Recognition in International Law

Abstract

Recognition occupies a central place in state practice and in the literature, but this does not necessarily mean that it is, properly speaking, a legal institution. First and foremost, recognition is a political act whereby a subject of international law, whether a state or any other entity with legal personality, expresses its unilateral interpretation of a given factual situation, be it the birth of a new state, the coming to power of a new government, the creation of a new intergovernmental organization, the status of an insurgent, the outcome of an election, the continuation of a defunct state by another, a specific territorial arrangement, and so on. In that sense, recognition is a formal expression by its author about how it perceives the situation to which it extends recognition. Recognition simultaneously constitutes a means for its author to make known its own view of a situation, including the legal consequences, if any, that the author attributes to the situation and on which the author intends to base its policy. With a few exceptions, recognition remains discretionary. Any subject of international law decides for itself how it interprets and construes the facts or the situation that is the object of recognition. The subject may also decide not to express any position at all. Once granted, recognition can also be subsequently withdrawn if the author changes its interpretation (and policies) or wishes to make it known differently. Although a political act, recognition deeply affects the international legal system and bears wide-ranging legal effects in both the international and the domestic legal orders. International legal scholars have mostly focused on the international and domestic legal effects of recognition as well as the forms and modes in which and whereby it is extended. It is noteworthy that the forms, modes, and legal effects of recognition have been primarily studied in connection with the birth or extinction of states as well as the coming to power or overthrow governments. But, as was previously stated, recognition can potentially be directed at many other situations that states judge require a reaction. The discretionary character of recognition has been increasingly qualified by the development in positive international law of an obligation not to recognize that has been systematized and studied in the framework of international responsibility and that applies in many situations besides the birth of new states or illegal acquisition of territory. This constitutes another, more recent angle from which recognition has been examined in the literature.

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