# The Author 2013. Published by Oxford University Press. All rights reserved
doi: 10.1093/chinesejil/jmt014; Advance Access publication 5 May 2013
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Recognition of Opposition
Groups as the Legitimate
Representative of a People
Stefan Talmon*
Abstract
During the civil wars in Libya and Syria, the rebel opposition groups were
recognized by some as “the (sole) legitimate representative of the people” of
these States. This paper, using the situation in Syria as a case study, examines what it means to recognize a group as “the legitimate representative of a
people”, while the State’s government is still in place. It shows that with
regard to recognition statements wording is all important, and that the
Syrian Opposition Council has been recognized in at least six different capacities of varying legal significance. The paper sets out the difference
between the “legal” and the “political” act of recognition and finds that recognition as “the legitimate representative of a people” is a purely political
act. Although four normative criteria for the status of “legitimate representative of a people” can be identified, what is lacking are clear standards for
their application. The paper outlines the consequences of political recognition and examines its legality in terms of international law and its suitability
as a political tool.
I. Introduction
1. Some 18 months into the violent uprising against President Bashar al-Assad, the
Syrian opposition rebranded itself. At a meeting held in Doha, the capital of Qatar,
from 8 to 11 November 2012, Syrian opposition groups, with a little encouragement from Western and Arab States, reached agreement on the formation of a
new 62-member body,1 the “National Coalition for Syrian Revolutionary and
∗
1
Of the Board of Editors of this Journal; Director of the Institute for Public International Law, University of Bonn ([email protected]). The manuscript was
completed on 28 February 2013 and the websites cited were current as of that date.
References are to the URLs of the main websites only. References can be located
easily by entering the headings or titles into a search engine.
See the statement of US Secretary of State Hillary Clinton: “We have recommended
names and organizations that we believe should be included in any leadership
...................................................................................................................................................................
12 Chinese Journal of International Law (2013), 219–253
220 Chinese JIL (2013)
Opposition Forces” (NCSROF) or, in short, the Syrian Opposition Coalition
(SOC).2 The SOC replaced the Syrian National Council (SNC), the previously
dominant opposition umbrella group which was widely viewed as ineffective, consumed by infighting and little respected on the ground. The SOC, under the chairmanship of Ahmed Moaz al-Khatib, proclaimed itself to be the legitimate
representative of the Syrian people and called on States to recognize it.
2. Only one day after its formation, the Opposition Coalition was recognized by
the six member States of the Gulf Cooperation Council (GCC).3 The Council’s
Secretary-General said in a statement that “the States of the Council announce recognizing the National Coalition for the Forces of the Syrian Revolution and Opposition . . . as the legitimate representative of the brotherly Syrian people”.4 The same
day, the League of Arab States, which had suspended Syria from membership in November 2011, welcomed the agreement that the Syrian opposition parties had
reached and called on the other opposition parties to join this coalition so that
all segments of the Syrian people would be brought together. However, with
some Arab States still reluctant to completely abandon Syrian President Bashar
al-Assad, and others not being convinced of the representativeness of the SOC,
the Arab League Ministerial Council did not follow the GCC’s lead, but only
“urged regional and international organisations to recognise it [SOC] as a legitimate
representative for the aspirations of the Syrian people”, and called it “a legitimate
representative and a primary negotiator with the Arab League.”5
2
3
4
5
structure. We’ve made it clear that the SNC can no longer be viewed as the visible
leader of the opposition.” (Remarks with Croatian President Ivo Josipovic After
Their Meeting, 31 October 2012 (www.state.gov)).
For the text of the agreement, see Annex I.
The GCC comprises Saudi Arabia, Bahrain, the United Arab Emirates, Oman,
Qatar and Kuwait.
Gulf Cooperation Council Recognizes Syrian Opposition Bloc, 13 November 2012
(http://en.rian.ru).
Reservations on the document came from Algeria and Iraq. Lebanon did not participate in the statement. See Arab League gives hesitant welcome to Syria opposition coalition, 13 November 2012 (http://english.ahram.org.eg). Tunisia and
Libya declared on 24 November 2012 that they would delay recognition of the
Syrian Opposition Coalition until they had ascertained “the representativeness of
the Syrian opposition.” (Tunisia, Libya delay recognition of Syrian opposition coalition, 24 November 2012 (www.enghengyang.gov.cn)). On 11 February 2013,
the Arab League issued a statement reaffirming its support for the SOC and
saying that it recognized it as “the legitimate representative of the aspirations of
the Syrian people” (Syrian National Coalition meets with Arab League, 11 February
2013 (www.dailynewsegypt.com)).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 221
3. France, which had taken the lead in recognizing the Libyan National Transitional Council (NTC) in March 2011,6 on 13 November 2012 became the first
Western country to accord recognition to the Opposition Coalition. At a televised
news conference in Paris, President François Hollande declared:
I announce today that France recognizes the Syrian National Coalition as the
sole legitimate representative of the Syrian people and thus as the future provisional government of a democratic Syria which paves the way to put an end
to Bashar Assad’s regime.7
Turkey followed two days later.8 On 19 November 2012, during a visit to Doha, Italian
Prime Minister Mario Monti announced that “Italy recognizes the coalition as a legitimate representative of the Syrian people”.9 On the same day, European Union Foreign
Ministers met in Brussels. In the Council Conclusions on Syria, it was stated:
The EU welcomes the agreement reached on 11 November in the meeting of
the Syrian opposition groups gathered in Doha and in particular the formation of the National Coalition for Syrian Revolutionary and Opposition
Forces. The EU considers them legitimate representatives of the aspirations of
the Syrian people. This agreement represents a major step towards the necessary
unity of the Syrian opposition. The EU looks forward to this new coalition
continuing to work for full inclusiveness, subscribing to the principles of
human rights and democracy and engaging with all opposition groups and
all sections of Syrian civil society.10
The statement fell well short of other recognition statements and, in particular, did
not follow the French lead. This was an indication that several EU member States
still had strong reservations about the Opposition Coalition in terms of how representative it was and its democratic commitment. This, however, did not prevent individual EU member States from moving forward on recognition. On 20 November
2012, British Foreign Secretary William Hague announced to the House of
6
On the recognition of the Libyan NTC, see Stefan A.G. Talmon, Recognition of
the Libyan National Transitional Council, 15(16) American Society of International Law Insights (16 June 2011) (www.asil.org).
7 François Hollande reconnaı̂t la coalition nationale syrienne, 13 November 2012
(www.france24.com) (translation provided).
8 Sebnem Arsu and Tim Arango, Turks Grant Recognition to Coalition of Syrians,
New York Times, 16 November 2012, A16. See also Statement by Mr. Ahmet
Davutoğlu, Minister of Foreign Affairs of Turkey, at the 39th Session of the OIC
Council of Foreign Ministers, Djibouti, 15 November 2012 (www.mfa.gov.tr).
9 Syria: “coalition is valid” says Monti, 19 November 2012 (www.ansamed.it).
10 Council of the European Union, Council Conclusions on Syria, Doc 16392/12, 19
November 2012 (http://register.consilium.europa.eu) (emphasis added).
222 Chinese JIL (2013)
Commons that “Her Majesty’s Government have decided to recognise the National
Coalition of Syrian Revolutionary and Opposition Forces as the sole legitimate representative of the Syrian people.”11 This statement went beyond the more cautious
endorsement by the European Union. The United Kingdom, like France, referred
to the Opposition Coalition as the “sole” legitimate representative of the Syrian
people. On 29 November 2012 Spain recognized the Opposition Coalition as
“the legitimate representative of the Syrian people”12 and, on 9 December 2012,
Denmark and Norway followed suit.13
4. The relationship between the European Union and the Syrian Opposition Coalition returned to the agenda of the Foreign Affairs Council on 10 December 2012.
After holding a meeting with SOC chairman Moaz al-Khatib, the Council of Ministers announced that “the EU accepts [the SOC] as legitimate representatives of the
Syrian people.”14 Considering how much care is taken over drafting such statements,
it was probably no oversight that the EU Foreign Ministers used the word “representatives” in the plural rather than the singular “representative” or even “the sole representative”, which had been employed by individual member States. Again, not all
member States seemed to be prepared to accord recognition implying the exclusivity
of the Opposition Coalition. Several member States still had reservations about the
representativeness of the Coalition.15 This explains why some EU member States
felt it necessary to issue separate statements on the recognition of the Opposition Coalition. On 10 December 2012, the Benelux countries—Belgium, Netherlands and
Luxembourg—declared that they recognized “the Syrian Opposition Coalition as
the legitimate representative of the Syrian people in this transition period leading
to a free and democratic Syria.”16 The German Foreign Minister said on the same
11 Parliament, House of Commons, Official Report, Parliamentary Debates, vol. 553,
col. 445: 20 November 2012.
12 Spain, Ministry of Foreign Affairs and Cooperation, Communiqué 173-2012,
Recognition of the National Coalition for Syrian Revolutionary and Opposition
Forces, 29 November 2012 (www.maec.es).
13 Ministry of Foreign Affairs of Denmark, Denmark strengthens relations to the Syrian
opposition Coalition, 9 December 2012 (http://um.dk); Norway, Ministry of
Foreign Affairs, The National Coalition represents the Syrian people, 9 December
2012 (www.regjeringen.no).
14 Council of the European Union, Council Conclusions on Syria, Doc 17515/12, 10
December 2012 (http://register.consilium.europa.eu).
15 See e.g. the cautious statement of Greece on 13 December 2012 that the Opposition Coalition “is the most representative faction that has presented itself to date
among the Syrian opposition and anti-regime groups.”(Hellenic Republic, Ministry
of Foreign Affairs, Briefing of diplomatic correspondents by Foreign Ministry
spokesman Gregory Delavekouras, 13 December 2012 (www.mfa.gr)).
16 Government of the Netherlands, Benelux—messages at Group of Friends—meeting
Marrakech, 12 December 2012 (www.rijksoverheid.nl) and Government of the
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 223
day that this “is a coalition that represents the legitimate interests of the Syrian people
and we want this to be recognized by the EU”.17
5. On 11 November 2012, the United States of America congratulated the representatives of the Syrian people on the formation of the National Coalition for Syrian
Revolutionary and Opposition Forces but did not make any official recognition
statement.18 Beginning on 13 November 2012, the US State Department spokespersons referred to the SOC “as a legitimate representative of the Syrian people”.19 In a
news conference on 14 November 2012, US President Obama called the SOC
“a legitimate representative of the aspirations of the Syrian people”.20 It took,
however, until 11 December for a formal statement to be made. Asked in an interview
by ABC’s Barbara Walters whether he planned to recognize the Syrian opposition and
give them some legitimacy, US President Obama said:
We’ve made a decision that the Syrian Opposition Coalition is now inclusive
enough, is reflective and representative enough of the Syrian population
that we consider them the legitimate representative of the Syrian people in
opposition to the Assad regime and so we will provide them recognition
and obviously, with that recognition comes responsibilities.21
The US recognition was followed the next day by the Fourth Ministerial Meeting of
the Group of Friends of the Syrian People in Marrakech, Morocco. The meeting was
attended by about 130 State representatives, including approximately 60 ministers,
the Syrian opposition, and officials of several international and regional organizations
and NGOs. The chairman of the meeting issued a document summarizing the
conclusions arrived at “[o]n the basis of all participants’ contributions”.22 Under
17
18
19
20
21
22
Netherlands, Representative of Syrian coalition welcome in Benelux, 13 December
2012 (www.government.nl). On 12 November 2012, the Benelux countries declared
that “the creation of the Syrian National Coalition is a milestone in forming an inclusive
and representative opposition.” (Syrian Opposition: Benelux countries very pleased
with the outcome of the Doha Conference, 12 November 2012 (http://diplomatie.
belgium.be)).
Germany expels Syrian embassy staff, 10 December 2012 (www.dw.de).
Formation of the National Coalition for Syrian Revolutionary and Opposition
Forces, Press Statement, Mark C. Toner, Deputy Spokesperson, Office of the
Spokesperson, Washington, DC, 11 November 2012 (www.state.gov).
See e.g. US State Department, Daily Press Briefing, 13 November 2012 and 3
December 2012 (www.state.gov).
See President Obama Holds a Press Conference, 14 November 2012 (www.
whitehouse.gov).
Obama Recognizes Syrian Opposition Group, 11 December 2012 (http://
abcnews.go.com).
The Fourth Ministerial Meeting of The Group of Friends of the Syrian People, Marrakech, 12 December 2012, Chairman’s conclusions (www.auswaertiges-amt.de).
224 Chinese JIL (2013)
the heading “Recognizing the National Coalition of Syrian Revolution and Opposition Forces and the mechanisms of achieving democratic transition” it said:
13. Participants acknowledged the National Coalition as the legitimate representative of the Syrian people and the umbrella organisation under which
Syrian opposition groups are acting.23
The chairman’s conclusions were interpreted by commentators and the media as
recognition of the Opposition Coalition by the “Friends of Syria”.24 However, it
is more than doubtful that the statement reflected the views of all 114 States represented at the meeting and that it was intended as an act of collective “recognition”.
Canadian Foreign Minister John Baird said at the meeting that Canada had not yet
taken a decision on recognition of the SOC and added: “Not all countries
here have.”25 The chairman’s conclusions had not been voted upon or adopted by
consensus; the statement was not made in the name of the “States” attending but
on behalf of all the “participants”, including both States and non-State actors; it
was not legally binding on the States represented at the meeting; and the word “recognition”, while used in the heading, was conspicuously absent from the statement
itself which used the much more neutral term “acknowledged”. States represented
at the meeting used language different from the chairman’s conclusions in their individual statements. For example, the Estonian Foreign Minister made a statement at
the Marrakech meeting on behalf of the Nordic and Baltic countries of Denmark,
Finland, Iceland, Latvia, Lithuania, Norway, Sweden and Estonia in which he
declared that the “Nordic and Baltic countries accept the new Coalition as legitimate
representatives of the Syrian people”—using the plural rather than the singular of the
term representative.26 In a separate press release, the Latvian Foreign Ministry
explained that “[t]he statement recognised the National Coalition for Syrian Revolutionary and Opposition Forces (NCSROF) as a [rather than the] legitimate representative of the Syrian people.”27 After the meeting, Finland declared that it had not
changed its stance as regards the Syrian opposition. For Finland, the opposition represented the Syrian people and could be a partner in talks. However, it did not recognize
23 Ibid.
24 See e.g. “Friends of Syria” Recognize New Opposition Coalition, 12 December
2012 (www.npr.org); ‘Friends of Syria’ Recognize Syrian Opposition; Scuds
Fired, 12 December 2012 (www.voanews.com).
25 Canada holds off recognizing Syrian opposition, Baird says, 12 December 2012
(www.cbc.ca).
26 Friends of Syria meeting in Marrakech, 12 December 2012, Nordic-Baltic Intervention (www.mfa.is).
27 Ministry of Foreign Affairs of the Republic of Latvia, Baltic and Nordic countries
recognise National Coalition for Syrian Revolutionary and Opposition Forces,
13 December 2012 (www.am.gov.lv) (emphasis added).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 225
them as the only representative of the Syrian people.28 A similar position was taken, for
example, by Tunisia, Canada and Greece which all had been represented at the “Friends
of the Syrian People” meeting by their foreign ministers.29 Thus, political statements
and media reports which appeared at the end of 2012 that “more than 100 countries”
had recognized the Syrian Opposition Coalition as the legitimate representative of the
Syrian people do not adequately reflect reality.30 Accordingly, there was definitely no
“international consensus with regard to who really speaks for the Syrian people”.31
6. In the days and weeks following the Marrakech meeting, other participant States
issued separate recognition statements; some simply reiterating the conclusions of the
conference chair,32 others going beyond that statement. On 14 December 2012,
Albania announced that it had “decided to recognize the Syrian opposition as the
28 Finland says doesn’t recognize opposition as sole representative of Syrian people,
Baltic News Service, 12 December 2012 (www.bns.ee).
29 For Tunisia, the SOC was “an advanced step in uniting the segments of [the] Syrian
political scene”, but not the legitimate representative of the Syrian people (Tunisian
foreign minister sees departure of Syrian leadership as solution, BBC Monitoring
Middle East—Political, 12 December 2012; see also Tunisia, Libya delay recognition
of Syrian opposition coalition, 24 November 2012 (www.enghengyang.gov.cn) and
Tunisia wants peaceful outcome of crisis in Syria: diplomat, 12 January 2013 (http
://en.apa.az)). On 16 December 2012, Canadian Foreign Affairs Minister John
Baird said he had carefully considered the move of recognizing the Opposition Coalition, but had decided the conditions were not in place yet. He said: “We’re prepared to
work with them, we’re prepared to engage with them, but we’re not prepared to recognize them as the sole, legitimate voice, government-in-waiting of the Syrian people”
(Canada does not recognize Syrian opposition, Baird, 17 December 2012 (www.
ctvnews.ca). See also Canada holds off recognizing Syrian opposition, Baird says, 12
December 2012 (www.cbc.ca)). When asked whether Greece now recognized the
SOC as the official representative of the Syrian people, the spokesperson for the
Greek Foreign Ministry replied “that this faction is the most representative faction
that has presented itself to date among the Syrian opposition and anti-regime
groups.” (Hellenic Republic, Ministry of Foreign Affairs, Briefing of diplomatic correspondents by Foreign Ministry spokesman Gregory Delavekouras, above n.15).
30 But see e.g. Damien McElroy, Assad launches Scud missile barrage, The Daily Telegraph (London), 13 December 2012, 21; Ashish Kumar Sen, Rebel leader asks U.S.
to delete ally from terrorist list; Al Qaeda-linked group fights Assad, The Washington Times, 13 December 2012, A9. See also the statement of the SOC “ambassador” to France on 11 January 2013: “114 countries now recognize the National
Coalition as the legitimate representative of the Syrian people.” (Al-Jazeera programme discusses challenges facing Syrian opposition, refugees, BBC Monitoring
Middle East—Political, 12 January 2013).
31 But see the US statement to that effect: US State Department, Daily Press Briefing,
13 December 2012 (www.state.gov).
32 E.g. Australia.
226 Chinese JIL (2013)
sole legitimate authority of Syria and Syrian nation.”33 Hungary followed the next
day, recognizing the SOC as “the sole legitimate representative of the Syrian
people.”34 Since then, other countries have accorded various kinds of recognition.35
II. “Recognition” and the importance of wording
7. Ever since the Libyan civil war in 2011, political leaders have rediscovered
“recognition” as a tool for conveying messages of varying degrees of political
support. Recognition statements are usually drafted with great care and the
wording employed (or not employed) is of great legal and political significance.
This has sometimes been overlooked by commentators and the media which, for
example, simply reported that the Syrian Opposition Coalition had been “recognized” or that it had been recognized “as the (sole) legitimate representative of
the Syrian people” without paying much attention to the actual text of so-called
“recognition” statements. A number of States have been quite reluctant to use the
“r”-word, either because they follow a policy of “recognizing States only”36 or
because they considered the requirements for recognition of the SOC as the
(sole) legitimate representative of the Syrian people as not yet being fulfilled.
At the same time, some of these States wanted to show their support for the opposition. Such States used terms such as “accept”, “acknowledge” or “consider”, rather
than “recognize”. Thus, the chairman’s conclusion at the fourth ministerial meeting
of the Group of Friends of the Syrian People used the word “acknowledged” rather
than “recognized” in the body of the relevant section. The term “recognizing”
appears only in the heading of the relevant section while it is used expressly in
other contexts throughout the chairman’s conclusions.37
8. More important than the verb employed, however, is the status attributed to an
opposition group. The question is not recognition per se but recognition as what.
As Winston Churchill so aptly put it, “[o]ne can recognize a man as an Emperor
33 Republic of Albania, Council of Ministers, Albania recognizes Syrian opposition,
sole legitimate authority, 14 December 2012 (www.km.gov.al).
34 Hungary, Ministry of Foreign Affairs, Statement of the Ministry of Foreign Affairs
on the recognition of the Syrian National Coalition, 15 December 2012 (www.
kormany.hu).
35 See the Table of Recognitions of the Syrian Opposition Coalition in Annex II.
36 On the various recognition policies, see Stefan A.G. Talmon, Recognition of Governments: An Analysis of the New British Policy and Practice, 63 BYBIL (1992),
231, 243.
37 See The Fourth Ministerial Meeting of The Group of Friends of the Syrian People,
Marrakech, above n.22, paras.4, 7, 13.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 227
or as a Grocer. Recognition is meaningless without a defining formula.”38 States
have been very careful in devising these formulae. The Syrian Opposition Coalition,
for example has been “recognized” as:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
a legitimate representative for [of ] the aspirations of the Syrian people;
legitimate representatives of the aspirations of the Syrian people;
a legitimate representative of the Syrian people;
legitimate representatives of the Syrian people;
the legitimate representative of the Syrian people;
the sole legitimate representative of the Syrian people.
Being a representative of the aspirations of a people is different from being a representative of a people itself. This was made clear by the EU High Representative for Foreign
Affairs and Security Policy, Catherine Ashton, who on 20 November 2012 refuted
claims that the EU had recognized the SOC as a legitimate representative of the
Syrian people. She said: “We have chosen a wording that all EU countries had compromised on, recognizing the Syrian opposition as ‘legitimate representatives of the
aspirations of the Syrian people’.”39 In order for a group to be recognized as the legitimate representative of the aspirations of a people it must express the “right” aspirations in the eyes of the recognizing States; although it is not always clearly spelled
out what these aspirations should be. The legitimate aspirations of the Syrian
people were defined by Western European recognizing States as “freedom, democracy
and social justice.”40 Recognition of the SOC as “legitimate representatives of the
Syrian people” followed only as a next step on 10 December 2012.41
9. The choice of the indefinite or definite article accompanying the word
“representative” is deliberate.42 The same is true for the use of the word “representatives” in the plural rather than the singular “representative”. Both the indefinite article
38 Telegraph, The British Prime Minister (Churchill) to President Roosevelt, July 21,
1943, in: United States Government Printing Office, 2 Foreign Relations of the
United States Diplomatic Papers 1943 (1964), 173.
39 See EU does not recognize Syrian opposition as “sole legitimate representative of
Syrian people”, 20 November 2012 (http://english.ruvr.ru).
40 See Estonian Ministry of Foreign Affairs, Foreign Minister Urmas Paet in the name
of Finland, Sweden, Denmark, Norway, Iceland, Latvia, Lithuania and Estonia at
the meeting of the foreign ministers of the Friends of Syria group in Marrakech, 12
December 2012 (www.vm.ee). The aspirations of the Syrian people were also
spelled out in the Final Communiqué of the Action Group for Syria—Geneva, Saturday 30 June 2012, para.8 (www.unog.ch).
41 See Council of the European Union, Council Conclusions on Syria, above n.14.
42 See US State Department, Daily Press Briefing, 8 November 2012 (www.state.gov)
(“with regard to the SNC, the farthest we were willing to go was to call them a legitimate,
not the legitimate as we did in the TNC context”). On the use of the word “the” rather
than “a” in describing the Libyan Transitional National Council, see Background
228 Chinese JIL (2013)
and the plural are used to indicate that there is more than one representative of the
Syrian people and that the recognizing State is maintaining, or is prepared to maintain
contacts with other opposition groups. For example, when the United Kingdom on
24 February 2012 recognized the Syrian National Council as “a legitimate representative of the Syrian people”, the British Foreign Secretary explained: “Well there are
other representatives as well as the SNC, and that’s why we say ‘a legitimate representative of the Syrian people’.”43 As the recognition statement of the Nordic and Baltic
countries shows,44 “a representative” and “representatives” are usually used interchangeably. The same seems to be the case for “the legitimate representative” and
“the sole legitimate representative” of a people.45 The move from indefinite to definite
article, and from plural to singular, is usually used to signal an enhancement of status,
a political “upgrade”, and to document the exclusivity of the relationship with a
certain opposition group.
10. Recognizing these differences, three different levels of recognition of representatives of a people may be distinguished. A group may be recognized as:
(i) a representative/representatives of the aspirations of a people;
(ii) a representative/representatives of a people; or
(iii) the (sole) representative of a people.
These three different statuses seem to be the major steps of what may be called the
“career ladder of international recognition” of representatives of a people during a
civil war. In all three cases, the opposition group is seen as an institution through
which the recognizing State is engaging directly with the “people” within another
State and by-passing that State’s government. This must be distinguished from
other, lesser forms of recognition, where the group represents only a fraction or
section of a people. Thus, the Syrian National Council, whose representativeness
and effectiveness was questionable, was mainly recognized as a legitimate representative of “Syrians”,46 “Syrians seeking peaceful democratic change”,47 or the
43
44
45
46
47
Briefing by a Senior State Department Official, Special Briefing, Office of the Spokesperson, Abu Dhabi, United Arab Emirates, 9 June 2011 (www.state.gov).
Foreign Secretary: “we have to intensify the pressure” on Syria, 24 February 2012
(www.fco.gov.uk).
See above at nn.26 and 27 and the accompanying text.
Cf. e.g. the Slovenian statement: “Slovenia has decided to recognise the National
Coalition for Syrian Revolutionary and Opposition Forces as the (only) legitimate
representative of the Syrian people” (Slovenia: Strong support for UN special envoy
in efforts to end violence in Syria, 4 January 2013 (www.mzz.gov.si)).
See Council of the European Union, 3157th Council Meeting, Foreign Affairs, 22 and
23 March 2012, Press Release, Doc 7849/12, 16, para.6 (www.consilium.europa.eu).
See Chairman’s Conclusions of the International Conference of the Group of
Friends of the Syrian People, Tunis, 24 February 2012 (www.fco.gov.uk). See
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 229
“Syrian opposition”,48 but not “the Syrian people”. The group may also simply be
recognized as “a legitimate representative” without any qualifier. This is especially
useful in multilateral fora where States cannot agree on the status of an opposition
group but nevertheless want to send a political signal of support, as it leaves room
for each State to interpret the statement in a way that suits its own political agenda.
This seems to have been the case with the recognition of the Syrian Opposition
Coalition as “a legitimate representative” by the Arab League. While some States
claimed that this had been recognition of the SOC as a legitimate representative
of the Syrian people, others interpreted it simply as recognition of the SOC as a
legitimate representative of the Syrian opposition.49
11. Political leaders may also simply refer to “recognition” in order to exaggerate
the support enjoyed by an opposition group of their liking. For example, Turkish
Prime Minister Recep Tayyip Erdogan said on 7 January 2013: “The Syrian National Coalition have been recognized by over 100 countries in the world.
I wonder how many countries remain who recognize Assad.”50 But not all recognitions are the same. On occasion, recognition statements are deliberately phrased in a
way that is open to misinterpretation and that sounds like more than what they actually are. For example, the statement by French President Hollande that France
recognized the SOC “as the sole legitimate representative of the Syrian people
and thus as the future provisional government of a democratic Syria”51 may easily
have been misinterpreted as French recognition of the group as the (future) government of Syria while the action was in fact limited to recognition of the group as “the
only legitimate representative of the Syrian people.”52 Similarly, the statement of
German Foreign Minister Westerwelle that the SOC “is a coalition that represents
the legitimate interests of the Syrian people and we want this to be recognized by the
EU”53 has been widely interpreted as German recognition of the group as legitimate
representative of the Syrian people, but that is not really what it says. The Minister
referred to the representative of the “legitimate interests of the Syrian people”, not
the representative of “the Syrian people” itself. In fact, no pronouncement by a
German official can be found clearly stating that Germany recognizes the group
in that capacity. At the end of the day, each recognition statement must be
48
49
50
51
52
53
also US State Department, Background Briefing on Syria, 6 December 2011 (www.
state.gov).
Cf. US State Department, Daily Press Briefing, 6 December 2011 (www.state.gov).
See Iraq expresses reserve over Arab League resolution on Syria—roundup, BBC
Monitoring Middle East—Political, 13 November 2012.
Assad is misleading, says Turkish pm, 7 January 2013 (www.aa.com.tr).
François Hollande reconnaı̂t la coalition nationale syrienne, above n.7.
Syria—Vote on a UN General Assembly resolution, 27 November 2012 (www.
diplomatie.gouv.fr).
Germany expels Syrian embassy staff, above n.17.
230 Chinese JIL (2013)
interpreted on its own terms, in accordance with the ordinary meaning of the words
used and in light of its political and factual context.
III. “Legal” and “political” recognition distinguished
12. On 13 November 2012, the chairman of the Syrian Opposition Coalition,
Moaz al-Khatib, urging other European nations to follow France’s lead in recognizing the coalition as the sole legitimate representative of the Syrian people, said:
I request European states to grant political recognition to the coalition as the
legitimate representative of the Syrian people and to give it financial
support. When we get political recognition, this will allow the coalition to
act as a government and hence acquire weapons and this will solve our
problems.54
Although, as will be seen below, chairman Moaz al-Khatib ascribed the wrong consequences to “political recognition”, he clearly made a distinction between the political and the legal act of recognition. States recognizing the SOC also made it clear
that they were according “political” recognition, not “legal” recognition.55 For
example, after the USA recognized the Syrian Opposition Coalition “as the
legitimate representative of the Syrian people”, a spokesperson for the US State
Department clarified the implications of the recognition:
Well, let me just underscore again that this is a political step. This is not a legal
step, this is a political step which not only allows us to give the SOC a political
lift and to make it clear that they are the primary group that we will be
working with, but it also allows us, as I said, to try to better channel the nonlethal assistance that we provide to the political groups that they are working
with on the ground in Syria.56
It has been pointed out that recognition is an incremental process. First, there are political steps; and then, ultimately, when the conditions are right, there are legal steps.57
Thus, the question is how the two kinds of recognition, legal and political, differ.
54 Syria: France backs anti-Assad coalition, 13 November 2012 (www.bbc.co.uk)
(emphasis added).
55 See US Stops Short of Legal Recognition of Syrian Rebels, 13 December 2012
(http://en.rian.ru); Obama recognizes Syrian opposition coalition, 12 December
2012 (http://edition.cnn.com); EU edges closer to Syria opposition, 11 December
2012 (www.china.org.cn).
56 See US State Department, Daily Press Briefing, 12 December 2012 and 3 January
2013 (www.state.gov).
57 See US State Department, Daily Press Briefing, 12 December 2012 (www.state.
gov).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 231
III.A. Political recognition
13. The political act of recognition of an opposition group means that the recognizing State is willing to enter into political and other relations with that group.
Political recognition is within the arbitrary discretion of the recognizing State and
may be made subject to various conditions.58 For example, the United Kingdom
asked the Syrian Opposition Coalition “to show a clear commitment to human
rights and international humanitarian law, including the protection of all religious
communities and unfettered and safe access for humanitarian agencies.”59 Canadian
Foreign Affairs Minister John Baird told the SOC that it must reject extremism and
embrace minorities as preconditions for official recognition.60
14. The act may be of great importance politically, especially for the prestige and
the financial situation of the group, but it does not create any legal obligations either
for the recognizing State or for the opposition group. For this reason, recognition
may be withdrawn unilaterally at any time for political reasons. Thus, States that
had recognized the (former) Syrian National Council politically had no problems
switching their recognition to the Syrian Opposition Coalition and thereby
implicitly withdrawing recognition from the SNC.
15. Political recognition of an opposition group as “the (sole) legitimate representative of the people of a State” and the attendant withdrawal of political recognition
from the State’s incumbent government have only limited practical effect. The
refusal of political recognition of the incumbent government is possible only to a
limited degree. A State, the government of which is not politically recognized by
another State, nevertheless remains a subject of international law in relation to
the latter State and all rights and duties stipulated by treaty or customary international law remain in force in the mutual relations between both States. It is the
government which fulfils the international obligations and activates the international
rights of the State.61 Thus, a State which refuses to recognize a government, but not
the other State, may continue to request from the other State the fulfilment of its
obligations and, for that reason, address diplomatic notes to the “unrecognized”
government.62 For example, Turkey, which on 15 November 2012 recognized the
Syrian Opposition Coalition as “the legitimate representative of the Syrian people”,
58 See Hans Kelsen, Recognition in International Law: Theoretical Observations, 35
AJIL (1941), 605.
59 See the statement of the British Foreign Secretary William Hague, House of
Commons, above n.11, col. 445.
60 See Canada tells Syrian opposition it won’t be recognized until it rejects extremism
despite U.S. acceptance, 12 December 2012 (http://news.nationalpost.com).
61 See James R. Crawford, The Rights of Peoples: “Peoples” or “Governments”, in:
James R. Crawford (ed.), The Rights of Peoples (1988), 54.
62 See Hans Kelsen, above n.58, 615.
232 Chinese JIL (2013)
may continue to address diplomatic protest notes to the Assad government concerning the shelling of Turkish border towns from Syrian territory.63 On the other hand,
the State having withdrawn political recognition must also accept the fact that the
rights of the other State under international law are exercised by the government
that it does not recognize. For that reason, it is still the Assad government that exercises
control over Syrian embassies abroad, even in countries that have recognized the
opposition politically.64
16. The freedom of a State to choose whether or not to recognize politically
the government of another State rests upon the fact that no State is required to
have political or other relations with another State and that a State may break off
these normal relations with another State if the government of that other State
is politically not acceptable. This rupture of relations must, however, not affect
existing legal rights and obligations.65
III.B. Legal recognition
17. The legal act of recognition is very different from the political act. Recognition
in the legal sense means the establishment of a legal status, i.e. a fact from which
legal consequences follow. Just as in every other legal order, international law
attaches to certain facts certain legal consequences. For example, States are represented in their international relations by their government. Thus, international
law attaches certain powers of representation to the fact “government” and must
therefore determine what a government is. If it were otherwise, there would be
nothing to prevent States so minded from recognizing at will whatever political
group they thought fit as a government of another State.66 Government status
would be at the political discretion of other governments, which it is not.
18. The main criterion in international law for government status is that the
individual or group of individuals claiming to be the government of a State exercise
effective control over the State’s territory.67 A claimant to government status must
be able to exercise effective control over the entire or, at least, a large majority of the
territory of the State concerned, and must be likely to continue to do so. For a
claimant to be in effective control of the State’s territory, it must be in possession
63 Cf. Turkey issues diplomatic note to Syria over shelling near border, 12 November
2012 (www.todayszaman.com).
64 See e.g. Steven Erlanger, France to Let Syria Council Establish Ambassador,
New York Times, 17 November 2012, A16.
65 Hans Kelsen, above n.58, 615.
66 Cf. Hersch Lauterpacht, Recognition in International Law (1947), 95.
67 Ibid., 87– 88, 91. See also the statement of US practice in Green H. Hackworth,
1 Digest of International Law (1940), 175 (“de facto ability to hold the reigns of
administrative power”), and House of Commons, Official Report, Parliamentary
Debates, vol. 983, Written Answers, cols. 277– 279: 25 April 1980.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 233
of the machinery of State which, as a rule, requires control of the State’s capital. The
preponderance of modern State practice considers the principle of effectiveness as
controlling.68 Asked at a press conference on 12 December 2012 why the United
States had not offered “legal recognition” to the Syrian Opposition Coalition, the
US State Department spokesperson explained that “legal recognition goes to
the question of physical control of territory”.69 Comparing the cases of Syria and
Libya, she said: “our ability [in the Libyan case] to recognize came in incremental
steps. There were political steps; and then ultimately, as the regime lost control of
the country, there were legal steps.”70 Testifying before the US Senate Foreign
Relations Committee in June 2011, the Legal Adviser to the US State Department
gave a similar explanation of why the United States, at the time, had not yet
accorded legal recognition to the Libyan National Transitional Council:
[I]nternational law focuses on the question of recognition, and recognition
tends to follow facts on the ground, particularly control over territory. As a
general rule, we are reluctant to recognize entities that do not control entire
countries because then they are responsible for parts of the country that
they don’t control, and we’re reluctant to derecognize leaders who still
control parts of the country because then you’re absolving them of responsibility in the areas that they do control.71
It is of interest to note that in both the Libyan and the Syrian cases the US
government associated “legal recognition” with the recognition of the rebellious
opposition group as the “governing authority” or the “government” of the
country, and not with its recognition of the opposition group as “a legitimate interlocutor” or “the legitimate representative of a people”. Instead, these were seen as
acts of “political recognition” only, indicating that no legal consequences are
attached to the fact of a group being a “legitimate interlocutor” or “the legitimate
representative of the people” of a State.
19. Since international law consists of general norms it can only determine the
fact “government” in abstract terms; it does not answer the question whether the
fact “government in the sense of international law” exists in a given case. In other
words, international law determines what a government is, but not who the government of a particular State is. It is here that the legal act of recognition provides clarification. International law is a decentralized legal order; it does not possess
68 See Robert Y. Jennings and Arthur Watts (eds.), Oppenheim’s International Law
(9th edn, 1992), 150.
69 US State Department, Daily Press Briefing, 12 December 2012 (www.state.gov).
70 Ibid. See also US State Department, Daily Press Briefing, 3 January 2013 (www.
state.gov).
71 US Senate, Committee on Foreign Relations, Libya and War Powers, Hearing,
S. Hrg. 112– 189, 28 June 2011, 39 (www-gpo-gov/fdsys).
234 Chinese JIL (2013)
specialized organs authorized to establish in a legal procedure the existence of concrete facts to which international law attaches certain legal consequences. International law leaves these functions to the interested parties. The establishment of
the fact that in a given case a “government in the sense of international law”
exists, falls, according to general international law, within the jurisdiction of the
States concerned. This constitutes the legal act of recognition.72 Thus, the recognition of a group of people as a “government” is the establishment of the fact that the
group satisfies the conditions for government status in international law.
20. By the act of recognition, the opposition group comes legally into existence as
a government in relation to the recognizing State. Consequently, the legal existence
of a government in this sense has a relative character. A government exists legally
only in its relations to recognizing States.73 Since the recognition of a government
is, as a legal act, the establishment of a fact determined by international law, it
cannot be conditional. The question whether a given group is the “government”
of a State according to international law can only be answered “Yes” or “No”.
The content of the declaration of recognition excludes any possibility of a condition.74 Legal recognition may only be withdrawn upon a change in the factual
circumstances. If it turns out that the incumbent government of a State no
longer fulfils all the conditions prescribed by international law for being a government, other States may establish this fact. The withdrawal of recognition indicates
that the previously established fact no longer exists.
III.C. Recognition as “the legitimate representative of a people”
21. Legal recognition has been defined as the establishment of a fact from which
legal consequences follow. Besides the fact of “government”, international law determines the conditions for, and attaches legal consequences to, the facts of “State”,
“belligerency” and “neutrality”. Recognition of statehood, belligerency and neutrality are thus legal acts of recognition. In order for the recognition of a group as “the
legitimate representative of a people” to be a legally relevant act—i.e. in order for it
to constitute “legal recognition”—certain legal consequences have to be attached to
the fact of “legitimate representative of a people”. Here, two situations must be distinguished: representatives of a people under colonial or alien subjugation, and
representatives of a single people constituting a sovereign and independent State.
22. In the first case, international law attaches certain powers of representation to
the fact of “legitimate representative of a people”. A people under colonial rule or
alien subjugation has a legal status separate and distinct from that of the colonial
72 Hans Kelsen, above n.58, 606– 607, 614– 615.
73 Ibid. 609.
74 Ibid. 611– 612.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 235
power or the alien occupier and enjoys certain rights under international law.75 It is
the legitimate representative of a people who represents it in its international relations and exercises its right of self-determination vis-à-vis the subjugating power
and other States. The UN General Assembly urged all States and international organizations “to extend their support to the Palestinian people through its sole and legitimate representative, the Palestine Liberation Organization [PLO], in its struggle
to regain its right to self-determination and independence in accordance with the
Charter of the United Nations”.76 The PLO, “representing the Palestinian
people”, concluded several agreements on Palestinian self-rule with Israel.77
Israel’s recognition of “the PLO as the representative of the Palestinian people”
on 9 September 199378 was considered by Israel to be a prerequisite for the conclusion of these agreements with the Palestinians and constituted legal recognition of
the PLO.
23. In the second case, where the term “people” refers to the population of the
State as a whole, it is doubtful that international law attaches legally relevant
powers of representation to the fact of “legitimate representative of a people”. In
international law, the representative of a single people constituting a sovereign
and independent State is the government of that State irrespective of its actual representativeness.79 A single people which has exercised its right of external self-determination by establishing a sovereign and independent State no longer has any rights
or obligations under international law independent of the rights and obligations of
its State. In other words, the people has been “mediatized” by the State, i.e. the
people as a legal person has been subsumed into the State. In particular, a single
people constituting a State, as distinct from individuals, minority groups, indigenous peoples, or several peoples within a State, does not have any rights under international law against its own State or government, or, for that reason, against any
other State. With the creation of the State, the rights under international law lie
with a people’s State rather than with the people itself. In particular, a single
75 See Declaration of Principles of International Law concerning Friendly Relations
and Co-operation among States in Accordance with the Charter of the United
Nations (Friendly Relations Declaration), GA Res. 2625 (XXV) (24 October
1970), Principle V, para.6.
76 GA Res. 37/43 (3 December 1982), para.23.
77 See e.g. Declaration of Principles on Interim Self-Government Arrangements, done
at Washington, 13 September 1993, 32 ILM (1993), 1527, and the Agreement on
the Gaza Strip and the Jericho Area, done at Cairo, 4 May 1994, 33 ILM (1994),
626. See also Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 182 – 183, para.118.
78 Israel Ministry of Foreign Affaris, 107 Israel-PLO Mutual Recognition—Letters
and Speeches, 10 September 1993 (www.mfa.gov.il).
79 Cf. James Crawford, above n.61, 55, 56.
236 Chinese JIL (2013)
people within a State does not enjoy a right of internal self-determination against its
own State or government.80 While the right of internal self-determination, i.e. the
right of a people freely to determine its political status and to pursue its economic,
social and cultural development,81 also applies to peoples of independent and sovereign States, it is available only to peoples in independent multinational States, i.e.
States composed of more than one people.82 In the case of a single people, the
right of self-determination becomes the right of the State and is directed against “external interference” by other States.83 If it were otherwise, a people constituting the
State would possess legal personality separate and distinct from that of the State.
The single people that makes up the State would exist as a legal person side by side
with the State—a concept which is not known to contemporary international
law.84 If this concept were to be applied, it would lead to a situation where a
people, represented by its legitimate representative, could be pitched in
battle against its own State, represented by its government. The right of internal
self-determination would, in case of dictatorships that systematically and grossly
violate human rights, ultimately amount to a right of revolution by a people
against its own State.85 However, it is only the revival of the right to external self-determination that can constitute a people within in a multi-people State as a legal
person separate and distinct from the State. This requires that the government of
the State no longer represents the whole people belonging to the territory without distinction as to race, creed or colour.86 This is not the case in Syria. First, there is only a
single people involved in the present case—the Syrian people constituting the Syrian
State. Secondly, while the Assad government may be a dictatorship favouring the
80 Cf. Christian Hillgruber, Dispositives Verfassungsrecht, zwingendes Völkerrecht:
Verkehrte juristische Welt?, 54 Jahrbuch des öffentlichen Rechts der Gegenwart
(2006), 88 fn.124.
81 See Art. 1 common to the International Covenant on Civil and Political Rights,
16 December 1966, 999 UNTS 171, and the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3.
82 See Manfred Nowak, U.N. Convention on Civil and Political Rights: CCPR Commentary (2nd revised edn, 2005), 22, MN 31; Antonio Cassese, The SelfDetermination of Peoples, in: Louis Henkin (ed.), The International Bill of
Rights—The Covenant on Civil and Political Rights (1981), 92, 94– 95.
83 See Friendly Relations Declaration, above n.75, Principle V, para.1.
84 It may also be asked whether a “people” as a legal person is the actual holder of the
“right” of internal self-determination or just the beneficiary of the concomitant
rights and duties imposed on States; see Antonio Cassese, above n.82, 107 – 108.
85 Cf. Manfred Nowak, above n.82, 24, MN 34; Jean-Bernard Marie, Relations
between Peoples’ Rights and Human Rights: Semantic and Methodological Distinctions, 7 Human Rights LJ (1986), 203 (“the right to ‘internal self-determination’. . .
becomes the right of a people to appeal against oppression and dictatorship”).
86 Friendly Relations Declaration, above n.75, Principle V, para.7.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 237
Alawite minority, it is not based on discrimination on the grounds of race, creed or
colour.87 As “the Syrian people” does not exist as a legal person separate from the
Syrian State, no legally relevant powers of representation can be attached to the fact
of the SOC being (recognized as) the legitimate representative of the Syrian people.
Recognition of the Syrian Opposition Coalition as “the legitimate representative of
the Syrian people” can therefore only be political, not legal recognition. Consequently, the question of whether the SOC as the legitimate representative of the Syrian
people could ask for outside military intervention in the Syrian civil war in support
of the people’s struggle for internal self-determination against the government does
not arise.88
IV. Normative criteria for the status of “legitimate representative
of a people”
24. Although recognition of an opposition group as the “legitimate representative of a
people” is a political rather than a legal act, it is not a completely arbitrary act. States do
not recognize just any opposition group. State practice in the cases of Libya and Syria
shows that for an opposition group to be recognized as the legitimate representative
of a people constituting a State, four criteria must be fulfilled. The incumbent
87 See also Dapo Akande, Self Determination and the Syrian Conflict—Recognition
of Syrian Opposition as Sole Legitimate Representative of the Syrian People: What
Does it Mean and What Implications Does it Have?, EJIL Talk, 6 December 2012
(www.ejiltalk.org).
88 For such a thought experiment, see however Dapo Akande, above n.87, who does
not clearly distinguish between the legitimate representative of a people under colonial rule or alien subjugation on the one hand and a single people constituting a
State on the other. It should be noted that according to the Friendly Relations Declaration, above n.75, Principle V, para.5, not all peoples are entitled to seek and
receive support in accordance with the purposes and principles of the United
Nations in their actions in pursuit of the exercise of their right to self-determination, but only “peoples referred to above”, i.e. peoples subjected to “alien subjugation, domination and exploitation”. If this right to seek and receive support in fact
included a right to request weapons and other military assistance, which seems at
least doubtful in light of the opposition by Western States during the decolonization struggles of the 20th century, such a right would not automatically exist in
struggles for internal self-determination. It might be recalled that the ICJ held
that the use of force by States, including the arming and equipping of opposition
groups, could not be the appropriate method to ensure respect for human rights in
another State (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment (hereinafter “Nicaragua”),
ICJ Reports 1986, 134, para.268). The same holds true for the use of force to
ensure respect for the right of internal self-determination.
238 Chinese JIL (2013)
government of the State must have lost legitimacy and the opposition group must be
representative, broad, and enjoy a reasonable prospect of permanence.
25. In international law, the representative of a people constituting a sovereign
and independent State is, as a rule, the government of that State. A government
need not be representative or democratically elected. International law accommodates despots, dictators and democrats alike. But, a government that turns against
its own people, that uses heavy weapons, fighter aircraft and tanks to fire on its
people, may lose its legitimacy. While international law does not yet provide any
clear rules for the assessment of governmental legitimacy,89 the Libyan and
Syrian situations show an emerging consensus that governments which use excessive
force against their own population to secure their position lose their legitimacy and
must or should go. For example, on 4 March 2011 the US State Department
spokesperson explained that “the fact that the government has turned lethal overwhelming force against its population . . . has delegitimized Colonel Qadhafi as a
leader for Libya.”90 The Republic of the Maldives also stated that “through its
actions including gross and systemic human rights violations, which appear to
amount to war crimes and crimes against humanity, the government of
Muammar Gaddafi has lost its legitimacy and its right to govern.”91 This position
was widely shared, inter alia, by the members of the League of Arab States,92 the
European Union93 and the G8.94 Even the Russian Federation, which had
89 Jean d’Aspremont, Legitimacy of Governments in the Age of Democracy, 38
New York University JIL and Politics (2006), 877, 878 –879; Jean Salmon, Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy
Principle?, in: Christian Tomuschat (ed.), Modern Law of Self-Determination
(1993), 253, 259 – 260. See also Anthony C. Arend and Robert J. Beck, International Law and the Use of Force: Beyond the Charter Paradigm (1993), 193,
who concluded that “there still seems to be no real international consensus as to
what constitutes an ‘illegitimate’ regime”.
90 US State Department, Daily Press Briefing, 4 March 2011. See also US State
Department, Daily Press Briefing, 9 March 2011 (www.state.gov).
91 Republic of Maldives, Ministry of Foreign Affairs, Maldives Recognises Libyan
National Council as sole representative of the Libyan people, 3 April 2011
(www.presidencymaldives.gov.mv).
92 League of Arab States, Council Resolution 7360, The Implications of the Current
Events in Libya and the Arab Position, 12 March 2011, reproduced in UN Doc
S/2011/137, 15 March 2011, Annex.
93 Extraordinary European Council, Declaration on developments in Libya and the
Southern Neighbourhood region, 11 March 2011, European Council Doc
EUCO 7/1/11, REV 1, 20 April 2011; and European Council, Conclusions on
Libya, 3091st Council Meeting, Foreign Affairs, 23– 24 May 2011, European
Council Doc 10440/11, PRESSE 143.
94 G8 Declaration, Renewed Commitment for Freedom and Democracy, G8 Summit
of Deauville, 26 – 27 May 2011 (http://ec.europa.eu).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 239
previously criticized NATO airstrikes in Libya, stated that “Colonel Gaddafi has forfeited legitimacy due to his actions . . . indeed we need to help him go.”95 Similarly,
the Assad government in Syria, which has turned neighbourhoods into battlefields,
was widely seen as having lost legitimacy. On 7 June 2012, UN Secretary-General
Ban Ki-moon told the UN General Assembly: “For many months, it has been
evident that President Assad and his Government have lost all legitimacy.”96 This
was echoed on 2 August 2012 by former UN Secretary General Kofi Annan who
wrote upon his resignation as special envoy of the United Nations and League of
Arab States for Syria that “the current [Assad] government has lost all legitimacy”.97
26. With the government of the State having lost legitimacy, there is room for
another legitimate representative of the State’s people. But, legitimacy is not to
be confused with legality in the sense of enjoying a certain legal status or representative capacity under international law. The fact that a government loses its legitimacy does not mean that it also automatically loses its government status. Loss of
status occurs only through legal de-recognition as a government. There are good
reasons to separate the two issues of legitimacy and legal status and to keep the
exercise of effective control over the State’s territory (or nearly all of it) or effectiveness as the sole constituent criterion of government status. A government which
engages in genocide or other gross violations of human rights against its own population commits an internationally wrongful act and may even be removed from
office by the Security Council using its Chapter VII powers under the Charter;98
but it does not automatically forfeit its status as a government. That a political
group qualifies as the government of a State under international law does not
settle whether it has legitimacy; indeed having legal status may even be compatible
with lacking legitimacy tout court.99
95 Gaddafi has lost all legitimacy—G8, 27 May 2011 (www.news24.com). See also
Russian President says Gaddafi must go; Libya, Sunday Age (Melbourne), 29
May 2011, 17.
96 See New York, 7 June 2012—Secretary-General’s remarks to the General Assembly
on the situation in Syria, 7 June 2012 (www.un.org).
97 Kofi Annan, My departing advice on how to save Syria, Financial Times, 2 August
2012 (www.ft.com).
98 See Niels Petersen, Demokratie als teleologisches Prinzip (2009), 169– 176. See
also Igor I. Lukashuk, The United Nations and Illegitimate Regimes: When to
Intervene to Protect Human Rights, in: Lori Fisler Damrosch and David
J. Scheffer (eds.), Law and Force in the New International Order (1991), 143,
147; Thomas M. Franck, Intervention Against Illegitimate Regimes, in: Lori
Fisler Damrosch and David J. Scheffer (eds.), Law and Force in the New International Order (1991), 159, 170.
99 Cf. Allen E. Buchanan and Robert O. Keohane, Precommitment Regimes for Intervention: Supplementing the Security Council, 25 Ethics and International Affairs
(2011), 41, 43.
240 Chinese JIL (2013)
27. It is one thing for the incumbent government to have lost its legitimacy; it is
quite another for an opposition group to qualify as the legitimate representative of a
people. For this, the group must be representative, broad and enjoy a reasonable
prospect of permanence. The “representativeness” of the group was considered a
precondition for recognition as the legitimate representative of a people both by recognizing States and those holding back on recognition. The criterion of “representativeness” refers to the qualitative diversity of the represented sections or segments
of society. All, or at least the overwhelming majority of, ethnic, political, religious,
minority and gender groups, and all geographic parts or regions of a country must
be represented. The group must reflect the make-up of a people as a whole. If it does
not yet fully do so, it must be open and inclusive and encourage participation of all
sections of society. The US State Department spokesperson replied to the question
of what representative condition would have to be fulfilled for the SOC to be recognized by the United States as the legitimate representative of the Syrian people:
[W]e want to see all of the different ethnic groups represented. We want to see
all of the geographic aspects of Syria represented so that people inside Syria
will feel comfortable with this group . . . . On the broader group, we obviously
want to see women represented.100
For the United States it was also important that the opposition included both exiles
and those fighting on the frontlines inside Syria.101 The US government accorded
recognition on 11 December 2012 once it was satisfied that the SOC was “inclusive
enough, . . . reflective and representative enough of the Syrian population”.102
Canada, on the other hand, refused to recognize the SOC on 12 December 2012
on the grounds that the SOC was not considered to be “truly representative” of
all the ethnic and religious populations that live in Syria.103 Thus, while States
agree on the criterion, there is not (yet) any clear standard of representativeness
in international law.
28. In addition to being representative, the opposition group must be broadbased.104 This quantitative criterion refers to the composition of the group in terms
100 US State Department, Daily Press Briefing, 8 November 2012 (www.state.gov).
101 Hillary Rodham Clinton, Secretary of State, Remarks with Croatian President Ivo
Josipovic After Their Meeting, Zagreb, Croatia, 31 October 2012 (www.state.gov).
102 Obama Recognizes Syrian Opposition Group, above n.21.
103 See Canada holds off recognizing Syrian opposition, Baird says, 12 December 2012
(www.cbc.ca) and Canada does not recognize Syrian opposition, Baird, 17 December 2012 (www.ctvnews.ca).
104 See US State Department, Daily Press Briefing, 8 November 2012 (www.state.gov)
and Kingdom of Belgium, Syrian opposition: Benelux countries very pleased with
the outcome of the Doha Conference, 12 November 2012 (http://diplomatie.
belgium.be).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 241
of numbers. While there is no specific minimum requirement as to numbers, the group
must have enough members or the support of enough other groups to constitute a force
to be reckoned with. While unity of the opposition is desirable, there will usually be a
multitude of different political opinions in any broad-based movement. However, there
must be certain values, interests and aims (beyond removing the incumbent government) on which all can agree. While this criterion may seem settled, there are no
clear standards of what it means for an opposition group to be “broad”.
29. Opposition groups, like governments, must also enjoy a reasonable prospect
of permanence.105 As German Foreign Minister Westerwelle pointed out: “The sustainability [of the opposition] is necessary, as it is not only about ending a regime
that is responsible for many terrible deeds, but also that a new democratic beginning
is possible in Syria”.106 This requires a certain political, organizational and institutional structure, both of the group’s leadership and on the ground.107 Again, the
same proviso regarding clear standards applies.
30. The application of these criteria to the recognition of the SOC as “the (sole)
legitimate representative of the Syrian people” in November 2012 underlines the
lack of clear standards. It may be questioned whether the SOC was in fact
“broad-based” and truly “representative” of all the ethnic and religious groups in
Syria.108 The Independent International Commission of Inquiry on the Syrian
Arab Republic established by the UN Human Rights Council concluded in December 2012 that the conflict in Syria had become overtly sectarian in nature. While the
country’s majority Sunni community was broadly (but not uniformly) in support of
the anti-government armed groups, the Alawite, Armenian Orthodox, other Christian and Druze communities had aligned themselves with the Assad government.
The Kurds, due to their fighting ability and independent supply lines, remained
largely independent and clashed both with government and anti-government
armed groups over control of territory.109 Thus, more than 25 per cent of the
105 On the criterion of prospect of permanence with regard to governments, see Stefan
A.G. Talmon, above n.36, 239, 270.
106 EU divided over recognizing, arming Syrian opposition, 19 November 2012
(www.qatar-tribune.com).
107 Republic of Slovenia, Ministry of Foreign Affairs, Slovenian Government recognises
Libyan National Transitional Council, 20 July 2011 (www.mzz.gov.si) (“appropriate personnel and organisational capacities to prepare the political process”).
108 The SOC itself claimed that it represented “80 percent of all opponents” of the
Assad government; see Syrian Opposition Coalition to Open Office in Turkey,
23 November 2012 (http://en.rian.ru ).
109 UN Office of the High Commissioner for Human Rights, Independent International Commission of Inquiry on the Syrian Arab Republic established pursuant
to United Nations Human Rights Council Resolutions S-17/1, 19/22 and 21/26,
Periodic Update, 20 December 2012, paras.12-27 (www.unhcr.org). See also
Simon Adams, The World’s Next Genocide, New York Times, 16 November
242 Chinese JIL (2013)
Syrian population, or some 6 million people, did not support the SOC.110 Thirteen
Syrian opposition groups fighting against the Assad government did not recognize
the leadership of the SOC.111 On 19 November 2012, the most efficient fighting
groups in Aleppo province, including Al-Nusra Front and Liwa al-Tawhid, published a statement in which they declared: “We, the fighting squads of Aleppo
city and province, unanimously reject the conspiratorial project of the National Coalition and announce our consensus to establish an Islamic state.”112 At the end of
2012, Assad’s forces were still holding, wholly or in large part, all the main cities and
towns of Syria. The rebels’ assaults on Aleppo and Damascus had faltered. In the
north of the country the rebels had gained ground in the countryside around
Hama, Idlib and Aleppo, but their advance was still slow. The British government
all but admitted the SOC’s lack of representativeness when it stated the SOC did
not yet have “the full support of the Syrian people”113 and that it would help the
SOC “to win the confidence of the Syrian people”.114 Given the situation, the
decision to recognize one of several opposition groups as the sole representative of
the Syrian people (to the exclusion of all other groups) seems more than
questionable.
31. If there were any doubts about the nature of the act of recognition of opposition groups as “the legitimate representative of a people”, the lack of clear standards
for meeting the criteria for such recognition shows that it is unsuitable for being a
legal act and is thus a form of political recognition. In any case, one would have to
ask how any legally relevant act of recognition of an opposition group as the legitimate representative of a people by other States could be compatible with that
people’s right to internal self-determination, i.e. its right freely to choose its representatives without outside interference.
2012, A35, who writes that “inside Syria those chanting ‘Christians to Beirut, Alawites to their graves!’ have become more than a fringe element”.
110 For the ethnic and religious distribution of the Syrian population, see US Department of State, 2011 Report on International Religious Freedom—Syria, 30 July
2012 (www.state.gov).
111 See Syrian militants do not recognize National Coalition, 20 November 2012
(http://vestnikkavkaza.net). See also Ribal Al-Assad welcomes Canada’s cautious
approach to recognition of Syrian National Coalition, 17 December 2012 (www.
odf-syria.org).
112 See Two largest Islamic groups reject Syria opposition bloc, 19 November 2012
(http://english.ruvr.ru).
113 See House of Commons, above n.11, col. 445 (“They have much to do to win the
full support of the Syrian people”).
114 Foreign Secretary remarks at Friends of the Syrian People meeting, 12 December
2012 (www.fco.gov.uk).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 243
V. Consequences of political recognition as the legitimate
representative of a people
32. Perhaps even more interesting than the question of whether a group has been
recognized as “the (sole) legitimate representative of a people” is the question of
what consequences, if any, follow in practice from political recognition. Recognition
of an opposition group as the legitimate representative of a people leaves intact the
international legal status of the incumbent government and does not establish any
rights of representation on behalf of a people or State concerned.115 It is mainly of
symbolic value, indicating political support for the opposition group recognized and
implying that the recognizing State is ready to engage with the group, its institutions
and representatives. The Danish government, for example, explained that by recognizing the SOC as the legitimate representative of the Syrian people it invited
“enhanced relations with the Coalition and an increased role for the Coalition in
the development of the plans for a coming transition in Syria.”116 Political recognition usually translates into increased practical, i.e. material and financial support,117
but does not allow for the provision of weapons and other military assistance.118
The British government made it clear that “[t]here is no automatic change in our
policy on [the supply of weapons] as a result of the recognition of the Syrian opposition.”119 France also stated that the question of arming the Syrian Opposition Coalition would be looked at “as soon as it is a legitimate government of Syria”.120
Some member States of the Gulf Cooperation Council, however, seem to have
taken a different position.121 In light of the dictum of the International Court of
Justice (ICJ) in the Nicaragua case that “no such general right of intervention, in
115 E.g. representatives appointed by the Assad government continued to represent
Syria in the United Nations. Calls to grant Syria’s seat at the UN to the SOC
were not heeded; see Opposition eyes Syria seat at UN, Arab League, 11 January
2013 (www.dailystar.com.lb).
116 See Ministry of Foreign Affairs of Denmark, Denmark strengthens relations to the
Syrian opposition Coalition, 9 December 2012 (http://um.dk).
117 See House of Commons, above n.11, cols. 445, 456 (“growing international recognition will in turn lead to an increase in practical support”).
118 See also John B. Bellinger III, Aiding Syria: Easier said than done, The Washington
Post, 18 January 2013, A19 (“Treating the Syrian group as the ‘representative’ of
the people does not. . . allow the United States to treat the opposition’s requests
for aid or support as a legal basis for U.S. military intervention”).
119 See House of Commons, above n.11, col. 452.
120 Syria: France backs anti-Assad coalition, above n.54.
121 It was reported in the media that Saudi Arabia, Qatar and Bahrain supplied
weapons to the Syrian opposition. See GCC to recognize Free Syrian Army,
7 February 2012 (www.saudigazette.com.sa); Saudi Arabia, Qatar press for more
help to Syrian opposition forces, 20 February 2013 (www.todayszaman.com).
244 Chinese JIL (2013)
support of an opposition within another State, exists in contemporary international
law”,122 the provision of weapons or other military equipment to an opposition
group, even one recognized politically as the legitimate representative of a people,
constitutes a violation of the principles of non-intervention and the prohibition
of the use of force in international relations.
33. States recognizing the SOC as the legitimate representative of the Syrian
people invited the group to appoint political representatives and open offices in
their territory.123 Some also appointed liaisons to the SOC at its headquarters in
Cairo.124 By February 2013, the SOC had opened offices, inter alia, in Britain,
France, Hungary, Qatar, Turkey and the United States.125 However, these offices
and the SOC representatives did not enjoy diplomatic status and the relations
between those States and the SOC were not diplomatic or government-to-government relations.126 In particular, the SOC was not given access to Syria’s diplomatic
missions and assets.127 States that politically recognized the SOC did not automatically break diplomatic relations with Syria and Syrian diplomatic missions continued to be occupied by Assad-appointed diplomats or were closed by decision of the
Assad government.128 When on 13 February 2013 Qatar turned over the Syrian
122 Nicaragua, above n.88, 109– 110, para.209. See also ibid., 126, para.246 (“the
principle of non-intervention. . . would certainly lose its effectiveness as a principle
of law if intervention were to be justified by a mere request for assistance made by an
opposition group in another State . . . . Indeed, it is difficult to see what would
remain of the principle of non-intervention in international law if intervention,
which is already allowable at the request of the government of a State, were also
to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of
the government or at the request of its opposition. Such a situation does not in the
Court’s view correspond to the present state of international law”).
123 See e.g. Government of the Netherlands, Representative of Syrian coalition
welcome in Benelux, above n.16.
124 See Ministry of Foreign Affairs of the Czech Republic, First Deputy Minister
Schneider attended the meeting of Friends of Syrian People Group held in Marrakech, Morocco, 12 December 2012 (www.mzv.cz).
125 Syria Opposition Wants U.N. Seat, 7 February 2013 (www.naharnet.com);
Hungary confirms deepening ties with Syrian rebels, 14 February 2013 (www.
politics.hu).
126 See e.g. US State Department, Daily Press Briefing, 6 February 2013 and 7 February 2013 (www.state.gov).
127 See Opposition envoy interviewed on situation in Syria, ties with Russia, BBC
Monitoring Former Soviet Union—Political, 28 December 2012. See also
Steven Erlanger, France to Let Syria Council Establish Ambassador, above n.64.
128 See e.g. US State Department, Office of the Chief of Protocol, Diplomatic List
(www.state.gov); London Diplomatic List, 11 February 2013 (www.gov.uk).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 245
embassy in Doha to the SOC and accepted the appointment of the SOC representative as Syrian ambassador,129 those acts constituted implicit recognition of the
SOC as the government of Syria.
34. On 30 December 2012, Turkish Prime Minister Erdogan said: “More than
100 countries now have accepted the leadership of brother al-Khatib and his team.
What does this mean? It means that more than 100 countries no longer recognize
Assad.”130 Political recognition of an opposition group as the sole legitimate representative of a people automatically entails the withdrawal of political recognition of
the incumbent government but not legal recognition of its status as the State’s government. Political de-recognition of the incumbent government has only limited
practical effects. It excludes normal political relations with the de-recognized government. While States are not required to sever or suspend diplomatic relations,131
they will have to downgrade their relations with the diplomatic representatives
appointed by the incumbent government to technical and consular level and
limit their contacts with officials of the incumbent government to what is necessary
to assist in the political transition in the country.132 They may also expel the ambassador and other high level diplomats as political representatives of the incumbent
government.
35. Although the incumbent government legally continues to be the government
of the State and thus may represent the State in its international legal relations,
States that have recognized the opposition as the sole legitimate representative of
the people are estopped from validly concluding treaties with a government they
consider illegitimate and unrepresentative. Other States or corporations that conclude treaties or contracts with a government that has widely been de-recognized
politically do so at their own risk and any such agreement may be reviewed by
the legitimate representative of the people if it becomes the new government of
the State.
129 Qatar hands Syrian embassy to opposition National Coalition, 14 February 2013
(www.gulf-times.com).
130 Erdoğan visits Syrian refugee camps in Şanlıurfa, 30 December 2012 (www.
todayszaman.com).
131 Hungary closed its embassy in Damascus on 15 December 2012 after recognizing
the SOC as the sole legitimate representative of the Syrian people and, three days
later, Hungary announced that it no longer considered the diplomats representing
the Bashar al-Assad regime as legitimate diplomatic representatives and asked them
to leave the country by the end of 2012; see Hungary urges Syrian embassy staff
members leave by year-end, 19 December 2012 (www.globaltimes.cn). But this
was not a move required by its recognition of the SOC.
132 Cf. Ankara, Benghazi sketch out roadmap for relations, 24 May 2011 (www.
hurriyetdailynews.com).
246 Chinese JIL (2013)
VI. Political recognition as breach of international law?
36. In an interview with France Presse and Le Figaro, Russian Prime Minister Dmitry
Medvedev commented on the French recognition of the SOC as the sole legitimate
representative of the Syrian people as follows:
[L]et me remind you that in keeping with the principles of international law,
which the United Nations approved in 1970, not a single country, not a single
state, not a single government should undertake any action directed at the forcible replacement of an acting government in any other country. This is a
principle of international law. Therefore, when any state sides with a force
that is not formally in power, this decision, at a minimum, is directed at
tipping the balance of power in another country. . . . The point is how
correct it is at some moment in time to decide in favour of supporting
another political force, if this political force is in direct opposition to the existing and officially recognised government of another country. From the point
of view of international law, this seems to me absolutely unacceptable.133
Prime Minister Medvedev was referring to the 1970 Friendly Relations Declaration
in which the UN General Assembly had solemnly proclaimed that States had no
“right to intervene, directly or indirectly, for any reason whatever, in the internal
or external affairs of any other State”.134 The choice of government clearly
belongs to the internal affairs of a State. No State is to assist, foment or incite
armed activities directed towards the violent overthrow of the government of
another State, or interfere in civil strife in another State. In the Nicaragua case,
the ICJ elaborated that there was no customary norm allowing
a kind of general right for States to intervene, directly or indirectly, with or
without armed force in support of an internal opposition in another State,
whose cause appeared particularly worthy by reason of the political and
moral values with which it was identified. For such a general right to come
into existence would involve a fundamental modification of the customary
law principle of non-intervention.135
Accordingly, there is no right to intervene to protect human rights, and in particular
human rights guaranteeing political participation.136
133 Prime Minister Dmitry Medvedev gives an interview to France Presse and Le
Figaro, 26 November 2012 (www.premier.gov.ru).
134 Friendly Relations Declaration, above n.75, Principle III, para.1.
135 Nicaragua, above n.88, 108, para.206.
136 Maziar Jamnejad and Michael Wood, The Principle of Non-Intervention, 22
Leiden JIL (2009), 377.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 247
37. The question that thus remains is whether the act of recognition of an opposition group as the legitimate representative of a people, as distinct from concomitant
acts of material support,137 constitutes unlawful intervention in the internal affairs
of the State concerned. While the principle of non-intervention as such is well established in international law,138 its content is quite elusive. It has been widely accepted
that premature recognition of the belligerency of an armed group, of an insurrectional movement as the government of a State, or of a secessionist entity as a new
State amounts to unlawful intervention.139 But the same is not the case for recognition of an opposition group as the sole legitimate representative of a people.
Political recognition (unlike the three acts of legal recognition above) is without
prejudice to the sovereign rights of the target State or its government and only
affects, if at all, optional political relations with that government, i.e. relations
which are at the discretion of the recognizing State.140 The situation is similar to
optional economic relations with a State, the cessation of which the ICJ did not consider a breach of the principle of non-intervention.141 Political recognition also does
not call into question the government’s legal status as the repository of the State’s
sovereign rights and its capacity to exercise these rights in the international legal
system. This is shown by the fact that States that recognized the SOC as the legitimate representative of the Syrian people continued to recognize the Assad government as the government of Syria. Political recognition simply embodies a judgment
on the legitimacy of the opposition and does not confer any legal status or representative capacity. It is an ad hoc determination by recognizing States that it is expedient
137 Several States recognizing the SOC provided the political opposition on the ground
inside Syria, as identified by the SOC, with money, communications equipment
and other non-lethal assistance (see e.g. US State Department, Daily Press Briefing,
13 and 18 December 2012, (www.state.gov)). Such material support to opposition
groups actively involved in armed activities directed towards the violent overthrow
of the Syrian government constitutes a breach of the principle of non-intervention,
if the support was intended to coerce the Syrian government into abdicating; see
Nicaragua, above n.88, 119, para.228; 124 – 125, paras.241– 243.
138 See Nicaragua, above n.88, 126, para.246.
139 See e.g. Yair M. Lotsteen, The Concept of Belligerency in International Law, 166
Military LR (2000), 109, 112 fn.17; Robert Y. Jennings and Arthur Watts, above
n.68, 143 – 144; Colin Warbrick, The New British Policy on Recognition of Governments, 30 ICLQ (1981), 568, 569; Michel Krauss, Internal Conflicts and
Foreign States: In Search of the State of Law, 5 Yale Studies in World Public
Order (1979), 173, 188; Richard A. Falk, The United States and the Doctrine
of Nonintervention in the Internal Affairs of Independent States, 5 Howard LJ
(1959), 163, 180, 183– 186; Hersch Lauterpacht, above n.66, 9, 95.
140 See text to n.65.
141 Nicaragua, above n.88, 126, paras.244, 245.
248 Chinese JIL (2013)
to enter into political relations with an opposition and that demonstrates moral
support for its cause.
38. However, recognition as the sole legitimate representative of a people of an
opposition group actively involved in armed activities directed towards the violent
overthrow of the government of another State142 could be intended as moral assistance, fomentation or incitement of such activities.143 Recognition could even be
regarded as indirect participation in the conflict between the opposition group
and the government. In its “Declaration on the Inadmissibility of Intervention
and Interference in the Internal Affairs of States”, the UN General Assembly solemnly proclaimed the duty of States to refrain from overthrowing or changing
the government of another State and to refrain from the promotion, encouragement
or support, direct or indirect, of rebellious activities within other States, under any
pretext whatsoever.144 The decisive question is whether the potential moral support
involved in political recognition reaches the level of intervention. Not every interference in the political process in another State amounts to intervention. The
essence of intervention is coercion.145 The requirement of coercion is clear from
the Friendly Relations Declaration,146 and the ICJ’s dictum in the Nicaragua case
that the “element of coercion . . . defines, and indeed forms the very essence of, prohibited intervention”.147 The requirement of coercion is to be determined from the
view of the target State. It depends on the impact of the measure on the target State.
In order to be “coercive” an act must deprive the State of the possibility to decide
freely on a matter within its sovereign discretion.148 A statement of political recognition unaccompanied by military or other assistance to the opposition group recognized is unlikely to affect the freedom of action of the target State or its
142 For the aim of the SOC “to bring down the regime”, see Agreement on the Formation of the National Coalition of Syrian Revolutionary and Opposition Forces,
done at Doha, 11 Nov. 2012, para.2; reproduced in Annex I.
143 Cf. Quincy Wright, Subversive Intervention, 54 AJIL (1960), 521, 523. See also
ibid., 531 – 532; Philip Kunig, Intervention, Prohibition of, in: Rüdiger
Wolfrum (ed.), 6 Max Planck EPIL (2012), 293 MN 24.
144 See Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, GA Res. 36/103 (9 Dec. 1981), Annex, paras.II(a) and
(f ). The resolution was adopted by 102 votes to 22 with 6 abstentions. On the
status of the resolution, see Maziar Jamnejad and Michael Wood, above n.136, 355.
145 Maziar Jamnejad and Michael Wood, above n.136, 348. The duty of States not to
intervene must be distinguished from the duty of diplomatic agents not to interfere
in the internal affairs of the receiving State (Vienna Convention on Diplomatic
Relations, 18 April 1961, 500 UNTS 95, Art. 41). The latter does not seem to
require an element of coercion.
146 See Friendly Relations Declaration, above n.75, Principle V, para.2.
147 Nicaragua, above n.88, 108, para.205.
148 Ibid.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 249
government,149 unless a substantial part of the State’s population wishes to exercise
its human right to participate in government. Thus, political recognition in itself
does not constitute illegal intervention.150 It is rather an unfriendly (but legal)
act.151
39. While political recognition of the SOC does not violate the principle of nonintervention, it may be in breach of some other international obligations of the recognizing States. On 12 December 2012, Russian Foreign Minister Lavrov stated:
I learned with some surprise that the United States through its President
acknowledged the ‘coalition’ as the sole legitimate representative of the
Syrian people. This is contrary to the agreements set forth in the Geneva communiqué, which expects the start of the dialogue between the representatives
of Syrians appointed by the government, on the one hand, and the opposition—on the other.152
The Geneva Communiqué had been adopted by consensus at the “Action Group”
for Syria meeting in Geneva on 30 June 2012. Participants (including China,
France, the Russian Federation, the United Kingdom, the United States, Turkey,
Iraq, Kuwait, Qatar and the European Union) had agreed, inter alia, “to work urgently and intensively . . . to facilitate the launch of a Syrian-led political process
leading to a transition that meets the legitimate aspirations of the Syrian people
and enables them independently and democratically to determine their own
future.”153 All groups and segments of Syrian society were to “be enabled to participate in a national dialogue process.”154 Such a process was to be “inclusive” and
“meaningful”.155 Unilateral recognition of one party as “the sole legitimate representative of the Syrian people” (to the exclusion of all other opposition parties
and the Assad government) seems to be the antithesis of facilitating an inclusive
149 The essence of the principle of non-intervention is the “subordination of sovereign
will”. The sovereign will is that of the State, represented by its government, and not
that of the people constituting the State; see Maziar Jamnejad and Michael Wood,
above n.136, 369.
150 See Robert Y. Jennings and Arthur Watts, above n.68, 432.
151 But for recognition as an unfriendly act, see Dagmar Richter, Unfriendly Act, in:
Rüdiger Wolfrum (ed.), Max Planck EPIL, MN 19, 21 (www.mpepil.com).
152 See Speech and responses of the Minister of Foreign Affairs of Russia S. V. Lavrov to
the media questions at the joint press conference following the talks with Deputy
Prime Minister / Minister of Foreign and European Affairs of the Slovak Republic
M. Lajcak, Moscow, 12 December 2012 (www.mid.ru).
153 Final Communiqué of the Action Group for Syria—Geneva, above n.40, para.3.
154 Ibid.
155 Ibid., para.9(b).
250 Chinese JIL (2013)
political process and counterproductive to achieving a political transition in Syria.
This is particularly true if the group so recognized has committed itself “not to
engage in any dialogue or negotiation with the regime”.156 By recognizing such a
group, the recognizing State seems to count not on a political solution but on
armed victory. Political recognition of the SOC may thus be considered contrary
to the wording and spirit of the Geneva Communiqué. The document, however,
was not a legally binding treaty and expressed only a political, not a legal commitment of the participants.157
VII. The politics of recognition
40. Recognition is almost always more politics than law. It is a political tool and a
weapon of psychological warfare. Political recognition is about taking sides. It is a
means to strengthen the opposition and to isolate the incumbent government. In the
case of Syria it was used by outside powers as an incentive and, later, reward for
uniting the divided opposition and for forming the SOC in place of the discredited
SNC.158 It was employed as a means to “deny space to extremist groups”,159 and to
enhance the credibility and standing of those politically agreeable to those
powers.160 The SOC was not recognized because it was truly representative of the
Syrian people but in order for it to become over time, through recognition and
the concomitant financial and other assistance, the representative of the Syrian
people. Recognition was used as a means to send a message to the various opposition
groups on the ground to unite behind the SOC as it was the only group that would
receive support. It was hoped that recognition would also persuade other countries
providing assistance to the rebels to channel their aid to fighters on the ground
through the SOC. The idea was to create a pipeline of funds from the recognizing
States to the SOC and down to the grassroots opposition councils. Those who can
supply bread in difficult times will gain the support of the people.
156 See Agreement on the Formation of the National Coalition of Syrian Revolutionary
and Opposition Forces, done at Doha, 11 November 2012, para.3; reproduced in
Annex I.
157 The Russian Federation sought to have the Geneva Communiqué endorsed by the
Security Council in order to make “it legally binding”; see FM Sergey Lavrov on
Geneva Communiqué endorsement in UN Security Council, 15 October 2012
(www.rusemblon.org).
158 See House of Commons, above n.11, col. 449; Spain, Ministry of Foreign Affairs
and Cooperation, Communiqué 173-2012, above n.12.
159 See House of Commons, above n.11, col. 445.
160 Ibid., col 456. See also US State Department, Daily Press Briefing, 12 December
2012 (www.state.gov); Slovenian Government recognises Libyan National
Transitional Council, 20 July 2011 (www.mzz.gov.si).
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 251
41. Recognition gives leverage over the opposition: first, it wants to gain recognition; then it does not want to lose it again. Thus, recognition has, within limits, a
disciplining effect on the opposition and may create reliable clients. But, it is not
necessarily conducive to a political solution. It sends the wrong signals. There is
little incentive for an opposition group widely recognized as the sole representative
of the people and a “future provisional government of a democratic Syria”161 to
enter into negotiations with the incumbent government or talk to States not recognizing it. When in December 2012 the Russian Federation invited an SOC delegation to visit Moscow for talks, SOC chairman Moaz al-Khatib demanded that
“first Russia has to recognize the National Coalition for Syrian Revolutionary and
Opposition Forces as a legal representative of the Syrian people as other countries
have done.”162 Recognition by individual States or so-called “groups of friends”
undermines the position of the United Nations. It is for that reason that several
countries, including Brazil, refused to extend recognition to the SOC.163 Recognizing the opposition as the “sole” legitimate representative of a people and denying
any legitimacy to the incumbent government does not leave many options, other
than the forcible removal of the illegitimate government and the exclusion of its
members tainted by illegitimacy from the political process. Once an opposition
group has been recognized as the “legitimate” representative of a people, recognizing
States cannot allow the opposition to fail. Recognition thus becomes an implicit
commitment to regime change or, to use a frequently used euphemism, “political
transition”. This becomes clear from a statement by British Prime Minister
David Cameron who said: “I want us to work with that opposition, to help
shape that opposition, to advise and work with that opposition, so that we can
see the speediest possible transition in Syria.”164
161 For the French recognition to that effect, see text to n.7.
162 Syria’s irreconcilable opposition ready for talks with Russia, ITAR-TASS, 28
December 2012 (www.itar-tass.com).
163 See Brasil só reconhecerá a oposição sı́ria depois da ONU [Brazil will recognize the
Syrian opposition only after the UN], 15 November 2012 (http://noticias.bol.uol.
com.br).
164 “Nothing is off the table”: Cameron urges more aid for Syria rebels, 14 December
2012 (www.independent.co.uk).
252 Chinese JIL (2013)
Annex I
Agreement on the Formation of the National Coalition of Syrian
Revolutionary and Opposition Forces
Done at Doha, 11 November 2012
(1) The invitation extended by the State of Qatar in coordination with the Arab
League bore fruit when the Syrian National Council and the other opposition groups attending this meeting agreed to form the National Coalition
of Syrian Revolutionary and Opposition Forces. Membership in the new
body will be left open to all hues of the Syrian opposition. The Coalition’s
Statutes shall make clear each side’s proportion of representation.
(2) The sides agreed to bring down the regime and all its symbols and mainstays, to disband the regime’s security services and to call to account
those responsible for crimes against Syrians.
(3) The Coalition commits not to engage in any dialogue or negotiation with
the regime.
(4) The Coalition will have Statutes ready for signing once they are duly discussed and approved.
(5) The Coalition will endorse the Joint Command of the Revolutionary Military Councils.
(6) The Coalition will set up the Syrian National Legal Committee and issue
the regulations governing its task in a special resolution.
(7) The Coalition will set up technical and specialized committees required for
its work. A special resolution will spell out the committees, their number
and the modalities of their establishment and duties.
(8) The Coalition will form an Interim Government after receiving international recognition.
(9) The Coalition and Interim Government will be dissolved by a Coalition decision once the National General Assembly is held and the Transition Government formed.
(10) This Agreement will not come into effect before its ratification by the sides’
relevant principals.
(11) The Arab Ministerial Committee for Syria shall lodge this Agreement upon
its signing with the Arab League Secretariat.165
165 The participating Syrian opposition sides initialled this Agreement in Doha on 11
November 2012 in the presence of the head and members of the Arab Ministerial
Committee. The text of the agreement was first published in English translation on
http://arabsaga.blogspot.de/.
Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People 253
Annex II
Table of Recognitions of the Syrian Opposition Coalition
Date
Countries
2012
12 Nov. Saudi Arabia, Bahrain, the United
Arab Emirates, Oman, Qatar and
Kuwait
13 Nov. France
15 Nov. Turkey
19 Nov. Italy
European Union
20 Nov. United Kingdom
26 Nov. Croatia
29 Nov. Spain
9 Dec.
Denmark, Norway
10 Dec.
10 Dec.
European Union
Belgium, Netherlands, Luxembourg
10 Dec.
Germany
11 Dec.
United States of America
12 Dec.
Friends of the Syrian People meeting
12 Dec.
12 Dec.
Denmark, Estonia, Finland, Iceland,
Latvia, Lithuania, Norway and
Sweden
Australia
14 Dec.
Albania
15 Dec.
Hungary
2013
3 Jan.
Slovenia
18 Jan.
Croatia
Recognition as
the legitimate representative of the brotherly
Syrian people
the sole legitimate representative of the Syrian
people and thus as the future provisional
government of a democratic Syria
the legitimate representative of the Syrian
people
a legitimate representative of the Syrian people
legitimate representatives of the aspirations of
the Syrian people
the sole legitimate representative of the Syrian
people
a representative of legitimate aspirations of the
Syrian people
the legitimate representative of the Syrian
people
the legitimate representative of the Syrian
people
legitimate representatives of the Syrian people
the legitimate representative of the Syrian
people in this transition period leading to a
free and democratic Syria
a coalition that represents the legitimate
interests of the Syrian people
the legitimate representative of the Syrian
people
the legitimate representative of the Syrian
people
legitimate representatives of the Syrian people
the legitimate representative of the Syrian
people
the sole legitimate authority of Syria and
Syrian nation
the sole legitimate representative of the Syrian
people
the (only) legitimate representative of the
Syrian people
the sole legitimate representative of the Syrian
people