Recognition

by

Jean d’Aspremont

• LAST MODIFIED: 21 November 2012
• DOI: 10.1093/obo/9780199796953-0009

Introduction

Recognition occupies a central place in state practice and in the literature, but this does not necessarily mean that it is, properly speaking, a legal institution. First and foremost, recognition is a political act whereby a subject of international law, whether a state or any other entity with legal personality, expresses its unilateral interpretation of a given factual situation, be it the birth of a new state, the coming to power of a new government, the creation of a new intergovernmental organization, the status of an insurgent, the outcome of an election, the continuation of a defunct state by another, a specific territorial arrangement, and so on. In that sense, recognition is a formal expression by its author about how it perceives the situation to which it extends recognition. Recognition simultaneously constitutes a means for its author to make known its own view of a situation, including the legal consequences, if any, that the author attributes to the situation and on which the author intends to base its policy. With a few exceptions, recognition remains discretionary. Any subject of international law decides for itself how it interprets and construes the facts or the situation that is the object of recognition. The subject may also decide not to express any position at all. Once granted, recognition can also be subsequently withdrawn if the author changes its interpretation (and policies) or wishes to make it known differently. Although a political act, recognition deeply affects the international legal system and bears wide-ranging legal effects in both the international and domestic legal orders. International legal scholars have mostly focused on the international and domestic legal effects of recognition as well as the forms and modes in which and whereby it is extended. It is noteworthy that the forms, modes, and legal effects of recognition have been primarily studied in connection with the birth or extinction of states as well as the coming to power or overthrow governments. But, as was previously stated, recognition can potentially be directed at many other situations that states judge require a reaction. The discretionary character of recognition has been increasingly qualified by the development in positive international law of an obligation not to recognize that has been systematized and studied in the framework of international responsibility and that applies in many situations besides the birth of new states or illegal acquisition of territory. This constitutes another, more recent angle from which recognition has been examined in the literature.

Bibliographies

Recognition has spawned a vast literature. The researcher, on first approaching the topic, can easily feel swamped, not least because recognition, long a topic of writers’ interest, from the mid-20th century generated a tertiary literature—a debate about debates—including especially the classic debate over the constitutive and declaratory theories of recognition. Talmon 2000 is a useful, and surely not outdated, bibliography and can offer anyone embarking on a study of recognition an efficient guide to navigating the literature of the 19th and 20th centuries. Its 4,500 entries are arranged systematically, according to subject categories in fourteen main sections. Each main section is further subdivided, with ever-increasing specificity, into subsections on codification, codification attempts, general studies, studies of certain recognition questions, and studies of specific recognition cases. For a historical view, see Griffin 1904, which maps the literature before 1904.

• Griffin, Appleton P. C. List of References on Recognition in International Law and Practice. Washington, DC: Government Printing Office, 1904.

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  A useful outline of the literature of the 19th century.

• Talmon, Stefan. Recognition in International Law: A Bibliography. The Hague and Boston: Martinus Nijhoff, 2000.

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  The most comprehensive bibliographical outline on the topic of recognition.