Recognition of states and governments in international law

After the break-up of the former Soviet Union and the former Socialist Federal Republic of Yugoslavia in the early 1990s the topic of recognition in international law lay dormant for several years until in February 2008 it was revived, perhaps not unexpectedly, with the unilateral declaration of independence of Kosovo and the controversy about its recognition as a sovereign and independent State by some 51 States (as of 15 October 2008). The topic recently gained further prominence when in August 2008 the Russian Federation recognized the statehood of Georgia’s breakaway regions of South Ossetia and Abkhazia; a move followed so far only by Nicaragua. These developments have again raised interest in the question of a possible recognition of the “Nagorno-Karabakh Republic” and its government by foreign States. This article briefly sets out some of the general principles of recognition of States and governments in international law. The term “recognition,” when used in the context of recognition of States and governments in international law, may have several different meanings. It may indicate the recognizing State’s willingness to enter into official relations with a new State or government, or manifest its opinion on the legal status of a new entity or authority, or both. The subject has been complicated by the introduction of several variants of the term. Distinctions between “de facto recognition,” “diplomatic recognition” and “de jure recognition” may be traced back to the secession of the Spanish provinces in South America in early 19th century. Like “recognition,” these terms can be given meaning only by establishing the intention of the authority using them within the factual and legal context of each case. Recognition is a unilateral act performed by the recognizing State’s government. It may be express or implicit. There is probably no other subject in the field of international law in which law and politics are more closely interwoven. However, that does not mean that recognition, in the sense of expressing an opinion on the legal status of an entity or authority, is a purely political act that is within the discretion of the recognizing State. Recognition, if unfounded in law (such as premature recognition) and backed by State activity, may constitute an internationally wrongful act which gives rise to State responsibility. Recognition of States must be distinguished from recognition of governments, each form having its own theories and practices.

Recognition of States

The question of the legal effect of recognition of new entities claiming to be “States” has been characterized for over a century by the “great debate” between the “constitutive” and “declaratory” schools of thought. While the former contends that a State only becomes a State by virtue of recognition, the latter - which is now widely accepted - argues that a State is a State because it is a State, that is, because it meets all the international legal criteria for statehood. In the first case recognition is status-creating; in the latter it is merely status-confirming. International lawyers and States do not always distinguish clearly between the requirements for recognition of an entity as a State (the criteria for statehood) and the requirements for recognition of a State, that is, the preconditions for entering into optional or discretionary - diplomatic, political, cultural or economic - relations with the entity (the conditions for recognition). While the former are prescribed by international law, the latter may vary from State to State.

In his Allgemeine Staatslehre (General Theory of the State), published in 1900, Georg Jellinek developed the doctrine of the three elements of statehood, according to which a State exists if a population, on a certain territory, is organized under an effective public authority. Although some authors have criticized this definition as treating the State as a purely factual phenomenon, it is still the definition most commonly found in State practice. There are usually two requirements regarding the element of “public authority”: internally, it must exercise the highest authority, that is, it must possess the power to determine the constitution of the State (internal sovereignty); externally, it must be independent of other States (external sovereignty). Independence of other States refers to legal, not factual, independence; that is, the State must only be subject to international law, not to the laws of any other State. The capacity to enter into relations with other States which is mentioned in the definition of “State” found in Article 1(d) of the Inter-American Convention on Rights and Duties of States (Montevideo Convention) of 26 December 1933 and which has also been used in statements by various governments is not a generally accepted element of statehood; it is merely a condition for recognition, as it is a consequence of, and not a precondition for, statehood. Attempts in the literature to supplement the classic factual criteria for statehood by criteria of legality regulating the creation of States (the prohibition of the use of force or apartheid, the right of self-determination) have not been successful.

The “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union,” adopted by the EU Member States’ Ministers for Foreign Affairs on 16 December 1991 make recognition dependent on the fulfillment of certain minimum standards of the rule of law, democracy and human rights, guarantee of minority rights, respect for the inviolability of existing boundaries, acceptance of all relevant commitments with regard to disarmament, and recourse to arbitration. Those, and similar guidelines adopted at the time by the United States and Japan, lay down value- or interest-led political conditions for “Recognition of New States,” i.e. preconditions for entering into discretionary relations, and do not catalogue any new criteria for statehood. On the contrary, they assume the statehood of the entities which are to be recognized.

Recognition of governments

The question of recognition of government normally arises only with regard to recognized States. SEQ CHAPTER \h \r 1When a State recognizes a new “government,” it usually acknowledges a person or group of persons as competent to act as the organ of the State and to represent it in its international relations. The only criterion in international law for the recognition of an authority as the government of a State is its exercise of effective control over the State’s territory. States may, however, continue to recognize a government-in-exile if an incumbent government is forced into exile by foreign occupation or the de facto government in situ has been created in violation of international law. Despite a trend in the literature to the contrary, there is still no rule of general or regional customary international law that a de facto government, to be a government in the sense of international law, must be democratically elected. Attempts to introduce such a requirement either by treaty (Central American Treaties of Peace and Amity of 1907 and 1923) or as a matter of national (Tobar, Wilson and Betancourt doctrines) or regional policies (Santiago Commitment to Democracy and the Renewal of the Inter-American System, OAS General Assembly Resolution 1080 of 5 June 1991) have failed.

States may be roughly divided into three groups according to their recognition policy: States (such as the United Kingdom before 1980) that formally recognize governments; States (such as the United States) that generally do not formally recognize governments but do so in exceptional circumstances for political reasons; and States (such as the United Kingdom since 1980, and other member States of the European Union) that formally recognize only States, not governments. That policy is reminiscent of the “Estrada doctrine” according to which States issue no declarations in the sense of grants of recognition in cases of change of regime but confine themselves to the maintenance or withdrawal, as they may deem advisable, of their diplomatic agents. Those States have not completely abolished the recognition of governments, only the making of official statements of recognition. They still have to decide whether a person or group of persons qualifies as the government of another State, especially where there are competing “governments” in the same recognized State or when there is an attempted secession and issues of governmental status and statehood are linked. In the case of the British government, its opinion on the legal status of a claimant may be determined on the basis of the nature of the dealings (non-existent, limited or government-to-government dealings) which it has with a claimant.

Legal effects of recognition in judicial proceedings

The legal effects of recognition differ depending on the forum. While in international and continental European courts recognition has only probative value, in English and American courts an official statement of recognition or non-recognition by the forum government is conclusive evidence as to the legal status of a foreign authority or entity as, according to the “one voice doctrine,” in matters of foreign affairs the judiciary and the executive are to speak with one voice. The forum government’s position may be introduced in the judicial process by way of a Foreign Office certificate, amicus curiae brief or statement of interest. The question of recognition may determine access to the courts (locus standi), privileges and immunities, the legal status of individuals, the right to recover State property in the forum, and the judicial cognizance of foreign legal acts. The traditional (English) common law rule of “non-recognition, non-cognizance,” according to which a State or government that is not recognized as such does not exist in the eyes of the law, has been mitigated by the courts, inter alia, by giving retroactive effect to recognition, treating an unrecognized authority as the “subordinate body” of a recognized State, and by giving effect to the laws and legal acts that regulate the day-to-day affairs of the people in an unrecognized State or government.

Non-recognition

The non-recognition of a de facto existing State or government may be motivated by political reasons, as in the case of the non-recognition by Western States of the German Democratic Republic as State (1949-19723) or US non-recognition of the Chinese Communist Government (1949-1979). It may also be used as a sanction in response to a violation of a fundamental norm of international law (such as the prohibition of the use of force or racial discrimination), especially when applied collectively, as in the case of the State of Rhodesia (1965-1980). The duty not to recognize as lawful a situation created by a serious breach of an obligation arising under a norm of jus cogens is now laid down in article 41(2) of the International Law Commission’s Articles on Responsibility of States of Internationally Wrongful Acts (2001). A duty of non-recognition may also arise under a treaty or a binding resolution of the United Nations Security Council.

Non-binding resolutions of the Security Council which in their preamble merely reaffirm “the sovereignty and territorial integrity” of a State and the “inadmissibility of the use of force for the acquisition of territory” [1] may contribute to the establishment of a customary international law duty of non-recognition of the secessionist entity created by force.

Note

[1] See for example S/RES/884 (1993) SEQ CHAPTER \h \r 1on the conflict in and around the Nagorno-Karabakh region of the Azerbaijani Republic.