By: Teagan Chandler Hale
The Complexity of Recognition
Recognition is a process whereby certain facts are accepted and endowed with a certain legal status, such as statehood, sovereignty over newly acquired territory, or the international effects of the grant of nationality.
The process of recognizing a new entity that conforms to the criteria of statehood is a political one, each country deciding for itself whether to extend such acknowledgment. (States in International Law, Encyclopaedia Britannica)
There is no universally mandated procedure for unrecognized countries to follow to achieve statehood, nor is there complete acceptance to all claims of statehood. The question ‘Why does the international community not recognize unrecognized territories, is in itself politically charged, invoking a range of ideologies spanning across the political spectrum.
In an attempt to answer such a contentious question this article will to start by outlining two historical political theories and their criticisms defining statehood which have since established customary international law, examine the complexity of state recognition with the biggest international community of United Nations, and then provide an academic manner to best answer this question.
As concisely stated by Fowler and Bunck in determining what constitutes a state via examining the most salient features of the governments of states widely recognized as sovereign – it is simply frustrating, as not only do governments and political ideologies of sovereign states vary widely, but their governments differ markedly in power, objectives, and bureaucratic sophistication (1996, p. 382).
There is no universally accepted mandate or procedures to follow for an unrecognized country to achieve statehood and sovereignty.
The term unrecognized country is inherently hazardous as it provokes contentious debates of recognition among already recognized states, challenges the territorial integrity with of a recognized state, incites civil conflict within the state claiming sovereignty over it, and depending on policy agendas can be weaponized as a tool political gain whether intrastate or interstate.
A highly precarious topic riffed with ambiguities and uncertainties, in an attempt to provide a frame to this question, contemporary international law regarding recognition commonly refer to the Constitute and Declarative Theories of Statehood.
Developed in the 19th Century Europe due with origins in the ideals eschewed by Westphalian Sovereignty, the Constitutive Theory of Statehood simply argues that recognition from another sovereign state is enough to constitute statehood and recognition.
More precisely, “the constitutive theory states that recognition is not automatic, rather, it is based on the discretion of other states. Moreover, only upon recognition by those other states does the new state exist, at least in a legal sense”(Worster, 2010, p. 119).
Recognition in itself is constitutive of the rights and duties associated with statehood. Hersh Lauterpacht, cited as being one of the most widespread scholars of this theory, considers “recognition constitutive as it lofts those characteristics into international law, establishing international duties and obligations between the recognizing state and the recognized entity (Coppieters, 2018, p. 345).
In other words, recognition is constitutive to the extent it establishes rights and obligations both for the entity recognized as a state and between the recognizing and the recognized states creating legal links and increasing the effectiveness of the recognized state in the international system (Coppieters, 2018, p. 345).
Criticism of this theory centers on the fact that recognition has no accepted standard or established procedures to follow, thus permitting states to ignore facts and to act in conflicting ways. Many states may give or deny recognition based on their geopolitical interests and can establish arbitrary conditions to follow without their being a consensus of an established standard.
The agency behind recognition is directly taken away due the reliance on other states, thus creating a political dilemma as to whether preexisting, established states have the power to be gatekeepers to the international system.
Definitively, this theory is compounded by subjectivity and political inconsistent with other states’ judgement, resulting in uncertainties about which entities are regarded as states in the international system.
The Montevideo Convention on the Rights and Duties of States signed on December 26, 1933 during the Seventh International Conference of American States established the Declarative Theory of State, codifying the widely most accepted criteria for statehood in international law.
A convention of newly independent states formerly under colonial control, the objective of the convention was to establish parameters making it easier for states with limited sovereignty to achieve recognition.
It is Article 1 which establishes the four criteria for statehood which has since been adopted as customary in international law: 1) a permanent population; 2) a defined territory, 3) a stable and effective government, 4) and a capacity to enter international relations with other states.
In addition, Article 2 states “the federal state shall constitute a sole person in the eyes of international law” and Article 3 states “The political existence of the state is independent of recognition by the other states” which is a direct opposition to the Constitutive Theory.
These four criteria refer can be considered to be the intrinsic foundation of statehood, including the capacity to interact with the international community, as their factual presence can be assessed (Coppieters, 2018, p. 345).
All of them must exist to a certain degree and a certain threshold has to be reached before an assessment of statehood can be accurately given. Though being customary in international law, the Declarative Theory is not inescapable of criticisms.
One of the most foundational criticisms is the fact that the Montevideo Convention is becoming dated and has not reflected changes and concerns to statehood and sovereignty.
For example, with the focus on human rights as shown through the Universal Declaration of Human Rights, “one of the questions now raised is the extent to which adherence to minimum international legal standards may be considered a prerequisite not only for recognition but also for statehood” (Coppieters, 2018, p. 345).
Other criticism includes the thought that the guidelines have become over inclusive as its criteria can be claimed to be met easily, such “as the capacity to enter into relations with other states, which is strictly speaking not a criterion for statehood but rather a consequence of it” (Coppieters, 2018, p. 346).
State Recognition can be either expressed implicitly or explicitly such as through signing treaties, verbal or written declarations of support and recognition, establishing embassies and diplomatic missions, proving humanitarian aid or financial assistance, and military and economic support. These activities are highly interpretive and while proof of recognition is affirmed in ways either de jure (within law) or de facto (within reality), even then recognition will be contested.
Per instance, the de jure government might have little to no power within its territory as they were displaced due to conflict are still recognized by a majority of states to still the legitimate government such as the case of Allied-aligned governments in exile during World War II (Belgium, Norway, and Poland).
Furthermore, in cases of coup d’état or revolutions, states must then reassess whether they change their positions towards the sovereignty and statehood of the new powers that be.
One of the strongest indicators of recognition outside of having the endorsement of a superpower comes from the implicit approval given from full admittance to the United Nations as only States are allowed to join the UN as per the UN charter.
Thus, unrecognized countries wishing to claim statehood highly are expected to pursue diplomatic campaigns to receive full membership within the UN.
The United Nations and Unrecognized Countries
With regards to the United Nations, their website officially states the following on statehood recognition: “The recognition of a new State of Government is an act that only other States and Governments may grant or withhold.
It generally implies readiness to assume diplomatic relations. The United Nations is neither a State nor a Government, and therefore does not possess any authority to recognize either a State of a Government. As an organization of independent States, it may admit a new State to its membership or accept the credentials of the representatives of a new Government.”
Ergo, the United Nations does not have the power nor a designated role to decide universal recognition, however if admittance is only given to States then an admitted unrecognized country gains a symbolic and political victory to further legitimize their claims to statehood. Such as the interesting case of Palestine and Palestinian National Authority (PNA).
Another example is the question of who is the legitimate representative of China between the People’s Republic of China (PRC) and the Republic of China (ROC). UN General Assembly Resolution 2758 recognized the PRC as the only legitimate representative of China to the UN (importantly, this specifically referred to the UN and not recognition outside of it), expelling the ROC from the UN and the Security Council.
Despite the expulsion and the volatile sentiments regarding its political status, the ROC still maintains official diplomatic relations with 14 UN member states, participates within institutions such as the World Trade Organization and the World Health Organization, and keeps unofficial ties with countries such as the United States or with political unions such as the European Union.
Whether within the United Nations or through normal international relations, the same conflicts of recognition are seen throughout politics, such as for example, between the Republic of Korea and the Democratic People’s Republic of Korea, the Republic of Kosovo and the Republic of Serbia, South Ossetia and the Republic of Georgia, Kurdistan alongside several countries in Western Asia, and the Turkish Republic of Northern Cyprus on the island of Cyprus.
Based on these findings, it is impossible to answer the question of “Why doesn’t the international community recognize unrecognized countries.”
The complete totality of factors determining recognition creates a heterogenous mixture of variables making each question of recognition specific and circumstantial.
In fact, to even begin this question one must then divulge into the politically charged question of what exactly is an unrecognized country, perhaps to be better refined as a “state with limited recognition”, and then provide reason depending on one’s political views as to why or why not it has claims to statehood.
However, in an attempt to answer the question, statehood is seemingly determined on a bilateral level between the unrecognized country and whichever state they are attempting to enter diplomatic relations between.
The international community does not exist as a singular political unit and does not have a universally accepted standard of statehood.
Though the Montevideo Declaration Theory of Statehood provides customary international law, and by lesser extension the Constitutive Theory of Statehood as another platform for claims of legitimacy, unrecognized countries and their calls for statehood and recognition are still largely arbitrary and highly subjective to the whims of foreign governments.
Their claims are thus dependent on the recognition on other governments and how widespread the recognition becomes.
Conclusively, unrecognized countries gain recognition on a state to state level and while the strength of recognition might be backed by pure numbers, there might always be contestation and unrecognition depending on political circumstance.
To provide a better conclusion on why an unrecognized country is unrecognized or recognized, the question should individualistically become “Why doesn’t a specific country recognize the claims of statehood by a specific unrecognized area?”
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