The Traditional Theory of Recognising States Compared with and Contrasted to Modern Practice

Chris Borgen, St John's University

Professor Borgen began by noting that Oppenheim's (9th edition) defines recognition, in its broadest sense, as ‘involv[ing] the acceptance by a State of any fact or situation occurring in relation to other States’.Footnote ² In modern practice, one can see examples of recognition of governments and territorial change, while historically there was also recognition of belligerency. Professor Borgen noted that while his comments would address primarily the recognition of states, one must also consider that, at times, recognition practice includes multiple types of recognition in order to achieve results specific to that situation.

Turning his focus to the recognition of states, Professor Borgen noted that while statehood is accepted as the ‘gold standard’ of the Westphalian system, in the words of Nina Caspersen, ‘[e]arlier international systems included overlapping sovereignties, colonies, and trusteeships but this has given way to a world in which there are states and little else’.Footnote ³ We should query whether that situation is changing once again, with recognition playing the function of sorting actors and the ordering of rights and duties among actors. The decision of whether or not to recognise a particular entity is tied to the politics, foreign policy and strategy of the recognition, but it is a decision that exists also within a legal framework.Footnote ⁴ At issue here is the extent to which the legal framework affects the political decision and vice versa.

One part of the legal context is in defining ‘statehood’. The point of departure for such discussions is usually the Montevideo Convention.Footnote ⁵ Although Article 1 of this Convention lists what have become much-cited characteristics of statehood – a permanent population, a defined territory, a government, and the capacity to enter into relations with other states – this list needs to be taken with a grain of salt. The Committee on Recognition and Non-Recognition of the International Law Association (ILA) noted in its final report that ‘a strict construction of the Montevideo factors has been critiqued by jurists’.Footnote ⁶ For example, some publicists argue that ‘the capacity to enter into relations with other states’Footnote ⁷ may be more a result of, rather than a precursor for, statehood. By contrast, others criticise it for being a characteristic that is also shared by various non-state actors.Footnote ⁸ Various jurists have argued that the concept of ‘effectiveness’, which itself has a variety of possible meanings related to state authority over territory and population, is perhaps a good summation of the Montevideo criteria, or even an alternative conceptualisation of the characteristics of statehood. Other experts note that maintaining effective control over territory does not necessarily lead to a recognition of statehood, while, conversely, some also contend that entities that have not had effective control have at times been recognised as states.Footnote ⁹ Thus, the Montevideo Convention is perhaps best understood not as the last word on statehood, nor as a bright-line test, but rather as supplying terms for the start of the discussion.

Professor Borgen argued that the main practical questions concerning international law and state recognition are whether and when there is an obligation to recognise and, conversely, if and when there is an obligation of non-recognition. These questions are often discussed in relation to contested declarations of independence or secessions. Rather than address the complexities of self-determination, states often prefer to frame the issue as one of recognition which, as a matter of practice, tends to focus on the prerogatives of the recognising state rather than on the claims of right of the entity seeking recognition. However, while disputes concerning self-determination and secession often become questions of recognition, issues of recognition are not necessarily about self-determination or secession.

Related to issues of self-determination and secession, there has been the rise of ‘special cases’ of recognition, where one state recognises the statehood of an aspiring entity, but with the caveat that it is as a result of special circumstances. For example, in February 2008, the US statement on the recognition of Kosovo claimed that the situation was a ‘special case’ and that its recognition should have no bearing on other instances of seeking statehood.Footnote ¹⁰ While this may have been an attempt to avoid a discussion of international law, the Russian Foreign Ministry stated that Kosovo's declaration was a violation of international legal obligations.Footnote ¹¹ However, Russia later recognised South Ossetia, Abkhazia and Crimea as independent states. In the case of Crimea, Foreign Minister Lavrov also referred to that situation as ‘a very special case, a unique case from all points of view’.Footnote ¹² The ‘special’ or ‘unique case’ rhetoric is in part an attempt to assuage other countries that such recognition does not implicate the broader structure of international law. However, despite this caveat, talk of whether there was a ‘Kosovo precedent’ – both for and against this idea – became ubiquitous when discussing issues related to self-determination and secession. The special case rhetoric is also an attempt to give the recognising state room to act and pursue the policy that it wants.

Professor Borgen referred to what he termed ‘the return of bespoke recognition doctrine’, defined as the recognition of some status other than statehood or governmental authority, tailored to specific situations. An example is the case of Libya in 2011, when the National Transitional Council (NTC) was recognised by various states as either the ‘legitimate representative of the Libyan people’ or as the ‘legitimate governing authority’.Footnote ¹³ However, this was not actually recognising the NTC as the government of Libya. Similarly, in the following year certain states recognised the Syrian Opposition Council as the legitimate representative of the Syrian people.Footnote ¹⁴ Professor Borgen noted that this practice brings to mind both the recognition of governments and older practices such as recognition of belligerency, but claimed that it is not precisely either. Rather than conforming to these other forms of recognition, bespoke recognition allows the recognising state to define the set of rights, duties and privileges it is recognising in relation to the aspiring entity. The recognising state does not recognise all the rights and duties owed to a state or a government. One can liken this to regarding sovereignty as a deck of cards, with the recognising state deciding which cards to deal to the aspiring entity.

Professor Borgen also discussed the political economy of recognition and non-recognition. Widespread recognition transforms an entity that had previously existed in a legal twilight into an equal sovereign. Alongside the domestic effects of recognition, such as sovereign immunity and the ability to access domestic courts, there are also broader effects, which include the ability to access international markets and the ability to receive hard currency financing through global markets.Footnote ¹⁵

Professor Borgen added that not all cases of recognition have an equal effect in practice. Recognition by a powerful neighbour can support the ongoing existence of an entity even if it is not widely recognised by the international community. Moreover, the interpretations of leading powers can be influential on other states, but only within reason.Footnote ¹⁶ Even if an aspiring entity has a powerful regional sponsor, widespread non-recognition is still likely to be the result in cases where that does not seem to meet the Montevideo criteria or if there is the belief that recognition would prolong an illegal situation, as in the cases of Abkhazia and South Ossetia.

Finally, Professor Borgen pointed out that states and other entities may attempt to avoid the issue of recognition altogether. He gave two examples: Crimea and ISIS.

Crimea declared independence on 16 March 2014, was immediately recognised as a state by Russia and existed essentially for one day, 17 March 2014. On 18 March it signed a treaty of merger with Russia. Through this rapid succession of recognition and merger, Russia avoided the long, slow struggle to convince other states to recognise Crimea. It claimed that what occurred was not an annexation of territory but a merger of states, and presented the situation as a fait accompli. This is in contrast to Russia's largely unsuccessful attempts to secure greater recognition of South Ossetia and Abkhazia as independent states.

Another example of bypassing recognition disputes, but from a completely different angle, is ISIS. At its peak, ISIS was a non-state actor controlling significant amounts of territory in Iraq and Syria. Yet, while it conquered and held territory, it never sought recognition and showed no interest in participating in the classic state system. This raises concerns over whether other territorial non-state actors would be similarly revisionist. When statehood is the gold standard, recognition can more effectively serve as a tool of conflict management, determining what is or is not within the international system. However, an entity that does not even seek recognition changes the debate about recognition and its role in conflict management.

Professor Borgen concluded that recognition plays a variety of roles in international practice. It is a means to address situations of self-determination or secession without actually talking about self-determination or secession. Recognition is also used by states to frame the legal context of situations of change. In the past, recognition has been an all-or-nothing game, with a state either recognising or not recognising an aspirant as being a state itself, endowed with all the rights and responsibilities of statehood. However, modern recognition practice may be changing to include forms of recognition for entities that fall short of being states or governments, giving the recognising state a broader set of possible responses. The range of actors on the world stage is broad and the practice of recognition is more complex and more varied than is often assumed.

Recognition of Palestinian Statehood

Milena Sterio, Cleveland-Marshall College of Law

Professor Sterio began by canvassing prevailing discourse on the relationship between recognition and statehood. She emphasised that law and politics are closely intertwined in this discourse, in particular the tension between the criteria for statehood recognition, and the lack thereof for continuation. In other words, while criteria exist in order to recognise states, if those same criteria are no longer met, a state does not cease to exist. One example of such is Somalia, a state which many scholars have referred to as a ‘failed state'. Other examples include the Democratic Republic of Congo and perhaps Syria, from which large numbers of refugees flee across their borders. Despite the lack of government control over its territory, there are no scholars or politicians calling to unrecognise, or claim that these states no longer exist. Article 3 of the Montevideo ConventionFootnote ¹⁷ allows for states to exists without recognition. However, this does not quite work in reality.

Recognition is meant to be a political act and not based on legal theory. It is a sovereign act whereby sovereign states decide whether to recognise an aspiring state. There are two types of recognition: declaratory and constitutive. Some scholars hold that if an aspiring entity effectively satisfies the legal criteria for statehood, then other states are required to recognise it as such. Further, under the legal theory of non-recognition, if an act is committed in violation of a peremptory norm, such an act should be deemed void, and under both customary international law as well as general principles of law states are under a duty not to recognise its consequences. This view was confirmed by the International Law Commission in its Articles on Responsibility of States for Internationally Wrongful Acts of 2001.Footnote ¹⁸ One example of this view could be the request by the United Nations (UN) for states not to recognise Crimea's annexation to Russia.

Professor Sterio mentioned briefly the regional criteria for recognition, such as the guidelines published by the European Community in the 1990s for recognising newly emerging states from the former Soviet Union.Footnote ¹⁹ These guidelines stated, inter alia, that states needed to be democratic and to respect the rule of law, basic human rights and rights of national ethnic groups and minorities. There is a separate declaration on Yugoslavia, which required the Yugoslav states specifically to recognise the guidelines.Footnote ²⁰

Professor Sterio noted that an important principle is the right of self-determination, namely the right of peoples to determine their political fate and to be governed by a government which adequately represents their interests. In recent times there has been much debate about colonial versus post-colonial paradigms of self-determination. Self-determination was one of the theoretical underpinnings of the de-colonisation era, but in the non-colonial era it is more difficult to apply.

Professor Sterio identified a dichotomy between internal versus external self-determination, the former being the political autonomy within an existing state. What about the idea of external self-determination? The idea that non-colonised people, if oppressed by a state, may exercise the right of self-determination through remedial secession is extremely problematic, especially in instances where the right does not operate within a constitutional framework. An example of external self-determination that is not problematic is the proposed secession of Scotland, where the government suggested a referendum the results of which the Scottish government would respect. More difficult cases are Kurdistan and Catalonia, where the central governments of Iraq and Spain respectively are not in agreement, and secession would be unconstitutional.

When it comes to Palestine, the most relevant case study in Professor Sterio's opinion is Kosovo. Kosovo is a pseudo-state which has been recognised by the United States and most Western European states. If recognition by the great powers is important, in the case of Kosovo it does, in fact, exist. The US government recognised Kosovo immediately after the Kosovo Parliament unilaterally declared independence in 2008.Footnote ²¹ Western European states quickly followed suit. It may be that Kosovo satisfies the four criteria for statehood, but the problem is that it is not a UN member. For aspiring states to become members of the UN, they need the Security Council to refer the matter to the General Assembly. Russia's veto with regard to Kosovo is not likely to change any time soon. One also must ask whether Kosovo could stand on its own as an independent state if international support were to be withdrawn from it.

According to Professor Sterio, similar issues arise with regard to Palestine. Even if Palestine were to satisfy the four criteria of statehood, would it matter if Palestine is not recognised by any state? Are Palestinians entitled to the right of self-determination and, if so, what does it entail and how should it be exercised? Professor Sterio looks at each criterion separately, and finds that they are fulfilled, including the theoretical capacity to enter into international relations. This is the most difficult criterion to analyse because the exercise of international relations must be reciprocal, where existing states are willing to recognise the aspiring state as a sovereign partner. Because of the US veto in the Security Council, Palestine does not have full access to the United Nations, but since 2012 it has held the status in the UN of non-member observer state.Footnote ²² In 2015, the International Criminal Court (ICC) started an investigation for alleged crimes committed by Israel towards the Palestinian people and agreed to open an investigation based on the fact that Palestine had non-member observer state status.Footnote ²³ A more recent development is the lawsuit brought by Palestine against the US in the International Court of Justice (ICJ) under the 1961 Vienna Convention for Diplomatic Relations.Footnote ²⁴ Other supporting evidence of Palestinian statehood would be the ICJ Wall advisory opinion of 2004, in which the Court clearly stated that the Palestinians have a right to self-determination, and the fact that Palestine has been recognised by 137 UN member states, some of which have specifically referred to the 1967 borders as the borders of Palestine.Footnote ²⁵ All of the above arguments support the claim that if Palestine is not yet a state, then it is very close to being one. Many great powers have said that they believe in the peace process and that is why Palestine is not accepted as a full state.

The theoretical fulfilment of the criteria for statehood and the recognition by the ICJ of the Palestinians’ right to self-determination do not on their own lead to recognition of Palestine as a sovereign state or the creation of a new state of Palestine. This brings us back to the point of law and politics – namely that in order for Palestine to become a state, it would need to be recognised as such by the great powers.

Professor Sterio concluded by asking whether regarding Palestine as a state in accordance with the Montevideo criteria would create a failed state with no effective control over its territory to begin with. This is a question which could also be asked with regard to Kosovo.

Collective Non-Recognition of Illegal Situations

Brad Roth, Wayne State University

Professor Roth spoke of the legal duties that states have with regard to recognition. One must keep in mind the distinction between recognition as an essentially political phenomenon – that is, the formal articulation of recognition through declarations or certificates of recognition – and manifestations of legal judgment as to the status of the territory, which may be referred to as ‘legal acknowledgement’ or ‘taking cognisance’ of the situation. There is no duty to recognise states, but there is a duty to treat such entities as states with regard to their rights, obligations, powers and immunities. States cannot unilaterally change the terms of their legal obligations by refusing to recognise an entity that is generally understood to be a state. This norm is significant in the context of immunity of foreign ministers and similar issues. So recognition needs to be understood in legal terms versus political terms. There is a duty of legal recognition even though there is no duty of formal recognition. Formal recognition is typically a sufficient but not a necessary condition for taking cognisance of the legal facts.

Professor Roth mentioned the duty to avoid premature recognition, first mentioned in the context of secession. He noted that it is not entirely clear of what this duty consists. Seceding entities claim to be states. A conferral of recognition as a state on the seceding entity is hostile to the sovereign interests of the state from which this entity seeks to secede. It is not entirely clear whether the mere declaration by itself constitutes a violation of international law, but it is clear that concrete acts taken pursuant to a legal judgment according the seceding entity sovereign status would violate international law if, indeed, that judgment is premature. The very concept of prematurity presupposes some golden moment in which the seceding entity objectively emerges as a sovereign state in the international system, and that is an elusive moment.

Unlike a situation of ‘prematurity’, there are a clear set of legal duties pertaining to recognition of what is called ‘illegally created situations’. This is reflected most recently in Article 42 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), which states that ‘[n]o state shall recognise as lawful a situation created by a serious breach,’ defined as ‘a gross or systematic failure by the responsible state to fulfil the obligation arising under a peremptory norm of general international law’.Footnote ³⁴ The further prohibition on ‘rendering aid or assistance in maintaining that situation’ parallels the premature recognition scenario, because acting upon a judgment that is in contradiction to international legal status clearly incurs state responsibility. However, the implication of this statement is that above and beyond the aid to maintaining the situation, even merely recognising the situation as lawful represents an independent source of state responsibility. So, the duty of non-recognition applies not merely to the consequences of making an improper legal judgment, but to the judgment itself.

It is very important to note the language of recognition ‘as lawful’. While the implicit or explicit acknowledgement of the lawfulness of this situation constitutes an internationally wrongful act, most importantly the prohibition excludes the phenomenon of de facto recognition. De facto recognition means acknowledging the facts on the ground and therefore engaging in such minimal contact as is necessary to fulfil the legitimate interests of the foreign state with regard to the territory that is being controlled by de facto authorities. Some of those interests may involve humanitarian assistance for the inhabitants of that territory, while others have to do with matters involving the nationals or property of the foreign states concerned; lastly, there may be other kinds of legitimate foreign state interest with regard to the territory where de facto recognition is appropriate and permissible. Such contact with de facto authorities is without prejudice to the question of the legal status of the territory, and particularly without prejudice to the sovereign state that may have a legal claim on the territory.

Professor Roth noted the high threshold of Article 41. It refers to gross or systematic failure by the responsible state to fulfil the obligation arising under a peremptory norm of general international law. It is hard enough to discern whether a given situation arises from a breach of an international legal norm. It is even harder to determine whether the situation arises from a gross or systematic failure by the responsible state to fulfil an obligation arising under a peremptory norm. These difficulties have led to the suggestion on the part of some scholars that the non-recognition duty here is not self-executing – that in order for there to be an actual duty to refrain from recognition of a particular territorial status, there must be an authoritative interpretive determination on the part of Security Council, which, of course, has its own source of authority (under Chapter VII, but perhaps more broadly under Articles 24 and 25 of the UN CharterFootnote ³⁵). A decision by that body is an independent basis for an international legal obligation of non-recognition. The function of authoritative application of the norm could perhaps be fulfilled by other bodies, including the ICJ through an advisory opinion, or some super-majority determination of the General Assembly.

Professor Roth explained the debate over whether non-recognition is a self-executing obligation. In the East Timor case, the ICJ noted that Portugal's claim was premised on the UN Security Council and General Assembly resolutions condemning Indonesia's use of force in breach of the territorial population's right of self-determination. The Court was nonetheless not persuaded that the relevant resolutions went so far as directly to impose an obligation on all states to deal only with Portugal in respect of the territory.Footnote ³⁶ Absent Indonesia's consent to jurisdiction over the question of the legality of its seizure of the territory, the Monetary Gold principleFootnote ³⁷ precluded the Court from finding against Australia for concluding a continental shelf treaty with Indonesia concerning the territory said to have been wrongfully seized. As pointed out by Alison Pert, the Court would not have been able to invoke the Monetary Gold principle to dodge the ultimate legal question had there been a pre-existing self-executing legal obligation of non-recognition of the illegal situation.Footnote ³⁸

This is an interesting view, but a minority one. There is substantial opinio juris on the part of states that there is a duty of collective non-recognition with respect to illegally created situations. Significant questions arise as to whether there is a duty of collective non-recognition in any meaningful sense other than with regard to territorial status. In the 2004 advisory opinion in the Wall case, Judge Kooijmans suggested in a separate opinion that the duty of a collective non-recognition of the consequences of the wall represents an ‘obligation without real substance’.Footnote ³⁹ That is because unlike claims with regard specifically to statehood and territorial acquisition, other jus cogens violations do not seem to call for any action that would expressly or implicitly confer a legal imprimatur on the fruits of the unlawful act. Therefore there is some question as to how far this obligation goes. However, even Judge Kooijmans accepted that with regard to questions of territorial status, there is indeed an obligation of non-recognition, as articulated repeatedly with regard to territorial status and statehood questions, going back to the Friendly Relations Declaration of 1970.Footnote ⁴⁰

Moving on to the implications of the obligations, Professor Roth queried what sort of act would be regarded as unlawfully validating the settlements in the occupied territories, which are understood generally to be in violation of the Fourth Geneva Convention. There may be any number of duties that might arise, particularly with regard to natural resources from the territory, and perhaps also to goods manufactured in the territory. There have been some hints of this in Security Council resolutions.Footnote ⁴¹ Other questions arise, according to Professor Roth, with regard to the move of the US embassy to Jerusalem. The declaration with regard to the city of JerusalemFootnote ⁴² is in clear contradiction to Security Council resolutions and in contradiction to the principles that have been routinely applied by various UN bodies to the situation. The very acknowledgement of East Jerusalem being incorporated into the united city of Jerusalem as the capital of the State of Israel would violate Article 41(2) of ARSIWA, which reflects the emergence of customary international law in this area.

A separate question is whether locating an embassy within the territorial limits of Jerusalem is in itself an international legal problem, given that the UN General Assembly's 1947 partition plan designated Jerusalem as a corpus separatum.Footnote ⁴³ A foreign state might simply locate its embassy within West Jerusalem, while articulating that ‘West Jerusalem is the capital of Israel and we anticipate opening another embassy in East Jerusalem once it becomes the capital of a Palestinian state, with which we look forward to opening full diplomatic relations at the conclusion of final status negotiations’. The question is whether this more cautious move would violate the obligation of non-recognition of the outcome of an illegal act. States have refrained from locating embassies in the city of Jerusalem generally, but it is not clear whether they have done so on legal or political grounds, and whether such location would cross the threshold articulated in the Articles on State Responsibility of recognising as lawful a situation created by a serious violation of a peremptory norm. It is unclear whether a legal wrong consists of disregarding an artefact of 1947 that never came to fruition in the first place.

Non-Recognition in Law and Practice

Sir Michael Wood KCMG, 20 Essex Street Chambers; Senior Fellow, Lauterpacht Centre for International Law, University of Cambridge

According to Sir Michael, questions of recognition are seen by government officials as almost entirely questions of policy, but the law does come in on occasion, particularly with regard to non-recognition. It has been mentioned that Palestine has been recognised by 139 states, but the question is what precisely each state said. In contrast, the case of Kosovo is relatively clear. Most of the states that recognised Kosovo have done so in a very formal way by writing a letter saying ‘we hereby recognise the state of Kosovo’. There are some 10 to 15 states that definitely have not recognised Kosovo, for reasons that are quite interesting. For example, some, such as Spain, fear secession of their own. Then there are scores of states that said nothing. Do they not recognise Kosovo's statehood? Why do they say nothing? The basic proposition is that there is no duty to recognise a state. Hersch Lauterpacht said there was a duty, as a logical consequence of the constitutive theory in which he believed.Footnote ⁴⁴ This is a very neat theory which the British government tended to follow in the 1950s.

Sir Michael proceeded to ask when is there an obligation not to recognise. First, premature recognition may be contrary to the principle of non-intervention. The recognition of Israel by certain states was no doubt premature, and it is argued that so was the recognition of Kosovo. Second, there may be an obligation along the lines of Article 41 of the Articles on State Responsibility. Third, binding decisions of the Security Council may impose an obligation of non-recognition.

Sir Michael went on to explain how the United Kingdom changed its position in 1980 regarding recognition of governments. In a case concerning the Republic of Somalia, the Foreign and Commonwealth Office (FCO) had left it for the court to determine whether a body was the government based on the UK's dealings with it.Footnote ⁴⁵ More recently the question arose with regard to Libya. The FCO had issued a certificate expressly stating that the UK recognised the Transitional National Council as the government of Libya.Footnote ⁴⁶ Sir Michael concluded by referring to the significance of General Assembly Resolution 67/19 of 29 November 2012,Footnote ⁴⁷ in which the UN General Assembly recognised Palestine. It may well be that the ICJ will take guidance from the General Assembly on statehood, at least for formal purposes, as was done by the ICC Prosecutor in determining whether Palestine is a party to the Rome Statute or capable of making an Article 12(3) declaration thereunder. Responding to a query, Sir Michael acknowledged that there was the earlier admission of Palestine to UNESCO, which had already triggered the Vienna formula. The General Assembly's resolution is somewhat clearer on the statehood issue but it was not the first step in this respect.

Did President Trump's Decision to Recognise Jerusalem as the Capital of Israel Prejudice its Character and Status?

Victor Kattan, National University of Singapore

Dr Kattan argued that President Trump's decision to recognise Jerusalem as the capital of Israel prejudiced the universal character and international status of the city. His argument is based on the understanding that the City of Jerusalem was given a special status in international law in the 1947 UN Partition Plan on the grounds of the presence of the Holy Places.

Jerusalem cannot be compared with any other city on earth. This is why it has always been treated differently. Previous attempts to treat Jerusalem separately from the other places in historic Palestine included the 1916 Sykes-Picot Agreement and the recommendations of the Peel Commission in 1937. Then there was the 1947 United Nations Partition Plan, according to which Jerusalem was to be set aside as a corpus separatum, being neither part of the Arab state nor part of the Jewish state. Leaving aside the vexed issue of whether the UN Partition Plan was legally binding, following its adoption and the Naqba or War of Independence, the UN maintained its special interest in the city and adopted Resolution 194,Footnote ⁵⁵ which spoke of a permanent international regime for Jerusalem. A further resolution was adopted a year later.Footnote ⁵⁶ Then there were the statements made by Abba Eban at the UN accepting that Jerusalem was outside the sovereignty of Israel.Footnote ⁵⁷ The statement by Eban and the adoption by the General Assembly of Resolution 303 were significant as these statements were made after Israel had occupied West Jerusalem and after Jordan had occupied the Old City, making it clear that the General Assembly did not abandon its plans for internationalisation. The UN Partition Plan has never been rescinded and there is no basis in legal theory for the lapse or abrogation of a resolution by reason of its non-implementation.

Dr Kattan emphasised that the UN Partition Plan defined ‘the City of Jerusalem’ as including ‘the present municipality of Jerusalem’ plus the surrounding villages and towns. The most eastern section of the corpus separatum was identified as Abu Dis, the most southern Bethlehem, the most western Ein Kerem, and the most northern Shuafat. It is this greater Jerusalem area that is referred to in later UN Security Council resolutions. (There are consulates in Jerusalem that go back to the nineteenth century, in both East and West Jerusalem, which might explain why the corpus separatum covered the whole of Jerusalem; and, of course, the Holy Places are not limited to the Old City).

Dr Kattan recalled that between 1948 and 1967 no state recognised the claim that Jerusalem was Israel's capital and also no state recognised that Jerusalem was the capital of Jordan. The general principle was that recognition excluded this zone; but what happened after 1967? The draft statute for Jerusalem was produced in the 1950s. No one discusses it, but the UN General Assembly did not give up the claim that Jerusalem had a special status. Also, Israel and Jordan continued to recognise the consular corps of the corpus separatum by issuing the consuls with special visas. Israel continues to issue these visas to this day.

Even before the adoption by the UN Security Council of Resolution 242, the UN General Assembly adopted two resolutions in an emergency special session calling on Israel to rescind all measures it had already taken to alter the status of Jerusalem and to desist from taking further action.Footnote ⁵⁸ There were also statements issued by the US government saying that it would never recognise any unilateral actions by any state in the area as governing the international status of Jerusalem. This was a reference to Jerusalem as a whole, not just to East Jerusalem.Footnote ⁵⁹ East Jerusalem is occupied territory, but that did not imply that West Jerusalem was part of Israel. The United Kingdom made its position clear in a statement issued by the Foreign Office in November 1967, in which it said that while it had recognised the de facto authority of Israel and Jordan in the parts of Jerusalem which they had occupied since 1949, in common with many other governments, the United Kingdom did not recognise Israeli or Jordanian sovereignty over any part of the area defined as part of the City of Jerusalem in Resolution 303 of December 1949.Footnote ⁶⁰

Even after the adoption by the Security Council of Resolution 242 (1967) – which emphasised ‘the inadmissibility of the acquisition of territory by war’ and called for the withdrawal of Israel's armed forces ‘from territories occupied in the recent conflict’, which included the Old City – the Security Council continued to refer to the special status of Jerusalem.Footnote ⁶¹ For example, in Security Council Resolutions 267 (1969) and 298 (1971) the Council referred to the ‘City of Jerusalem’. This was an expression that had first been used in the 1947 UN Partition Plan.Footnote ⁶² One month after Israel occupied the Old City, the US had even voted in favour of a draft Latin American resolution that explicitly reaffirmed ‘the desirability of establishing an international régime for the city of Jerusalem’.Footnote ⁶³

The most well-known resolutions relating to Jerusalem are Security Council Resolutions 476 and 478 of 1980. These refer to the ‘Holy City of Jerusalem’, but otherwise the word used is ‘Jerusalem’.Footnote ⁶⁴ It is likely that the Muslim countries were thinking primarily of the Old City (‘Al Quds Al Sharif’), but some of the Christian countries were still thinking of the corpus separatum.Footnote ⁶⁵ Resolution 478, which was a response to the adoption of the Basic Law: Jerusalem Capital of Israel, called on states not to recognise the Basic Law and to withdraw their embassies from the city, although the United States argued that the demand that states withdraw their embassies from Jerusalem was not binding.Footnote ⁶⁶

Moving on to President Trump's statement, Dr Kattan noted the Palestinian objection to the recognition of Jerusalem as Israel's capital on the ground that it prejudges the negotiations on final status and prejudices the special status of the city. The Arab League was the first international organisation to respond, followed by the Organization of Islamic Cooperation and the European Union.Footnote ⁶⁷ There was also an attempt to obtain the adoption of a Security Council resolution, which was vetoed by the United States, although all other members of the Security Council supported it.

Dr Kattan reviewed the statements of the permanent members of the Security Council in the debate. The United States claimed that its position is fully in line with previous Security Council resolutions. This is not true, as the US had previously voted in favour of resolutions that are the exact opposite.Footnote ⁶⁸ The UK government referred to earlier Security Council resolutions and to the 1947 UN Partition Plan, and to the established position that Jerusalem's status should be examined through a negotiated settlement.Footnote ⁶⁹ The French government was the most explicit in saying that in the absence of an agreement and in accordance with the consensus, France did not recognise any sovereignty over Jerusalem.Footnote ⁷⁰ The Russians said they are committed to a resolution that provides an independent state of Palestine with East Jerusalem as its capital and that West Jerusalem will be the capital of Israel. This is not a recognition of Israeli sovereignty in West Jerusalem in my view, as the text says ‘in this context, we view West Jerusalem as the capital of Israel’, the key words being ‘in this context’.Footnote ⁷¹ Once East Jerusalem becomes the capital of a Palestinian state, then West Jerusalem will be the capital of Israel. China said that it supported ‘the establishment of a fully sovereign and independent State of Palestine, based on its 1967 borders and with East Jerusalem as its capital’.Footnote ⁷²

When the US vetoed the Security Council resolution, Egypt introduced an identical resolution in the UN General Assembly, where it was adopted. The most important provision of that resolution is its stipulation that ‘any decisions and actions which purport to have altered the character, status or demographic composition of the Holy City of Jerusalem have no legal effect, are null and void and must be rescinded in compliance with relevant resolutions of the Security Council’. (Note the specific reference in the resolution to the ‘character’ and ‘status’ of Jerusalem, which can only be a reference to the special status that was accorded that city in the 1947 UN Partition Plan.) The resolution also called upon all states to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to Resolution 478.Footnote ⁷³

A few weeks later, President Trump tweeted that Jerusalem, the toughest part of the negotiations, was off the table, and then went on to contradict an earlier statement, noting that it is actually no longer even an issue for negotiation.Footnote ⁷⁴ This tweet, and the position of the US government towards Jerusalem, are clearly in defiance of previous Security Council resolutions which the US had supported. Even those states that initially said they would move their embassies, such as Australia, Brazil and Guatemala, have chosen not to move their embassies but have opened ‘trade offices’ instead.Footnote ⁷⁵

Only the US has opened an embassy in Jerusalem. On the day it opened, 14 May 2018, the Palestine Ministry of Foreign Affairs issued a note verbale to the State Department, stating that any steps taken by the United States to relocate the embassy to Jerusalem would constitute a violation of the Vienna Convention on Diplomatic RelationsFootnote ⁷⁶ read in conjunction with the relevant United Nations resolutions.Footnote ⁷⁷ On 4 July 2018 it sent another note verbale to the State Department, notifying the latter of the existence of the dispute regarding the adoption of the Protocol to the Vienna Convention on Diplomatic Relations concerning compulsory settlement of disputes over the interpretation of the convention. Palestine argues that the US had violated the convention, because it transferred the embassy to territory that does not belong to the receiving state, because sovereignty over the city is disputed. A week later, the US withdrew from the Optional Protocol to the Vienna Convention on Diplomatic Relations, stating that the US was undertaking a review of all other compromissory clauses and would probably also withdraw from those.Footnote ⁷⁸

Dr Kattan noted that a few weeks earlier the United States declared that its consulate-general in West Jerusalem was now subordinate to the embassy. This is a significant change. Until now the consulate-general, like other consulates-general in Jerusalem, reported directly to the State Department, and did not present its accreditation to the Israeli government. The consulate-general had been operating since 1947, and its function was directed to relations with the Palestinians of the West Bank and Gaza. Israel appears to have agreed to this practice for 70 years. Now all official communications will go through the office of the ambassador.

What the US Recognised when It Recognised Jerusalem

Eugene Kontorovich, George Mason University Scalia School of Law

Professor Kontorovich began by noting that the United States is the second state to recognise in recent decades any part of Jerusalem as Israel's capital, following Russia, which limited its recognition to ‘West Jerusalem’.Footnote ⁷⁹ The Russian National Day party organised by the embassy in 2018 was held at one of the old Russian compound historic buildings in the centre of Jerusalem. This was the first time the Russian embassy has ever had any kind of event in Jerusalem, which it previously said was outside its jurisdiction.Footnote ⁸⁰ This was intended to show that, contrary to the most parsimonious reading of the Foreign Ministry's statement, it was indeed a recognition of West Jerusalem as Israel's capital. Prime Minister Netanyahu was in attendance, an indicator of the importance and unusual nature of this event.

However, the United States is the first country to recognise Jerusalem as a whole as Israel's capital. Professor Kontorovich contended that the recognition afforded by the US extends to the entire city of Jerusalem within its current municipal boundaries. That also has some broader significance. First, ‘Jerusalem’ means something specific in US diplomatic parlance. Unlike many European countries, which had a diplomatic practice of referring to East Jerusalem on one hand and to West Jerusalem on the other, the United States has a consistent practice of referring to ‘Jerusalem’ as meaning the entire city. State Department policy defines ‘Jerusalem’ according to the municipal boundaries established by Israel after the 1967 Six-Day War.Footnote ⁸¹ That ‘Jerusalem’ refers to the entire city is also clear from President Trump's speech announcing the recognition. He invoked the 1995 legislation calling for a move to a unified Jerusalem. He also said Jerusalem is today, and must remain, a place where Jews pray at the Western Wall, where Christians walk the stations of the cross, where Muslims worship at Al-Aqsa Mosque. Jerusalem is Israel's capital.Footnote ⁸² So unless he meant one thing when he mentioned Jerusalem as home to the holy sites and something different when he said Jerusalem is Israel's capital, he seems to have referred to the entire area.

Furthermore, Professor Kontorovich recalled several actions of the US which demonstrate that it recognises Israel's sovereignty over the city. First, the Jerusalem consulate-general has now been subsumed under the authority of the US embassy. Until now it had a separate jurisdiction, only with respect to Jerusalem. The US ambassador did not function in Jerusalem, and the consulate-general functioned as a de facto or semi-mission to the Palestinian Authority. It also had that status under Jordanian control. It was not under the control of the US embassy, or accredited to Israel, because it was not seen as being in Israel. The subordination of the Jerusalem consulate-general and all of its operations to the embassy is a sign that the United States sees the entire city as one.

Second, the actual location of the embassy is of extraordinary significance. In what seems to be a direct rebuke of Resolution 2334, which calls for a policy of ‘differentiation’ beyond the 1949 armistice line,Footnote ⁸³ the embassy itself is located largely across the 1949 armistice line.Footnote ⁸⁴ This raises a question for states that adhere to the call of UN Security Council Resolution 2334 for ‘differentiation’ – how to deal with the United States in its diplomatic functions in Jerusalem. Would such states attend diplomatic functions at the US embassy in Israel, despite it not being an embassy to Jerusalem and established across the 1949 armistice line?

Professor Kontorovich noted that there are those who highlight that perhaps the specific location of the embassy should not be counted as crossing the 1949 armistice line, because it is in the area that was a demilitarised zone under the Armistice Agreements, falling under the jurisdiction of the United Nations. Professor Kontorovich said this makes no difference. The claim that Israel is an occupying power in the West Bank and in East Jerusalem is typically based on the theory that occupation occurs when a state comes to control territory that it did not previously control, regardless of the non-sovereign status of the territory. It would be hard to distinguish why the claim would be different if the territory was formerly under UN administration or under Jordanian occupation. Indeed, the European Union, in its document listing every location under Israeli control according to its zip code, lists the US embassy as East Jerusalem occupied Palestinian territory.Footnote ⁸⁵ This raises questions, including how the EU will address letters to the US embassy. Professor Kontorovich said he expected they would be pragmatic and address them to the US embassy in Israel.

Concluding that the location of the embassy is a very strong expression of the United States’ recognition of Jerusalem in its entirety as Israeli territory, Professor Kontorovich turned to address some counter-arguments. First, President Trump stated that the US was not taking a position on any final status issues, including the specific boundaries of Israeli sovereignty in Jerusalem or the resolution of contested borders. Some people take that to mean that no part of Jerusalem is recognised, since the borders are undetermined. However, one cannot have an embassy ‘nowhere’. The location of an embassy in that place is, in Professor Kontorovich's view, almost certainly an act of recognition of the sovereignty of the receiving nation in that place. By not taking a position on final status issues, President Trump merely clarified that when the parties reach an agreement, that agreement can change the status quo whichever way the parties want. However, the fact that Israel's borders may change in a future deal does not mean that they are not currently Israel's borders or that they are not recognised as such.

Professor Kontorovich noted that the US recognition of the entire city as Israeli territory is at great odds with the theory that the city is under belligerent occupation. It suggests that the United States is not fully convinced by the widely held view that the West Bank is under belligerent occupation. Since the situation in East Jerusalem is hard to distinguish from that of the West Bank, from the perspective of the Fourth Geneva Convention, there may be a fundamental change in US policy.

It is now impossible to say that no state recognises any Israeli sovereign claims beyond the Green Line. For the ongoing meaning of Resolution 181, it is a dead letter. It was non-binding at the time and has completely fallen into desuetude. To demonstrate this, Professor Kontorovich commented that the corpus separatum was supposed to include Bethlehem. Yet Bethlehem is treated by much of the international community as occupied Palestinian territory. Similarly, Palestinian-imposed restrictions on access to holy sites in Bethlehem have never been cited as a problem under Resolution 181. The fact that in practice corpus separatum refers only to those areas of Jerusalem currently held by Israel suggests that at issue is not really corpus separatum but something else.

The Function of Recognition in International Law

Malcolm Shaw QC, Essex Court Chambers; Senior Fellow, Lauterpacht Centre for International Law, University of Cambridge; and Emeritus Sir Robert Jennings Professor of International Law, University of Leicester

Recognition is an octopus with many tentacles. It straddles a variety of disciplines and systems. It is not static, it is far from clear, but it is essential. However, there are a series of critical questions. For example, who recognises what as what and why? Recognition is one of those prominent touching points between law and politics. Is it a purely legal animal or in reality a purely political decision with some legal consequences? What is the role of recognition? What indeed should be the role of recognition in the creation, the continuation and the demise of states? Is recognition able to remedy defects in legal title or entitlement? What are its limits? It is a flexible concept, perhaps more like a jelly than an octopus.

It is trite to observe that the state is the key to the international legal system. Despite globalisation, despite the extension of international law to individuals on the one hand and to international organisations and multinational enterprises on the other, it is the state that is the starting point of any consideration of the international legal system. If that is so, the international community needs to possess a mechanism or methodology by which to define with authority and acceptance the concept of a state and its application in particular circumstances. In the absence of a central authority with comprehensive competence, this has historically been accomplished by states deciding for themselves whether or not to accept the status maintained or claimed by a particular entity.

Recognition establishes a particular relationship between the two states in question, but beyond that it marks a general statement as to the position of the new entity within the community of nations. It is like an acceptance of entry into a club. This club is now the world system of states and other actors, but in the past it marked a transition from uncivilised to civilised status. The club was Euro-centric and Christian-based, with the early exceptional acceptance of the Ottoman Empire. Recognition constituted the membership card to the equivalent of the Athenaeum Club in London.

Recognition does not have quite the same cachet today, but it remains critical. With all the emphasis and importance of globalisation and the expansion in the types of international actor capable of functioning within the international legal system, statehood remains the key. There is a profound difference between a recognised state and an entity which is not so recognised, both politically and legally.

If individual state recognition of another entity is the preferred method of accepting new states, the question immediately arises as to the legal impact of one state recognising another as a state. For internal purposes, of course, this act is determinative. It establishes that the new entity is for all domestic purposes a state, with all that this implies. It means the application of state and diplomatic immunities and it has consequences in term of the status of that entity in so far as the recognising state is concerned, so that, for example, it would be included in any list of states for particular legislative purposes, and so on.

Yet if recognition is internally constitutive in that the question of status is resolved within the domestic legal system, the same cannot be said at the international level. We are all aware of the long-running and very exciting debate as to whether recognition is constitutive or declaratory. Does international legal personality flow from a particular factual situation or does it derive from the actions of other states? The declaratory theory maintains that recognition is merely an acceptance by states of an already existing situation. A new state will acquire capacity in international law not by virtue of the consent of others but by virtue of a particular factual situation. It will be legally constituted by its own efforts and circumstances and will not have to await the procedure of recognition by other states. The constitutive theory affirms essentially that an unrecognised ‘state’ can have no rights or obligations in international law as it has not been created.

The answer, of course, as in so much of life, is somewhere between the two pole positions. The act of recognition by one state of another indicates that the former regards the latter as having conformed with the basic requirements of international law as to the creation of a state. It is thus evidentiary and reinforces the claim of the applicant to the new status. However, recognition is highly political and is given in a number of cases for purely political reasons, which may not always chime with the strict application of the legal criteria. There are many examples of this, including the US recognition of Israel in May 1948 – upon the Declaration of Independence and just as the War of Independence was entering a new phase with the invasion by a number of Arab states – and with regard to the Yugoslav successor states. Similarly, non-recognition of a state constitutes a political tool of disapproval and pressure; witness the long non-recognition of Israel by Arab and other states.

The UK has historically adopted a different approach, siding with the Lauterpacht view that recognition should be granted once the recognising state is satisfied that the authorities of the state to be recognised have complied with the minimum requirements of international law, and have effective control which seems likely to continue over the country.

Recognition is constitutive in a political sense, for it affirms the new entity as a state within the international community and is evidence of acceptance of statehood. This does not necessarily imply that the act of recognition is legally constitutive, because rights and duties do not arise as a result of the recognition as such at the international level, as distinct from the domestic level.

International practice is, on the whole, on the side of the declaratory, fact-based approach. For example, the Charter of the Organization of American States, adopted in Bogotá in 1948, notes in its survey of the fundamental rights and duties of states that ‘the political existence of the state is independent of recognition by other states. Even before being recognised, the state has the right to defend its integrity and independence’.Footnote ⁹⁵ The Institut de Droit International emphasised in its resolution on recognition of new states and governments in 1936 that ‘the existence of the new state with all the legal effects connected with that existence is not affected by the refusal of one or more states to recognise’.Footnote ⁹⁶

In addition, the Arbitration Commission established by the International Conference on Yugoslavia in 1991 stated in its Opinion No 1 that ‘the existence or disappearance of the state is a question of fact’ and that ‘the effects of recognition by other states are purely declaratory’.Footnote ⁹⁷

Yet the matter is not as simple as that. Recognition constitutes powerful evidence of adherence to the factual criteria required for statehood (or any other status in question). It is politically critical. For example, Kosovo has been recognised by 111 UN member states, of which Suriname and Burundi (and possibly Lesotho and Papua-New Guinea) later withdrew recognition. Important states that have not recognised Kosovo include Russia, China, India, Spain and, of course, Serbia. Kosovo is not a member of the United Nations. Thus, although Kosovo exercises effective control over its territory, or at least most of it, and is recognised by many states, its status to some extent has a question mark against it, which is politically significant. Further along this spectrum of effective control without international recognition is Taiwan, where a few statements declining recognition of that island as the government of China do not constitute recognition of the island as an independent state, not least because of the failure of Taiwan to formulate an authoritative claim to statehood.

Recognition without effective control of at least the core of the territory claimed is always going to be controversial. Palestine is a key example of this. It is recognised as a state by some 137 UN member states, not including the US, the UK, most European states, Canada, Australia, Mexico and Japan. Also, over 80 of these recognitions date back to the PLO Declaration of Independence in 1988, at a time when the PLO controlled no part of Palestine at all. While effective control of all of the territory of the claimed state is not required, effective control of a significant or meaningful element surely is.

Since then, of course, the situation has been complicated legally and politically by the Oslo Accords, according to which, in essence, Israel and the PLO agreed to a division of jurisdiction over the West Bank and Gaza, leaving certain critical issues, such as final borders, settlements and Jerusalem to final status negotiations,Footnote ⁹⁸ something that would appear to run counter to a claim for Palestinian independence. Further, it should be noted that the recognition of Israel by the PLO would seem to end Palestinian claims once made to the whole of mandatory Palestine.

A further point on this spectrum is occupied by those entities claiming to be states or as having another international status, but which rely substantially upon the military and economic support of a third power. Examples here would include the claimed Turkish Republic of Northern Cyprus and, as other variants, Nagorno-Karabakh, Transnistria and Crimea. These entities are unrecognised, save for one or two interested parties.

It is worth noting in passing that the process of colonisation in Africa depended upon the methodology of cession. As explained by the ICJ, particularly in Cameroon v Nigeria, the institution of the colonial protectorate was the primary means whereby the colonial powers obtained sovereignty in Africa in the nineteenth century. Agreements were signed with local chiefs, under which the latter accepted the protection of the particular colonial power and this seamlessly morphed into sovereignty.Footnote ⁹⁹ For present purposes, what is interesting is that the colonial states recognised the local chiefs as entities having the capacity to transfer territorial sovereignty. Such recognition contains the seeds of what later became the principle of self-determination.Footnote ¹⁰⁰