- Definition: recognition may be defined as a discretionary act exercised unilaterally by the government of a State acknowledging the existence of another State or government.
Recognition of a State or government is important for 2 reasons:
- At the level of IL it shows that the recognised State possesses the attributes of statehood and that the recognising State is willing to engage in foreign relations with the recognised State. The recognition of a new government signifies that is an effective government and that the recognising State expresses its willingness to initiate, or to continue, relations with that new government.
- At the level of municipal law, usually only recognised entities will be accorded rights and have obligations under the law concerned.
- Recognition of a State in IL
- Effects on States. The topic of recognition of a new State is one of the most controversial in IL, in theory and in practice. At the theoretical level, there are two competing theories, the constitutive theory and the declaratory theory, both of which try to explain whether recognition is a necessary requirement for the establishment of de jure personality of a new State, or, merely, a consequence of international personality.
- Declarative theory: recognition is a mere formality. Not a requirement to Statehood. This theory is based on article 3 and 6 of the 1933 Montevideo Convention and the case Deutsche Continental Gas-Gesellschaft v.Polish State (mixed arbitration theory). Critiques:
- It reduces recognition to an empty formality, ignoring the fact that an act of recognition produces important legal effects.
- It is workable only if IL and State practice agree as to the criteria for Statehood. As Crawford stated: ‘ If there are no such criteria, or if they are so imprecise as to be practically useless, then the constitutive position will have returned, as it were, by the back door’.
- It does not work in a situation where States are required under iL to withhold recognition. This obligation is well rooted in customary international law, UN practices and reflected in article 4 (2) of the ILS Articles on State Responsibility.
- Universal recognition rather than merely widespread. In a situation where a new entity emerges as a result of unilateral succession to which the parent State, which is still in existence, does not consent the only way for the new entity to become a State is through universal recognition.
- Constitutive theory: recognition is a requirement to Statehood. Critiques:
- States are without rights and obligations under IL until recognised.
- A legal status of a State depends on a a political act.
- How many members of the international community must recognise a State in order to achieve legal personality?
- Explicit/ Implicit recognition. It is not considered implicit recognition:
- The fact that a State has become party to a multilateral treaty to which an unrecognised State was already a party.
- The fact that a State remains a party to a multilateral treaty after an unrecognised State becomes a party>
- The establishment of unofficial representatives.
- Exchange of trade missions with an unrecognised State;
- The presentation of an international claim against, or by payment of compensation to, an unrecognised State.
- Entering into negotiations with an unrecognised State. In practice many States are, for various reasons, forced to negotiate with unrecognised regimes. To avoid embarrassment such negotiations normally take place in secret.
- The admission of an unrecognised State to an international organisation, in so far as those States opposing the admission are concerned,
- The presence of a State at an international conference in which an unrecognised State participates.
- Individual/collective recognition. Collective recognition may arise in 2 contexts:
- In a situation where recognition is accorded collectively by a group of States e.g. the 1919 Treaty of Versailles.
- In a situation where a new States becomes a member of the UN.
- Recognition of governments:
Under traditional IL, when there is adoubt about whether an authority should be recognised as a government of a State, it is sufficient for the authority seeking recognition to show that it has effective control over the relevant territory shown by consent of or tolerance by the population inhabiting that territory. In the European context more is required in that the authority in question must also be democratically elected and respect the rule of law.
(a) Three approaches to recognition of governments can be identified:
- The objective approach, under which a State recognises a new government on a factual basis, namely that the new government is independent and has effective control over that State’s territory and that this control seems likely to continue, without giving any judgment on the legality of that government or any approval. This approach had, until 1980, been applied by the UK government.
- The subjective approach, under which a State by recognising a new government expresses its approval and endorses the policy of that new government. The US has always used the recognition of a new government as a powerful political tool.
- The approach contained in the Estrada doctrine. According to this doctrine no express recognition is necessary. All that is required is to establish that the authority in question exercises effective control over the relevant territory.
(b) A distinction btw de facto and de jure recognition of governments is no longer of relevance in the UK bearing in mind the announcement made by the UK government in 1980 that from that date it would cease to accord formal recognition to governments.
- The role of the UN in the recognition of new States:
- The admission to the UN has, to a great extent, diminished the importance of recognition or non-recognition of an entity by States. Article 4 (1) of the UN Charter sets out the conditions and the procedure for admission.
The UN is a forum to coordinate recognition and non-recognition.