Rival governments and the authority to represent the State: was the use of force by ECOWAS in The Gambia a violation of international law? – Catherine Drummond

Recent years have seen an increase in the number of situations in which two rival individuals or entities claim to have the authority to represent the same State on the international stage. In the last few decades, disputed elections, coups, armed conflict or occupation have resulted in competing regimes in countries such as Cote d’Ivoire, Cyprus, Haiti, Honduras, Kuwait, Libya, Sierra Leone, Somalia, Ukraine (in respect of Crimea) and Yemen, to name just a few.

The newest addition to this list is The Gambia, which for two days last month had two Presidents, each purporting to be the legitimate Head of State. Victorious in the December 2016 elections, Adama Barrow was sworn in as the new President of the Gambia at the Gambian embassy in Senegal on Thursday 19 January at a time when the autocratic incumbent, President Yahya Jammeh, whose government controlled the territory of the tiny West African State, refused to leave office. After Senegalese-led Economic Community of West African States (ECOWAS) forces entered the country on Thursday 19 January 2017, Jammeh agreed to step down on Saturday 21 January. The legal basis for the use of force appeared to be the consent of The Gambia, as expressed through its newly inaugurated and internationally recognised President Barrow.

This must be one of few, if not the only, instance in which a President, who began his term in office in exile, authorised the use of force on the territory of a State over which he had never exercised governmental authority or effective control. If Barrow did not have the authority to represent The Gambia, ECOWAS’ intervention would have been unlawful. Armed intervention to install a democratically elected leader is not a justifiable basis for the use of force under international law. The two legal bases for the use of force were not present. There had been no armed attack against an ECOWAS member State in response to which collective self-defence might be asserted. The Security Council did adopt Resolution 2337 shortly after President Barrow’s swearing in on 19 January, which expressed “full support” for the commitment to ensuring the democratic will of the Gambian people was respected, but it was adopted under Chapter VI and stopped short of explicitly authorising the use of force, with the language “all necessary measures” being dropped from an earlier draft to secure Russia’s support.

The only valid justification for the use of force was, therefore, the consent of The Gambia. This raises an important question: was Barrow, at a time when he was a rival Head of State, entitled to act on behalf of the State in authorising the use of force on the territory of The Gambia?

There is a long-standing debate in legal literature about the nature of recognition of governments. It is generally accepted that the recognition of States is a political act which is, at best, of evidential value of the recognising State’s opinion that the new State meets the customary criteria of Statehood. The recognition of governments and Heads of State is also a political act, but the question many international lawyers and academics have grappled with over the years is whether it is only a political act or whether it too evidences a legal test for when certain individuals or entities are entitled to represent the State as its rightful Head of State or government.

Eminent writers such as Lauterpacht, Jennings and Watts and Crawford, ‎relying on digests of State practice up until the 1960s (and cases citing the same, such as the well-known Tinoco arbitration), argue that international law sets criteria for the entitlement of a regime to represent the State. They say that the test is one of effectiveness, and is satisfied by an entity that controls the whole or a substantial part of the territory, has the habitual obedience of the majority of the population (consensual or otherwise) and a reasonable prospect of permanence. But other studies, including a 1950 UN legal memorandum, suggest that State practice was too inconsistent, too political or that the term “recognition” was used to mean different things in different circumstances, not all of which were reflective of the legal opinion of the recognising State (Talmon, Recognition of Governments in International Law (1998), pp 21-42, 59-65). Since the late twentieth century, most States have adopted a policy of not formally recognising changes in government and as a result, clear practice and opinio juris on this issue has been more difficult to identify, if they even exist.

Domestic courts confronted with this question have shown great deference to executive policy and for that reason the relevance of such decisions to the establishment of custom must be viewed with great caution. A formal certificate of recognition, for example, is conclusive and binds US and UK courts. Absent formal recognition, UK courts have developed factors to assist in determining which rival entity is entitled to represent the State. Those factors give equal priority to constitutional legitimacy, administrative control and whether the UK has dealings with the regime but are, in all cases, subject to an extremely strong presumption in favour of a regime with which the UK has normal government-to-government relations (Republic of Somalia v Woodhouse Drake & Carey (Suisse) [1993] QB 54, pp 65, 68 followed in Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] CLC 501).

The approach taken by international courts does little to clarify the situation. In two cases involving Cyprus and Turkey commenced under the European Convention on Human Rights, Turkey argued that the Greek Cypriot government was not entitled to represent the State of Cyprus because there were in fact two administrations, one Greek Cypriot and one Turkish Cypriot, and neither could represent the State of Cyprus as a whole because neither had effective control and authority over the whole territory and population of Cyprus. In 1975 (at pp 135-136) and 1978 (at p 146), the European Commission on Human Rights dismissed Turkey’s objections on the basis that the Greek Cypriot government was recognised internationally as the government of Cyprus, relying in particular on the practice of the Council of Europe and UN in accepting representatives and acts of that government. The ICJ in the Bosnia Genocide case similarly rejected Yugoslavia’s objection that Alija Izetbegovic, who authorised the Bosnian application to the Court, lacked the authority to represent the State because he was not the President of the Republic of Bosnia and Herzegovina, only the President of a tripartite “Presidency” that served as a collective Head of State. The ICJ held that, at the time of the filing of the application, Izetbegovic was recognised as the Head of State of Bosnia and Herzegovina by several international agreements and many international bodies, including, in particular, the UN (at para 44). This preference of bodies tasked with applying international law for relying on international recognition is odd, as no-one—including the parties in these cases—seriously argues that recognition of governments is itself the customary test for authority to represent a State. Should we then understand these cases to suggest that recognition is relevant to determining whether, as a question of fact, a particular regime is the government of a State? Perhaps, but without any expounding of that view or discussion of what constitutes a “government”, these cases leave the reader dissatisfied.

If the customary rule for entitlement to represent a State is that of effectiveness, it was not satisfied at the time Barrow authorised the use of force. He was, at that time, in exile and had never exercised effective governmental control over the territory or population of The Gambia. Recognition in such circumstances may have amounted to an unlawful intervention in the internal affairs of The Gambia and, without Barrow being entitled to act on behalf of The Gambia for the purpose of authorising the use of force, the intervention by ECOWAS would have been unlawful.

It is possible, on the other hand, that the “rule” of effectiveness discussed in the literature is no more than a description of what States generally do as a matter of course in the practical conduct of their foreign affairs, except where politics dictates otherwise. What appears to be missing from expositions of State practice in literature that discusses whether there is a customary rule is States’ expression of opinio juris – clear evidence that they recognise effective governments because they believe that international law regards such regimes as the rightful government of the States in question. Absent such opinio juris, it may be more accurate to say that international law simply accepts the fact of the existence of governments through which States act on the international stage, and of which recognition may be evidence, but does not regulate the entitlement of an entity to act in that capacity. Shortly after Barrow’s swearing in, the UN, AU and ECOWAS issued a joint statement recognising his accession to the presidency, which was formally endorsed by Security Council Resolution 2237 later the same day. Despite such collective recognition, as a question of fact, Barrow was no more the President than the incumbent Jammeh, perhaps even less so given his lack of attributes that one might associate with being a “President” or “government”, such as territorial control or the exercise of governmental functions.

Recent events in The Gambia look, at first blush, like the use of force to uphold democracy. While the cooperative efforts were commendable insofar as they prevented civil war, upholding democracy is not a valid basis for the use of force under international law, at least at this time. These events raise broader questions about whether the willingness of institutions such as ECOWAS, the UN and AU to enforce democracy signals the increasing relevance of constitutional legitimacy to the law on the use of force and a shift in the direction of Franck’s visionary theory on normative entitlement to democratic governance, where national government is validated by international standards and enforced through collective monitoring of compliance.

The picture with which we are left still, to a large extent, reflects how Brownlie described recognition in 1982: “a bank of fog on a still day” (Recognition in Theory and Practice (1982) 53 BYBIL 197, p 197). The increasing number of rival regimes that have emerged in recent years may, however, present opportunities for clarification of whether international law does regulate the entitlement to represent the State and the limits of any doctrine that might exist. The rise of investment arbitration in the wake of the Arab Spring is one such area in which an international tribunal might find itself confronted with this very question.

Catherine Drummond is an Associate in Public International Law and Arbitration at Freshfields Bruckhaus Deringer in Paris. Catherine advises and represents clients in relation to international law disputes, including before the International Court of Justice and European Court of Human Rights. Prior to joining Freshfields, Catherine taught public international law in Australia and worked as a consultant in international law. She holds a Masters of Law (Class I) from the University of Cambridge, where she was the Whewell Scholar in International Law and a General Sir John Monash Scholar, and Bachelors in Law (Hons) and Arts from the University of Queensland.