History Repeats Itself? Costa Rican History Applied to the Honduran Conflict
Author: George McGraw
Originally Published at Peace and Conflict Monitor on: 10/06/2009
I. Tinoco Revisited? The Unresolved Status of the Honduran Interim Government in International Law
On January 28th of 1917, Frederico Tinoco assumed
the presidency of Costa Rica by deposing then executive Alfredo Gonzalez in one
of the most peaceful revolutionary transitions in history. Tinoco, Gonzalez’s
Secretary of War, used forces of both the Army and the Navy to take the
presidential palace after a vain attempt by Gonzalez to seek reelection in
defiance of constitutional limitations. Gonzalez immediately left the country
for the United States (Arbitration 148).
Tinoco began efforts to establish a new government with a
new constitution, acting as interim executive until he could secure his seat in
an overwhelmingly favorable election. The popular support he enjoyed was
largely due to his opposition to previously proposed tax increases. Witnesses
noted “no disorder of a revolutionary character during that interval” and on
January 29th, only one day after the bloodless revolution, the New
York Times reported that Tinoco’s “movement was enthusiastically carried out
and perfect order prevailed” (Arbitration 151)(Costa).
The Tinoco regime, which went on to hold successful
presidential and legislative elections, only lasted a short two years. The
political anomaly ended much as it began, with Tinoco’s retirement, a peaceful
transition back to the old constitution and the former military leader’s exit
from the country for health reasons (Arbitration 148).
For pupils of history, the currently prevailing political
situation in Honduras seems striking in similarity. After all, as Pearl S. Buck
wrote, “One faces the future with one’s past.” Both countries’ changes in
government stemmed from a similar constitutional concern – executive defiance
of presidential term limits – and both resulted in military coups followed by
the establishment of interim governments promising new elections. Both ousted
leaders left the country, Gonzalez of his own free will and Zayala under forced
exile.
There is one important element, however, missing from this
overly simple historical comparison, and it is perhaps the most important: the
status of the two regimes under international law.
In 1923, the government of Great Britain undertook
arbitration with the restored government of Costa Rica, challenging the Costa
Rican Legislature’s Law of Nullities no. 41 – a piece of legislation intended
to invalidate commercial contracts made by the Tinoco government. In deciding
whether or not to recognize invalidated agreements between Costa Rica and
several British corporations, US Supreme Court Justice and former President
William Taft was left with the task of determining the legal status of the
Tinoco government under international law. By considering factors such as that
regime’s de facto status, its recognition and its stability, and through
the application of basic legal principles, Taft determined that the Tinoco
Government was indeed the legal representative of the Costa Rican state during
its tenure. The restored government of Costa Rica was duty bound to respect all
of its contracts made in good faith (Arbitration 174).
The legal status of a state in international law is an
important indicator of its viability in international relations. It is a
state’s legal status that will determine its admission to international
organizations, its ability to represent its interests in international court
and its political viability under pressure from unfriendly governments (Wright
557). In order to establish important legal facts about the current Honduran
government, this essay will go on to explore the basic legal principles applied
by Taft in the Tinoco Arbitration and attempt to apply similar standards –
informed by their historical evolution – to the current situation. In the end
it will find that the enjoyment of legal status by a new government hinges
largely on its recognition by other members of the international community – a
reality with interesting consequences for the future of the Honduran state.
II. Legal Principles of International Statehood and
Legitimate Government
William Taft’s decision is praised – and often defended –
for its effective protection of the Principle of State Continuity, thought to
be an essential element of international law. The Principle of Continuity holds
that once created, the state is a static entity within the global community,
and although domestic government may change, the state persists with its
“rights and obligations unimpaired” (Arbitration 150). Taft quotes Dr. John Basset
Moore, a former member of the Permanent Court of International Justice, who
held that the principle “had such universal acquiescence as to become well
settled in international law” (Arbitration 150). Moore and Taft believed that
without recognition of state responsibility as transcending changes in
government, the current system of international law and relations would be
untenable.
In determining whether or not the Tinoco government indeed
represented the state of Costa Rica, Taft first considered the government’s de
facto status. The Principle of Continuity holds that domestic government,
in establishing stable control in fact over its population and
territory, then begins representing the State as a historical “link” in its
evolution. Evidence for de facto status includes popular support, the
non-existence of rival governments, and perhaps most interestingly, the
willingness of other states to enter into relations with the new government
(International 706)(Arbitration 150). In meeting these criteria, a government
gives the international community “reasonable assurance of its permanence” in
both its popular support and in its ability to discharge its international
duties (Arbitration 150).
Strictly speaking “the political existence of the state is independent
of recognition by other states,” a principle well enshrined in international
custom and treaty (Monterrey)(Supreme 142). This means that in theory, de
facto status is enough to transform a government into an international
personality with rights and duties under law. In practice, however, the
political viability of a new state and the admission of that state into
organizations and courts where its de facto status finds meaning, depends
to a large extent on the recognition of that status by other states (Wright
557).
Recognition is an act by a state acknowledging the factual
existence of statehood and the legal consequences of that existence. In
recognizing each other, states confirm that they have similar international
rights and duties protected by law (Wright 555)(Montevideo). Bilateral
recognition builds over time into “general recognition” – “the objective
recognition of state status binding on international tribunals, courts and
organizations in their consideration of legal situations involving the state”
(Wright 557). Because this general recognition has no firm criteria, de
facto statehood depends on the existence of enough recognition to give the
state’s claim of legitimacy legal weight. Universal non-recognition, then,
presents a challenge to the state’s claim of de facto control by calling
into question its independence and self-control. Without at least some
recognition by the community of states, the political viability of the state in
international relations is severely handicapped (Wright 552).
De facto status is only one of two elements to be
considered in the legitimacy of state government. In international law,
questions of existence according to fact are accompanied by inquiries
into the legal existence of such a regime, its status de jure.
When a new government establishes itself outside of existing domestic laws – as
was the case in both Costa Rica and Honduras – its legal legitimacy is
challenged. This holds true even if a government can establish the degree of
permanence required to be de facto.
Legal status in municipal law seems a small concern for
revolutionary governments, who can quickly establish new laws to validate their
regimes. A state’s de jure status under international law, however, is
quite a different thing. Just as with its de facto status, the legal
legitimacy of a regime depends on its recognition by other members of the
international community (Arbitration 154). This Principle of Effectivity holds
that “an illegal act may eventually acquire legal status if, as a matter of
empirical fact, it is recognized on an international plane” (Supreme 146).
Through general recognition, an initially illegal state is legally vindicated.
In summary, a state’s existence under international law
depends to a great degree on the willingness of the international community to
acknowledge both its de facto and de jure natures.
Tinoco teaches us that for a government to represent a state in line with the
prevailing legal notion of Continuity, it must establish itself as having de
facto control. In theory, proving its permanence to enough members of the
community of nations should grant that state an international personality and
access to protection under law. Consequently, universal non-recognition
can be considered legal evidence that no such de facto control exists.
If a government can be established to have control in fact, it can then
become a government de jure through general recognition. Effective
recognition changes its illegal status into one of legal legitimacy.
Interestingly, however, state recognition – necessary to establish both de
facto and de jure statuses, is often more contingent on political
realities than on fact (Wright 548, 556-7)(Supreme 143).
III. Challenges to the Honduran Position in International
Law
The appropriate question then becomes whether the hew
Honduran government is able to carry out its duties and defend its rights with
the requisite degree of permanence; and whether the international community is
willing to permit the new government protection under law by recognizing the
existence of this de facto control despite political concerns over its
creation. If Honduras can achieve de facto recognition, perhaps someday
it can also achieve de jure legitimacy.
There are several new factors to consider in Honduras today that differentiate its legal status from the Tinoco government’s. Public
unrest, the existence of a rival president and near universal non-recognition
all play their respective parts in a discussion of legal legitimacy.
Public unrest does not seem to have been a problem in Costa Rica. After his defeat of Gonzalez, Frederico Tinoco won his presidency under a new
constitution with nearly 99.5% of the vote. Military rule was brief and
bloodless, and people went about their lives normally (Arbitration 151).
Compare that idyllic coup with the current situation in Honduras. The flames of social unrest following Zayala’s removal were only fanned by his
return. Constitutional guarantees were suspended and the military occupied
private companies including major industries and power suppliers. Comprehensive
curfews were imposed that challenged the ability of citizens to live normal
daily lives and challenged the efforts of international organizations and
government agencies to adequately provision the public. Demonstrations began to
spring up. As one reporter put it “the country [was] in jail” (Wallace).
If de facto status indeed depends on a degree of
permanence evident by popular support from “those who constitute the state;”
then widespread public unrest would seem to challenge interim President
Micheletti’s claim to de facto legitimacy under international law.
The contentious claim of deposed president Zayala is the
second situation at issue here. The criteria established for de facto
status by Taft and others include, as a proof of permanence, the non-existence
of other governments purporting to be the legal representative of the state
(Arbitration 152). On the surface, Zayala’s public claims that he remains the
only duly elected president would also seem to challenge the interim
government’s de facto control. His actual presence within Honduras strengthens that challenge.
Thirdly, as we have seen through our exploration of theory,
a state’s status in international law hinges on the willingness of other states
to recognize it as legitimate. Although the legality of Zayala’s removal from
office is no longer seriously debated, his subsequent removal from the country
remains the sticking point for the international community, which continues to
refuse the interim government full diplomatic recognition. This near universal
non-recognition is enough to call into question Honduras’ de facto
status by itself. Without a practical ability to carry on foreign relations, Honduras cannot hope to survive long in the community of states.
With these factors in mind, the ability of the interim
government to convince the international community of its de facto
control and thereby gain entrance into the realm of international personalities
seems questionable. Even more unlikely seems its eventual recognition as a de
jure government.
IV. Mitigating Factors
For each of the arguments against Honduras’ de facto
control above, there exists a strong counter-argument: the problems of (1)
popular unrest, (2) the rival claim by Zayala from within Honduras and (3)
universal non-recognition, are all somewhat mitigated by other legal facts
found in the Tinoco Arbitration.
First, in his decision on the Tinoco regime’s de facto status,
William Taft specifically searched for the existence of “disorder of a
revolutionary character” during the transition to new government (Arbitration
151). Presumably, general unrest not accompanied by public revolutionary
demonstrations would not provide convincing evidence that that government did
not still exercise de facto control over its population.
Secondly, Taft’s idea of what constitutes a rival claim is
similarly limited. It seems from the Tinoco decision, de facto control
can only be challenged by a viable government claiming to represent the
people of Honduras. President Zayala is only a single man with a constitutional
grievance, protesting his removal from office and forced exile. Zayala does not
act on behalf of a functioning government and has no control over the country
apart from his occasional public statements. Even these have been stymied by
the Brazilian government in its concern for its embassy. Taft’s envisioned
scenario would be more akin to the historical situation in China, where two rival governments, each within their own territory, purport to represent
the same state in international law. This is clearly not the case here.
Thirdly, non-recognition, even if universal, is only valid
if a state’s decision not to recognize is based on its inability to find a de
facto government. As we know, these legal decisions of “fact” are often
based more on politics. If it can be proven by a court, however, that politics
were the prevailing reason for a state’s policy of non-recognition, then
non-recognition (even if universal) would not inhibit the court from finding
that a government has a personality under law anyway. As Taft held, “according
to the standard set by international law,” non-recognition for reasons other
than the lack of de facto control cannot outweigh strong evidence that
such control still exists (Arbitration 154)(Wright 155).
It seems in this case that states – both within the Americas and without – fear the political ramifications of supporting a regime (de facto
or not) that used military power to oust a democratically elected leader. A
show of support for such action, even if legal, might seem like an endorsement
of a behavior that in states’ eyes, contradicts the very principle of sovereignty
upon which international law and relations are built. This presumption is
strengthened by the fact that universal non-recognition remains the norm;
regardless of the fact that since his ousting, many non-recognizing countries
have found Zayala’s removal constitutionally defendable, only taking legal
issue with his subsequent removal from the country (US).
V. A Foreseeable Change
Two final factors may signal the direction the international
community will take in relation to recognizing Honduras’ de facto status
under international law. The first is the interim government’s ability to
represent its people in the United Nations; the second is the possible
softening of universal non-recognition with the upcoming elections.
Acceptance of valid representation in the UN has always been
considered powerful evidence of “general recognition.” Initially, the United
Nations struggled with the fact that as the governments of some states has changed,
their non-recognition by other member states could challenge the peaceful
operation of the organization. In an internal memo dated March 8, 1950, the
Secretary General tried to meet these concerns by pointing out an evolved
practice within the organization that allowed it to function under such
circumstances. He wrote,
the members have therefore made
it clear by unbroken practice that (1) a member could properly vote to accept a
representative of a government which it did not recognize, and with which it
had no diplomatic relations, and (2) that such a vote did not imply recognition
of readiness to assume diplomatic relations (Wright
547).
This customary practice allows the representation of a new
government within the organization without necessitating the withdrawal of
other member states. It was held, however, that the admittance of such a
government to the organization still acted as proof of its “general
recognition,” because although the acceptance of a government’s credentials did
not force any state to engage with them elsewhere, it still required all states
of the international community to “deal with that government” on a general
level (Wright 557-8). It was assumed that if a majority of states did not wish
to permit a government’s recognition, its credentials would be revoked.
If uncontested membership in the United Nations is itself a
measure of general recognition, Honduras’ representation (by its interim
government in the recent plenary session of the General Assembly) would seem to
challenge the legal efficacy of its universal non-recognition.
There is a legitimate legal question as to whether universal
non-recognition can effectively block de facto status when membership to
the United Nations is still enjoyed. This legal question is further complicated
if it can be proven in a court that the reasons for that non-recognition are
not strictly based on a judgment of a government’s de facto control, but
rather on political considerations of its entry into power. As Quincy Wright
surmised when interpreting the UN memo above, as state relations “become
increasingly multilateral, the process of general and even specific state
recognition becomes more complex and confusing” (Wright 559).
The second recent factor concerning Honduras comes with Panama’s public declaration that it will recognize the country’s elections in
November. Juan Carlos Varela, Panama’s foreign minister has said that his
country “sees the democratic elections as a departure from the current
situation, as long as they are held in a transparent manner and are part of the
national dialog” (Panama). Although the US, Brazil and other states have
promised not to recognize elections without Zayala’s reinstatement, this little
opening (made by one state willing to extend recognition) may prove to grant
the new government at least some formal status under international law.
Primarily, Panama’s position might pave the way for
acceptance by other countries. As Mr. Varela asserted, others have also seen
“the elections as an exit form the current crisis” (Panama). If this is indeed
the case, the universality of non-recognition may soften and therefore lose its
value as a legitimate challenge to de facto status in law. If Honduras is given the opportunity to enter into full relations with even a hand-full of
states, the argument can be made that it has a sufficient international
personality to warrant protection and recognition by courts, tribunals and
organizations.
VI. In Conclusion
The preceding comparison between the current political
situation in Honduras and the facts of the Tinoco Arbitration (nearly eighty
years earlier) is a helpful one. Although neither granting nor withholding
statehood as such, the international acceptance of a new government’s de
facto control defines the status of a state in law and more importantly,
its viability as a political entity. As it stands currently, there is a
persuasive argument to be made for the de facto control of the interim
government and for the illegitimacy of universal non-recognition based more in
political consideration than a true investigation into the independence and
permanence of the interim government.
It is not clear at this time if the “crisis” in Honduras is indeed drawing to a close, and the evolution of new factors and circumstances
will undoubtedly continue to affect that state’s position in international law.
Two of the most powerful current circumstances surrounding Honduras’ recognition – and therefore protection under law – have to do with its continued
presence in the United Nations and the possible recognition of its upcoming
elections. Both situations may eventually pave the way for legal arguments of Honduras’ right to protection in international courts, tribunals and organizations as the de
facto government and therefore sovereign representative of the Central
American state. From there, the path to de jure legitimacy seems much
less far off.
Bio: George McGraw is a Masters of Arts candidate in International Law and the Settlement of Disputes at the United Nations mandated University for Peace. He is from the United States, where he graduated summa cum laude in 2009 from Loyola University Chicago with a degree in Political Science and Philosophy. He has held various positions in government and foreign relations and has travelled extensively. His research interests include water rights, inter-state conflict, state continuity and international organizational law.
