Recognition of Governments

The Estrada doctrine: no pronouncement at all

Stated by Genaro Estrada, the Foreign Minister of Mexico, in 1930. Its position is that the practice of granting or withholding recognition of governments is itself objectionable, because it amounts to passing judgment on the internal affairs of another State. Mexico therefore announced that it would not issue declarations of recognition of governments, and would confine itself to maintaining or withdrawing its diplomatic agents as it saw fit.

The idea behind it. Recognition of governments is an insult in either direction: to grant it is to claim a right to approve, and to withhold it is to intervene.

Its influence. This is now the dominant practice. Many States, including the United Kingdom since 1980, have announced that they no longer recognise governments as such, and instead decide whether to have dealings with a new authority and leave the inference to be drawn from the dealings themselves.

The objection. It does not remove the problem, it relocates it. Courts still have to decide whether an authority is the government of a State for the purposes of immunity, of the validity of its acts, and of who may sue on the State's behalf, and if the foreign ministry will not say, the court must work it out from the conduct of relations.

Effective control: the working test

Underneath both doctrines is the test that practice actually applies. A government is recognised, or dealt with, when it exercises effective control over the territory and population with a reasonable prospect of permanence, and is able and willing to carry out the State's international obligations.

That test is the analogue of the government criterion in [Recognition of States], and it is the one a candidate should give as the general rule, with Tobar and Estrada as the two positions that qualify it in opposite directions.

De facto and de jure recognition of governments

The distinction is set out generally in [Modes and Legal Effects of Recognition], and it belongs to governments rather than to States, so the outline is here.

De facto recognition acknowledges that an authority is in effective control, while reserving judgment on whether its position is lawful or permanent. It is provisional, it can be withdrawn, and it is what States use when a new regime looks likely to last but its future is uncertain.

De jure recognition acknowledges that the authority is the lawful government. It is intended to be permanent, and withdrawing it is a serious step.

Two governments of the same State may be recognised at once in the two capacities, one de jure and the other de facto, which happened repeatedly during and after civil wars in the twentieth century, and could not happen with States.

A worked example

The army of State K overthrows the elected government on 1 March. The President flees abroad and continues to claim to be the lawful head of State. By 1 June the army controls the whole country, the administration functions, and taxes are collected. State L must decide what to do.

Does State K still exist? Yes, and it is still recognised. A change of government does not touch the State, so State K's treaties with State L continue, its debts remain owed, and its responsibility for earlier wrongs is unaffected.

On the Tobar doctrine, State L should withhold recognition until the new authority is legitimated by a constitutional process, typically an election. The consequence is that State L has no one to deal with in a country where its nationals live and its investments sit.

On the Estrada doctrine, State L makes no pronouncement at all. It decides whether to keep its ambassador in place and leaves the inference to be drawn. That is the modern practice.

On effective control, the new authority satisfies the test by 1 June: it controls the territory, the administration works, and permanence is reasonably likely.

What if State L needs an answer for its own courts? Suppose the deposed President sues in State L's courts to recover State K's bank account. The court must decide who is entitled to act for State K. If State L has stopped making declarations of recognition, the court will look at whether State L's government deals with the new authority, whether it has kept its embassy, and whether it has accepted the authority's diplomats. That is exactly the difficulty the Estrada doctrine creates: the political question does not disappear, it lands on the judge.

Distinctions table

What it does NOT mean

Recognising a government is not approving it. States have always said so, and the Estrada doctrine exists because saying so was not believed.

Non-recognition does not suspend the State's obligations. The State remains bound whether or not anybody recognises the authority that governs it.

Effective control is not permanent control. The test asks for a reasonable prospect of permanence, not a guarantee.

A government in exile is not a government by effective control. It may be recognised for political reasons, and the recognition is a departure from the ordinary test rather than an application of it.

Limits and criticism

Recognition of governments has always been political and has never stopped being so. The Estrada doctrine is a confession that the legal test could not be kept free of policy, and abolishing the declaration does not abolish the judgment.

The costs of non-recognition fall on private people. Contracts, marriages, births and judgments in a territory governed by an unrecognised authority have to be dealt with by courts elsewhere, and refusing to acknowledge the authority means refusing to acknowledge the ordinary transactions of a whole population.

The two doctrines answer different questions. Tobar asks whether a government ought to be dealt with; Estrada asks whether that question is anyone else's business. Presented as rivals on the same question, as they usually are in textbooks, both look weaker than they are.

Quick revision

Recognition of a State is about existence and happens once. Recognition of a government is about who represents it and arises whenever power is taken outside the constitutional process.

A change of government does not change the State: treaties, debts and responsibility continue, because the State is the same legal person.

Tobar doctrine (Ecuador, 1907): no recognition of a government coming to power by revolution until legitimated by constitutional process. The Wilson doctrine is its American counterpart. Objection: it is intervention, and it fails against effective power.

Estrada doctrine (Mexico, 1930): make no pronouncement at all; maintain or withdraw diplomatic agents and let the inference be drawn. Now the dominant practice, followed by the United Kingdom since 1980. Objection: the question moves from the foreign ministry to the courts.

Effective control is the working test: control of territory and population, a reasonable prospect of permanence, and ability and willingness to carry out international obligations.

De facto recognition is provisional and acknowledges control; de jure acknowledges lawfulness and is intended to be permanent. Two governments of one State may be recognised at once in the two capacities.

Test yourself

1. Distinguish recognition of a State from recognition of a government.

Recognition of a State acknowledges that an entity exists as a State; it happens once and is not repeated. Recognition of a government acknowledges that a particular authority is competent to represent a State whose existence is already accepted, and the question arises again whenever a government takes power outside the constitutional process. Recognising a State implies recognising its government, but not the reverse, and withdrawing recognition from a government leaves the State's recognition untouched.

2. Does a change of government affect a State's treaties and debts?

No. The State is the same legal person before and after, so its treaties continue to bind it, its debts remain owed, and its responsibility for earlier internationally wrongful acts is unaffected. That is the principle of the continuity of States, and it is what makes recognition of governments a question about representation rather than about obligation.

3. State the Tobar and Estrada doctrines and say which reflects modern practice.

The Tobar doctrine, proposed by Ecuador's Foreign Minister in 1907, is that a government coming to power by revolution or coup should not be recognised until legitimated by its own country's constitutional process; the Wilson doctrine applied a similar test from 1913. The Estrada doctrine, stated by Mexico's Foreign Minister in 1930, is that granting or withholding recognition of governments is itself objectionable as a judgment on another State's internal affairs, so no declaration should be made and the State should confine itself to maintaining or withdrawing its diplomatic agents. Estrada reflects modern practice: many States, including the United Kingdom since 1980, no longer recognise governments as such.

4. What is the working test for recognising a government?

Effective control: the authority must control the territory and population, with a reasonable prospect of permanence, and must be able and willing to carry out the State's international obligations. It is the same enquiry as the government criterion for statehood, applied to a State that already exists.

5. What difficulty does the Estrada doctrine create for national courts?

It removes the answer without removing the question. A court still has to decide who represents a foreign State for the purposes of sovereign immunity, of the validity of the State's acts, and of who may sue and be sued on its behalf. If the foreign ministry has stopped issuing declarations, the court must infer the position from conduct: whether an ambassador has been kept in place, whether the authority's diplomats have been accepted, and whether dealings continue. The political judgment moves from the executive to the judge, who is worse placed to make it.

6. Explain de facto and de jure recognition of governments, and give a consequence of the difference.

De facto recognition acknowledges that an authority is in effective control while reserving judgment on the lawfulness or permanence of its position; it is provisional and can be withdrawn without great difficulty. De jure recognition acknowledges the authority as the lawful government, is intended to be permanent, and is withdrawn only in grave circumstances. One consequence is that a State may recognise one authority de jure and another de facto at the same time in the same State, which happens during and after civil wars; another is that de jure recognition generally carries fuller consequences before the recognising State's courts, including immunity and the retroactive validation of the authority's acts.