By: Vani Manoraj
Why doesn’t the international community recognize unrecognized countries?
The creation of a state and the vesting of legal personality under international law are governed by legal rules and norms. The absence of a central establishment under international law empowers the states to collectively act, guided by the legal principles, to recognize emerging states.
However, recognition under international law has been a focus of controversy. State convention has divorced the act of recognition from the legal rules.
Under contemporary international convention, the act of recognition is governed by political convenience rather than legal norms.
Many scholars have expressed alarm over the ambiguity surrounding recognition which emanates from unrestrained political arbitrariness and threatens to undermine international stability.
In order to comprehend the political nature of recognition it is imperative to understand the genesis of the legal rules of recognition as discussed under international legal scholarship.
Theories of Recognition
A definition of ‘state recognition’ is controversial due to the on-going debate expressed by Ryngaert & Sobrie as “is recognition an essential requirement for statehood – the constitutive school – or rather a confirmation of a pre-existing factual situation – the declaratory school?” (Ryngaert & Sobrie, 2011).
Therefore in order to forge ahead it is beneficial to analyse the two schools of thoughts.
The constitutive theory of recognition can be traced back to Hegel who was considered as the father of positivism. He stated that the effect of recognition is the creation of legal relations between states.
Therefore, he expressed that in light of the absolute sovereignty of a state under international law, no legal relation exists between states prior to the act of recognition. However, it was Georg Jellinek who formulated the formal constitutive doctrine.
He admitted that a community can ipso facto form part of the ‘general community of States’ but recognition alone can make it part of the ‘juridical community of States’. He insisted that legal relations in the form of legal rights and duties can only arise as the result of mutual recognition of legal personality.
Therefore, the constitutive theory of recognition requires that an entity may become a State only by virtue of recognition and enjoy rights inherent in state under International law (Zadeh, n.d.). Heinrich Triepel forwarded that the recognition was part of a "Vereinbarung" (i.e. agreement).
This was developed by Dionisio Anzilotti who expressed that a State comes into existence simultaneously with, but not before, the conclusion of the first agreement which may be in the form of a treaty of recognition (Lauterpacht, 1944).
This was criticised as firstly the recognition was dependent on a reciprocal agreement which could be revoked, thereby creating a dependence of the recognized state on the recognizing state.
Statehood was construed as a relative, rather than an absolute concept. Anzilotti elucidated that such agreement shall be governed by the principle of pacta sunt servanda and be binding on the States parties thereby trying to cure the defect.
Secondly, it was criticized that there was an inherent logical error in the doctrine (Lauterpacht, 1944). Critics stated that the agreement presupposes the legal personality of a state, which does not possess juridical existence at the time of conclusion of the treaty.
Since such treaty rather than declare an existing state, creates and attributes it, critics have pointed out that such treaties must then have reference to an entity already in existence within the legal system (Lauterpacht, 1944).
Hersch Lauterpacht states that “it has been argued that if the community in question does not in the contemplation of international law exist prior to recognition, then it is neither protected by international law in the essential aspects of its existence nor bound to respect the equally vital legal interests of other States” (Lauterpacht, 1944).
In contrast, the declaratory theory of recognition prescribes that the existence of the State is independent from recognition. Recognition is seen as merely confirming or establishing the existence the State and not creating the State (Zadeh, n.d.).
Therefore, a state exists as soon as it fulfils the condition of statehood as provided under international law (Montevideo Convention) and recognition merely declares the fact.
The effect of recognizing a state means that the state shall be assured the enjoyment of all rights of statehood under international law.
Proponents of this doctrine express that the effect and purpose of recognition is a declaration of willingness to enter into diplomatic relations (Lauterpacht, 1944).
However, Hans Kelsen who was a prominent supporter of this doctrine admitted that recognizing a state may have constitutive results. Under the declaratory view, recognition is a formal act of political rather than legal relevance (Lauterpacht, 1944).
Additionally, this theory removes the requirement of recognition as an element of statehood. Critics have pointed out that the theory fails to consider the manner in which an entity has acquired and fulfilled the conditions of statehood.
The current jurisprudence is informed and influenced by the declaratory theory.
The legal framework of recognition is regulated by the Montevideo Convention and the non-violation of jus cogens norms.
The Montevideo Convention on the Rights and Duties of States, 1933 under Article 1 categorically enumerates the four criteria for statehood namely a permanent population, a defined territory, government and capacity to enter into relations with other state.
The “capacity to enter into relations with other state” is akin to the state possessing an international legal personality.
The State derives this capacity as a consequence of statehood. The dilemma arises when the capacity is dependent on recognition of the State and this recognition is in turn dependent on the statehood of the State.
Many jurists have stated that independence is a fundamental criterion for statehood and implicit in the capacity to enter into relations (Crawford & Brownlie, n.d.). On the other hand some jurists equate independence with sovereignty (Crawford & Brownlie, n.d.).
Therefore, the Montevideo Convention is a starting point for a state to fulfil the factual conditions to gain recognition. The interpretation of the conditions reserves space for States to manoeuvre on their recognition policies.
The non-violation of jus cogens norms is a recent addition to the practice of recognition and can be traced to the non-recognition of Manchukuo by the United States in 1931.
This was followed by the Stimson Doctrine under which the United States declared that it would not recognize any situation, treaty or agreement which would have been brought about contrary to the Kellog-Briand Pact which outlawed war.
This was adopted by other states including in the 1932 resolution of the League of Nations Assembly, the Anti-war Treaty of Non-aggression and Conciliation, 1933 (Saavendra Lamas Treaty- Article 2) and the Montevideo Convention on the Rights and Duties of States, 1933 (Article 11) thereby giving the doctrine wide application.
This duty of non-recognition enjoys universal validity through its insertion in Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts: ‘No State shall recognize as lawful a situation created by a serious breach [of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation’.
South Ossetia and Abkhazia
South Ossetia declared independence from Georgia during the 1991–1992 South Ossetia War on 29 May 1992 and Abkhazia declared its independence after its war with Georgia in 1992–1993. However, in 2008 Georgian troops launched an offensive against South Ossetia.
The ensuing conflict saw Russia and Abkhazia joining the conflict resulting in Georgia admitting defeat.
On 26 August 2008 Russia recognized South Ossetia and Abkhazia as independent states. The European Union, NATO, the OSCE, and the United States immediately voiced displeasure with Russia's decision.
UN resolution was issued that supported Georgia's territorial integrity. The argument against recognition is the influence of Russia over the two states.
South Ossetia's borders control by Russia and absence of South Ossetian foreign policy are citied by States upholding Georgian territorial integrity over South Ossetia.
The Republic of Artsakh (Nagorno-Karabakh)
During the dissolution of the Soviet Union the conflict between Azerbaijan and the region of Nagorno-Karabakh was reignited. As its swan song the Soviet Union held a referendum on its continued existence which was boycotted by Armenia but Azerbaijan voted in favour.
Armenia declared independence in August 1990 followed by Azerbaijan declaring independence in August 1991 from the Soviet Union.
In December 1991 a unilateral independence referendum was held in Nagorno-Karabakh which was approved by 99.98% of voters (Atanesyan,2012).
The Armenians of Nagorno-Karabakh declared their independence as the Republic of Mountainous Karabakh. The referendum was boycotted by the Azerbaijani population of Nagorno-Karabakh and Azerbaijan rejected the declaration.
The referendum is not internationally recognized by the UN member states. At that time, Western countries had adopted a policy of recognizing only the Republics of the Soviet Union and not the autonomous regions within those republics (Krüger, 2010).
In mid-1992 under the aegis of the Organisation of Security and Co-operation in Europe, the Minsk group was created with goal of facilitating dialogue between Armenians and Azeris.
The group was co-chaired by United States, France and Russia. As the war was continuing in 1993 Turkey closed its borders with Armenia. The resulting toll of the war led to a ceasefire in May 1994. Following the ceasefire, the Nagorno-Karabakh declared the creation of the de facto 'Nagorno-Karabakh Republic' (NKR).
The referendum creating the Nagorno-Karabakh Republic was legally valid under International law and the Soviet Union laws. However, the NKR still exists as an unrecognized country, today called the Republic of Artsakh after it officially changed its name.
The lack of concrete border and the dependence of the country economically and politically on Armenia are arguments against recognition of Artsakh.
Kurdistan is a roughly defined geo-political region habituated majorly by Kurdish people. This region comprises of south-eastern Turkey (Northern Kurdistan), northern Syria (Rojava or Western Kurdistan), northern Iraq (Southern Kurdistan), and north-western Iran (Eastern Kurdistan).
Kurdish nationalist organizations seek to establish a nation state comprising of all or some of the areas. Many however seek autonomy within the existing national boundaries.
The Iraqi Kurdistan gained autonomous status in 1970 which was reconfirmed in 2005. Kurds in Syria seek to gain autonomy at the end of the Syrian Civil War after having reclaimed control of large sections of northern Syria.
On 25 September 2017, Iraqi Kurdistan held an independence referendum with 93% of the population calling for independence. The referendum resulted in a military conflict with the Iraqi central government which rejected the validity of the referendum.
Claim for statehood are opposed by citing Iraqi territorial integrity, territorial integrity of neighbouring states, inconsistency with Iraqi constitution and regional stability.
Somaliland is a self-declared state, recognized internationally as an autonomous region of Somalia. On 18 May 1991, the Somali National Movement unilaterally declared independence from Somalia.
The territory is governed by democratically elected governments. Fear of multiple secessionist claims and regional stability are cited as reasons for opposing recognition.
Effect of Recognition
Recognition is not just for the purposes of law and attributing legal personality. Recognition allows a state to participate in the international community. Various actions flow from being recognised, some of which are discussed below.
Firstly, recognition allows states to enjoy legal personality before foreign courts. In foreign courts, the unrecognized state and its acts do not legally exist prior to recognition. Moreover, the law applied by the foreign court is that of the parent State and unrecognised state is denied ordinary jurisdictional immunities.
The unrecognized state is denied the right to sue and claiming relief in cases where it is necessary to allege existence of the unrecognized country.
Secondly, recognition affords the State protection from act contrary to international law such as annexation and invasion (from parent state and other states). The recognized state would not suffer a calamitous capitis dimninuto, would not be treated in a war with utter disregard of rules of warfare and in case of war other States will not be obliged to maintain neutrality.
Moreover, as a corollary the recognised State shall be bound by international law and would be required to uphold human right values. The subjects of such state shall be better placed to hold the state accountable for human rights violations and demand better human rights protections.
Thirdly, recognition allows States to participate in the treaty regime. Thereby, a recognised state can be a party to multilateral and bilateral treaties.
For example, under the 1982 UN Convention on the Law of the Sea, a recognized country can declare an EEZ off its 850km long coast line and enjoy exclusive fishing rights protecting the State from pillaging by foreign fishing companies (H. Dahir, 2012).
Another example is becoming party to the 1944 Convention on International Civil Aviation (The Chicago Convention) which allows States to regulate the use of its airspace and negotiate Bilateral Air Services Agreements and collect over-flight fees from Foreign Aircrafts that over fly its territory (H. Dahir, 2012).
Fourthly, recognition allows states to attract Foreign Direct Investment (FDI) thereby securing economic stability and infrastructure development. An unrecognized country creates fear amongst international donors as they cannot deal directly with the donors and the uncertainty on enforcing the contracts (H. Dahir, 2012).
Finally, Recognition allows states to be members of international and regional organizations. This is relevant in influencing international policies and strengthening international relations.
Moreover, a recognized state can be member of International Monetary Fund which promotes confidence in the financial and economic stability of a country.
A member shall also have the advantage of securing technical assistance and financial support of the IMF. The member countries shall benefit from “Access to information on economic policies of all member countries, opportunity to influence members’ economic policies, access to technical assistance in banking, fiscal affairs, and exchange matters, financial support in times of payment difficulties and increased opportunity for trade and investment” ("Money Matters, an IMF Exhibit -- The Importance of Global Cooperation, Obligations and Benefits of IMF Membership", 2019).
Furthermore, membership of IMF allows for the membership of the World Bank. Membership of IBRD and IDA provide ease in money lending for development projects.
In recent times, the bank has shifted its focus from supporting growth-related programs in middle-income countries towards global poverty alleviation (Council on Foreign Relations, 2019).
A Discretion and Territorial Integrity
The international practice of recognition has been inconsistent and complex. A survey of the recognition practice evidences that Countries have recognized States not possessing strict characteristics of statehood.
Recognition of Palestine (122 Countries), Israel (163 Countries) and Bosnia before it gained control of its territory shows that countries with undefined boundaries have been recognized by other states.
It is important to mention that States forming part of the EU lack the independence to make financial decisions and are subject to European Union legislative and legal framework but still enjoy recognition and the status of statehood.
On the other hand State of Taiwan complies with the necessary criteria under the Montevideo Convention but China’s influence and interest in the State results in silence amongst the international community (Pollard, 2019).
It can be gathered from above that though the concept of recognition is presented to be based on normative consideration, State convention reveals that there exist a range of political considerations.
State action is governed by personal (national interest driven motivations) and impersonal (international human rights protection) interests (Almqvist, 2009).
When the claim of a State is based on a declaration of independence, states are reluctant to accord recognition to States formed by violent secessionist movements.
Jessica Almqvist explains that “in the case of secessionist movements, a State is facing the risk of losing part of its territory, the act of recognition in these kinds of conflicts tend to imply taking sides, and can even be perceived as intervention in a dispute that from the standpoint of the losing State is internal or domestic.
This reality explains why some States choose to remain silent” (Almqvist, 2009). This also raises the issue of territorial integrity of the parent state which is considered as the cardinal element of international law. The juxtaposition of right to self-determination and territorial integrity results in creating space for political considerations to gain priority.
Recent State convention has developed an understanding that an act of recognition is a discretional act and not a matter of international legal obligation. Moreover, the impact of recognition creates obligations among the existing state towards the new state.
This places a burden which the existing states weigh in addition with the existing relationship with the current state with the parent state. Jessica Almqvist further elaborates that “The act of recognition is in principle not permitted if it constitutes intervention in the domestic affairs of a State, or if the state-creation process in any other way amounts to a serious infringement of international law (such as in the case of illegal annexation of a territory).
Nevertheless, even though an act of recognition in principle can be ‘illegal’, considering the incomplete institutionalisation of international law, such an act will have no judicial repercussions” (Almqvist, 2009).
Recognition or 'Frozen Conflict?'
“Recognition provides legitimacy to a new country and allows it to participate in the international community. Recognition is an inherently sovereign act of a state and therefore, a state may bestow recognition at its own discretion.
The legal worth of recognition, the political stakes, the scarce international regulation of the process of recognition, the lack of sanction, as well as the voluntarism associated with the act of recognition– explain and, in a sense, legitimize, what can be defined as the ‘politics of recognition’”(Almqvist, 2009).
Ultimately, non-recognition of a State results in international isolation from the international system. This produces repercussion for the subjects of the unrecognized country and impacts their political aspirations.
For many of the unrecognized countries, the opposition to their claim for recognition creates distrust for the legitimacy of international order. It is imperative that political discretion and arbitrariness be divorced from the act of recognition.
The right to self-determination which found universal recognition by inclusion in the United Nations Charter under Article 1, paragraph 2 provides “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.
Moreover, Article 1 of the International Convention of Civil and Political Rights embodies this principle. Therefore it can be said that Right to Self-Determination was established as jus cogens in international law by finding place in human rights law.
A case can be made that under international law purports a duty of recognition for the existing States and a right of recognition for a newly declared state.
The surge in the number of sovereign states in the international system inspires hope that this trend shall continue to include the current unrecognized countries which have genuine claims and legitimize the aspirations of the people.
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