Recognition of States in International Law

The recognition of a state is the unilateral act by which subjects of international law — mainly other states and international organizations — acknowledge the presence of the criteria of statehood in an entity.

This act should not be mistaken for the actual emergence of a state, which occurs as soon as a given entity possesses following elements: a permanent population; a defined territory; a government; and the capacity to enter into relations with other states. According to customary international law, states that have these elements possess fundamental rights and obligations internationally, such as the right to sovereignty and to navigate the high-seas, irrespectively of being recognized by others. In theory, all member states of the United Nations are presumed to possess the criteria of statehood, and the status of other potential states must be decided on case-by-case basis.

Thus, the importance of state recognition lies not necessarily in determining whether a country exists or not, but rather in allowing other countries to engage in relations with the recognized state. The act of recognizing a state usually holds the following meanings:

• It indicates that the recognizing countries wish to establish formal diplomatic relations with the recognized state, paving the way for the granting of diplomatic immunities and the conclusion of bilateral treaties.
• It demonstrates that the recognizing countries believe that the recognized state possesses all elements of a state. In unclear situations, recognition by a state serves as an affirmation of how that state views the status of a new entity, which can influence international perceptions and relations. In particular, the more recognitions a state receives, the stronger its claim to statehood becomes. For example, despite not being a member of the United Nations, Palestine has a good case for claiming that it is a state, because it has gathered a significant number of international recognitions.
• It prevents the recognizing countries from not acknowledging the statehood of the recognized state. This is because the act of recognition cannot be revoked, unless the elements that characterize a state cease to exist.

The Declarative and Constitutive Theories

Recognition of states in international law is governed by two main theories:

• The constitutive theory, prevalent until the 20th century, posits that a state becomes a subject of international law only when it is recognized by other states. This approach suggests that the existence and rights of a new state depend on the acknowledgment of existing states. However, this theory also implies that an unrecognized state, which may fulfill all other criteria of statehood, is not bound by international law, such as the prohibition on aggression. This can lead to complexities, especially when a state is recognized by some countries but not others, raising questions about its partial legal status in the international arena.
• The declaratory theory posits that the existence of a state is an objective reality that does not depend on its recognition by other states. It argues that a new state acquires international legal capacity through its own factual situation, such as effective governance and control over its territory, rather than through the formal recognition from other states. This theory aligns with positivist legal thought, emphasizing the autonomy of states and the lack of overarching authority in international relations. According to this theory, the recognition of a state has retroactive effects, acknowledging its existence from the time of its inception.

In essence, the constitutive theory leans towards the communal aspects of international governance, while the declaratory theory favors state sovereignty.

The British scholar Hersch Lauterpacht has attempted to improve the constitutive theory by proposing that states have an obligation to recognize entities that meet the international criteria for statehood. This view stems from the absence of a central international authority to confer legal status, thus assigning this role to individual states on behalf of the international community. According to Lauterpacht, recognition is both a declaratory and a constitutive act — for it acknowledges the entity’s compliance with the criteria of statehood and it represents the official acceptance of said entity into the international community, with full rights and obligations.

However, an issue with Lauterpacht’s theory is that the act of recognition is frequently used by states to express political support or dissent for other states. If his theory were adopted, an unrecognized state could potentially demand recognition, raising complex issues about the enforcement of such demands against states that choose not to recognize it.

In any case, Lauterpacht’s approach has not been adopted in state practice. The declaratory theory seems to have prevailed over the past century, because states generally do not deny the existence of legal rights and obligations to unrecognized states. Instead, they are considered to be bound by international law regardless of their recognition. This was notably evident in the Arab states’ non-recognition of Israel: despite political disputes, it was understood that Israel was subject to international law norms like any other state.

General Conditions for the Recognition of States

According to contemporary international practice, four key requirements must be met for the recognition of a state:

1. An entity can only be recognized as a state if it possesses the foundational criteria of statehood.
2. A state must have the desire to recognize another entity as a state.
3. The entity being recognized as a state must plausibly be a state.
4. The entity being recognized as a state must not have been established through severe violations of the jus cogens.

Firstly, it is quite evident that an entity can only be recognized as a state if it possesses the criteria of statehood. However, it should be noted that the non-recognition of a state does not necessarily imply the absence of these characteristics — after all, there could be other reasons for non-recognition.

Also, a state must have the desire to recognize another entity as a state, because the act of state recognition is contingent upon political considerations. States typically retain the discretion to recognize new entities, and they are not universally obligated to grant recognition. This is evident in various historical contexts, such as some countries’ refusal to recognize Communist states or Israel. The discretionary nature of recognition was reinforced by the Yugoslav Arbitration Commission, which stated that recognition is a voluntary act that states may exercise based on their judgment, subject to international legal norms. In practice, there is no international norm to compel a country, against its will, to recognize another state.

Moreover, the entity being recognized as a state must plausibly be a state, in order to prevent the issues that arise from prematurely recognizing a state. For example, when Nigeria achieved its independence, a part of the country called Biafra seceded from it and, during the ensuing civil war, a series of human rights violations took place. Some African countries recognized the state of Biafra, in an attempt to bound it to international human rights norms and hold it responsible for their transgression. Nigeria condemned these acts of recognition and ultimately won the war. This brought about a legal dilemma: who would be held responsible for the violations — Nigeria or the defunct state of Biafra? In addition, could the other African states be accused of meddling in the internal affairs of Nigeria because of their recognition of the Biafra state?

Nowadays, the creation of new states invariably results in the loss of territory from an existing country. Thus, the act of recognizing a state requires balancing between the principles of territorial integrity and self-determination. According to international law, a new state can only be formed when a minority of people, culturally or ethnically distinct from the rest of a country’s population, fights for political independence. In this case, self-determination trumps territorial integrity. Recognition of a state in such cases requires clear evidence that the minority achieved independence either through military victory without external support or recognition of independence by the state of which it was a part. However, when a population is not subjected to colonization, foreign occupation or severe human rights violations, it merely has the right to autonomy, not independence.

Finally, the fourth and last requirement for recognizing a state is that it must not have been established through severe violations of the jus cogens. If such violations have occurred, while the state does have international rights and obligations, its recognition by other states is forbidden. In the 1930s, for instance, the United States did not recognize Japan’s annexation of Manchuria by force, in line with the Stimson Doctrine. Another case in point are resolutions by the United Nations Security Council that disallow the recognition of certain states, like Southern Rhodesia (1965), the Turkish Republic of Northern Cyprus (1983), and the Republika Srpska (1992), due to violations of international norms.

The situation in Kosovo also exemplifies the complexities of recognition. Following UN administration and a rejected proposal for independence supervised internationally, Kosovo declared independence in 2008. This led to divided international reactions, with significant support from the United States and most members of the European Union, while countries like Russia, Serbia, Spain, and Greece withheld recognition. This division prevents Kosovo from joining the UN, due to veto powers held by Russia. States that recognize Kosovo accord it the rights and responsibilities of statehood, while those that do not deny them, maintaining its international status as contentious.

Other Guidelines for Recognizing States

The international community tends to adopt a pragmatic approach that lies somewhere between the declarative and the constitutive theories, because the recognition of a state is often influenced by political considerations.

The stance of the United States on state recognition was highlighted during a Security Council debate on the Middle East in 1948. The U.S. asserted that recognition is a sovereign decision, underscoring that no external power should influence a country’s recognition policies. The U.S. Department of State, for example, specifies that recognition is contingent upon certain factual conditions such as effective control over a defined territory and population, the presence of a functioning government, and the ability to engage in foreign relations and fulfill international obligations.

Similarly, the UK typically extends recognition when it is convinced that a new government meets certain criteria: the effective control and governance of a clearly defined territory, the likelihood of enduring control over it, and foreign independence, along with considerations of relevant United Nations resolutions.

Recent practices have evolved to consider human rights and other related factors when recognizing new states. The European Community, on December 16, 1991, set forth guidelines emphasizing the importance of adherence to the United Nations Charter, the Helsinki Final Act, and the Paris Charter. Furthermore, they require the resolution of state succession and regional disputes through agreement, including arbitration if needed. According to European guidelines, an entity can only be recognized by others as a state if it abides by a series of principles:

• The rule of law.
• Democracy.
• Human rights, especially the rights of minorities.
• The inviolability of borders achievable only through peaceful means.
• Commitments to disarmament and nuclear non-proliferation.

It should be noted that these guidelines merely stipulate requirements for recognizing a state, rather than conditions for ascertaining the existence of a state. For this reason, states that eventually violate these norms can be held accountable for their actions, but violations would not necessarily result in the withdrawal of recognition by other states.

During the dissolution of Yugoslavia, the Europeans put these guidelines into practice as conditions for recognizing Yugoslav republics as independent states. An essential part of this process was the requirement that these republics must have no territorial claims against neighboring states. The United States, although aligning with these principles, adopted a less stringent approach, emphasizing commitments to nuclear safety, democracy, and free markets.

Conclusion

The recognition of states is a multifaceted process. It involves both the acknowledgment of a certain entity meeting the basic criteria of statehood and the intention to accept the legal consequences of this recognition, such as granting diplomatic immunities. Recognition is not merely a passive act, but rather a decisive, often discretionary act by states, underlining their consent to the legal status of an entity and the legal implications that it entails. This process, marked by its complex and variable nature, reflects the interplay of legal, political, and ethical considerations in the international actions of states.