Back To The Drawing Board: Recognizing “Recognition” Under International Law

Abstract

Renowned Austrian jurist and legal philosopher, Hans Kelsen, concluded in 1941 that the problem of recognition …has neither in theory nor in practice been solved satisfactorily. Hardly any other question is more controversial or leads in the practice of States to such paradoxical situations…; this remains unchanged even today. 

Recognition of an entity as a State, strictly speaking, implies that it meets all relevant criteria of statehood to qualify and function as such within the international legal order. The question that follows is, therefore, whether the act of recognition is one of policy or legality. This article revisits the basics, or goes back to the drawing board, if you will, to critically examine the creation of international law’s principal subject – the State. 

Keywords

Statehood, Recognition, Constitutive Theory,  Declarative Theory, International Law.

Introduction

The seemingly simple and neatly demarcated territories on the world map are, in fact, enveloped in the many ambiguities of international law, of which the question “What makes a State, a State?” is crucial. A brief assessment of the role played by State recognition in statehood is performed below, upon weighing the constitutive and declaratory theories in light of State practice.

Notion of recognition under international law

As the International Court of Justice (ICJ) remains silent on the processes and consequences of State formation in efforts to uphold the permissive nature of international law, conclusively defining “State recognition” is met with a yawning gap at the international legal scene. Two schools of thought – constitutive and declaratory – seek to explain one of international law’s most controversial themes.

The constitutive theory of State recognition prescribes recognition as a conditio sine qua non for statehood, based on the jus gentium voluntarium principle of international law; therefore, an entity gains statehood by virtue of recognition by other States. Alternatively, under the prevailing declaratory theory, recognition merely establishes/provides evidence of the objective legal situation, i.e. that all factual criteria of statehood determined (perhaps non-exhaustively) by the Montevideo Convention on the Rights and Duties of States (accepted as customary international law) are met. Declaratorily, recognition is thus “status-confirming”, as opposed to “status-creating”/ “status-preventing”.

State practice on recognition

The relevance of recognition beyond mere confirmation has strengthened due to instances where an entity realizing all factual criteria has not been conferred statehood, or where an entity has been granted statehood without realizing these criteria. The United Nations’ (UN) collective recognition of the controversial Palestine, for instance, was constitutive as ever, and ignored juridical criteria in assessment of statehood. Kosovo’s non-admission to the UN was also guided by political motivations over juridical concerns, where statehood criteria were met de facto and secession was found to be coherent with international law, but Russia refused to set precedent for other secessionist States. Yet another feather in the constitutive cap is the China-Taiwan issue, which speaks to the failure of the declaratory theory in providing a solution where the parent-State builds obstacles. China claims, rather unfoundedly, that Taiwan is a mere “breakaway province” which it vows to retake, despite Taiwan’s fulfillment of nearly all characteristics of an independent State otherwise.

At the same time, the European Community’s State recognition policy in the aftermath of the Yugoslavian dissolution which found “the effects of recognition by other States…purely declaratory” is not to be disregarded. Following this is also an evident lack of legal discourse to international law by States (under Montevideo’s traditional normative framework) in the process of recognition. From Kosovo to South Ossetia and Abkhazia, a significant share of declarations are based on political considerations (such as stability, peace, security in the region). The constitutive theory is, in fact, often viewed as “archaic…lacking ‘visible’ support in State practice”. It renders statehood a relative rather than an absolute concept, and falls short of clarifying, for example,  i) how many recognitions form a State  ii) on what factors is recognition based.

Analysis of State practice on recognition, therefore, reflects a rather uncertain and incoherent relationship between legal and political considerations.

As former ICJ Judge Hersch Lauterpacht pointed out:

“There are obvious advantages in relating the fundamental features

                       of international relations – and the rise of new States is one of them

                       – to an objective rule of law rather than to the shifting arbitrariness

                       of national expediency…”[1]

In the Westphalian system which lacks an overarching central authority, States serve not only to protect the international system, but their own interests; perhaps it is here that friction between the legal, i.e. embracing an entity as part of the international community, and the political, i.e. furthering national pursuits, reveals an inconsistency in State practice.

“…there is probably no other subject in the field of international relations

                    in which law and politics appear to be more closely interwoven…”[2]

A legal requirement or a political act?

Is recognition, then, a legal requirement (constitutive) or a political act (declaratory)? Perhaps neither theory can flawlessly clarify the objective legal situation of a State under international law. To illustrate, if Somaliland is a State, the territorial integrity of Somalia must be contested by existing States. If Somaliland is not a State, the de facto fulfillment of statehood criteria for over two decades remains overlooked.

In response, the need for norms in addition to the Montevideo criteria has surfaced in the academic realm.[3] However, additional norms shed no light on the obscurities of recognition in statehood; their workability only extends to an entity which meets factual criteria but is unrecognized. Furthermore, they fail to clarify how entities failing to meet the criteria of effective governance (common to both State recognition theories)[4] have earned and maintained statehood. The significance of recognition is apparent, therefore, in the discretionary approach of the international community when conferring statehood.

This discretionary nature of State recognition also finds evidence in that it can be based on mere perception, as is manifest in non-recognition of several de facto secessionist States. Isolated and weak, most de facto States cannot secede from their parent State without external support (political, diplomatic, economic, and/or military) from patron States. However, the involvement of patron States is often perceived as contaminating deliberations along the path to statehood, upon which such entities march with crutches. Such is the paradox of international law for patron-backed secessionist States – one step forward with democracy and economic stability, and two steps backward with inexorable dependence. 

Drawing on from all of the above, it is reasonable to find (non–)recognition as indispensable to the coming into existence of a State. In fact, it has often come to substitute factual criteria in the facilitation or prevention of State creation, numerous examples of which have been mentioned. Despite its ambiguities and deficiencies, the immense influence that an act of State recognition holds on international relations takes us back, perhaps, to the nuts and bolts of the State mechanism – given the allowances of political discrepancy in the process of recognition, can the existence of a State be empirically construed after all? 

Concluding remarks

The international community is home to a dynamic legal system, with constantly evolving practices and interpretations. At the outset, in examining the role of recognition in statehood, it is noted that a chaotic combination of the two theories – constitutive and declaratory – is prevalent in practice. Nevertheless, recognition is observed as being a salient component of statehood, in that it is a way for States to continue developing, defining and shaping their ever-changing international legal system. To quote the Washington Post of 16 May 1992 following the break-up of former Yugoslavia, “…no element of international policy has gone more askew…than recognition – whether, when, how, under what conditions”.


[1] Hersch Lauterpacht, ‘Recognition of States’, in E. Lauterpacht (eds), International Law, Being the Collected Papers of Hersch Lauterpacht (CUP 1970) 320.

[2] Lauterpacht (n 1) vii.

[3] John Dugard, ‘Recognition and the United Nations’ in International Law Commission, Hersch Lauterpacht Memorial Lectures (1987) 137–47

[4] Michael Schoiswohl, Status and (Human Rights) Obligations of Non-Recognized De Facto Regimes In International Law: The Case of Somaliland (1st ed, Martinus Nijhoff Publishers 2004) 131.

Source of Image: https://mocah.org/4593125-map-world-countries-flag-world-map.html

Author: Reet Varma from University of Groningen (Netherlands).

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