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2 The Authority Entitled to Extend an Invitation for Direct Military Assistance

From: Military Assistance on Request and the Use of Force

Erika De Wet

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 25 September 2020

Subject(s):
Military assistance — National treatment — International organizations — Recognition of governments

This chapter determines the authority that is required to extend an invitation for direct military assistance by forces of land, air, or sea. In so doing, it departs from the well-established principle in international law that the competence to request either direct military assistance or indirect military assistance rests with the de jure government. This is the authority whose representatives are accepted in international organizations, that accredits ambassadors, can legally enter into treaties, and can legally dispose of the state’s assets and natural resources. The chapter then identifies the criteria for the recognition of the de jure government. These criteria include in particular the traditional requirement of effective control as well as that of democratic legitimacy. In the post-Cold War era the latter has gained prominence in particular within the OAS and the AU. Once an authority is recognized as the de jure government, this triggers a strong presumption of continued de jure status. The fact that the de jure government would subsequently be confronted with an insurgency, and/or be embroiled in a sustained armed conflict with opposition groups, would not in and of itself lead to a loss of its de jure status. However, the question arises as to whether the presumption of continued recognition has any relevance in situations where the incumbent regime no longer is identifiable, or where it is challenged by an authority that claims to be democratically legitimated.

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