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.
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| 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?
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| 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.
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| 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.
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| 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.
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| International recognitions |
References:
A. Cassese, International Law, USA, Oxford University
Press, 2001.
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