Updated: Dec 18, 2019
By: Šárka Humlová
Criteria for Recognition
Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States declaims that a state should “possess [...] (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states” (Farley 2010: 790).
These features have since then become the presumed core features of states; yet there is still an absence of a universally accepted definition of ‘statehood’, which would be able to provide a clear and exclusive characterisation of what entities should be granted recognition and which should not.
This situation complicates the recognition process, since the existing criteria do not address how the entities come into being, nature of their governments or any of the governments’ policies (Erasmus 1988: 215).
Over the years this absence necessitated the emergence of additional criteria, which address some of these flaws such as whether the entity’s independence was achieved peacefully (including the respect of human rights) and in accordance with the principle of self-determination (ibid).
Still, the existence of such criteria does not mean that the process of international recognition is necessarily always guided by them. This is because state recognition is politically a highly sensitive issue, hence it often ends up being a question of policy rather than being guided by law (Wydra 2018: 2).
This (occasional) disregard is not limited to the additional criteria, but in several instances (e.g. Republic of Congo in 1960 or Lichtenstein in 1950) political entities were recognised as states even though they were yet to fulfil the ‘core Montevideo criteria’ (Farley 2010).
These examples could indicate to some of the contested states or other political entities that do not satisfy all the necessary criteria that gaining international recognition is possible even if not all of the criteria are satisfied.
This is to a large extent caused by the fact that international recognition is predominantly a political act. In spite of its political nature the debate is still dominated by international law that lacks precise criteria, hence making it one of the most unregulated and decentralised aspects of international relations (Visoka 2018: 31).
Approaches to Recognition
There are two main approaches in international law regarding the legal impacts of recognition - the declaratory and constitutive theories (Caspersen 2012).
Scholars of declaratory theory argue that the main criterion for statehood is the satisfaction of the customary law criteria of statehood (outlined in the 1933 Montevideo Convention on Rights and Duties of States), rather than recognition by other states (Raič 2002).
In this sense, the political existence of a state is independent of recognition, which they argue has no legal effects; as long as the entity fulfils the necessary criteria (Visoka 2018).
Hence, according to the declaratory theory, international recognition is solely a description of an already existing fact, which has been demonstrated by the compliance with the Montevideo criteria.
The constitutive theory, on the other hand, sees international recognition as a “precondition of the existence of legal rights” (Brownlie 1983: 206) and hence a vital requirement of statehood. In this sense a state does not exist in international law unless it has been recognized as a state by others.
Despite their widespread usage, neither of these approaches comes free of its critics. For instance, van der Vyver (1991: 12-13) states that since the constitutive theory can be (mis)used to prevent the emergence of sovereign states, the “overwhelming majority” of international law experts prefers the declaratory theory.
A similar argument could; however, be made about the declaratory theory, given that non-recognition prevents contested states from fully satisfying the Montevideo criteria (specifically the ‘capacity to enter into relations with other states’) in the first place (Visoka 2018).
Based on these criticisms, some academics (e.g. Craven (2010) have attempted to reconcile these two approaches by claiming that although the right to be treated as a sovereign state is independent of recognition; recognition only serves as evidence that this right has been acquired.
Others have rejected the dichotomy of these two theories altogether, suggesting a middle ground where a state is not considered to be a state by the entire international community, but it is still considered a state either internally or by a limited number of states (Van der Vyver 1991; Farley 2010).
The Significance of Recognition
In fact, many unrecognized countries (e.g. South Ossetia & Abkhazia) find themselves in this situation, since they have been recognised by at least one fully recognized state but not the international community as a whole.
Following a similar line of argumentation, Visoka (2018) challenges the portrayal of recognition in binary terms; arguing that in reality recognition may take various forms among which is de facto recognition, or the policy of ‘engagement without recognition’ that is often used by recognized states in their interactions with unrecognized countries.
Overall, even with the disagreements among academics about the exact relationship between international recognition and statehood; recognition’s significance is widely acknowledged within the literature (Farley 2010; Caspersen 2012).
This significance can be observed from the numerous benefits that international recognition provides for the recognized states (e.g. access to financial institutions, trade, protection under international law).
But its significance is also implied throughout Caspersen’s (2012: 121) book, where she describes the difference between the statehoods of contested and recognized states, which arise due to the different situations and associated tensions that these entities are confronted with.
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