accessed April 23, 2015; see the Recognition by the United Kingdom in July 2011 as was reported by the BBC, http://www.bbc.co.uk/news/uk-politics-14306544, accessed April 23, 2015 or http://www.fco.gov.uk/news (July 27, 2011); see the recognition by Egypt in August 2011, as was reported by The Guardian (September 10, 2012), http://www.guardian.co.uk/world/middle-east-live/2011/aug/22/libya-middle-east-unrest-live#block-65, accessed April 23, 2015; or the recognition by Jordan in August 2011,
http://www.thenewage.co.za/26532-1019-53-Egypt_recognises_Libya_rebel_government (September 10, 2012), accessed April 23, 2015; recognition by China in September of 2011 as was reported by Reuters, http://www.reuters.com/article/2011/09/12/us-libya-china-idUSTRE78B3Z320110912 (September 10, 2012), accessed April 23, 2015; see the recognition by Russia in September 2011: S. Erlanger, “Russia Recognizes Libya Rebels as World Leaders Meet”, New York Times (September 1, 2011), http://www.nytimes.com/2011/09/02/world/africa/02nato.html?pagewanted=all, accessed April 23, 2014.
21 On the particular example of the United Kingdom, see C. Warbrick, “British Policy and the National Transitional Council of Libya” (2012) 61 ICLQ 247–264.
22 For a very detailed account of the political and diplomatic developments regarding Syria, see S. Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People” (2013) 12 Chinese J. Int’l L. 219–253.
24 This the case of France and Spain, (http://www.lccsyria.org/2807, accessed April 23, 2015), the United States (cf. K. De Young, “Clinton meets with Syria opposition” ,Washington Post (December 6, 2011), http://www.washingtonpost.com/world/middle_east/clinton-meets-with-syria-opposition/2011/12/06/gIQApzQ9ZO_story.html, accessed April 23, 2015, the United Kingdom (as reported by the Foreign Office (November 21, 2011)),
http://www.fco.gov.uk/en/news/latest-news/?view=News&id=695119382, accessed April 23, 2015, or Albania http://www.mfa.gov.al/index.php?option=com_content&view=article&id=8050, accessed April 23, 2015.
30 Mark Landler, Michael Gordon, and Anne Barnard, “U.S. Will Grant Recognition to Syrian Rebels Obama Says”, The New York Times (December 11, 2012).
37 See “Gulf Cooperation Council Recognizes Syrian Opposition Bloc” (November 13, 2012), http://en.rian.ru/, accessed April 23, 2015.
39 S. Talmon noted that six different formulations have been witnessed in practice: legitimate representative for [of] the aspirations of the Syrian people, legitimate representatives of the aspirations of the Syrian people, legitimate representative of the Syrian people, legitimate representatives of the Syrian people, legitimate representative of the Syrian people, or sole legitimate representative of the Syrian people. See S. Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People” (2013) 12 Chinese J. Int’l L. 219.
41 S. Erlanger and R. Gladstone (n 28).
42 Anne Barnard and Somini Sengupta, “U.S. Signals Shift on How to End Syrian Civil War”, New York Times (January 19, 2015), http://www.nytimes.com/2015/01/20/world/middleeast/us-support-for-syria-peace-plans-demonstrates-shift-in-priorities.html, accessed April 23, 2015; Michael Gordon and Anne Bernard, “Kerry Supports Syrian Peace Talks in Russia”, New York Times (January 14, 2015), http://www.nytimes.com/2015/01/15/world/middleeast/kerry-backs-syrian-peace-talks-in-russia.html, accessed April 23, 2015.
43 See generally Raymond Ranjeva, “Peoples and national liberation movements” in Mohammed Bedjaoui (dir), International Law: Achievements and Prospects (Nijhoff, Dordrecht 1991) 101–112; Alain Gandolfi, Les Mouvements de Libération Nationale (Presses Universitaires de France, Paris 1989); Claude Lazarus, “Le statut des mouvements de libération nationale à l’organisation des Nations Unies” (1974) 20 Annuaire français de droit international 173–200.
44 See generally Yuen-Li-Liang, “Notes on Legal Questions concerning the United Nations” (1951) 45 AJIL 689; see also Jean-François Flauss and Philippe Singer, “La verification des pouvoirs de l’Assemblée générale des Nations Unies” (1985) 31 Annuaire Francais de Droit International 620–652.
45 One could cogently contend that the recourse to accreditation as a means to sanction foreign governments is not strictly consistent with the UN Charter. On this question, see generally Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity Within Diversity (3d ed. Nijhoff Publishers, Leiden 1995) 186. See also Daphna Shraga, “La qualité de membre non représenté. Le cas du siège vacant” (1999) 45 Annuaire français de droit international 649.
46 See UNGA Res 2636 (1970) GAOR 25th Session (November 13, 1970) UN Doc A/8142; UNGA Res 2862 (1971) GAOR 26th Session (December 20, 1971) UN Doc A/8625; and UNGA Res 2948 (1972) GAOR 27th Session (December 8, 1972) UN Doc A/8921 (UN General Assembly opposing the credentials’ approval by the Credentials Committee).
47 See The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (February 13, 1957) UN Doc A/3536; The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (9 December 1957) UN Doc A/3773; The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (December 12, 1958) UN Doc A/4074; The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (December 9, 1959) UN Doc A/4346; The Chairman of the Credentials Committee, “Second Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (April 20,1961) UN Doc A/4743; The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (December 18, 1961) UN Doc A/5055; The Chairman of the Credentials Committee, “Report of the Chairman of the Credentials Committee, delivered to the General Assembly” (December 20, 1962) UN Doc A/5395.
48 Matthew Griffin, “Accrediting Democracies: Does the Credentials Committee of the United Nations Promote Democracy through Its Accreditation Process, and Should It” (1999–2000) 32 NYU J. Int’l L. & Pol. 725, 728–732; Gregory Fox “The Right to Political Participation in International Law” (1992) 17 Yale J. Int'l L. 539, 606.
49 This was the solution endorsed by the UN Secretary General Trygve Lie in the Memorandum on the Legal Aspects of Problems of Representation in the UN, UN Doc S/1466 (March 8, 1950).
50 See generally Matthew Griffin (n 48) 725–785. See also Gregory Fox “The Right to Political Participation in International Law” (1992) 17 Yale J. Int'l L. 539, 596–606.
51 See UNGA, “First Report of the Credentials Committee” (October 29, 1990) UN DOC A/45/674; Note verbal dated December 18, 1990 from the Permanent Mission of Iraq to the United Nations addressed to the Secretary-General (December 20, 1990) UN DOC A/45/891.
52 See UNGA, “Reports of the Credentials Committee” (October 23, 1996) UN Doc A/51/548, UN Doc A/52/719 (December 11, 1997), UN Doc A/53/556 (October 29, 1998), UN Doc A/55/537 (November 1, 1997), UN Doc A/56/724 (December 20, 2001), UNGA, UN Doc A/57/634 (December 2, 2002).
53 UNGA, “Report of the Credentials Committee” (1992) UN DOC A/47/517/Add.1.
54 UNGA, “Report of the Credentials Committee” (December 11, 1997) UN DOC A/52/719.
55 UNGA, “Report of the Credentials Committee” (1992) UN DOC A/47/517/Add.1.
56 UNGA, “Report of the Credentials Committee” (December 11, 1997) UN Doc A/52/719.
57 See “Report of the Credentials Committee” A/65/583/Rev.1. The UN Secretary General hailing the above-mentioned decision which he said “reflects the united position of the international community with respect to the legitimacy of the new government led by President Ouattara.” http://www.un.org/sg/statements/?nid=5013, accessed January 9, 2014. It should be noted that the importance of this very unusual move by the Credentials Committee should certainly nonetheless not be exaggerated or overblown. The United Nations had supervised the elections in Côte d’Ivoire and the Special Representative of the Secretary-General and Head of UNOCI certified that Ouattara was the winner of the elections. There was a recommendation by the Secretary-General to the Credentials Committee to accredit Ouattara’s representative. It was unlikely that the Credentials Committee would defy the Secretary-General and take a position generating inconsistencies in the approach of the United Nations to the situation in Côte d’Ivoire. On this aspect of the crisis in Côte d’Ivoire, see Jean d’Aspremont, “Duality of government in Côte d’Ivoire” EJIL: Talk (January 4, 2011), http://www.ejiltalk.org/duality-of-government-in-cote-divoire/#more-2898, accessed April 23, 2015.
59 See UNGA Res 2636 GAOR 25th Session (November 13, 1970) UN Doc A/8142; UNGA Res 2862 GAOR 26th Session (December 20, 1971) UN Doc A/8625; and UNGA Res 2948 GAOR 27th Session (December 8, 1972) UN Doc A/8921 (UN General Assembly opposing the credentials’ approval by the Credentials Committee).
61 For the latest report, see UNGA, “Report of the Credentials Committee” (November 25, 2014) UN Doc A/69/617, adopted by the General Assembly at the 72nd Meeting of its Sixty-ninth session on December 15, 2014, http://www.un.org/press/en/2014/ga11603.doc.htm, accessed April 23, 2015.
63 See, however, Russia’s reaction to the Arab League’s decision, as was described by the Russian Foreign Ministry spokesperson Aleksandr Lukashevich: “In terms of international law, decisions on Syria made by the [Arab] League are unlawful and indefensible, since the government of the Syrian Arab Republic remains the legal representative of the UN member-state” (March 27, 2013), http://rt.com/news/arab-league-syria-opposition-924/, accessed April 23, 2015.
64 I have analyzed this in greater details elsewhere in connection with the law of statehood. See Jean d’Aspremont, “The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Birth in the International Society” (2014) 29 Connecticut J. Int’l L. 201–224.
65 With respect to the recognition of the Syrian opposition as legitimate representative of the people, Stephan Talmon has been careful by arguing that such a recognition was only “political” and that no legal consequences were attached to it. He has, however, claimed that, even as a political act, it cannot be completely arbitrary. See S. Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People” (2013) 12 Chinese J. Int’l L. 219–253.
66 See the declaration of the Russian Prime Minister in May 2011 (November 26, 2012), http://www.premier.gov.ru (cited by S. Talmon, “Recognition of Opposition Groups as the Legitimate Representative of a People” (2013) 12 Chinese J. Int’l L. 219–253.
67 On this debate, see Louise Arimatsu and Michael Schmitt, “The legal basis for the war against Isis remains contentious”, The Guardian (October 6, 2014), http://www.theguardian.com/commentisfree/2014/oct/06/legal-basis-war-isis-syria-islamic-state, accessed April 23, 2015; see also Marc Weller, “Islamic State Crisis: What Force Does International Law Allow?” (September 25, 2014), http://www.bbc.com/news/world-middle-east-29283286, accessed April 23, 2015.
69 The common idea of a Law of Statehood or a Law of Recognition is probably the best illustration of such endeavors by international lawyers to claim a grip on an otherwise volatile political and diplomatic practice. See Jean d’Aspremont, “The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Birth in the International Society” (2014) 29 Connecticut J. Int’l L. 201–224.
70 See generally Fleur Johns, Non-Legality in International Law—Unruly Law (Cambridge University Press, Cambridge 2013).
