Last month, armed rebels in Syria swept into Damascus as the culmination of a rapid surprise offensive, seizing control of the capital and toppling the brutal regime of President Bashar al-Assad, who has since fled to Russia along with his family. Hay’at Tahrir al-Sham (HTS)—an offshoot of an al-Qaida affiliate and deemed a terrorist organization by the United States, the European Union, the United Kingdom, and the United Nations (UN), among others—has emerged as the dominant authority in Syria, appointing Mohammed al-Bashir as transitional prime minister.
The leader of HTS, Ahmed al-Sharaa, met in mid-December with the United Nations special envoy to Syria, Geir Pedersen. Days later, the United States sent a high-level delegation to meet with al-Sharaa, after which the United States dropped a $10 million bounty it had placed on him. The European Union, too, has promised to ease sanctions on Syria in return for “positive steps” to establish an inclusive, rights-respecting government.
All of this raises several pressing questions: is HTS now the new government of Syria under international law or is the toppled Assad regime still the government? Alternatively, is there perhaps no government currently at all? Do systematic human rights violations committed in the past by HTS preclude its recognition now? Do doubts about HTS’s hold on power make these questions premature?
Many practical issues emerge that depend on the answer to those questions. For example, who now controls Syria’s government assets? Who can enter into contracts or international agreements on its behalf? Who is responsible for complying with Syria’s international law obligations? Who will represent the government in the case before the International Court of Justice (ICJ) brought by Canada and the Netherlands to challenge the Assad government’s brutal, systemic torture program? Who is directly responsible as a matter of international law for ensuring that such human rights abuses do not recur throughout the country?
As we outline in our forthcoming law review article, Recognition Rules: The Case for a New International Law of Government Recognition, it turns out that international law does not have clear or satisfactory answers to these questions. Government recognition in contested situations like those in Syria today is not decided by a centralized authority. Rather, it is determined by individual States, each one making its own decision about which government to recognize. Each international organization, too, has its own system for determining which government represents a State—and sometimes there is even a lack of consistency within a single organization such as the United Nations. This can lead to absurd situations. Myanmar, for example, is represented by one entity in the UN’s legislative chamber, the General Assembly, while another entity defends it before the UN’s court, the ICJ. The lack of coherence in the recognition of governments has profound consequences for the international legal system and demonstrates the need for a better approach toward government recognition under international law.
Government Recognition and Why It Matters
Government recognition is the formal acceptance of a political entity as the representative of a sovereign State. In most cases, government recognition is a matter of course because the domestic legal process, whether democratic or otherwise, results in the selection of a government accepted both domestically and internationally.
But that’s not always true. In just the previous decade and a half, government recognition has been hotly contested in (chronologically) Libya, Yemen, Venezuela, Myanmar, Afghanistan, and Niger. In circumstances like these—now including Syria—the issue of which entity, if any, should be recognized as the lawful government of the State transforms from an internal political dispute into an issue of international law and foreign affairs. The reason is rooted in the inextricable relationship between State recognition and government recognition: while the former involves the recognition of the “primary units of the global order,” the latter implicates the recognition of “the institutions that have standing to act in the name of those units,” as professor Brad Roth has explained.
While the international law of State recognition is largely settled, government recognition is not. There are only a few clear bars on an entity being recognized as a government, and government recognition has, as professor Rob Sloane has written, “remain[ed] discretionary, often influenced if not dictated by foreign policy objectives,” rather than being guided by legal principles. Effective control over most or all of the territory of a State is an almost universally accepted precondition for recognition of a government, but States, international organizations, and other actors have frequently disfavored sole reliance on this criterion in favor of a myriad of additional factors pertaining to “legitimacy,” which seeks to incorporate not just factual determinations, but normative judgments regarding, for example, how the putative government acquired control and whether it respects democracy and human rights.
As we outline in our forthcoming article, this legal uncertainty matters because crucial authorities and responsibilities necessarily attach to government recognition. One of the most important is the authority to consent to military intervention: because the concept of “consent” is under-theorized, it is ripe for manipulation in the context of government recognition. In Yemen, for example, a Saudi-led coalition launched a military intervention in 2015 aimed at restoring the government of former President Abdrabbuh Mansur Hadi with his “consent,” even though Hadi had lost control, resigned the presidency (though he later retracted his resignation), and fled the capital never to gain back that control. Indeed, Saudi officials later placed Hadi under house arrest even as the five participating States continued to rely on his consent for their intervention.
Recognized governments also have the authority to incur international legal obligations in treaties and commercial contracts, control State assets such as natural resources and funds owed from prior international agreements, and represent their respective States in international bodies like the ICJ and the General Assembly; at least some of their officials, moreover, are entitled to immunity from foreign criminal jurisdiction. At the same time, governments have a duty to uphold their respective States’ international human rights and international humanitarian law obligations, raising questions as to whether the Taliban regime in Afghanistan is directly bound by such obligations given that it has not been recognized by any other State.
The immense stakes of government recognition makes confusion dangerous in other contexts. Some governments with little to no control over the territory of a State are recognized, as was true for a time of Juan Guaidó, the head of the opposition-controlled National Assembly in Venezuela, following that State’s disputed presidential elections in May 2018. On other occasions, governments with no significant competitor for control over the territory of a State are not widely recognized (if at all), such as the Taliban in Afghanistan in the past (1996 – 2001) and today (2021 – present). What’s more, some States and international organizations may recognize one government of a State while others simultaneously recognize a different one. Such disagreements about government recognition can produce conflicts extending far beyond the State in which recognition is contested. All of this demonstrates the need for a fundamental change in the international law and diplomacy of government recognition.
The Need for a New Approach, Beginning with Syria
The situation in Syria presents both significant dangers and an opportunity. Assad is living in exile in Russia. As of mid-December, he and Russian President Vladimir Putin had apparently not yet met, but Putin said that they plan to do so. Russia is currently withdrawing its forces from Syria, in accord with HTS statements calling on Russia to “reconsider its presence” in the State. While current signs are that HTS hopes to establish a constructive relationship with Russia, it is conceivable that Russia might claim the right to retain some presence or use military force in Syria—including against HTS—based on Assad’s consent or on the lack of an officially recognized government.
Meanwhile, there are some promising signs in Syria, though nearly all close observers are quick to note that the former rebels are still largely untested. HTS has won significant good will, both at home and abroad, after freeing thousands of political prisoners, and many Syrian refugees have begun to return home. Following meetings with members of the toppled Assad government, interim prime minister Bashir has promised to restore public services across Syria, a process which is already well underway in Aleppo. In Damascus itself, banks and businesses started to reopen just three days after the fall of the Assad regime.
Yet while many Syrians are joyful, others remain cautious. With Assad ousted, several armed groups exercise control over different areas of Syria, including in Damascus, and minority ethnic and religious groups fear repression in light of the human rights records of armed groups like HTS. Syria’s Alawite minority community, once dominant, now fears retaliation. HTS’s leadership has sought to reassure minorities, including Alawites, Christians, and Druse, that they will be protected from violence. Other areas of potential concern include al-Sharaa’s placing foreign fighters in positions of power in the new armed forces, and suggesting that elections may not be possible within the next four years. Also still unsettled is how those who were part of the Assad government will be treated and who will be held accountable for the horrific human rights violations inflicted upon Syrians by the Assad regime.
Meanwhile, foreign military forces continue to play a major role in Syria. Israel launched nearly five hundred airstrikes against military targets and deployed ground troops beyond the demilitarized buffer zone for the first time since the end of the 1973 October War. Turkey is expected to play a major role in the formation of the new Syrian government. It may be incentivized to recognize a government more amenable to negotiating favorable agreements on matters of defense and maritime boundaries. In the meantime, it has continued to wage war against Kurdish forces backed by the United States in northern Syria. Outgoing U.S. Secretary of State Antony Blinken has suggested that the United States would recognize a future Syrian government only if it is “credible,” “inclusive,” and “nonsectarian.” The European Union has made similar remarks. Russia, meanwhile, has undertaken internal procedures to remove HTS as a designated terrorist group.
This could lead to conflict—if Russia, Turkey, the United States, the United Kingdom, or European Union were not to recognize the same government. Especially if sanctions are lifted, any uncertainty over the legitimate government of Syria could lead to new and significant fights over who has the right to control Syrian assets. And if there is a lack of clarity about who is the legitimate government, it will remain unclear whether the rebel forces now in control can sign binding international agreements with the many States with which they are now in discussions.
But this potential for significant disruption also offers an opportunity. In our law review article, we argue for a new, practical way forward for government recognition. Our argument has two elements—one procedural, one substantive. Procedurally, we argue for greater international coordination and centralization of the process of government recognition to avoid the chaos that can result from the highly decentralized process that now exists. We explain that the United Nations Credentials Committee is a “ready-made forum” to address matters of government recognition, and we recommend that the Committee be empowered—via Security Council resolution—to make government recognition decisions (as approved by the General Assembly) that are binding on all components of the United Nations as well as every United Nations member State. Under this approach, all the rights and responsibilities that accompany government recognition would be granted to the government recognized by the Committee. While it is unlikely that this procedural reform will happen in the short term, States could accelerate the process now by pledging to adhere to the Credentials Committee’s recognition decision on Syria and by seeking to coordinate their recognition decisions among one another in the meantime.
Substantively, we argue that government recognition decisions should primarily turn on effective control of the State. Specifically, we argue that the Committee (and, in the meantime, individual States and other organizations) should require sustained effective control as a prerequisite for government recognition and rely on legitimacy in only a narrow set of circumstances (as outlined in our article). This is not because we are unsympathetic toward the normative values motivating arguments for relying more heavily on legitimacy. Rather, it is because government recognition functions to allow governments with radical differences in their cultural, political, historical, and moral commitments to converse before international bodies and enter into agreements with one another. Any effort to define the appropriate scope of a legitimacy-based criteria in government recognition would likely fail because it demands at least some amount of agreement about normative principles that sharply divide States in the international system to this day. And failure to agree can place States in conflict with one another, with the effect of undermining international peace and security.
Some may worry that focusing on effective control gives up the leverage for reform that might be had by refusing recognition unless a government meets certain legitimacy criteria. But individual States would retain the ability to use other international law and diplomatic tools distinct from government recognition to further their normative goals. They could, for example, refuse to engage in diplomatic relations with the new government or impose sanctions unless the government respects the rights of minority communities. States could also put in place countermeasures against the government for any ongoing internationally wrongful acts, including human rights violations or support for terrorist activities.
Applied to Syria, this approach would argue for States to determine which entity exercises the most extensive and sufficient level of effective control over Syria. At present, HTS and Kurdish-led forces both exercise substantial control over large amounts of Syrian territory, but HTS controls the four largest cities—Aleppo, Damascus, Homs, and Latakia—and therefore the areas in which the majority of the population resides. Assuming this control is maintained and stabilized, relying on effective control would counsel in favor of recognizing HTS as the government of Syria, with all the State authorities and responsibilities—including the obligation to ensure compliance with international human rights and humanitarian law obligations—that entails.