Representation, Recognition, Resistance: Rival Governments Before the International Court of Justice

Jack McNally*

Following a coup d’état or during times of internal conflict, multiple entities may emerge, each claiming to be the putative government of the State and competing for international recognition to that effect.  However, only one government can be competent to represent the State in its foreign affairs.  This anomaly raises issues for the international dispute settlement system, requiring international courts and tribunals to determine the government entitled to represent the State in active legal proceedings.  This Article considers how the International Court of Justice (ICJ) should approach these questions of recognition and representation.  It first establishes that the Court has the jurisdiction to make procedural decisions as to the entity competent to represent the State in ICJ proceedings.  However, notwithstanding this established power to decide, a survey of practice demonstrates that international courts and tribunals, including the ICJ, have developed a series of judicial avoidance techniques to avoid answering questions of recognition and representation, likely out of an awareness of the adverse normative implications that may arise from such a decision.  The adoption of such techniques, while warranted in some specific circumstances, is not an approach the Court will be able to adopt indefinitely.  In circumstances where the use of avoidance techniques is unfavorable or has gone on for too long, the Court should proceed to apply the substantive law of recognition—namely, the effective control test—to determine the government competent to represent the State in the proceedings.  It concludes that the Court should not avoid applying established law, nor should it avoid exercising its power to render procedural orders on the representation of States with rival governments to the extent necessary to facilitate the administration of justice and to prevent the frustration of its jurisdiction.

*B.A., LL.B. (Hons. I) (UNSW).  Research Fellow, Faculty of Law and Justice, University of New South Wales.  I am indebted, as I am so often, to Professor Natalie Klein, whose generous mentorship has enriched not only this Article, but my work in and understanding of international law more generally.  For critical comments and encouragement, I thank Professor Lucas Lixinski and Associate Professor Daniel Joyce.  Alexandra Baker, Peter Dougherty, Erol Gorur, Lauren Howe, Nicholas Parker, Lucas Rengifo-Keller, and Lily Velez each provided generous comments on earlier drafts or assisted with the translation of materials, for which I am deeply grateful.  The Law and Resource Sharing librarians at UNSW provided substantial assistance in obtaining foreign language sources.  I have also benefitted immensely from the supportive environment provided by and helpful discussions with colleagues in the International Arbitration Group at King & Wood Mallesons, Sydney.  Any errors I have made, notwithstanding all this help, are surely my own.