domenica 1 marzo 2015

The juridical and political aspects of recognition in international law

In international law, the recognition is that juridical tool through which a State or another international subject (e.g. group of insurgents or national liberation movements) can be detected by the international community and become part of it. The recognition is a unilateral declaration and is a merely licit act (as the non-recognition is likewise merely licit), it belongs to the sphere of politics and national interest, and it discloses the will to forge friendships, to exchange diplomatic representations, to enhance different kinds of cooperation through the conclusion of agreements, etc. The intensity of recognition depends on the type of recognition: there can be the full recognition (de jure recognition) or the informal recognition (de facto recognition). The recognition of States can be irrelevant and without effects for those States that for political reasons decide not to recognize a new political entity.      
The political organization that manages to exercise effectively and independently its sovereign power over a territorial community becomes automatically an international subject: in fact, it is not necessary to be recognized by other States. Through recognition, an international subject gains the faculty to stipulate international treaties, to join international organizations, to interact fully with other international actors and to preserve stable diplomatic relationships. Without a certain and wide recognition, an international subject will have less possibilities to carry forward its interests and to promote its goals.
From a formalistic point of view, after the unilateral declaration, the recognition occurs by sending official diplomatic delegations among the newborn international subject. However, recognition entails some requirements. The first is the principle of effectivity. The principle of effectivity implies that full recognition follows the need for the governmental authorities of the new international subject to exercise effective control over the population and the territory of the State. The contemporary State, as historically evolved from the Peace of Westphalia (1648), embraces three main elements: territory, population and sovereignty: hence, if these elements exist, a State can benefit from a complete recognition by others. Indeed, if military or political features inside a sovereign State would somehow compromise its governmental existence (think of the case of civil war or secession), it would be harder to achieve recognition: truly, as Rousseau stated, sovereignty is indivisible. The second requirement is the principle of legitimacy. The respect of human rights and the obligation to avoid threatening international peace and security are mandatory features in order to gain recognition. Thus, the principle of legitimacy requires that recognition can be given only to States that conform their government and constitution to the obligations of the UN Charter, including the safeguard of inalienable human rights. Moreover, recognition should be denied to States that ignore or contrast the principles of jus cogens.
In addition to States, other international subjects can achieve recognition, among which are the group of insurgents and the national liberation movements. Both of them possess a governmental and military body, eventually supported by Third States, which aims at overthrowing the current leadership and gaining independence from foreign rule respectively. It can be that the final step for both subjects is that of seceding from the preexistent State in order to create a new sovereign political entity. Even in this case, as mentioned, recognition is achievable. Once given, it implies to support (even logistically and militarily) the rebel faction. Exactly as for the State, also in this case the recognition involves several requirements. It is necessary that the rebel group obtained the control over a wide area of the territory of the country or at least over a politically relevant portion of it (e.g. the capital city). Furthermore, it is necessary that insurrectional groups have recognizable political authorities and organs that may represent the newborn State in case of victory. It is mandatory that during the insurgency or civil war the rebel groups safeguard the tutelage of foreign citizens and of their properties on the war scenarios, including the protection of diplomats and international officials covered by immunity. Finally, the groups must show respect during all phases of the struggle to the main customary rules of jus cogens, including those contemplating the correct and loyal conduct of warfare. The recognition for insurgents is always temporary because it refers to a temporary political entity. In fact, it may be that the rebels win and forge a new State or government, or lose and thus turn back to the status quo ante: in both cases, the recognition of insurgents ceases to exist.
As far as international organizations are concerned, recognition is irrelevant for them because they arise from an agreement put through several sovereign States: no international subject is obliged to adhere to an international organization, but once it does, it is self-evident that it is recognizing the organization as an international subject.
Map of Cyprus
Beyond the theoretical aspect, the recognition is a very complex element in international praxis. During the last years, the international policy offered numerous cases of political misunderstandings and tensions because of the recognition of some political entities. A famous case is that of the Turkish Republic of Northern Cyprus. In 1974, when Turkey decided to invade Cyprus, the northern part of the island seceded giving birth to a new State no longer linked to the southerner Greek republic. This led to the issue of recognition. Turkey recognized hastily the Turkish-Cypriot republic, but almost all the rest of the international community did not. The northern Cypriot secession was regardless of the interests of other international actors involved like Great Britain and Greece, guaranteeing, along with Turkey, the independence of the island. The issue of the two Cypriot republics increased after the adhesion of Cyprus to the European Union. Within the EU Cyprus is represented as a single polity, since none of the EU members recognizes Northern Cyprus. Some believed that the potential adhesion of Turkey to the EU could somehow solve the issue. It is evident that, according to the requirements of recognition, the Turkish-Cypriot government does satisfy the principle of effectivity, effectively controlling the territory, and that of legitimacy since human rights are granted to the abiding population (keep in mind that the ethnic Greek inhabitants were ejected towards the southern republic). Therefore, the question is this: if international actors like Turkey (a legitimate State) do recognize a new country whereas other do not (the EU members, for instance), is the recognition binding?  
Kosovar fighters of the UÇK
Opposite case is that of Kosovo. Here, influent international actors like many members of NATO, after the military intervention of 1999 and the recognition of the Kosovar national liberation movement headed by the UÇK (Ushtria Çlirimtare e Kosovës), supported and nurtured the independence of Kosovo from Serbia, gained in 2008. Blatantly violating the content, spirit and casus foederis of the North Atlantic Alliance, which is a defensive alliance but still Serbia had not attacked any member State of it, as well as the principle of non-interference in domestic affairs and the principle of territorial integrity, some countries, following the example of the USA, decided to recognize Kosovo. The pretext was that of the alleged violation of human rights of the Kosovar Albanians by the Serbian leadership and the principle of national self-determination considering that demographically speaking the Albanian ethnic element was much more numerous than the Serbian one.
Abkhazia and South Ossetia
Another international case is that of Abkhazia and South Ossetia, two Caucasian regions that seceded from Georgia in 2008, strongly supported by the Russian Federation. The two regions were part of Georgia since 1991, after the dissolution of the Soviet Union. As comprehensible, few countries, including Russia of course, decided to recognize the two republics and therefore they too represent a question whether recognition should be considered binding or not.
Another possible case is that of the Western Sahara. This is a country that seceded from Morocco, which, however, is not supported by influential international actors thus appearing far away from gaining a worldwide recognition.
As for the case of Palestine, as known, this territory includes two geographically separate entities, the West Bank (including East Jerusalem) and the Gaza Strip, both incorporated in the State of Israel, that wish to gain independence. Though benefiting from a wide autonomy, it is true that the occupied Palestinians territories fully belong to Israel, and this is due to the outcome of the various conflicts against the neighboring Arab States that always saw Israel as the winning side. Notwithstanding, the Palestinian National Authority (PNA), though not a State, enjoys the status of permanent observer within the General Assembly of the United Nations, a hybrid condition, that may embody an example of partial recognition.    
Considering the case of the recognition of an insurgent group, the civil war in Libya against the government of Muammar Gaddafi is an enlightening example. The interventionist European-American coalition, headed by France and Great Britain, recognized as legitimate the anti-Gaddafi insurgents, whose operative headquarters were in the city of Benghazi, in Cyrenaica. Nonetheless, the insurgents did not have one of the main requirements for recognition: in fact, when recognized the rebels did not effectively control a large area of the Libyan landscape, nor where they supervised by a concrete and manifest political authority.
ISIL fighters
Finally, a case of non-recognizable State due to the lack of the principle of legitimacy is the Islamic State of Iraq and the Levant (ISIL, in Arabic al-Dawla al-Islāmiyya fī al-‘Irāq wash-Shām), the theocratic caliphate born in 2014. This political entity is clearly disrespectful of the defense of human rights and democracy, as well as constituting a concrete threat for world peace and security, founding its existence on the spread of terror and violence throughout the entire Middle Eastern region under its control.  
In conclusion, recognition is an extremely relevant tool for the purpose of international interaction. Theoretically, as above seen, some precise requirements are compulsory for gaining recognition according to international law. However, practically speaking, recognition is used mainly for political purposes, so that international actors can support their geopolitical spheres of influence and carry forward their national interests. After all, it is not so surprising if we consider that force and law do not always tread the same path.    

International recognitions


A. Cassese, International Law, USA, Oxford University Press, 2001.   

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