Recognition Non Recognition in Internati

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Recognition/Non-recognition in International Law (Fourth/Final ILA Report)
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THE
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MULTIS MELIOR PAX UNA TRIUMPHIS
REPORT
OF THE
SEVENTY-EIGHTH CONFERENCE
HELD IN
SYDNEY
19–24 August 2018
London
2019
Editors: Professor Marcel Brus; Alexander Kunzelmann
Reporters: Charlotte Ball; Andrew Banks; Rhiannon Bell; Rebecca Brown;

Eugene Cheung; Callum Christodoulou; Patricia de Souza; Natalie Hodgson;
Olivia Irvine; Crystal Ji; Scott Joblin; Zsofia Korosky; Nina Mao; Timothy Morgan;
Alexandra Nielson; Esther Pearson; Shannon Peters; Georgia Pick; Amparo Santiago;
Annabelle Spence; Abigail Stevens; Rose Vassel; Lee Walker; Meg Winton;
Jessie Zhang
Published by the International Law Association,

Charles Clore House, 17 Russell Square, London WC1B 5DR
Printed in Aberystwyth, Wales, UK by Cambrian Printers

Typeset by JS Typesetting Ltd, Porthcawl, Wales
ISSN 0074-6738
INTERNATIONAL LAW ASSOCIATION
SYDNEY CONFERENCE (2018)
RECOGNITION/NON-RECOGNITION IN INTERNATIONAL LAW
Members of the Committee
Professor Wladyslaw Czaplinski (Polish):Chair

Professor Christopher Borgen (American): Co-Rapporteur
Professor Aziz Tu Saliba Brazilian Co-Rapporteur
Dr Valentina Azarova (Headquarters) Professor Enrico Milano (Italian)

Professor Chun-i Chen (Chinese (Taiwan)) Dr Robert Muharremi (Albanian)
Alternate: Professor Pasha Hsieh Professor Stefan Oeter (German)
Dr Aristotle Constantinides (Hellenic) Dr Alison Pert (Australian)
Professor Gerhard Hafner (Austrian) Alternate: Stephen Tully
Professor Shotaro Hamamoto (Japanese) Professor Yaël Ronen (Israeli)
Professor Matthew Happold (British) Professor Brad Roth (American)
Mr Daud Ilyas (British) Alternate: Professor Chris Naticchia
Dr Natia Kalandarishvili-Mueller (Swiss) Professor Werner Scholtz (South African)
Dr Khoti Kamanga (East African) Professor Mirjam Skrk (Slovene)
Nicholas Levrat (Swiss) Professor Christopher Waters (Canadian)
Rick Liew (Australian) Professor Andreas Zimmermann (German)
Professor Margaret McGuinness (American)
FOURTH (FINAL) REPORT
INTRODUCTION: OLD QUESTIONS AND NEW PROBLEMS
In the broadest sense, “recognition involves the acceptance by a State of any fact or situa-
tion occurring in its relation with other States.”1 States may recognize that another entity
is itself a State or that a particular group of people and institutions are the government of
a State. States may also recognize situations such as territorial change, or the administra-
tive or judicial decisions of the organs of a government or, historically, the existence of
a belligerency, although this last form of recognition has fallen out of common practice.2
Of these, the question of recognizing statehood is of central concern to the modern inter-
national system. The Committee on Recognition and Non-recognition in International
Law was established by the Executive Council of the International Law Association
(ILA) in May 2009, with the purpose of examining “whether contemporary issues of
1
1 Oppenheim’s International Law §38 at 127 (Robert Jennings & Arthur Watts, eds., 9th ed. 1992)
2
But, see, regarding belligerency, the discussion in part IV.A.1, below.
462 International Law Association
secession, break-up of States and the creation of new States have changed international
law and policy with respect to recognition.”
Early in its deliberation, the Committee on Recognition and Non-recognition decided to
focus its e orts on the key uestions of the recognition of States and the recognition of
governments The three reports preceding this final report assessed theoretical perspec-
tives and arguments and surveyed international and domestic practice concerning the
recognition of States and of governments. In doing so, the Committee not only addressed
the most common and the most pressing questions of recognition and non-recognition,
but also shed light on other aspects of recognition (such as the recognition of belliger-
ency, of territorial change, and of administrative acts of a putative State or government)
as an incidental matter.
The Committee first met at the 010 ILA Conference in The Hague, Netherlands It also
held meetings at the 2011 Regional ILA Conference, in Taipei, Taiwan, in Vienna in
January 01 , in the 01 ILA Conference in Sofia, Bulgaria, in Warsaw in June 013,
at the 2014 ILA Conference in Washington, D.C. , and the 2016 ILA Conference in
Johannesburg. Also, members of the Committee presented aspects of the Committee’s
work at the meeting of the American Branch of the ILA in October 2016.
The irst Report of the Committee was presented at the 01 ILA conference in Sofia
It focused on the fundamental aspects of recognition of States. The Second Report, pre-
sented at the ILA Conference in Washington, D.C. in 2014, focused on the international
and domestic aspects of non-recognition and unrecognized entities. The Third Report,
written for the 2016 ILA Conference in Johannesburg,, considered the issue of recogni-
tion of governments or each of the first three reports, Committee members prepared
memoranda addressing questions concerning theoretical issues and current practice.
Each report was largely based on memoranda submitted by Committee members. None
of the reports was an exhaustive catalogue of State practice as, in each case, the number
of States in the sample is small.3 Nonetheless, we believe that the thoughtful analysis of
3
This report is based primarily on the research and findings of the three previous reports,
International Law Association Committee on Recognition/Non-Recognition in International
Law, Sofia Conference Report 01 hereafter irst Report ; International Law Association
Committee on Recognition/Non-Recognition in International Law, “Washington Conference
Report” (2014) [hereafter “Second Report”]; and, International Law Association Committee on
Recognition/Non-Recognition in International Law, “Johannesburg Conference Report” (2016)
[hereafter “Third Report”]. All reports and other Committee documents are available via the link to
the Committee’s webpage at <www.ila-hq.org/index.php/committees>.
All Committee member memoranda submitted in preparation of these reports included argument
and analyses by the author(s) as well as a discussion of State practice. Committee member
memoranda were not required to only discuss practice from their own State.
The First Report drew from examples of practice submitted in memoranda by the following
members: Austria (Gerhard Hafner), Australia (Alison Pert and Stephen Tully), Belgium (Jean
D’Aspremont), France (David Ruzié), Italy (Monica Lugato and Enrico Milani), Israel (Yaël
Ronen), Japan (Nisuke Ando and Shotaro Hamamoto), Russia (Petr Kremnev), South Africa (Werner
Scholtz), Tanzania (Khoti Kamanga), United Kingdom (Matthew Happold and Daud Ilyas), and the
United States (Christopher Borgen, Margaret McGuinness and Brad Roth). Additional research was
conducted on Algeria, Argentina, and Brazil.
Recognition Non-Recognition in International Law 463
a diverse, though small, sample of States can lead to insights and point the way to further
research.
This final report summarizes, weaves together, and expands upon key ideas from the first
three reports and suggests possible areas for future research. After this introduction, this
report proceeds in four parts. Part I will consider the recognition of States and Part II the
recognition of governments. Part III will focus on the domestic processes and domestic
e ects of decisions to recognize or not recognize an entity as a State or government Part
IV will brie y consider the relationship of the work of the Committee to other forms of
recognition and will point to possible topics for future study. The Conclusion of the report
will underscore the key doctrinal results of the work of the Committee.
I. THE RECOGNITION OF STATES

A Defining Statehood
1. Reassessing the Montevideo Criteria
Statehood is the “gold standard” of international relations. As Nina Caspersen put it,
“[e]arlier international systems included overlapping sovereignties, colonies, and trustee-
ships but this has given way to a world in which ‘there are states and there is little else’.”
4
Committee member Yaël Ronen has written in a recent book that “[w]hat distinguishes
statehood as a type of personality in international law is its universality—all entities
which are states share a determined set of rights and duties, powers and immunities,
which have developed through practice and are regarded as an acceptable basis for inter-
national interaction.”5 Consequently, delineating which entities are—and are not—States
is a basic question for the ordering of rights and duties among actors. The Committee
The Second Report drew from the following memoranda Australia (Alison Pert), Austria (Gerhard
Hafner), Cyprus (Aristoteles Constantinides), Greece (Aristoteles Constantinides), Israel (Yaël
Ronen), Italy (Monica Lugato and Enrico Milano), Poland (Wladislaw Czaplinski), the Russian
Federation (Petr Kremnev), South Africa (Werner Scholtz), the United Kingdom (Daud Ilyas), and
the United States (Christopher Borgen, Margaret McGuinness, and Brad Roth).
The Third Report drew from examples of practice submitted in memoranda by the following
members: Austria (Gerhard Hafner), Australia (Alison Pert), Canada (Christopher Waters), Cyprus
(Aristoteles Constantinides), France (David Ruzié), Greece (Aristoteles Constantinides), Italy
(Enrico Milano), Japan (Shotaro Hamamoto), Kosovo (Robert Muharremi), Palestine (Valentina
Azarova), Slovenia (Mirjam Škrk), Taiwan (Chun-I Chen and Pasha Hsieh), Tanzania (Khoti
Kamanga), The Netherlands (Olivier Ribbelink), United Kingdom (Daud Ilyas and Matthew
Happold), and the United States (Christopher J. Borgen, Margaret E. McGuinness, and Brad Roth).
Additional research was conducted concerning the practice of Brazil.
In order to avoid confusion, all further citations to these memoranda will follow the convention
of citing to the author(s), year of the related Report and, in parentheses, the State or other entity
whose practice is the main focus of the memo (although the memo may also discuss other theory and
practice, as well). Thus, for example: Lugato and Milano 2012 Memo (Italy).
4
Nina Casperen, Unrecognized States 3 (2012).
5
Yaël Ronen, Entities that can be States, in Duncan French (ed.), Statehood and Self-Determination:
Reconciling Tradition and Modernity in International Law 23 (2013).
framed this as two related but distinct issues: The criteria of statehood and the relation-
ship of these criteria to the law and practice of recognition.6
The Montevideo Convention on the Rights and Duties of States (1933) is the common
starting point in discussions of the criteria of statehood.7 Article I states that “the state as
a person of international law should possess the following ualifications a permanent
population; b defined territory; c government; and d capacity to enter into relations
with other States.”8
Within a few years of the conclusion of the Montevideo Convention, jurists from around
the world adopted its framing of the criteria of statehood.9 Committee member memo-
randa show that the practice of States that are not parties the Convention (Australia10,
Austria11, Japan, South Africa, Tanzania,12 and the United Kingdom13) as well as those
6
See, First Report, at 5–10.
7
Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, 165 U.N.T.S. 19
[hereafter “Montevideo Convention”]. The Montevideo Convention is available at < http://www.
oas.org/juridico/english/treaties/a-40.html >.See, also, First Report, at 7–8.
8
Montevideo Convention, Art. 1.
9
See, for example, Resolution of the Institut de Droit International, “La reconnaissance des
nouveaux Etats et des nouveaux gouvernments,” art. 1 (1936), available at http://www.idi-iil.
org/app/uploads/2017/06/1936_brux_01_fr.pdf. See also, Jessica Almqvist, “The Politics of
Recognition,” in Duncan French, ed., Statehood and Self-Determination: Reconciling Tradition and
Modernity in International Law 165, 167 (2013). But, see, Jean d’Aspremont, “The International
Law of Statehood and Recognition: a Post-Colonial Invention,” 10–13 (draft: October 29, 2017)
forthcoming in La Reconnaissance du Statut d Etat des Entit s Contest es (2018) (critiquing the
use of the Montevideo Convention as a “formal repository of the doctrine of statehood”) available
at https://ssrn.com/abstract=3061371.
10
The First Report quoted the following: “The Australian government requires satisfaction of the
following criteria a permanent population, a defined territory, a capacity for e ective government
and a capacity to have relations with other nation-states – in this note referred to for convenience
as the Montevideo criteria...” Pert and Tully 2012 Memo (Australia); see, also, First Report, at 6,
footnote 38.
11
The First Report quoted the following: “Certain statehood criteria are unanimously required in the
practice of states They include a permanent population, a defined territory, a government and the
capacity to enter into relations with the other states and are expressed in Article 1 of the Montevideo
Convention. Austrian diplomatic practice has invoked these criteria in the context of statehood.”
Gerhard Hafner 2012 Memo (Austria); see, also, First Report, at 6, footnote 39.
12
The First Report quoted the following: “African policy makers are no doubt familiar with the
criteria of statehood as set out in the Montevideo Convention, 1933, that is to say, permanent
population, defined territory, government, and finally, the capacity to enter into relations with other
States.” Khoti Kamanga 2012 Memo (Tanzania) see, also, First Report, at 6, footnote 41.
13
Matthew Happold observed in his 2012 memorandum:
The criteria which the UK Government purports to apply for the recognition of States were set out in a
Written Answer dated 16 November 1989 by the then Parliamentary Under-Secretary of State for Foreign
and Commonwealth A airs, and are that It should have, and seem likely to continue to have, a clearly
defined territory with a population, a Government who are themselves able to exercise e ective control of
that territory, and independence in their external relations. Other factors, including some United Nations
resolutions, may also be relevant.
Matthew Happold 2012 Memo (UK), as quoted in First Report, at 6, footnote 42.
from parties to the Convention (Brazil and the United States)14 support the view that
the Montevideo Convention provides the basic criteria for statehood.15 The First Report
also observed that “[a]s one looks into the responses presented by the national reporters,
one may see that even in cases where there was no express mention of the Montevideo
Convention, there was substantial overlap between the criteria used by di erent countries
and the Montevideo formula.”16
While discussions of the criteria of statehood often begin with Montevideo Convention
Article I, that does not mean that they end there. Through the course of the Committee’s
study of the Convention, three themes emerged: (a) critiques of a strict construction of
Article I; (b) the extent to which the Montevideo criteria (and similar conceptions of
statehood were essentially based on the principle of e ectiveness; 17 and, (c) crite-
ria outside Article I of the Montevideo Convention that may weigh in an assessment of
whether an aspirant entity has achieved statehood.
14
The First Report quoted Borgen, McGuinness and Roth:
Section 201 of the Restatement (Third) of Foreign Relations Law states: ‘Under international law, a state is
an entity that has a defined territory and a permanent population, under the control of its own government,
and that engages in, or has the capacity to engage in, formal relations with other such entities.’ This
echoes the Montevideo criteria of statehood, which, as the Reporters’ Notes to the Restatement indicate,
largely re ects the declaratory view This section Section 01 tends towards the declaratory view, but
the practical di erences between the declaratory and constitutive views have grown smaller Even for
the declaratory theory, whether an entity satisfies the re uirements of statehood is, as a practical matter,
determined by other states.’
First Report, at 6, footnote 44, quoting Christopher Borgen, Margaret McGuinness, and Brad Roth
2012 Memo (US); see, also, Restatement (Third) of Foreign Relations Law of the United States § 202
(1987) [hereafter “Restatement (Third)”] .
15
First Report, at 6–7.
16
See, for instance, from the memorandum of Monica Lugato and Enrico Milano:
State practice shows adherence to certain classic criteria e ective and independent government, territory,
population, [the] will to be considered a State). The demand for territorial stability has also led to a clear
a rmation of the principle of uti possidetis in di erent contexts
Monica Lugato and Enrico Milano 2012 Memo (Italy) as quoted in the First Report, at 6, footnote
45 (bracketed text added).
The memo considering Japan s State practices explained that an o cial document listed the criteria
as e ective political authority over the population living in a certain territory Shotaro Hamamoto
2012 Memo (Japan) as quoted in the First Report, at 9.
The irst Report also stated that the memorandum on Israeli practice noted one o cial document
referring to the “The traditional criteria for statehood.” Yael Ronen 2012 Memo (Israel), citing to
E ective and independent governmental control, the possession of defined territory, the capacity
to freely engage in foreign relations and e ective control over a permanent population available
at <http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Unilateral+
Palestinian+Declaration+of+Statehood-.htm>; see, First Report, at 6, footnote 45.
17
James Crawford, The Creation of States 97 (2nd ed. 2006). See also Antônio Augusto Cançado
Trindade, “States as Subjects of International Law and The Expansion of International Legal
Personality, International Law for Humankind,” 316 Recueil des Cours, 203–219 (2006), available
at <http www ni ho online nl/ >.
a. Critiquing Montevideo
The Committee noted that a strict construction of the Montevideo factors has been cri-
tiqued by jurists.18 For example, in his book Democratic Statehood and International
Law, Jure Vidmar warns of placing too much emphasis on the capacity to enter into
foreign relations as that is itself “a corollary of a sovereign and independent govern-
ment.”19 And James Crawford has called the capacity to enter into foreign relations a
“consequence… not a criterion” of statehood.20
Committee members were similarly cautious about putting too much emphasis on the
capacity to enter into foreign relations, explaining that it is probably “[t]he most criti-
cized of the four elements of the Montevideo formula.”21 The report continues,22 stating:
There are di erent grounds for ob ection It may be said that such capacity is,
in e ect, a conse uence, rather than a condition of statehood 23 One may also
argue that such capacity is not exclusive of States and, therefore, not particularly
useful to distinguishing States from other entities.24 International Organizations
and, in some cases, even sub-unities of a State, such as provinces25, länder or “state
members of a federation”, may also conclude treaties.26
While various jurists over the years have shown concern over placing too much weight
on the capacity to enter into foreign relations, in and of itself, there has been an emphasis
on the importance of the factual independence of an entity claiming statehood. Quoting
Charles Rousseau, Crawford has argued that independence from other States is the “deci-
sive criterion of statehood.”27 Moreover, Rosalyn Higgins had observed that although
“[n]o state is totally without dependence on some other state… it is important that, when
18
19
Jure Vidmar, Democratic Statehood and International Law 41 (2013).
20
Crawford, The Creation of States (n 17), at 61, as quoted by ,Vidmar (n 19), at 41.
21
First Report, at 7, citing to Brad Roth, “Secessions, Coups, and the International Rule of Law:
Assessing the Decline of the E ective Control Doctrine, 11 Melbourne Journal of International
Law 1, 7 (2010)
22
The following text is from the First Report, at 7. Citations are to the sources from that report.
23
The First Report quoted and cited to Ingrid Detter Delupis, The International Legal Order 43
(1994). First Report, at 7, footnote 50. It also noted that James Crawford observed that
Capacity to enter into relations with States at the international level is no longer, if it ever was, an exclusive
State prerogative. True, States preeminently possess that capacity, but this is a consequence of statehood,
not a criterion for it – and it is not constant but depends on the situation of particular States.
Crawford, The Creation of States (n 17), at 61, as quoted by the First Report, at 7, footnote 50
24
The irst Report cited to, and uoted in the footnote, Thomas Grant, Defining Statehood The
Montevideo Convention and its Discontents,” 37 Columbia Journal of Transnational Law 403, 435
(1998) (arguing that “[e]ven if capacity were unique to states, the better view seems to be that,
though capacity results from statehood, it is not an element in a state’s creation.”) First Report, at 7,
footnote 51 (quoting Grant).
25
The First Report cited to Charles-Emmanuel Coté, “La réception du droit international en droit
canadien,” 52 Supreme Court Law Review 483 (2010).
26
The irst Report uoted and cited to Grant, Defining Statehood n 4 , at 434
27
James Crawford, Chance, Order, Chaos, at 193–94, para. 240 (2014). For an analysis of external
sovereignty as independence, Crawford points to Customs Regime between Germany and Austria
Advisory Op. (1930 PCIJ Ser. A/B no. 41 p.57 (Judge Anzilotti).
an entity makes its claim to be a state for a comprehensive purpose such as joining the
United Nations, it is not simply an emanation of another state, lacking an essential core
of independence.”28
Taking these observations in total, the ongoing relevance of the Montevideo criteria is
best understood not as a single bright-line rule of what makes a State but as a core set of
attributes. The more an entity can demonstrate these attributes, then the more persuasive
may be its argument for statehood. 29
b. E ectiveness and Statehood

Paramount in any such discussion is considering the role of e ectiveness, an attribute
of statehood that is often at the heart of discussions even though it is not listed in Article
I of the Montevideo Convention. The First Report acknowledged that although “there
are competing views of what e ectiveness means, it may be understood as the e ective
control of an independent government over a permanent population and a defined
territory.’”30 Under this approach:
[T]he exercise of state authority over a certain territory and population would
mean e ectiveness and necessarily amount to existence of a State Conversely,
there could not exist a State without e ectiveness 31
The Committee was skeptical of such a conclusion. The First Report, in part drawing
from the scholarship of Committee member Brad Roth as well as from Crawford’s trea-
tise, noted how State practice does not support e ectiveness as the determinative ues-
tion.32 The Committee also noted:
28
Rosalyn Higgins, Problems and Processes: International Law and How to Use It 41 (1994).
Higgins impliedly argues that making a case for statehood, when UN membership is actually at
stake, may be more di cult than claiming statehood for a more limited purpose Higgins, at 4
29
But note the caveats concerning the concept of e ectiveness in Part I A 1 b
30
First Report, at 9, citing to Roth, “Secessions, Coups, and the International Rule of Law” (n 21),
at 7. The First Report also explained in footnote 64 that:
Orakhelashvili presents a similar notion: “As part of the factual criteria of statehood, e ectivit refers to
the e ective exercise of state authority over the relevant territory Alexander Orakhelashvili, Statehood,
Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo. Max-
Planck Yearbook of United Nations Law, vol. 12, 1, 9, (2008).
31
irst Report, at In addition, the Swiss Department of oreign A airs has written
According to the prevailing three-element doctrine, this requires state territory, a state people, and state
power i e a government that is e ective and independent both externally and internally, as an expression
of state sovereignty)/ Only the actual circumstances are relevant to the assessment of statehood (the
e ectiveness principle
ederal Department of oreign A airs of Switzerland, The recognition of states and governments
under international law,” 1 available at https://www.eda.admin.ch/dam/eda/en/documents/
aussenpolitik/voelkerrecht/PDF_Anerkennung__en_05.pdf (accessed on June 19, 2018) [hereafter
Swiss Recognition Paper].
32
The First Report quoted the following in footnote 66:
As independent criteria for statehood, permanent population and defined territory merely beg the
question, since virtually all statehood claims, whether or not accepted in the international legal order,
characteristically include su ciently precise claims on behalf of a permanent population to a defined
territory. What matters in the Montevideo Convention context is that the ‘permanent population’ and
defined territory be united by some common and distinguishing pattern of e ective governance Thus, if
There have been cases of e ective entities which were not regarded as States as
well as non-e ective entities which were considered States Rhodesia and the
Turkish Republic of Northern Cyprus are examples of the former, whereas entities
unlawfully annexed in the period of 1936 to 1940 (Ethiopia, Austria or Poland) are
illustrative of the latter.33
Aside from e ectiveness, the Committee also considered whether other attributes may
have become criteria for statehood in modern practice.
c. Does State Practice Evidence Additional or Di erent Criteria than the Montevideo
Criteria?
In cases as varied as the Latin American states in 19th century and the newly independent
states in the 1990’s, States have demanded “conditions on entities seeking recognition.”34
In light of this, the Committee decided to address whether international relations show
that there are additional or di erent criteria for statehood from those enumerated in the
Montevideo Convention.35 The Committee warned, however, that “[o]ne must be care-
ful… not to confuse criteria of statehood with criteria of recognition (or conditions of
taken as the legal standard for international personality, the Montevideo criteria would confer sovereign
rights, obligations, powers, and immunities on any territorially-coherent political community found under
the long-term e ective control of an independent government However, such a standard falls far short of
capturing the essence of traditional recognition practice.
Roth, “Secessions, Coups, and the International Rule of Law” (n 21), at 7. Higgins has written that
“[w]e only have to mention Rwanda, Burundi, and Congo (Zaire) to recall that statehood, for the
purpose of UN admission, was attributed even when the new governments clearly lacked e ective
control.” Higgins (n 28), at 40.
33
First Report at 9; citing to Crawford, The Creation of States (n 17), at 97. The First Report also
noted that Roth has cited the Democratic Republic of the Congo in 1960, and Angola in 1975 as
examples of States that have been recognized without a central government having established
e ective control throughout the territory Roth, Secessions, Coups, and the International Rule of
Law” (n 21), at 7.
34
Mikulas Fabry, Recognizing States: International Society and the Establishment of New States
since 1776 181 (Oxford University Press 2010). The Committee noted State practice by the US and
the EC in 1991 setting guidelines for recognition of the newly independent States that included, as
the First Report summarized:
respect for the provisions of the Charter of the United Nations, to the rule of law, democracy and human
rights, guarantees for the rights of ethnic and national groups and minorities, respect for the inviolability
of all frontiers, acceptance of all relevant commitments with regard to disarmament and nuclear non-
proliferation as well as to security and regional stability and commitment to settle by agreement, including
where appropriate by recourse to arbitration, all questions concerning State succession and regional
disputes Nevertheless, Grant a rms that professed commitment to the December 16 Guidelines did not
(...) translate into practice uniformly.”
First Report, at 7–8 (internal citations omitted).
35
See, for example, the discussion in Ian Brownlie, Principles of Public International Law 70–76
(6th ed. 2003), noting but largely setting aside other possible criteria, including, among others, a
degree of permanence, willingness to observe international law, and a certain degree of civilization.
recognition)”36 as “[t]here is no question that a State can come into existence without
being democratic or having respect for minority rights…”37
The memorandum from the Committee members from the Australian branch posited the
non-violation of international law and respect for territorial integrity of States may be
“implied criteria” for the recognition of States.38 The memorandum regarding the practice
of Israel commented that it “is illegal (and invalid) to recognize statehood that follows
a violation of a legal commitment. In addition, Israel holds that as a matter of policy,
recognition should follow consensual rather than unilateral processes.”39 And the memo
concerning Japan s practice stated that that country, in addition to demanding e ective
political authority over the population living in a certain territory”, also „takes into acco-
unt whether the entity has the will and the capacity to observe international law.”40
2. Conclusions
The Montevideo criteria still provide the basic framework for assessing whether an entity
meets the key characteristics of a State. While the Montevideo Convention provides the
terms under discussion, those terms are not applied as a mechanistic, bright-line test.
E ective control or the lack thereof can also play a role in determining the status
of an entity, but it is not a litmus test. While other possible attributes of statehood have
36
irst Report, at 7 The Swiss ederal Department of oreign A airs has observed that
In recent state practice recognition has often been contingent on the fulfilment of certain conditions, for
example compliance with the UN Charter or observance of the rule of law, democracy and human rights.
From the viewpoint of international law, however, these are not criteria for recognition but conditions of a
political nature, formulated in relation to the establishment of diplomatic relations…
For the sake of the certainty of international law, Switzerland as a general principle refrains from setting
additional conditions for recognition. It reserves the right, however, in the process of deciding whether
to recognize a state, to take other factors into account, viz. the attitude of the international community of
states or of a group of states with particular relevance for Switzerland.
Swiss Recognition Paper (n 31), at 2.
37
First Report, at 7.
38
For example, see discussion of Australia’s refusal to recognize Rhodesia and the South African
bantustans in Pert and Tully 2012 Memo (Australia); see, also, First Report at 8, footnote 59. It is
perhaps noteworthy that Australia „has recognised Kosovo notwithstanding the lack of consent from
Serbia.” Pert and Tully 2012 Memo (Australia) see, also, First Report, at 8.
39
First Report at 8, quoting Ronen 2012 Memo (Israel).
40
First Report at 8, quoting Hamamoto 2012 Memo (Japan). The First Reports also noted that the
Hamamoto 2012 Memo cites to Mr. Junichiro Koizumi, Prime Minister, Written Answer No. 322,
House of Representatives, 164th Sess., June 16, 2006. <http://www.shugiin.go.jp/index.nsf/html/
index_shitsumon.htm> [in Japanese, translated by the memo’s author]:
Generally speaking, in order for an entity to be recognized as a State, international law requires the entity
to fulfill conditions to be a State, i.e. to establish an e ective political authority over the population living
in a certain territory. Japan also takes into account whether the entity has the will and the capacity to
observe international law… On these bases, we have not recognized North Korea as a State.
The First Report further explained in its footnote 62 that:
Hamamoto observes that The first sentence of the answer uoted above suggests that the general
international practice as understood by Japan sees no di erence between the criteria for the recognition of
States and those for statehood. The second sentence indicates that Japan takes into account an additional
criterion. Japan thus considers that States are free to lay down additional criteria for recognition of States.”
See, First Report at 8–9.
been discussed by jurists, they are best understood not as additions to the criteria of
statehood, but as “preconditions for recognition of statehood” by a particular State or
group of States.41
This leads to the question of whether satisfying these criteria is all that is needed in order
to be a State or if recognition is itself a necessary component of statehood.
B. Reconsidering the Constitutive/ Declaratory Debate

If an entity meets the criteria for statehood, is it a State, regardless of whether it is recog-
nized as such by existing States? This is the heart of the debate over whether recognition
“creates the international personality of a State,” as hypothesized by the Constitutive
Theory, or is merely “a political act that is not a necessary component of statehood,” as
posited by the Declaratory Theory.42 Although the debate over whether the Constitutive
or Declaratory Theory better describes the state of law and practice is well known, the
Committee is skeptical of its practical relevance.43
As a general matter, the Declaratory Theory is ascendant. Proponents of the Declaratory
Theory look to the text of the Montevideo Convention itself and note that Article 3 states
that the political existence of a State is independent of its recognition.44 Crawford has
argued that since a State is not able to treat an entity that meets the characteristics of
statehood as if it were not a state, then the Declaratory Theory is the stronger theory.45
Committee memoranda concerning the practice of Australia, Austria, France, Italy, South
Africa, and the United Kingdom suggested that those countries generally follow the
declaratory theory.46 The First Report also noted that Argentina, based on its statements
to the ICJ in the Kosovo public hearings, also supports the Declaratory theory.
However, while the Declaratory Theory has widespread support, that support may not
be deep. Many members of the Committee are wary to put too much stock in a sharp
delimitation between the theories. The 2012 memorandum concerning Russian practice
noted that the theories seem to have lost their practical significance and in its pure form
are unlikely to be useful.”47 A memo concerning Belgian practice also noted that “a sig-
nificant number of rench authors have backed away from this dichotomy 48 The memo
concerning Italian practice suggested that the dichotomy “is possibly overemphasized or
altogether misleading,”49 and one British member noted that the separation between the
41
Borgen, McGuinness, and Roth 2012 Memo (US), at 3,11.
42
Quotations are from the First Report, at 2 and 3. See also Crawford, The Creation of States (n 17),
at 22.
43
For background on the Constitutive/Declaratory debate, see, First Report, at 2–5.
44
But see Crawford’s critique, Crawford, Chance, Order, Chaos (n 27), at 195, para. 242 (referring
to article 3 as “defectively formulated” and that it should have stated that existence is independent
of the recognition of individual third-party States).
45
Crawford, The Creation of States (n 17), at 27.
46
First Report at 4; see, also, Swiss Recognition Paper (n 31), at 2 (stating “[a]ccording to present-
day state practice, recognition has only a declaratory character, not constitutive (i.e. fundamental or
determining).”).
47
First Report, at 4, quoting Petr Kremnev 2012 Memo (Russia).
48
First Report, at 4, quoting Jean d’Aspremont 2012 Memo (Belgium).
49
First Report, at 4, quoting Lugato and Milano 2012 Memo (Italy)
doctrines “may well be less stark in practice than is often supposed.”50 The memo of the
U S Committee members uestioned whether U S practice could fit neatly into either
the Declaratory or Constitutive Theory, and the memoranda from Japanese and South
African members similarly doubted that either theory was satisfactory in explaining state
practice.51
Thus, while State practice is evidence of the relevance of the Declaratory Theory, there is
also a strong sense that the Constitutive/Declaratory debate has been largely superseded
by a third approach. As we wrote in the First Report:
Beginning with de Visscher, some writers adopted a combined version of the
Declaratory and Constitutive views. In his reply to the Committee, d’Aspremont
observed that, in accordance with this third approach, “recognition is said to be
neither declaratory nor constitutive It simply is a political act which has significant
legal e ects in the international and domestic legal orders This approach is
premised on the idea that the dichotomy between [the] declaratory and constitutive
approaches is insu cient to explain the complexity of the impact of recognition
on the functioning of legal orders. Yet, such an approach is not exclusive of the
idea that recognition occasionally has some declaratory and constitutive e ects
the latter being generally reserved to e ects of recognition under domestic law 52
If the Constitutive/Declaratory debate in and of itself does not greatly clarify the role of
recognition, a more pertinent question is whether States have an obligation to recognize
or to refrain from recognizing entities as States under certain circumstances.
C. Recognition, Obligation, and Responsibility

Is There an Obligation to Recogni e
Although the Second Report was focused on non-recognition, numerous Committee
members also stated that there is no legal obligation to recognize an entity as a State.53
50
First Report, at 4, quoting Daud Ilyas 2012 Memo (U.K).
51
52
First Report, at 3–4, quoting d’Aspremont 2012 Memo (Belgium), which, in turn, refers to the
work of J. Verhoeven, La reconnaissance internationale dans la pratique contemporain – Les
relations publiques internationals (1975) and to d’Aspremont’s own book, Jean d’Aspremont,
L Etat non d mocrati ue en droit international. Etude criti ue du droit international positif et de la
pratique contemporaine (2008) (internal citations omitted.) Crawford notes that some writers, such
as de Visscher, arrived at a theory that had aspects of both the constitutive and declaratory theories.
53
See, Second Report, at 2–3. Examples from State practice include:
Poland. The Second Report quoted Wladislaw Czaplinski’s memorandum that the:
o cial position of Poland is that there is neither political nor legal obligation to recognize states
or other subjects of international law. Each State is free to decide whether it recognizes foreign
States. According to the International Law and Treaty Department of the Ministry of Foreign
A airs, this stance is based upon the Opinion of the Badinter Committee No 10 of 4 July 1
Czaplinski Memo (Poland 2014), at 1.
The UK. “Based on UK state practice and views of leading British commentators, it appears
that recognition as a public act of state is an optional and political act and there is no legal duty to
recognize.” Ilyas 2014 Memo (UK), at 1.
Similarly, a lmost all the memoranda show the di culty of defining a legal principle
regarding recognition and non-recognition through State action, which the States them-
selves say is largely political in nature.”54
However, one Committee-member noted that, while there is no legal obligation to recog-
nize an entity as a State, “as Brownlie points out, if an entity bears the marks of statehood,
other states put themselves at risk legally if they ignore the basic obligations of state
relations.”55
2. Premature Recognition
But what if an entity does not satisfy the criteria for statehood? May a State recognize it
nonetheless? James Brierly has written:
It is impossible to determine by fixed rules the moment at which other states may
justly grant recognition of independence to a new state; it can only be said that so
long as a real struggle is proceeding, recognition is premature, whilst, on the other
hand, mere persistence by the old state in a struggle which has obviously become
hopeless is not a su cient cause for withholding it 56
Lauterpacht argued that premature recognition is an act “which an international tribunal
would declare not only to constitute a wrong but probably also to be in itself invalid.”57
Thus, according to these jurists, an act of premature recognition would be invalid and
The US. The Second Report cited to the memo from the US members of the Committee, which
explains that t hough not an o cial US government document, the Restatement of the Law
(Third) of the Foreign Relations Law of the United States] is meant to be an accurate distillation of
the then-current state of the law.” Borgen, McGuinness, and Roth 2012 Memo (US), at 4. It goes
on to explain:
Section 202 of the Restatement (Third) of Foreign Relations Law of the United States (1987)…addresses
the “Recognition and Acceptance of States”:
(1) A state is not required to accord formal recognition to any other state but is required to treat as a
state an entity meeting the requirements of Sec. 201 [i.e., the Montevideo Convention criteria], except
as provided in Subsection (2).
The Second Report also cites to Constantinides 2014 Second Memo (Cyprus), and Constantinides
2014 Memo (Greece) (stating that both Greece and Cyprus consider the recognition of an entity as a
sovereign State is a matter of political discretion).
See, also, Swiss Recognition Paper (n 31), at 1 (stating “[i]t is entirely the discretion of any state
to decide to recognize another as a subject of international law.”).
54
Second Report, at 7.
55
Ilyas 2014 Memo (UK), at 1, as quoted in the Second Report, at 3. Professor Ilyas continues:
Thus the Arab neighbours of Israel could hardly a ord to treat Israel as a non-entity, given that the ma ority
of UN members take the view that Israel is protected and bound by the principles of the UN Charter
governing the use of force. In this context of state conduct there is thus a legal duty to ‘recognize’ for
certain purposes at least. There is however no duty to make an express, public and political determination
of the question or to declare readiness to enter into diplomatic relations by means of recognition. This
latter type of recognition remains political and discretionary.
Ilyas 2014 Memo (UK), at 1, as quoted in the Second Report, at 3, footnote 4.
56
James Brierly, The Law of Nations 138 (6th ed. 1963, Sir Humphrey Waldock, ed).
57
Hersch Lauterpacht, Recognition in International Law 9 (1947).
would itself be an independent violation of international legal obligations. Assuming

such premature recognition would recognize as a State an entity that is attempting to
secede from a pre-exiting State, then that recognition may be a violation of UN Charter
article 4 concerning non-interference in the domestic a airs of another State, specifi-
cally the domestic a airs of the pre-existing State 58
Is there an Obligation of on-Recognition

Proceeding from this, if there is little State practice supporting an obligation to formally
recognize, is there perhaps a legal obligation of non-recognition in certain circumstances?
Hersch Lauterpacht described non-recognition as “the minimum of resistance which an
insu ciently organized but law-abiding community o ers to illegality; it is a continuous
challenge to a legal wrong.”59 In some instances, the Security Council has called on UN
member States not to recognize an aspirant State.60 But, absent a Security Council reso-
lution, is there an obligation of non-recognition?
Article 41(2) of the ILC’s Articles on State Responsibility (ARSIWA) states: “No State
shall recognize as lawful a situation created by a serious breach within the meaning of
article 40, nor render aid or assistance in maintaining that situation.”61 Thus, a corner-
stone for any obligation of non-recognition is the invalidity of a wrongful act under
international law, including acts that purport to create title and rights over territory. The
Committee explained in its Second Report that:
Some have argued that “[t]hird States... may be prevented from according
recognition as long as the injured state does not waive its rights since such a
unilateral action would infringe the rights of the latter State.”62
The Second Report noted that States have withheld recognition when the entity claiming
statehood was formed by means of an unlawful act, such as an illegal use of force by an
58
The Swiss Department of oreign A airs has written
If a state is recognized before all the preconditions for recognition are met (premature recognition), this
is contrary to international law and legally ine ective A state that prematurely recognizes another is in
breach of the prohibition of interference in the internal a airs of a state Art no 4 of the Charter of the
United Nations).
Swiss Recognition Paper (n 31), at 1.
59
Lauterpacht (n 57), at 431.
60
The Second Report cited to Security Council Resolution 541 (1983), which calls upon states not
to recognize any Cypriot state other than the Republic of Cyprus. SC Res. 541 (1983) available at
http://www.un.org/Docs/sc/unsc_resolutions.html; see, also, SC Res. 550 (1984) available at http://
www.un.org/Docs/sc/unsc_resolutions.html. Second Report, at 3.
61
The International Law Commission’s Draft Articles on Responsibility of States for Internationally
Wrongful Acts, art 41(2) [hereafter, “ARSIWA”]. Article 40 of ARSIWA states:
1. This Chapter applies to the international responsibility which is entailed by a serious breach by a State
of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible
State to fulfil the obligation
ARSIWA, art 40.
62
Second Report, at 3, uoting Karl Doehring, E ectiveness, in Encyclopedia of Public
International Law 43, 47 (R. Bernhardt, ed. 1995).
existing State assisting the separatists. (There are, however, disagreements among States
over which instances of the use of force were illegal.) And, in an argument that also has
echoes of the discussion of the criteria of statehood, some jurists have argued that the
lack of independence of an aspirant entity in relation to some other State is cause for
non-recognition.63 In the Secession of Quebec Reference, the Supreme Court of Canada
wrote:
As indicated in responding to Question 1, one of the legal norms which may be
recognized by states in granting or withholding recognition of emergent states is
the legitimacy of the process by which the de facto secession is, or was, being
pursued. The process of recognition, once considered to be an exercise of pure
sovereign discretion, has come to be associated with legal norms. See, e.g.,
European Community Declaration on the Guidelines on the Recognition of New
States in Eastern Europe and in the Soviet Union, 31 I.L.M. 1486 (1992), at p. 1487.
While national interest and perceived political advantage to the recognizing
state obviously play an important role, foreign states may also take into account
their view as to the existence of a right to self-determination on the part of the
population of the putative state, and a counterpart domestic evaluation, namely, an
examination of the legality of the secession according to the law of the state from
which the territorial unit purports to have seceded. As we indicated in our answer
to Question 1, an emergent state that has disregarded legitimate obligations arising
out of its previous situation can potentially expect to be hindered by that disregard
in achieving international recognition, at least with respect to the timing of that
recognition. On the other hand, compliance by the seceding province with such
legitimate obligations would weigh in favour of international recognition.64
Examples of widespread non-recognition of aspirant entities, both historical and ongoing,
include Manchukuo, Southern Rhodesia, the Turkish Republic of Northern Cyprus, the
Transnistrian Moldovan Republic, Abkhazia, South Ossetia, and the Nagorno-Karabakh
Republic.
63
Second Report, at 3, citing to Jochen A. Frowein, “Recognition,” in 4 Encyclopedia of Public
International Law 33 (R. Bernhardt, ed. 2000).
64
Reference re: Secession of Quebec, 2 S.C.R. 217 at para. 143 (1998) [hereafter “Secession of
Quebec”] (emphasis added)..
However, various memoranda, including those concerning the practice of Australia,65

Italy,66 Russia,67 and the U.K.,68 found that the practice of the states they considered did
not clearly support a legal doctrine of an obligation of non-recognition.
Recent U.S. practice has included statements concerning certain recognitions being in
violation of the sovereignty of the pre-existing State (as in the cases of Abkhazia and
South Ossetia , and there are references to such a concept in the in uential but not bind-
ing) Restatement (Third) of Foreign Relations Law, dating from 1987.69 Relatively strong
statements in favor of an obligation of non-recognition existing beyond instances of a
Security Council resolution were made by Austria,70 Greece,71 and Israel.72 This is further
supported by certain international instruments such as the concluding document of the
Vienna Meeting in 1989 of the Conference on Security and Co-operation in Europe on
the follow-up to the Helsinki Final Act. In Principle 5 of the concluding document, the
numerous participating States:
C onfirm their commitment strictly and e ectively to observe the principle of the
territorial integrity of States. They will refrain from any violation of this principle
and thus from any action aimed by direct or indirect means, in contravention of
the purposes and principles of the Charter of the United Nations, other obligations
under international law or the provisions of the [Helsinki] Final Act, at violating
the territorial integrity, political independence or the unity of a State. No actions
65
The Second Report stated that “the Australian government does not accept that there is a legal
obligation of non-recognition, outside of a prescription by a binding authority such as the UN
Security Council.” Second Report, at 4–5, citing to Pert 2014 Memo (Australia), at 10. As noted in
the Second Report, Dr. Pert further explained:
This position was reiterated by counsel for Australia in the course of arguments in the East Timor case
(Portugal v Australia), in the context of the right to self-determination:
Australia denies that States are under an automatic obligation, under general international law, not to
recognise or deal with a State which controls and administers a territory whose people are entitled to
self-determination. There is no automatic obligation of non-recognition or non-dealing, even though
that State may be denying the people the right to self-determination”. CR 95/14, 16 February 1995 at
36, para. 5 (James Crawford) http www ic -ci org docket files 84 53 7 pdf
Second Report, at 5, footnote 15.
66
Second Report, at 5, citing to Lugato and Milano 2014 Memo (Italy) at 1, which stated that for
Italy, “lack of recognition has been mainly based on the (often temporary) political unwillingness
to enter into bilateral relations and establish diplomatic relations, rather than from the perceived
existence of a legal obligation not to recognise those entities as unlawful.”
67
Second Report, at 5; see, also, Petr Kremnev 2014 Memo (Russia), at 1.
68
Second Report, at 4. The United Kingdom report states:
Apart from a duty of collective non-recognition of unlawful regimes as enjoined, for instance, by a UN
Resolution, UK state practice does not reveal any doctrine of non-recognition. The UK’s approach to
issues of recognition and non-recognition has traditionally been, and remains, essentially pragmatic rather
than doctrinaire, while upholding the highest principles of international law (e.g. self determination)
governing the creation of states.
Second Report, at 4, quoting Ilyas 2014 Memo (UK), at 1.
69
Second Report, at 5–6, referring to Restatement (Third) (n 14), at § 202(2).
70
Second Report, at 6; see, also, Gerhard Hafner 2014 Memo (Austria), at 3.
71
Second Report, at 6–7; see, also, Aristoteles Constantinides 2014 Memo (Greece), at 1.
72
Second Report, at 6; see, also, Yaël Ronen 2014 Memo (Israel), at 1.
or situations in contravention of this principle will be recognized as legal by the

participating States.73
Committee members analyzed whether the State on which they were reporting had a
state policy concerning the recognition of Abkhazia, Kosovo, North Korea, Palestine,
South Sudan and Western Sahara.74 Responses provided a snapshot at the time that the
memoranda were written. The memoranda support a conclusion that States often do not
clearly and publicly declare their recognition (or refusal to recognize) another entity as a
State. In many cases, Committee members noted that it was not clear whether an entity
was recognized by the State on which they were reporting. Nonetheless, the Committee
found that:
An analysis of the grounds for recognition (or non-recognition) reveals that
international legal concepts such as “territorial integrity” and “self-determination”
are fre uently invoked as a ustification for recognizing or not recognizing a
particular entity. While there is some agreement on the existence and content of
such principles, their application to facts is often controversial.75
D. Conclusions
If recognition is seen as a political decision within a legal context, then one might regard
political, rather than legal, considerations as the most critical determinants of the recogni-
tion of a given entity, notwithstanding that entity s fulfillment of the ob ective criteria of
statehood. Although numerous Committee members remarked that there is no obligation
to recognize an entity as a State, jurists have also noted that when an entity not only
clearly meets the criteria of statehood but also is recognized as such by a substantial
majority of the international community, a State puts itself at risk legally if, in Brownlie’s
words, it “ignore[s] the basic obligations of state relations.”76
As to non-recognition, although certain States studied seem reluctant to proclaim a gen-
eral obligation of non-recognition, there seems to be a convergence of State practice
supporting an obligation of non-recognition when non-recognition is called upon by the
Security Council. In addition, although there are examples of widespread non-recognition
where the criteria of statehood are not met by an aspirant State, some Committee mem-
bers viewed the non-recognition by the State they studied as being the result of a sense of
legal obligation while other Committee members found that non-recognition by the State
they studied was viewed by that State as a political decision not based on legal obligation
or they found that it was not clearly related to a sense of legal obligation.77
73
Concluding Document of the Vienna Meeting 1986 of representatives of the participating States
of the Conference on Security and Co-operation in Europe, held on the basis of the provisions of the
Final Act relating to the Follow-up to the Conference (Vienna 1989), Principle 5 available at https://
www.cvce.eu/en/obj/concluding_document_of_the_vienna_follow_up_meeting_of_the_csce_
vienna_15_january_1989-en-2a0e70b8-c4b2-4c20-a71b-f12b96776cc2.html [hereafter “Vienna
1989 Concluding Document”] (emphasis added).
74
Responses are summarized in the First Report, at 10–17.
75
First Report, at 16.
76
As quoted in Ilyas 2014 Memo (UK), at 1; see, also, Second Report, at 2–3.
77
See, generally, Second Report, at 3–7.
Although State practice may be di cult to parse because a States may not actually
proclaim the non-recognition of a particular entity and/or (b) there may be disagreement
between States as to which specific situations are illegal or why they are illegal , certain
Committee members believe that there is relatively broad support in the international
community for an obligation of non-recognition, especially in cases where recognition
would support the breach of a peremptory norm.78
However, the Committee also decided that “[a]t this point, we do not have enough data to
extend these observations into general claims about the state of the law…”79
II. THE RECOGNITION OF GOVERNMENTS
At least three phenomena regarding State relationships with foreign regimes are fre-
quently confused with one another: (a) the acknowledgment of a foreign government’s
international legal standing to exercise a State’s sovereign rights; (b) the formal recogni-
tion of a foreign government – a political act that ordinarily entails, but is not requisite
to, acknowledgment of the government’s international legal standing; and (c) the estab-
lishment and maintenance of diplomatic relations with a foreign government, which is a
political act that triggers additional international legal obligations.80
While there is a spectrum of interactions a State may have with an entity that aspires to be
recognized as a government, the Third Report defined the recognition of a government
as accepting certain institutions and/or individuals as the lawful representatives
of a State in its international a airs It does not need to be formally or publicly
announced and it may be “more a matter of implication than of express
declaration.”81
In considering the theory and practice of the recognition of governments, the Committee
had two overarching goals: (a) to clarify whether there is a common practice at the
moment for States to formally recognize the governments of other States, and (b) to
elucidate the criteria for deciding whether a particular group of institutions or individuals
can ustifiably be recognized as the government of a particular State In the course of its
work, the Committee also commented on two related issues: the problem of recognizing
78
See, e.g., ARSIWA, art. 41(2); Secession of Quebec at para. 143; Vienna 1989 Concluding
Document, Principle 5. For an example of bilateral sanctions, see, One Hundred Fifteenth Congress
of the United States of America, 2017 Appropriations, Sec. 7070, Occupation of the Georgian
Territories of Abkhazia and Tskhinvali Region/South Ossetia, P.L. 115–31, 131 Stat. 135, 705–706
(May 5, 2017) available at https://www.congress.gov/115/plaws/publ31/PLAW-115publ31.pdf
authorizing the withholding funds from any government that the US Secretary of State finds has
recognized the independence of South Ossetia or Abkhazia).
79
80
See Borgen, McGuinness, and Roth 2016 Memo, (US), at 1.
81
Quoting 1 Oppenheim’s International Law 146 (Robert Jennings and Arthur Watts, eds., 9th
ed. 1992). Other internal citations omitted. See, however, the Restatement of the Law (Third) of
the Foreign Relations Law of the United States, which regards recognition of governments as a
formal acknowledgment that a particular regime is the e ective government of a state and implies
a commitment to treat that regime as the government of that state.” Restatement (Third) (n 14), at §
203, comment a.
a government during an ongoing civil war and explaining the relationship between recog-
nition and responsibilities under the Vienna Convention on Diplomatic Relations.
A Do States Still Recogni e Governments

As for current State practice, the submitted memoranda “found that, in general, the States
studied did not formally recognize governments as part of their standard practice.”82 For
example, memoranda concerning the State practice of Australia,83 Austria, 84 Canada,85
Cyprus,86 France,87 the Netherlands,88 and the United Kingdom89 were summarized in the
Third Report as referring to “express policies of recognizing States, not governments.”90
Moreover, the recognition practice of Poland and Israel was limited to States, not govern-
ments.91 The memorandum concerning the practice of the United States, explained that,
according to Reporters’ Note 1 of Section 203 of the Restatement (Third):
Repeatedly, the State Department has responded to inquiries [about the recognition
of governments] with the statement: “The question of recognition does not arise:
we are conducting relations with the new government.”92
Only two of the States surveyed, Brazil and Japan, found a definite policy for the recog-
nition of governments. 93
With so many States distancing themselves from making explicit statements of gov-
ernmental recognition, one may question the importance of the topic. However, as the
United States’ Restatement (Third) explains:
82
Third Report, at 5.
83
Pert 2016 Memo (Australia), at 2.
84
Gerhard Hafner 2016 Memo (Austria), at 1.
85
Christopher Waters 2016 Memo (Canada), at 3.
86
Constantinides 2016 Memo (Cyprus), at 1.
87
The Third Report noted that the rench Minister of oreign A airs said on March 16, 1 7
La prati ue de la rance est, en e et, d entretenir des relations diplomati ues non pas avec des
gouvernements mais avec des États. C’est ainsi qu’elle n’a accomplit pas d’acte formel de reconnaissance
lors u un nouveau gouvernement est instaur la suite d un changement de r gime Il se agit d une
position constante.
On November 25th, 1982 the French Minister of Cooperation explained: “Dans nos relations avec
le Tchad, nous suivons les règles du droit international... nous reconnaissons les États et non les
gouvernements”
Third Report, at 6, footnote 23, citing to Jean Salmon, Dictionnaire de Droit International Public
(2001).
88
Olivier Ribbelink 2016 Memo (Netherlands), at 1.
89
Matthew Happold 2016 Memo (UK), at 1.
90
Third Report, at 6; see, also, Swiss Recognition Paper (n 31), at 3 (stating “Switzerland’s
consistent practice since the end of the Second World War has been only to recognize states, not
governments.”).
91
Third Report, at 7, citing to 33 Wladyslaw Czaplinski Personal communication with the co-
rapporteurs via e-mail, 31 July 2016 (concerning Poland) and Yaël Ronen, Personal communication
with the co-rapporteurs via e-mail, August 1st, 2016 (concerning Israel).
92
Restatement (Third) (n 14), at § 203, Reporters’ Note 1.
93
Third Report, at 7. Regarding Japan, see Hamamoto Memo (Japan 2016). Brazil state practice was
researched directly for the Third Report and incorporated into that document.
In some situations, however, the question cannot be avoided, for example, where
two regimes are contending for power, and particularly where legal consequences
within the United States depend on which regime is recognized or accepted.94
Thus, although the practice of the recognition of governments has declined, the
Committee turned to the question of criteria for such recognition to better understand
factors considered.
B. Criteria for the Recognition of a Government

In its discussion of the recognition of states, the Committee considered e ectiveness as
a possible addition to, or root of, the Montevideo criteria and noted some of its limits.
However, with regard to the recognition of governments, e ectiveness seems to be a
criterion for such recognition in the view of “almost all” legal sources consulted in pre-
paring the Third Report.95
The Third Report also added that “[m]any authors also include stability as [another] cri-
terion for recognition.”96
However, the Third Report also ualified its emphasis on e ectiveness and stability, stat-
ing that states may withhold recognition of a government until the regime fulfills certain
conditions, which are ‘extraneous to its quality as a government in the international law
sense.’”97
Both Brazil and Japan included e ective control over the territory of the State and the
willingness to observe international law/international obligations as criteria for the
recognition of a government. Brazil also included two further criteria: the consent of
the government to be recognized and the democratic and constitutional nature of the
94
Restatement (Third) (n 14), at § 203, Reporters’ Note 1.
95
Third Report, at 3. Among sources considered, the Third Report cited to Eduardo Jiménez de
Aréchaga, Derecho Internacional Publico 57 (vol.II 1995); David Feldemann, International
Personality, 191 Recueil des Cours 400 (1985); Gemma Scipione, Les gouvernements de fait, 4
Recueil des Cours 337 (1924); Patrick Dailler, Mathias Forteau and Alain Pellet, Droit International
Public (8th ed. 2009) (stating “[l]a reconnaissance de gouvernement est une competénce de
chaque État, competénce qu’il exerce de façon discrétionnaire, mais en se fondant, en principe,
sur l e ectivit du gouvernement nouveau ; and, Pierre-Marie Dupuy, Droit International Public
100 (2002) (stating“[L]a conduite la plus conforme au respect de la règle de non-ingérence dans les
a aires int rieures d un tat consiste pour un tat tiers ne subordonner sa reconnaissance u la
seule exigence de l e ectivit des pouvoirs du gouvernement consid r , ce ui constitue d ailleurs
la position classique défendue en principe par la France.”). See, also, Swiss Recognition Paper (n
31), at 3 (stating “[t]he only precondition for the recognition of a government under international
law is its e ective exercise of sovereign power first and foremeost, control of a substantial part of
the territory and of the apparatus of administration).”)
96
Third Report, at 4, citing to Scipione (n 95), at 337; Santiago Benadava, Derecho Internacional
Publico 113 (2001), and Julio Barboza, Derecho Internacional Publico 185 (2004); Manuel Diez de
Velasco Instituciones de Derecho Internacional Público 272 (15th ed. 2005).
97
Third Report, at 5, quoting Hans Martin Blix, “Contemporary Aspects of Recognition,” 130
Recueil des Cours 643–44 (1970).
governmental transition in question.98 Japan, for its part, notes that even if its criteria are
met, it is under no legal obligation to recognize the government in question.99
C. Current Issues and State Practice

The issue of governmental recognition can arise, even for States that do not generally
have a practice of formally recognizing governments, in cases of contested governmental
transitions. The cases of Libya and Syria are particularly stark examples from recent
practice.
In the case of Libya, the question for each State was how to frame its relationship with the
National Transitional Council NTC during its struggle against the addafi regime The
memoranda analyzing the practices of Austria, Canada and Slovenia explained that these
States did not recognize the NTC as a government. Some States such as Austria, Canada,
and Slovenia did recognize the NTC as the legitimate representative of the Libyan people
but not as the government of Libya.100 Citing to Stefan Talmon, the Third Report notes
that “[s]imilar statements concerning the status of the NTC were made by France, Qatar,
the Maldives, Gambia, Senegal, Turkey, Jordan, Spain, and Germany.”101 The United
States also made a similar statement, but used the terminology “legitimate governing
authority,” and also stated that it no longer recognized the government of Muammar
addafi 102 The authors of the memorandum on U.S. practice explained:
We note that the U.S. government did not state that it was recognizing a
“government” but a “legitimate governing authority.” Whether there is a legal
significance to the di erence in terms remains to be borne out in further practice
However, please note the similar practice concerning the Syrian Opposition
98
Third Report, at 8, citing to telegram sent by the Ministry of Foreign Relations of Brazil to
the Brazilian Embassy in Washington, about the Brazilian Position in Matters of Recognition of
Government. 14 October 1975, quoted in Brazilian Foreign Policy Handbook: 1961–1981 180–181
(2nd ed. 2012).
99
Third Report, at 8, referring to Shotaro Hamamoto Memo (Japan 2016), at 2, which in turn cites
to Mr Akira Hayashi Director-General, Treaties Bureau, Ministry of oreign A airs , Committee
on Foreign Relations, House of Representatives, 16 April 1997, at 8 [translated by Hamamoto].
100
See, Hafner 2016 Memo (Austria), at 1 (citing to Tichy Helmut/Schusterschitz Gregor/Bittner
Philip, Recent Austrian practice in the field of international law. Report for , ZÖR 67 (2012),
175) ; Waters 2016 Memo (Canada), at 1; and Mirjam Škrk 2016 Memo (Slovenia), at 1.
101
Stefan Talmon, Recognition of the Libyan National Transitional Council, ASIL Insights, vol. 15,
issue 16 (June 2011) available at <https://www.asil.org/insights/volume/15/issue/16/recognition-
libyan-national-transitional-council According to Talmon, rance was the first country to
recognize the NTC as “the legitimate representative of the Libyan people.”
102
Christopher Borgen, Margaret McGuinness, and Brad Roth 2016 Memo (US), at 10–11; citing to
Digest of United States Practice in International Law 2011 (CarrieLyn D. Guymon, ed.)(hereinafter
“Digest 2011”) at 276, available at http://www.state.gov/s/l/2011/index.htm; see, also, U.S.
Department of State O ce of the Historian, A Guide to the United States History of Recognition,
Diplomatic, and Consular Relations, by Country, since 1776: Libya” available at https://history.
state.gov/countries/libya; “US recognizes Libyan rebels as Libyan government” Matthew Lee,
Associated Press (July 15, 2011) available at http://news.yahoo.com/us-recognizes-libyan-rebels-
libyan-government-124658625.html?.
Coalition, ...which explicitly stated that in that case, recognizing a legitimate

representative of the people was not tantamount to recognizing a government.103
Regarding Syria, one of the key issues at the time of the Third Report was the status of
the Syrian Opposition–Coalition.104 Again, States avoided declaring that the Coalition
was recognized as a government. See, for example, the reports concerning Australia,105
Japan,106 Slovenia,107 Netherlands,108 and the United Kingdom.109 Some States explicitly
said that this was distinct from the recognition of a government:
The U.S. Department of State announced at the Friends of the Syrian People
meeting in December 2012 that the United States was recognizing the Syrian
Opposition Coalition (“SOC”) as the legitimate representative of the Syrian people.
The United States does not recognize the SOC as the government of Syria.110
The Libyan and Syrian cases point to the emerging practice of declaring or even “recog-
nizing” an entity as a “legitimate representative” or a “legitimate governing authority” or
some other new term. However, the Third Report concluded that:
…the real meaning of the expression “the legitimate representative of the people”
remains unclear.111 The Australia report a rms that it is merely a political
expression of support for a particular group.”112 On the other hand, the Slovenian
report states that these declarations “[...] concern the recognition of the legitimacy
of relevant political movements or coalitions in the chaotic circumstances due to
the dissolution of the previous regime or, in case of an internal armed con ict civil
103
Borgen, McGuinness, and Roth 2016 Memo (US), at 11
104
Third Report at 10–11.
105
Alison Pert 016 Memo Australia , at 7 citing to Australian Minister for oreign A airs,
“Syrian Opposition Council”, media release 13 December 2012. <http://foreignminister.gov.au/
releases/2012/bc_mr_121213.html>)
106
Hamamoto 2016 Memo (Japan), at 7 (citing to. The Fourth Ministerial Meeting of The Group of
Friends of the Syrian People, Marrakech, Chairman’s conclusions (12 December 2012)).
107
Škrk 2016 Memo (Slovenia), at 1.
108
Ribbelink 2016 Memo (Netherlands), at 1.
109
Matthew Happold 2016 Memo (UK), at 10, citing to, among other sources, United Kingdom
House of Commons, Parliamentary debates, vol. 553, 20 November 2012, cs. 445–450, reprinted
in: United Kingdom Materials on International Law, 83 British Yearbook of International Law 358
(2012); United Kingdom House of Commons, Parliamentary debates, vol. 541, 28 February 2012,
c. 266W, reprinted in: United Kingdom Materials on International Law, 83 British Yearbook of
International Law 356 (2012).
110
O ce of the Legal Adviser United States Department of State, Digest of United States Practice
in International Law 281 (CarrieLyn D. Guymon , ed., 2012) available at <http://www.state.
gov/s/l/2012/index.htm>, as quoted in Borgen, McGuinness, and Roth 2016 Memo (US), at 12.
Regarding State practice concerning Syria, the Third Report also cited to Hamamoto 2016 Memo
(Japan), at 8; Škrk 2016 Memo (Slovenia), at 1; Pert 2016 Memo (Australia), at 8.
111
The Third Report cited to Hamamoto 2016 Memo (Japan), at 7, stating:
The Japanese report says that the meaning of the expression “the legitimate representative of the people”
“[...] remains ambiguous”.
Third Report at 11, footnote 64.
112
Pert 2016 Memo (Australia), at 6.
war).”113 The Dutch report mentions that recognizing a regime as the legitimate
representative of the people “[...] is a political matter without international law
implications.”114 From the practice of the studied states it is not possible to extract
a definitive conclusion We can only say that the evolving use of such legitimate
representative” terminology is one area of evolving state practice in relation to the
law of recognition.115
D. Recognition and the Vienna Convention on Diplomatic Relations

The Third Report also observed that “[d]espite the relevance of the issue, little has been
written on the potential link between diplomatic relations and recognition of govern-
ments.”116 The memoranda submitted to the Committee indicate no uniform State prac-
tice concerning whether and how formal recognition of governments a ects diplomatic
relations. “Thus, the maintenance (or severance) of diplomatic relations and the accept-
ance (or rejection) of credentials under the Vienna Convention on Diplomatic Relations
do not necessarily mean that a new regime in the sending state had been or had not been
recognized by the receiving states.” 117
E. Conclusions
The Committee has concluded that:
• The practice of the small sample of States indicates that formal recognition of gov-
ernments seems to no longer be a widespread international practice. In cases of
competing claims of legitimacy, States fre uently o er political support to one of
[the aspirants] by treating it as the legitimate representative of the local people or
the rightful authority. The word ‘government’ is deliberately not used in order to
avoid any contraction in the position of not recognizing governments.”118
• There are varying criteria for deciding which regime to support, including, “inter
alia, e ectiveness, national interest, the position adopted by regional and interna-
tional organizations, and respect for democratic and constitutional procedures.”119
The analysis is on a case-by-case basis, with little evidence of a grand, overarching,
theory of governmental recognition.120
• The memoranda submitted to the Committee do not indicate a uniform State prac-
tice concerning whether and how formal recognition of governments a ects dip-
lomatic relations. “Thus, the maintenance (or severance) of diplomatic relations
and the acceptance (or rejection) of credentials under the Vienna Convention on
Diplomatic Relations do not necessarily mean that a new regime in the sending
state had been or had not been recognized by the receiving states.” 121
113
Škrk 2016 Memo (Slovenia), at 1.
114
Ribbelink 2016 Memo (Netherlands), at 1.
115
The preceding excerpt is from the Third Report, at 11 (internal citations have been renumbered
and edited to conform with the numbering and format of this current report).
116
Third Report, at 17.
117
118
119
120
121
III. DOMESTIC PROCESSES AND EFFECTS OF DECISIONS

OF RECOGNITION AND NON-RECOGNITION
A. Overview
Questions of recognition are in part about States trying to manage the membership of the
community of States. But recognition decisions are shaped by domestic decision-making
structures and can have significant domestic legal implications The Committee s Second
Report focused on the domestic processes behind decisions to recognize or not recognize
an entity as a State or a government.122 The Committee explored the domestic e ects of
recognition, an explicit policy of non-recognition, or silence as to the status of an entity.
The Second Report addressed:
1. The relationship between the executive/government and the courts on issues of
recognition;
2. Jurisdictional immunities;
3. Other jurisdictional issues;
4. The ability to access domestic courts and standing to sue;
5. The recognition of judgments and other acts of unrecognized entities;
6. Immigration and asylum issues;
7. Judicial notice of de facto separation or secession;
8 Domestic legislation meant to address specific unrecognized entities; and
9. Miscellaneous other examples.
There were varying levels of State practice related to each of these topics. The Second
Report noted:
While numerous memoranda noted the paucity or complete lack of cases concerning
the acts of unrecognized entities before the domestic courts of the states reviewed,
when such cases do exist, they are often part of a complex interplay of executive,
legislative and judicial power and prerogatives.123
Moreover, State practice concerning the e ects of non-recognition may be di cult to
accurately compile when it is in the form of administrative or bureaucratic decisions from
around the world that may not be publicly reported.
B Domestic Processes and Effects

The Second Report found domestic practice to be “varied and at times complex, espe-
cially if the unrecognized entity is part of the juridical territory of that pre-existing State,”
122
The focus of the Second Report was primarily on domestic aspects of the recognition of States
but, in domestic practice, this was often combined with the recognition of governments.
123
Second Report, at 8, citing to Constantinides 2014 Memo (Greece), at 5 (stating “[t]here do
not seem to be any cases before the Greek courts…”) Petr Kremnev 2014 Memo (Russia), at 1
stating i n Russia till this time there are no any court examinations or legal decisions of other
administrative agency at any rate I could find such concerning the rights or status of non-
recognized state or its legal entities and individuals.”); Pert 2014 Memo (Australia), at 11 (stating
“[t]here is limited Australian domestic case law concerning aspirant States.”); Scholtz 2014 Memo
(South Africa), at 2 (stating “I have not found any cases that dealt with an aspirant State which is
not recognised.”).
and touched on topics including civil procedure, extradition, the recognition of educa-
tional degrees, and trade.124
Crawford has argued that although many contend that courts and executives should speak
with “the same voice” on matters of recognition:
in the international sphere the intimate connection established by nineteenth
century doctrine between recognition and statehood has done much harm. A
tension is thereby created between the conviction that recognition is at some level
a legal act in the international sphere, and the assumption of political leaders that
they are, or should be, free to recognize or not to recognize on grounds of their
own choosing.125
While Crawford has observed that many courts decline to decide issues of statehood if
the executive has not provided guidance,126 there was some variation in practice among
the States surveyed State practice in at least one State evidenced significant independ-
ence by courts in questions of recognition,127 another noted deference to the views of
the executive.128 The U.S. memo emphasized the distinction courts make between an
a rmative executive statement of recognition or non-recognition and absence of a clear
statement from the executive.. In the latter case:
at least one of the federal circuit courts has found that the issue becomes a legal
inquiry into whether the entity meets the requirements of statehood. Absent an
executive statement favoring a policy of non-recognition (or of recognition), the
entity in question is merely unrecognized. This distinction between non-recognized
and unrecognized seems to be material for at least one federal circuit, although the
terminology may not always be clear or consistently used.129
Regarding jurisdictional immunities for entities that have not been recognized, there
was a range of responses, exhibiting nuances in practice. The memoranda discussing the
practice in Italy and Greece found that such entities would not be granted immunities.130
Other memoranda framed this as an issue of deference to the executive (such as the U.K.
and Australia), while the U.S. memorandum observed a variety of approaches across the
federal circuits, including, as noted above, at least one that would allow a court to assess
whether an entity warrants a grant of immunity if the U.S. executive branch has not made
an a rmative statement of recognition or non-recognition 131 Israeli practice gives the
Minister of oreign A airs the ability to designate that an entity shall receive sovereign
124
Second Report, at 19–20.
125
Crawford, The Creation of States (n 17), at 18–19.
126
127
See, e.g., Italian practice as discussed in Lugato and Milano 2014 Memo (Italy), at 4 (observing
that “Italian courts tend to maintain a high degree of independence toward the executive,… including
questions concerning recognition of a putative State”); Second Report, at 8.
128
See, for example, the practice of the UK, as discussed in Ilyas 2014 Memo (UK), at 1; Second
Report, at 8.
129
Second Report, at 8–9.
130
Second Report, at 10–11; see, also, Lugato and Milano 2014 Memo (Italy), at 5–6; Constantinides
2014 Memo (Greece), at 6.
131
Second Report, at 11–13; see also Ilyas 2014 Memo (UK) at 1; Pert 2014 Memo (Australia), at
12; Borgen, McGuinness, and Roth 2014 Memo (US) at 14–15.
immunity, even if it does not meet the criteria for statehood; in this way, an entity that is
unrecognized may nonetheless be entitled to a claim of sovereign immunity before the
courts, but this would be due to deference by the courts to the executive.132
The memoranda concerning the practices of Italy, Russia, and the U.S. each stated that
their courts could give e ect to acts of unrecognized entities related to ministerial or
private law matters.133 Australia s memo made a similar statement but with a di erent
emphasis: courts in that jurisdiction may disregard the judgments of courts of an aspirant
State.134 Moreover, among other things, an Australian statute provides for the recognition
of foreign judgments from certain jurisdictions, without reference to whether those juris-
dictions are recognized.135
Some Committee member memoranda also noted the existence of domestic legislation
in the States surveyed that addressed specific situations, especially Hong Kong, Taiwan,
and Palestine.136
Although primarily covered in the Second Report, the Third Report also discussed vari-
ous cases of domestic e ects of the recognition and, implicitly, the non-recognition of
a government, such as “access to the domestic courts of the recognizing State, control
of state property located abroad (such as bank accounts), possibility to claim certain
privileges and immunities and the attribution of legal value to foreign o cial acts and
documents.”137
C. Conclusions and Legal Framework

Key conclusions concerning domestic e ects of being unrecognized include
• Regarding the domestic aspects of non-recognition and the treatment of unrecog-
nized entities there is a strong tradition of deference by courts to the executive
regarding whether or not an entity is recognized as a state, especially in the com-
mon law countries among the States surveyed.138
132
See, Second Report, at 14; see, also, Ronen 2014 Memo (Israel), at 4.
133
Second Report at 15–16, citing to Lugato and Milano 2014 Memo (Italy), at 4 (recognition of
acts and legislation related to private international law); Petr Kremnev 2014 Memo (Russia), at 1
noting the recognition of birth, death, and marriage certificates ; and Borgen, McGuinness, and
Roth 014 Memo US at 8 noting that US courts have given e ect to acts dealing solely with
private, local and domestic matters,” within the territory of the unrecognized entity).
134
Second Report, at 16; see, also, Pert 2014 Memo (Australia), at 11.
135
Pert 2014 Memo (Australia) at 11–12.
136
Second Report, at 18–19; see, also, Pert 2014 Memo (Australia) (concerning Hong Kong and
Taiwan) and Borgen, McGuinness, and Roth 2014 Memo (US) (concerning each of these three
cases).
137
Third Report, at 12, citing to in Borgen, McGuinness, and Roth 2012 Memo (US), at 5 and Khoti
Kamanga 01 Memo Tanzania , at 1 See, in this regard, Peterson, who states that Di erences of
treatment persist in three fields a new government s ability to sue in foreign courts, suits involving
governmental acts having extraterritorial e ect, and possession of state property located abroad
M.J. Peterson, “Recognition of Governments Should Not Be Abolished,” 77 American Journal of
International Law 31, 36 (1983).
138
• Jurisdictional immunities (such as sovereign immunity) are the subjects in regard

to which non-recognition has the most significant e ect in domestic practice 139
• Other domestic e ects of recognition of a government or a State are uite varied
and potentially complex,140 including the control of state property within that juris-
diction, trade regulation, and the ability to maintain privileges and immunities.141
IV. LOOKING TO THE SIDE AND LOOKING FORWARD

A. Relationship of the Work of the Committee to Other Forms of Recognition
There were a series of issues that, although peripheral to the focus of the Committee’s
work, proved to be important topics. While these were tangential to the Committee’s
main work, the Committee did touch upon these issues.
1. The Recognition of Belligerency

In the nineteenth and early twentieth centuries, States could recognize belligerent parties
that did not rise to the level of statehood and were not the government of an existing
State. This neither recognized the existence of a State nor of a government, but only that
the aspirant entity claimed to be a State and was de facto making war as such.142 James
Crawford explained that recognition of belligerency “formalized the legal status of the
insurgents;… gave rise to a duty of non-intervention with respect to both parties and…
entailed the acceptance of the exercise of belligerent rights by both.”143 According to at
least one scholar, “[b]y the mid-20th century, the belligerency doctrine was soundly dis-
credited.”144 States were concerned that the doctrine, rather than emphasizing neutrality
and nonintervention, could actually increase violence.145
But States responded to the con icts in Libya and Syria with a form of recognition of
representatives of the people that was neither the recognition of a State nor the recogni-
tion of a Government. Keeping in mind Crawford’s observation that “belligerent recog-
nition was sometimes used as a substitute for, rather than an intermediate step towards,
139
140
Second Report, at 19–20, 26.
141
See, Third Report, at 12–16.
142
Lauterpacht (n 57), at 176.
143
Crawford, The Creation of States (n 17), at 381 quoting Wheaton. But see, Crawford’s discussion
at 380–81 that belligerency gave rise to a duty of non-intervention with respect to either party but
also noting that “[i]n nineteenth century international law non-intervention in such cases was an
option rather than a duty.”
144
Jorge L. Esquivel, “Latin America,” in The Oxford Handbook of the History of International
Law 557 (Bardo Fassbender & Anne Peters eds. 2012); regarding the narrow use of recognition
of belligerency by the US in the nineteenth century, see Joseph H. Beale, “The Recognition of
Cuban Belligerency,” 9 Harvard Law Review 406, 411 (1896). But, see, Christopher J. Borgen,
Con ict Management and the Political Economy of Recognition, in Complex Battlespaces: The
Law of Armed Con ict and the Dynamics of Modern arfare (forthcoming 2018) (stating “[r]ecent
practice, however, has used new terminology that has adopted aspects from both the recognition of
governments and the recognition of belligerency fashioning them together in a new practice that
attempts to respond to the current strategic environment.”).
145
Esquivel (n 144), at 557.
recognition of the entity in question as a State.”146 some aspects of recent practice echo
the older practice of recognition of belligerency. The shape of this new practice is dis-
cussed at length in the Second and Third Reports.
2. The Recognition of Territorial Change

The question of recognizing territorial change is not usually an especially complex legal
matter, given the UN Charter. Paragraph 6 of the commentary to ARSIWA article 41
traces the history of the “principle that territorial acquisition brought about by the use
of force are not valid and must not be recognized,” from the Stimson Doctrine during
the Manchurian crisis of 1 31, through the first principle of the UN General Assembly s
Friendly Relations Declaration, and to the ICJ’s Nicaragua decision.147
Actual disputes concerning territorial change tend to be less about the law and more
about facts and how to properly characterize a given situation. This was brought to the
forefront by arguments over whether the situation in Crimea was a territorial annexation
by Russia or a merger of States. Russia’s recognition of Crimea as an independent State
is characterized by many other States as having been premature and itself a violation of
international law The uestion of describing that recognition itself defines whether the
real issue is one of the recognition of statehood or of territorial change.
3. The Non-Recognition of Illegal Situations

In addition to the scenario of illegal territorial change, discussed in the preceding section,
there is, more generally, the non-recognition of illegal acts. The issues are discussed in
Crawford’s commentary to ARSIWA article 42.
The Recognition of Official Acts

While this can be a separate topic of recognition—in particular, the recognition of for-
eign udgments the recognition of other o cial acts such as marriage licenses was
discussed in the Second Report concerning the domestic e ects of recognition and
non-recognition. The work of the Committee however did not look to the broader ques-
tions of recognition of acts by recognized entities.
B. New Directions for Study and for Rulemaking

James Crawford has written: “In truth, the best theory of recognition may be none at
all.”148 Given the ability of theories of recognition to confuse more that clarify, Crawford
may have a point. Nonetheless, what can be said about where we are and where to go?
Following are thoughts as to next steps as this Committee’s work draws to a conclusion.
1. Other Forms of Recognition

Further study may be made of the forms of recognition beyond the recognition of States
and governments. The issues discussed in the preceding section of this report may guide
146
147
James Crawford, The International Law Commission’s Articles on State Responsibility:
Introduction, Text and Commentaries, Art. 41, comment (6) (2002)
148
Crawford, Chance, Order, Chaos (n 27), at 194, para. 241.
some endeavors at further research and analysis In particular, the e ect of the con icts of
Libya and Syria on recognition practice may be an indication of things to come.
This Committee’s reports emphasized the innovative recognition practice in these con-
icts and the Second Report described some ways in which these new practices are simi-
lar to certain aspects of the older practice of recognizing belligerencies.
The perennial problem of civil wars and how new recognition practice includes aspects
of old strategies is a topic that warrants further consideration.
2. Recognition and International Organizations: The Question of Collective

Recognition
Although the Committee’s work focused on individual State practice, there is a long his-
tory of suggestions for institutionalization of recognition made by jurists such as Phillip
Jessup, who favored the UN General Assembly as a forum for recognition decisions,
Quincy Wright, who also emphasized the idea of collective recognition, and Hersch
Lauterpacht.149
How do the UN and other international organizations a ect the practice of recognition by
States, and, in particular, of member states of the international organization in question?
3. Recognition and Diplomatic Relations

As discussed in the Third Report, this is a topic that is under-analyzed.
Conclusions
Over the course of the Committee’s previous three reports, we have considered the prac-
tice of a small, though diverse, group of States and other entities, as well as the literature
concerning recognition and non-recognition more broadly. With the caveat that these
reports are not exhaustive catalogues of State practice and that much of the nuance and
context supporting the general conclusions are in the main text of this Final Report and,
even more so, in the discussions of the three preceding reports, following is a summary
of our core conclusions:
The Recognition of States

Criteria for Recognition
• Although critiqued for being either over or under-inclusive, the Montevideo crite-
ria nonetheless continue to provide the basic framework for assessing whether an
entity meets the key characteristics of a State. While the Montevideo Convention
provides the terms under discussion, those terms are not applied as a mechanistic,
bright-line test.
• E ective control or the lack thereof can also play a role in determining the sta-
tus of an entity, but it is not a litmus test Various entities that have lacked e ective
control have been recognized, while entities that have demonstrated e ective con-
trol have not been recognized.
149
Almqvist, “The Politics of Recognition” (n 9), at 165.
• While other possible attributes of statehood have been discussed by jurists, they are
best understood not as additions to the criteria of statehood, but as “preconditions
for recognition of statehood” by a particular State or group of States.
The Constitutive/ Declaratory Debate

• Although the Declaratory Theory has widespread support in the statements of
States and of scholars, the depth of the support seems limited. Many members
of the Committee were wary of putting too much stock in a sharp delimitation
between the theories and noted that State practice is more complex than either the
Constitutive or Declaratory theory.
• The Committee members did not generally view the Constitutive/Declaratory
debate as being helpful in addressing current issues in State practice. Various com-
mentators, in and out of the Committee have noted that too much focus on the
debate can obscure rather than clarify issues of recognition.
• The Committee noted the rise of a “third approach” based on the idea that the
Constitutive Declaratory dichotomy is insu cient to explain the complex e ects of
recognition This approach views recognition as a political act which has significant
legal e ects in the international and domestic legal orders This theory holds that
recognition occasionally has certain constitutive e ects, although these e ects are
generally in domestic legal systems.
Support for View That There is No Obligation of Recognition of Statehood

• A number of Committee members stated that there is no legal obligation to rec-
ognize an entity as a State. However, jurists have also noted that when an entity
clearly meets the criteria of statehood and is recognized as such by a substantial
majority of the international community, a State puts itself at risk legally if, in
Brownlie’s words, it “ignore[s] the basic obligations of state relations.”
The Obligation of Non-Recognition of Certain Entities as States

• Although certain States studied seem reluctant to proclaim a general obligation of
non-recognition, there seems to be a convergence of State practice supporting an
obligation of non-recognition when non-recognition is called upon by the Security
Council. In addition, although there are examples of widespread non-recognition
where the criteria of statehood are not met by an aspirant State, some Committee
members viewed the non-recognition by the State they studied as being the
result of a sense of legal obligation while other Committee members found that
non-recognition by the State they studied was viewed by that State as a political
decision not based on legal obligation or they found that it was not clearly related
to a sense of legal obligation.
• Some States support a legal obligation of non-recognition when the aspirant State
was formed by a breach of international law. This should be considered in relation
to article 41(2) of the International Law Commission’s Articles on Responsibility
of States for Internationally Wrongful Acts, which states that “[n]o State shall rec-
ognize as lawful a situation created by a serious breach” of a peremptory norm,
“nor render aid or assistance in maintaining that situation.”
• Although State practice may be di cult to parse because a States may not actu-
ally proclaim the non-recognition of a particular entity and/or (b) there may be
disagreement between States as to which specific situations are illegal or why they
are illegal), certain Committee members believe that there is relatively broad sup-
port in the international community for an obligation of non-recognition, especially
in cases where recognition would support the breach of a peremptory norm.
• However, the Committee also decided that “[a]t this point, we do not have enough
data to extend these observations into general claims about the state of the law…”
The Recognition of Governments

Formal Recognition is Rare
• The practice of the small sample of States indicates that formal recognition of gov-
ernments seems no longer to be a widespread international practice.
• However, in cases of competing claims of legitimacy, States have o ered political
support to one of the aspirants by treating it as the legitimate representative of the
local people or the rightful authority. The word “government” is deliberately not
used.150
Criteria for the Recognition of Governments

• There are varying criteria for deciding which regime to support, including, “inter
alia, e ectiveness, national interest, the position adopted by regional and interna-
tional organizations and respect for democratic and constitutional procedures.” The
analysis is done on a case-by-case basis, with little evidence of a grand, overarch-
ing, theory of governmental recognition.151
Domestic Procedures and Effects of Decisions of Recognition and

Non-Recognition
Domestic Procedures Tend to Defer to the Executive
• Regarding the domestic aspects of non-recognition and the treatment of unrecog-
nized entities there is a strong tradition of deference by courts to the executive
regarding whether or not an entity is recognized as a state, especially in the com-
mon law countries among the States surveyed.152
Domestic E ects of Decisions of on-Recognition

• The Committee considered a range of possible domestic e ects of recognition or
non-recognition of a government or State, including:
1. Jurisdictional immunities and other jurisdictional issues;
2. The ability to access domestic courts and standing to sue;
3. The recognition of judgments and other acts of unrecognized entities;
4. Immigration and asylum issues;
5. Judicial notice of de facto separation or secession; and
6 Domestic legislation meant to address specific unrecognized entities
150
151
152
Recognition Non-Recognition in International Law 4 1
• Jurisdictional immunities (such as sovereign immunity) are the subjects in regard

to which non-recognition has the most significant e ect in domestic practice 153
• Other domestic e ects of recognition of a government or a State are uite varied
and potentially complex,154 including the control of state property within that juris-
diction, trade regulation, and the ability to maintain privileges and immunities.155
Areas for Possible Further Research

Other Forms of Recognition
• Recent State practice related to the con icts of Libya and Syria and in Crimea may
be an indication of how the practice of recognition may be evolving. Although
these situations were considered by the Committee in its study, their ongoing evo-
lution, and the addition of new State practice leads to possible areas for further
research, especially in issues related to the theory and practice of the recognition of
belligerency, the recognition of territorial change, and the non-recognition of illegal
situations.
Recognition and International Organizations: The Question of Collective Recognition

• Although the Committee’s work focused on individual State practice, there is a
long history of suggestions for the institutionalization of recognition by jurists such
as Phillip Jessup, who favored the UN General Assembly as a forum for recognition
decisions, Quincy Wright, who also emphasized the idea of collective recognition,
and Hersch Lauterpacht. While the Committee’s work was focused on the practice
of States as opposed to that of international organizations, it notes that this is an
important area for further study.
Recognition and Diplomatic Relations

• The Committee memoranda concerning the small set of States reviewed does not
indicate a uniform State practice concerning whether and how formal recognition
of governments a ects diplomatic relations Thus, the maintenance or severance
of diplomatic relations and the acceptance (or rejection) of credentials under the
Vienna Convention on Diplomatic Relations do not necessarily mean that a new
regime in the sending state had been or had not been recognized by the receiving
states.” 156
153
Second Report, at, 26.
154
Second Report, at 19–20, 26.
155
See, Third Report, at 12–16.
156
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Recognition/Non-recognition in International Law (Fourth/Final ILA Report)

Conference Paper · February 2018

Aziz Tuffi Saliba

Recognition/non-recognition in International Law View project

The user has requested enhancement of the downloaded file.

INTERNATIONAL LAW ASSOCIATION

Charles Clore House, 17 Russell Square, London WC1B 5DR

MULTIS MELIOR PAX UNA TRIUMPHIS

Reporters: Charlotte Ball; Andrew Banks; Rhiannon Bell; Rebecca Brown;

Published by the International Law Association,

Printed in Aberystwyth, Wales, UK by Cambrian Printers

Members of the Committee

Professor Wladyslaw Czaplinski (Polish):Chair

Dr Valentina Azarova (Headquarters) Professor Enrico Milano (Italian)

FOURTH (FINAL) REPORT

INTRODUCTION: OLD QUESTIONS AND NEW PROBLEMS

I. THE RECOGNITION OF STATES

b. E ectiveness and Statehood

B. Reconsidering the Constitutive/ Declaratory Debate

C. Recognition, Obligation, and Responsibility

would itself be an independent violation of international legal obligations. Assuming

Is there an Obligation of on-Recognition

However, various memoranda, including those concerning the practice of Australia,65

or situations in contravention of this principle will be recognized as legal by the

II. THE RECOGNITION OF GOVERNMENTS

A Do States Still Recogni e Governments

B. Criteria for the Recognition of a Government

C. Current Issues and State Practice

Coalition, ...which explicitly stated that in that case, recognizing a legitimate

D. Recognition and the Vienna Convention on Diplomatic Relations

III. DOMESTIC PROCESSES AND EFFECTS OF DECISIONS

B Domestic Processes and Effects

C. Conclusions and Legal Framework

• Jurisdictional immunities (such as sovereign immunity) are the subjects in regard

IV. LOOKING TO THE SIDE AND LOOKING FORWARD

1. The Recognition of Belligerency

2. The Recognition of Territorial Change

3. The Non-Recognition of Illegal Situations

The Recognition of Official Acts

B. New Directions for Study and for Rulemaking

1. Other Forms of Recognition

2. Recognition and International Organizations: The Question of Collective

3. Recognition and Diplomatic Relations

The Recognition of States

The Constitutive/ Declaratory Debate

Support for View That There is No Obligation of Recognition of Statehood

The Obligation of Non-Recognition of Certain Entities as States

The Recognition of Governments

Criteria for the Recognition of Governments

Domestic Procedures and Effects of Decisions of Recognition and

Domestic E ects of Decisions of on-Recognition

• Jurisdictional immunities (such as sovereign immunity) are the subjects in regard

Areas for Possible Further Research

Recognition and International Organizations: The Question of Collective Recognition

Recognition and Diplomatic Relations

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