By Samuel Lindsay
Put simply, recognition is a statement or act by a State indicating the status in international law of another entity. The entity in question may be a State or a government. If it is a government, the recognition may be de facto or de jure. The former is a cautious and reversible assessment of a factual scenario as it stands, whereas the latter is more definitive and more explicitly legal. The United States’ recognition of Israel should demonstrate the point.
On 14 May 1948, President Harry Truman issued a press release stating ‘The United States recognizes the provisional government as the de facto authority of the new State of Israel.’ Not only did this provide recognition for the new State of Israel, it also provided de facto recognition for the provisional government. Next, on 31 January 1949, six days after the first elections were held for a permanent government, President Truman issued a press release stating ‘The United States Government is … pleased to extend de jure recognition to the Government of Israel as of this date.’ Thus, having become more definitive with the election of a permanent government, the United States was formally prepared to recognise the Israeli government in legal terms.
The effect of recognition, however, is the major sticking point. The chief question is whether recognition is a legal act, endowing the other State with international legitimacy, or a political act, merely facilitating relations between the two States in issue. This has important implications for statehood. Using our example of Kosovo, if recognition is legal, Kosovo requires other States to recognise it in order for it to attain statehood. If recognition is political, Kosovar recognition is irrelevant for the attainment of statehood and important only insofar as it establishes relations with other States. In legal jargon, the former is referred to as the constitutive theory whereas the latter the declaratory theory.
Entry into the constitutive-declarative debate would be a three-part blog in itself, so it is sufficient at this point to appreciate that neither (standing alone) can fully explain international recognition. For instance, the declaratory theory is superior in that it adopts a legal and objective way of analysing factual situations which is not contingent on the potentially arbitrary opinions of other States. In other words, if Kosovo satisfies the Montevideo Convention and independence, other States should not be able to arbitrarily deprive them of statehood by failing to bestow recognition. The declaratory theory also has the practical benefit of being supported by a substantial body of judicial opinion (see the Tinoco Arbitration, Deutsch Continental Gas, and Aaland Islands cases). However, it fails to account for situations of illegality, where non-recognition may actually imply lack of status as a State. For example, when the apartheid government of Rhodesia made a Unilateral Declaration of Independence in 1965, a UN Security Council Resolution (216) calling upon States not to recognise the ‘illegal racist minority regime’ and the subsequent universal non-recognition effectively deprived Rhodesia of the ability to act as a State. This was despite it substantially fulfilling the other criteria for statehood.
Conversely, the constitutive theory is premised on the positivist philosophy that if the obligation to obey international law derives from the consent of individual States, consent (through recognition) is required for a State to become subject to, and participate in, international law. However, if recognition is required, how many States need to recognise an entity before it becomes a State? How can an entity be both a State and not a State? Surely countries should not be able to circumnavigate their international legal obligations toward other entities by unilaterally choosing not to recognise them? These are just some of the problems associated with the constitutive theory.
For our purposes, much of this legal debate is irrelevant. Even if the constitutive theory is accepted, Kosovo is likely to satisfy a criterion of recognition. Not only has it been recognised by 111 UN member States, it is also a member of the IMF and the World Bank. Such recognition is highly likely to be considered sufficient for statehood, even in the absence of recognition from Serbia.
Fourthly, are there reasonable grounds for concluding that Kosovo has attained statehood?
Having likely satisfied the Montevideo Convention, independence, and even recognition, there are certainly reasonable grounds for considering Kosovo to be a State. To achieve incontestable statehood status, the final pieces in the puzzle are likely to be the withdrawal of resolution 1244 and recognition from Serbia.
Samuel Lindsay is a second-year Juris Doctor student at the University of Western Australia who, after a three-part series, is starting to run out of witty taglines.
For more information on statehood, and Kosovo in particular, please see:
James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2nd ed, 2007).
Marko Milanovic and Michael Wood (eds), The Law and Politics of the Kosovo Advisory Opinion (Oxford: Oxford University Press, 2015), particularly the chapter by James Crawford, ‘Kosovo and the Criteria for Statehood in International Law’ at 280.