By: Christine E. White, Copy Editor and Reporter, International Judicial Monitor

“In international law the recognition of a state is the act by which one state acknowledges that another state possesses the essential elements of sovereign statehood.”i

In Brief
Given the aforementioned definition, it would appear that recognition is a relatively simple concept: when one state formally acknowledges another. In reality, it is far more complicated. There is no legal obligation that requires recognition of states. Instead, recognition is a complicated mix of international and municipal law that is often used as a tool of diplomatic and political expediency.

Background
An act of recognition can fall into one of several categories. States can recognize the emergence of new states, new governments of existing states, and territorial changes, among others. Recognition can be manifested in different ways. Direct recognition is a public act of state usually expressed through a written or an oral proclamation. Implied recognition occurs through such actions as sending and receiving diplomatic agents and establishing bilateral relations.

The dialogue on recognition begins with states, the primary actors in the international legal community. Treaties and custom have established that in order to qualify as a state, an entity must have a permanent population and a defined territory, be under the control of its own government, and have the capacity to enter into relations with other states. These criteria emerged from the Montevideo Convention on the Rights and Duties of States in 1933 and have since been adopted by the international community as the basic “definition” of a state.

It is widely accepted that there are two traditional doctrines of recognition, the constitutive theory and the declaratory theory. The constitutive theory, as espoused by Oppenheim, holds that “a state is and becomes an international person through recognition only and exclusively.” This means that states are essentially nonexistent and do not possess any legal rights until recognized by other states.

Critics of the constitutive theory argue that it is so discretionary as to be logically unsound, because “a new state will ‘exist’ as to those states which recognize it, while not existing as to those states which do not.”ⁱⁱ The constitutive theory was often used in practice during the nineteenth century when new states were only recognized following consensus from the current members of the international community. More recently, the Western powers employed the constitutive theory in 1973 when they formally recognized East Germany.

According to the declaratory theory, states are subject to rights and duties under international law once they meet the criteria for statehood. Subsequent recognition is merely an affirmation of “what is already both a political fact and a legal reality.”ⁱⁱⁱ In general, state practice seems to demonstrate a preference for the declaratory theory.

Legal Issues
Brownlie writes, “the typical act of recognition has two legal functions. First, the determination of statehood, a question of law: such individual determination may have evidential effect before a tribunal. Secondly, the act is a condition of the establishment of formal, optional, and bilateral relations, including diplomatic relations.”^iv

Even though an entity may possess the characteristics to qualify for statehood, there is no guarantee that states will officially recognize it. States are not legally obligated to publicly recognize other states. “Recognition is, as the practice of most states shows, much more question of policy than of law.”^v As a result, an entity with a population, defined territory, government, and the capacity to enter into international relations may be recognized as a state by certain members of the international community, but not by others. Membership in the United Nations provides examples of this situation.

Admission to international organizations like the UN is often taken as evidence of statehood, but there is no guarantee that all states will acknowledge this. In order for a state to join the UN, the Security Council must decide to submit a state’s application for admission to the General Assembly for a two-thirds majority vote. The two-thirds requirement means that a state may not be granted admission to the UN if it is not recognized by a two-thirds majority of the General Assembly. This is the case for Kosovo which will likely not be able to join the UN in the near future because it is only recognized by sixty-two UN members. Additionally, a UN member state may not be recognized by other members. Currently, sixteen UN members do not recognize the existence of Israel as a state.

According to Brownlie, there could be legal consequences for refusing to recognize states that meet the criteria and for not applying certain principles of international law. As a member of the United Nations, Israel is protected by the provisions of the UN Charter relating to the use of force; and all UN member states must apply those provisions to Israel, despite the fact that several states do not formally recognize it.

Implied Recognition
In the absence of formal recognition, cases of recognition by implication often arise. Recognition does not carry with it a requirement to establish diplomatic relations, but the formal act of recognition does imply that the recognizing state will seek to establish bilateral relations. Lauterpacht argued that implied recognition arises only out of comprehensive bilateral treaties, formal diplomatic relations, and consular exequaturs. Thus, one state can recognize another without establishing diplomatic relations, but because the existence of diplomatic relations implies recognition, the same state cannot conduct diplomatic relations with a state while refusing to recognize it. The United States no longer has formal diplomatic ties with Cuba and Iran, but neither the absence of diplomatic relations, nor the fact that they were revoked after having been previously established imply non-recognition of the states of Cuba and Iran by the United States.

The existence of informal bilateral relations does not constitute an acknowledgement of recognition. In addition, state practice demonstrates that, with respect to the interaction between recognizing states and unrecognized entities, participation in negotiations, establishment of unofficial representation, accession to multilateral treaties, and membership in international organizations do not imply recognition.^vi The fact that both Cyprus and Turkey are members of the UN cannot be taken to mean that Turkey recognizes the state of Cyprus. This would also be the case if and when Turkey becomes a member of the European Union.

Recognition of States vs. Recognition of Governments
It is important to note that recognition of a state is different from recognition of a government. A state’s position as a member of the international community is not affected by changes in its government. New governments inherit the same rights and obligations under international law as their predecessors. A new government that comes to power through constitutional means, such as an election, is officially recognized as the government of that state. A government that comes to power unconstitutionally, by means of a coup d’etat for example, can be recognized as the de facto government, even though it may not be the de jure government, provided it has control over state practice. States that choose not to recognize a de facto government as the de jure one, choose not to recognize the government in power; they do not deny the existence of the state itself. States seem to be moving away from formal recognition of governments so as not to send messages indicating approval or disapproval of a particular government, a policy referred to as the Estrada Doctrine, choosing instead to focus on decisions of whether to establish diplomatic relations.

Present Day Status
Recognition of a state as a new member of the international community is still very much a part of the dialogue on international law. Recognition carries a great deal of weight as it opens the door for the establishment of diplomatic relations and membership into international organizations. There will always remain a certain degree of controversy regarding the recognition of new states. The Republic of Kosovo is not the only state with limited recognition. Twenty-two UN member states maintain diplomatic relations with the Republic of China (Taiwan). Palestine and Western Sahara also have limited recognition from UN members, although the Palestinian Liberation Organization has observer status at the United Nations. The territories of Abkhazia and South Ossetia are only recognized as independent states by Russia and Nicaragua.

There is no doubt that a state’s choice to recognize another state is influenced by political concerns and the policies of the recognizing state, but “normative standards have operated to restrain extremes.”^vii This is because states are generally concerned with the stability of the international community and adherence to international law. However, given the international disagreements and diplomatic crises that can arise from recognizing a state or the failure to do so, one is left to consider the remarks of Stephen M. Schwebel, former American judge on the International Court of Justice, who in 1972 wrote, “certainly a great deal of international misunderstanding and domestic hyperbole would disappear with the disappearance of the doctrine of recognition.”^viii

---