Recognition of States and Governments

Recognition is an important concept in Public International Law concerning the acceptance by existing States of the legal status of a new State or the authority of a particular government. Recognition is particularly relevant when a new State emerges, when a government changes through an unconstitutional process, or when competing authorities claim to represent the same State.

Recognition of a State and recognition of a government are different concepts. Recognition of a State concerns the existence of an international legal entity, whereas recognition of a government concerns which authority is accepted as representing an already existing State.

Meaning of Recognition

Recognition is the act by which an existing State acknowledges that a particular entity possesses a particular legal status under International Law.

Recognition may concern:

• a new State;
• a new government;
• a territorial situation;
• a particular international legal status.

In the context of Statehood and government, the two principal forms are:

1. Recognition of States
2. Recognition of Governments

Recognition of States

Recognition of a State occurs when an existing State accepts an entity as possessing the status of a State under International Law.

Recognition may indicate acceptance that the entity:

• possesses Statehood;
• has international legal personality;
• can establish diplomatic relations;
• can enter into international agreements;
• can participate in international relations.

Recognition does not necessarily mean that the recognising State agrees with the political policies of the recognised State.

Recognition of Governments

Recognition of a government concerns the authority that represents an already existing State.

The State continues to exist, but there may be uncertainty regarding which authority is legally entitled to represent it internationally.

This may arise after:

• revolution;
• coup d’état;
• civil war;
• unconstitutional transfer of power;
• competing claims to governmental authority.

Therefore:

Recognition of State → Who is the State?

Recognition of Government → Who represents the State?

Difference Between Recognition of State and Government

Recognition of State	Recognition of Government
Concerns Statehood	Concerns governmental authority
New international entity may be involved	Existing State normally continues
Determines acceptance of State status	Determines acceptance of representative authority
Connected with Statehood	Connected with governmental legitimacy and effectiveness
Example: recognition of a newly independent State	Example: recognition of a new regime after a coup

Theories of Recognition

Two principal theories explain the legal significance of recognition of States.

Constitutive Theory

According to the constitutive theory, recognition by existing States plays a constitutive role in the international legal personality of the new entity.

Under this theory, recognition helps bring the entity into the international legal community as a State.

The theory gives considerable importance to the practice of existing States.

Declaratory Theory

According to the declaratory theory, recognition does not create Statehood.

An entity becomes a State when it satisfies the objective requirements of Statehood.

Recognition merely acknowledges an existing legal fact.

The traditional Montevideo criteria are closely associated with this approach.

Constitutive and Declaratory Theories

Constitutive Theory	Declaratory Theory
Recognition helps create international legal status	Recognition acknowledges existing status
Greater importance to recognition	Greater importance to objective Statehood criteria
Statehood depends significantly on recognition	Statehood depends primarily on legal requirements
Focuses on acceptance by existing States	Focuses on objective facts

Montevideo Convention and Recognition

The Montevideo Convention on the Rights and Duties of States, 1933 provides the traditional criteria of Statehood:

• permanent population;
• defined territory;
• government;
• capacity to enter into relations with other States.

Article 3 of the Convention provides an important declaratory principle by stating that the political existence of a State is independent of recognition by other States.

This supports the view that recognition does not itself create Statehood.

Recognition as a Political and Legal Act

Recognition has both political and legal dimensions.

Politically, recognition may demonstrate acceptance of a new State or government.

Legally, recognition may affect:

• diplomatic relations;
• treaty relations;
• international claims;
• immunities;
• access to international institutions;
• representation of the State.

The precise legal consequences depend upon the circumstances and the position of the recognising State.

Forms of Recognition

Recognition may be:

• express;
• implied;
• de facto;
• de jure;
• individual;
• collective.

Express Recognition

Express recognition occurs when a State formally declares that it recognises another State or government.

It may be communicated through:

• an official declaration;
• diplomatic correspondence;
• a formal agreement;
• an official statement.

Implied Recognition

Recognition may also be inferred from conduct.

For example, certain actions may demonstrate acceptance of another entity’s status, such as:

• establishing diplomatic relations;
• concluding certain agreements;
• exchanging diplomatic representatives.

However, not every interaction with an entity necessarily amounts to recognition.

De Facto Recognition

De facto recognition traditionally refers to recognition based upon an assessment that an authority has sufficient factual control but where the recognising State may remain uncertain about its permanence or legal position.

It is generally considered more limited or provisional than de jure recognition.

De Jure Recognition

De jure recognition represents full legal recognition.

It indicates that the recognising State accepts the legal status of the recognised State or government.

The distinction between de facto and de jure recognition is particularly relevant in discussions concerning governments.

Recognition of Governments

Recognition of governments arises when there is uncertainty over which authority represents an existing State.

A State may continue to exist even when:

• its government has been overthrown;
• competing authorities claim power;
• a new regime has taken control;
• a government operates from exile.

The question becomes whether the new authority should be treated as the government representing the State.

Criteria for Recognition of Governments

Traditionally, factors considered in recognition of governments may include:

• effective control over territory;
• control over the population;
• stability;
• ability to fulfil international obligations;
• willingness to maintain international relations.

The importance given to these factors may vary depending upon the circumstances.

Effective Control

Effective control has traditionally been an important factor in determining whether an authority can be regarded as the government of a State.

An authority exercising effective control over the territory and institutions of a State may have a strong claim to represent that State.

However, modern practice has increasingly considered additional factors, including legitimacy, constitutional processes and international legal obligations.

Government Recognition and Legitimacy

Recognition of a government should not always be understood as a simple assessment of effective control.

Modern international practice may also consider:

• constitutional legitimacy;
• democratic processes;
• human rights;
• legality of the transfer of power;
• respect for international obligations.

Thus, the question of effectiveness and the question of legitimacy may overlap but are not identical.

Recognition After a Coup

A coup d’état may create uncertainty concerning governmental recognition.

The State itself normally continues to exist.

The international community may then consider whether the new authority should be recognised as the government.

Possible factors include:

• whether the new regime controls the State;
• whether the constitutional order has been displaced;
• whether international obligations are being respected;
• the policies of the recognising State.

Governments in Exile

A government may lose effective control over its territory while continuing to claim to represent the State.

A government in exile may retain international recognition in certain circumstances.

Its legal position depends upon:

• the circumstances in which it lost control;
• international recognition;
• constitutional legitimacy;
• continuing legal status;
• international practice.

Recognition and Diplomatic Relations

Recognition and diplomatic relations are closely connected but are not necessarily identical.

A State may have certain forms of interaction with an entity without establishing full diplomatic relations.

Similarly, diplomatic relations can be established as a consequence of recognition.

The precise relationship depends upon the circumstances.

Recognition and Admission to International Organisations

Recognition and membership in an international organisation are separate legal questions.

For example, admission to the United Nations involves the requirements established by the UN Charter.

UN membership may provide strong evidence of international acceptance but does not replace the broader legal analysis of Statehood.

Collective Recognition

Recognition may sometimes occur through collective action or institutional processes.

For example, a group of States may jointly recognise a new State or an international organisation may participate in processes concerning its status.

However, collective recognition does not eliminate the need to consider the underlying requirements of Statehood.

Non-Recognition

States may deliberately refuse to recognise a particular State, government or territorial situation.

Non-recognition may arise because of:

• unlawful use of force;
• unlawful annexation;
• violation of self-determination;
• unconstitutional seizure of power;
• other serious violations of International Law.

The principle of non-recognition is particularly important where an illegal situation has been created through prohibited conduct.

Stimson Doctrine

The Stimson Doctrine, associated with the United States’ response to Japanese actions in Manchuria in the early twentieth century, is historically important for the development of the principle of non-recognition of territorial acquisitions resulting from unlawful force.

The broader principle later became important in the development of International Law concerning unlawful territorial situations.

Recognition and Unlawful Situations

International Law does not require States to recognise situations created through serious violations of fundamental international rules.

This is particularly important in relation to:

• unlawful territorial acquisition;
• serious breaches of self-determination;
• unlawful annexation.

Non-recognition may therefore operate as a legal consequence of certain unlawful situations.

Recognition and Self-Determination

Recognition can become particularly controversial where a new entity claims independence based upon self-determination.

Questions may arise concerning:

• whether the people possess a right to self-determination;
• whether the declaration of independence was lawful;
• whether the entity satisfies the criteria of Statehood;
• whether recognition would conflict with territorial integrity.

Recognition therefore cannot be considered independently of the broader rules of International Law.

Important Cases

Tinoco Arbitration, 1923

The Tinoco Arbitration is an important authority concerning recognition of governments.

The dispute involved the validity of acts undertaken during the Tinoco regime in Costa Rica.

The tribunal did not treat the lack of recognition by other States as automatically determining the legal validity of the government’s acts.

The case demonstrates the distinction between:

• recognition of a government;
• actual governmental authority;
• legal consequences of governmental acts.

Luther v. Sagor, 1921

The case concerned the consequences of recognition of a foreign government by the British Government.

It illustrates the importance of governmental recognition in domestic courts and the legal consequences that may follow from recognition.

Carl Zeiss Stiftung v Rayner & Keeler Ltd, 1967

The case concerned questions relating to recognition of governments and the consequences of governmental change in the context of English law.

It demonstrates the importance of the executive’s position concerning recognition in domestic legal proceedings.

Kosovo Advisory Opinion, 2010

The ICJ considered the legality of Kosovo’s declaration of independence.

Although the case was primarily concerned with the legality of the declaration rather than recognition itself, it is relevant to discussions of Statehood, independence and recognition.

Recognition and Domestic Courts

Recognition may have important consequences before domestic courts.

Domestic courts may need to determine:

• which government represents a foreign State;
• whether a foreign government is recognised;
• whether certain governmental acts should be given legal effect.

In many legal systems, the executive’s position on recognition has significant importance in such questions.

Recognition of Government vs Recognition of State

A State may exist continuously even though its government changes.

For example:

State A

↓

Government changes

↓

State A continues

The issue is therefore not whether State A exists, but which authority legally represents State A.

This is why recognition of governments is fundamentally different from recognition of States.

Withdrawal of Recognition

Recognition may sometimes be withdrawn or altered, particularly where the factual or legal circumstances change.

However, the legal consequences of withdrawal depend upon:

• the type of recognition;
• the circumstances;
• the conduct of the recognising State;
• applicable International Law.

Withdrawal of recognition of a government does not necessarily mean that the State itself has ceased to exist.

Recognition and Statehood

Recognition should not be confused with the objective requirements of Statehood.

An entity may claim to satisfy the requirements of:

• population;
• territory;
• government;
• international capacity.

The question of whether other States recognise it is a separate issue.

This distinction is particularly important under the declaratory theory.

Recognition and International Legal Personality

Recognition may facilitate an entity’s participation in international relations, but the existence of international legal personality depends upon the applicable rules of International Law.

States possess international legal personality by virtue of their Statehood.

The extent to which recognition affects that personality remains the subject of theoretical debate.

Topic at a Glance

Point	Position
Subject	Recognition of States and Governments
Recognition of State	Acceptance of Statehood
Recognition of Government	Acceptance of authority representing an existing State
Main theories	Constitutive and declaratory
Montevideo criteria	Population, territory, government, international capacity
Express recognition	Formal declaration
Implied recognition	Recognition inferred from conduct
De facto recognition	Recognition based principally on factual control
De jure recognition	Full legal recognition
Government recognition	Often considers effective control and legitimacy
Non-recognition	May apply to unlawful situations
Important cases	Tinoco, Luther v Sagor, Carl Zeiss
Key distinction	State recognition ≠ Government recognition

Quick Revision

• Recognition of a State concerns acceptance of an entity as a State.
• Recognition of a government concerns acceptance of an authority as the government representing an existing State.
• Recognition of a State and recognition of a government are therefore different concepts.
• The two principal theories of recognition are:
  • constitutive theory;
  • declaratory theory.
• The declaratory theory considers Statehood to arise from objective requirements rather than recognition.
• The Montevideo Convention, 1933 identifies four traditional criteria of Statehood.
• Article 3 of the Convention supports the independence of a State’s political existence from recognition.
• Recognition may be:
  • express;
  • implied;
  • de facto;
  • de jure.
• Effective control has traditionally been important in recognition of governments.
• Modern practice may also consider constitutional legitimacy and other legal factors.
• A change of government does not normally terminate the State itself.
• A government in exile may continue to receive international recognition in appropriate circumstances.
• Recognition is closely connected with diplomatic relations but is not necessarily identical to them.
• States may refuse to recognise situations created through serious violations of International Law.
• The principle of non-recognition is particularly important in cases involving unlawful territorial acquisition.
• Tinoco Arbitration is an important authority on recognition of governments.
• Luther v. Sagor and Carl Zeiss illustrate the domestic consequences of governmental recognition.
• Recognition does not automatically mean that the recognising State agrees with the policies of the recognised entity.
• The essential distinction is:

Recognition of a State concerns Statehood; recognition of a government concerns the authority representing an existing State.

Conclusion

Recognition is an important mechanism through which States respond to the emergence of new States and governments. Recognition of a State concerns whether an entity is accepted as a State possessing international legal personality, while recognition of a government concerns which authority is accepted as representing an already existing State. The constitutive and declaratory theories provide different explanations of the legal effect of recognition. Recognition may be express or implied and may historically be described as de facto or de jure. In relation to governments, effective control has traditionally been important, although modern international practice may also consider constitutional legitimacy and compliance with international law. States may also refuse to recognise unlawful situations, particularly those resulting from serious violations of fundamental international rules. Recognition therefore has both legal and political significance, but it must always be distinguished from the underlying concepts of Statehood, sovereignty and government.