Formation and Recognition of States Under International Law
The main entities in the international community are sovereign states. Under international law, states have inherent rights and obligations. These are not easily defined, but a state typically can choose its form of government, make laws that promote its interests, provide services to its population, exercise jurisdiction over its territory, have equal legal standing with other states, and use self-defense against armed attacks. With these rights come duties such as refraining from interfering in the internal or external affairs of other states, respecting human rights and fundamental freedoms, settling disputes with other states by peaceful means, and performing obligations imposed by treaties and other sources of international law. However, defining when an entity becomes a state may not be straightforward.
Formation of Sovereign States
The Montevideo Convention of 1933 outlines the general criteria for creating a state. These include a permanent population and a defined territory, although boundary disputes do not necessarily prevent an entity from being considered a state. Another element of statehood is an effective government. This factor also is not as absolute as it sounds. The United Nations and many countries have recognized certain entities as states even while civil wars raged within their borders. Finally, a state must be able to conduct international relations.
Recognition of States
The process in which a state acknowledges another entity as a state is known as recognition. This can involve an overt statement or an action that implies an intent to recognize the entity as a state. Each state can make its own decision about whether recognition is appropriate, which can carry significant political weight. For example, recognition is usually required to establish sovereign and diplomatic immunities.
International law contains two theories of recognition. The constitutive theory of recognition holds that a state does not exist until it receives recognition. By contrast, the declaratory theory of recognition holds that a state exists without recognition, which is merely an acknowledgment of an existing situation. The declaratory theory has become the prevailing view. That said, an entity likely has a stronger claim to statehood when it has received recognition from many other states. This is especially true if questions surround its ability to meet the criteria under the Montevideo Convention.
Non-Recognition and Qualified Recognition
Statehood does not rely on recognition, but sometimes a state may have a duty to refrain from recognizing another state or an alteration to a state. This situation usually arises when the state or altered state arose from illegitimate military actions, violations of human rights, or other clear infringements of international norms. The United Nations Security Council often sets an example for states on this issue. For example, it nullified the annexation of Kuwait by Iraq during the period preceding the Gulf War of 1991.
In other cases, a state may not recognize an entity that meets the baseline criteria for statehood until it meets specific additional requirements. For example, states formed during the dissolution of the Soviet Union did not receive recognition from the European Community (the precursor to the European Union) until they committed to nuclear non-proliferation, minority rights, and respect for borders.
