Recognition of States

The two theories

This is the heart of MU's topic and an essay question in its own right.

The constitutive theory

Recognition creates the State. An entity becomes a subject of international law, with rights and duties, only when existing States recognise it. Until then it is a fact and not a person in law.

The argument for it. International law rests on consent, and a new State cannot acquire rights against existing States without their acceptance. There is also a practical point: somebody has to decide, and there is no international authority that certifies statehood, so the decision falls to States individually.

The objections, and they are strong.

It produces relativity. If recognition constitutes, an entity is a State as against those that have recognised it and not as against those that have not. Israel would be a State in Delhi and not a State in some other capital, which is an unworkable account of legal personality.

It leaves the unrecognised entity outside the law. If an entity is not a State until recognised, it owes no obligations. It could not commit aggression, because aggression is a wrong of States. Nobody accepts that conclusion.

Recognition is a political act. States recognise for reasons of policy. Making legal existence turn on political choice puts the law at the disposal of politics.

How many recognitions? The theory gives no answer. One? A majority? Which States count?

The declaratory theory

Recognition acknowledges an existing fact. An entity that satisfies the criteria is a State, and recognition merely declares what is already the case and opens diplomatic relations.

The argument for it. It matches the Convention itself: article 3 of Montevideo provides that the political existence of the State is independent of recognition by the other States. It avoids relativity. And it fits practice: unrecognised entities are treated as bound by international law, and States that do not recognise one another still complain of each other's breaches in legal terms.

The objections. It understates what recognition actually does. An unrecognised State cannot make treaties with the States that refuse it, cannot maintain embassies with them, and its officials and property get no immunity in their courts. Saying its statehood is unaffected is true and thin.

The position to write

The declaratory theory is the better view and is the one modern practice supports, with two concessions that a good answer makes.

Recognition is strong evidence. Where the facts are doubtful, and they often are, widespread recognition is the best available proof that the criteria are satisfied, and refusal by most States is the best available proof that they are not.

Recognition has large practical consequences, set out in [Modes and Legal Effects of Recognition], even if it has no constitutive legal effect.

Membership of the United Nations is a different question

Students routinely confuse admission with recognition, and the distinction is easy marks.

Article 4 provides that membership is open to all peace-loving States which accept the obligations of the Charter and, in the judgment of the Organization, are able and willing to carry them out, and that admission is effected by a decision of the General Assembly upon the recommendation of the Security Council.

Three consequences.

Admission is not collective recognition. A Member does not thereby recognise every other Member, and States that do not recognise each other sit in the same Assembly.

The Security Council's recommendation means the veto applies. Admission is therefore a political process, and entities have been kept out for many years by a single negative vote.

A State that is not a Member is still a State. Switzerland was a State for centuries and joined only in 2002.

The duty of non-recognition

A State is generally free to recognise or not. There is one important qualification.

Where a situation has been created by a serious breach of a peremptory norm, in particular by the unlawful use of force or in violation of the right of self-determination, States are under a duty not to recognise it as lawful. Resolution 2625 states that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition resulting from the threat or use of force shall be recognised as legal, and the International Law Commission's Articles on State Responsibility carry the same obligation for serious breaches of peremptory norms, dealt with in [Circumstances Precluding Wrongfulness, and Reparation].

The classical formulation is the Stimson doctrine of 1932, by which the United States declined to recognise the situation created by Japan's occupation of Manchuria.

Recognition of belligerency and insurgency

Two lesser forms belong here because examiners ask about them alongside recognition of States.

Recognition of insurgency acknowledges that a revolt has grown beyond ordinary criminality and that the insurgents are to be treated as having a legal status for limited purposes. It does not confer belligerent rights.

Recognition of belligerency is more far-reaching and traditionally requires four conditions: a general armed conflict within the State, occupation and a measure of orderly administration of a substantial part of the territory by the insurgents, observance of the laws of war by forces under a responsible command, and a practical necessity for outside States to define their attitude. Its effect is that the law of armed conflict applies between the parties, the recognising State assumes the duties of neutrality, and the parent State ceases to be responsible for acts in the area the insurgents control.

A worked example

The province of Zenda declares independence from State Y. It has four million inhabitants, controls the whole province, has a functioning administration and police, and asks for recognition. State Y calls the declaration a rebellion. Twenty States recognise Zenda; ninety do not. Zenda applies to join the United Nations and State Y's ally on the Security Council votes against.

Is Zenda a State? Apply Montevideo. A permanent population: yes, four million. A defined territory: yes, the province, and the fact that State Y disputes the boundary does not matter, since a defined territory does not require settled frontiers. A government: yes, on the facts. Capacity to enter into relations: yes, if it is genuinely independent of State Y and is not being run from outside.

Does it matter that only twenty States have recognised it? On the declaratory theory, no: statehood follows the facts. On the constitutive theory, Zenda would be a State only as against those twenty, which is the relativity objection.

Does the pattern of recognition matter at all? Yes, as evidence. If ninety States withhold recognition because they doubt Zenda's independence, that is powerful evidence on the fourth criterion.

Does the failure to join the United Nations decide it? No. Admission is a separate question under article 4, requiring a recommendation of the Security Council and therefore exposed to the veto, and non-membership does not deprive an entity of statehood.

Change one fact: suppose Zenda was created by the army of a neighbouring State, which invaded and installed the administration. Now the fourth criterion fails, because Zenda is not independent, and the duty of non-recognition applies, since the situation results from the unlawful use of force. States are obliged not to recognise it as lawful, whatever its apparent effectiveness.

Distinctions table

What it does NOT mean

Recognition is not admission to the United Nations. Article 4 admission requires a Security Council recommendation and an Assembly decision; it is not collective recognition and it does not create statehood.

A defined territory does not mean settled boundaries. A State can exist with every frontier disputed.

Non-recognition does not mean the entity is outside the law. It remains bound by international law, and the duty of non-recognition of an unlawful situation is itself a legal duty.

Recognition is not the same as diplomatic relations. States can recognise one another and not exchange ambassadors, and breaking off diplomatic relations does not withdraw recognition.

Limits and criticism

The criteria are indeterminate at the margin. How much control is enough for a government, and how independent is independent, are questions the Montevideo formula does not answer, and they are exactly the questions that arise in every contested case.

The theories do not decide cases. In practice States recognise for reasons of policy and afterwards find the criteria satisfied, and the choice between constitutive and declaratory rarely changes an outcome.

Effectiveness and legality pull apart. The classical criteria are about effectiveness; the duty of non-recognition is about legality. Where an entity is effective but unlawfully created, the two point in opposite directions and the law has no tidy answer.

Quick revision

Montevideo Convention 1933, article 1: a State should possess a permanent population, a defined territory, government, and capacity to enter into relations with other States. A fifth requirement, lawful creation, is now generally added.

A defined territory does not require settled frontiers. Capacity to enter into relations means independence, and it is the criterion that distinguishes a State from a province.

Constitutive theory: recognition creates the State. Objections: relativity, an entity outside the law, politics deciding legal existence, and no answer to how many recognitions are needed.

Declaratory theory: recognition acknowledges a fact. Supported by article 3 of Montevideo: the political existence of the State is independent of recognition by the other States. The better view; recognition remains strong evidence and has large practical effects.

Article 4 of the Charter: admission of peace-loving States able and willing to carry out the obligations, by decision of the General Assembly upon the recommendation of the Security Council. Admission is not recognition, and non-membership is not a bar to statehood.

Duty of non-recognition where a situation results from a serious breach of a peremptory norm, in particular the unlawful use of force: Resolution 2625; historically the Stimson doctrine, 1932.

Recognition of belligerency: general armed conflict, occupation and orderly administration of substantial territory, forces under responsible command observing the laws of war, and a practical necessity for outside States to define their attitude.

Test yourself

1. State the criteria of statehood and explain which is the most important.

Article 1 of the Montevideo Convention 1933 requires a permanent population, a defined territory, government, and capacity to enter into relations with other States. The last is the most important, because it is what distinguishes a State from a component unit of a federation or a dependent territory: an entity that takes its orders from another State fails it however large its population or effective its administration. A fifth requirement, that the entity was lawfully created, is now generally added, since an entity established by unlawful force will not be recognised.

2. Distinguish the constitutive and declaratory theories, and say which is preferable.

The constitutive theory holds that recognition creates statehood, so an unrecognised entity is not a State in law. The declaratory theory holds that recognition merely acknowledges a state of affairs that already exists on the facts. The declaratory theory is preferable. The constitutive theory produces relativity, making an entity a State against some States and not others; it puts an unrecognised entity outside international law altogether, so that it could not even commit aggression; it makes legal existence turn on political choice; and it cannot say how many recognitions are required. The concession to be made is that recognition is powerful evidence where the facts are doubtful, and that it carries large practical consequences.

3. Does admission to the United Nations amount to recognition?

No. Article 4 of the Charter provides that membership is open to peace-loving States that accept the Charter obligations and are able and willing to carry them out, and that admission is by decision of the General Assembly upon the recommendation of the Security Council. A Member does not thereby recognise every other Member, and States that do not recognise one another sit together in the Assembly. Because a Council recommendation is required, admission is subject to the veto and is a political process, and an entity may be a State for many years without being a Member.

4. Can a State exist without settled boundaries?

Yes. The Montevideo criterion is a defined territory, not a delimited one, and what is required is a core of territory over which the entity exercises control. Many States have come into existence with frontier disputes outstanding and have been recognised and admitted to the United Nations while those disputes continued.

5. What is the duty of non-recognition?

The obligation not to recognise as lawful a situation created by a serious breach of a peremptory norm, in particular by the threat or use of force or in violation of self-determination. Resolution 2625 (XXV) provides that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that no territorial acquisition so resulting shall be recognised as legal, and the International Law Commission's Articles on State Responsibility impose a corresponding duty on all States in the case of serious breaches of peremptory norms. Its historical ancestor is the Stimson doctrine of 1932, by which the United States refused to recognise the situation Japan created in Manchuria.

6. What conditions must be satisfied before belligerency may be recognised, and what follows?

There must be a general armed conflict within the State; the insurgents must occupy and administer in an orderly way a substantial part of its territory; their forces must act under a responsible command and observe the laws of war; and there must be a practical necessity for outside States to define their attitude. Recognition then has three effects: the law of armed conflict applies between the parties, the recognising State assumes the duties of a neutral, and the parent State ceases to be internationally responsible for what happens in the area the insurgents control. Recognition of insurgency is a lesser step, acknowledging that the revolt is more than ordinary criminality without conferring belligerent rights.