State Recognition refers to the act of sovereign States in recognizing another entity as a State.[1] A key issue of the Western Sahara Conflict is the question of Recognition of the Sahrawi Arab Democratic Republic (SADR) as a State. An ambiguity exists in International Law regarding the significance of State Recognition to Statehood.

The relevance of Recognition on Statehood has been debated and contested by two prominent theories, the Constitutive Theory, which propounds that Statehood is conferred only through Recognition as a State cannot be created automatically rather through prior deliberations of other States,[2] and the Declaratory Theory, which provides that recognition is an acknowledgement of Statehood rather than conferment.[3]

Although, a criticism of the Constitutive Theory is that, it doesn't clarify the minimum States Recognition needed for attaining Statehood, or whether the existence of Statehood is relative and limited to those recognizing.[4] Additionally, Existing States would have overreaching powers which could abrogate the legitimacy of other lawful States.[5]

A mere declaration of independence does not entail Attainment of Statehood,[6] also held in the ICJ's Advisory opinion on Kosovo.[7] Conversely, Article 3 of the Montevideo Convention acknowledged the existence of a State independent from Recognition.[8] The Bosnian Genocide Case also reaffirmed this in its judgement.[9] This shows an ambiguity in Law.

The Factual criteria defining a State is codified in the Montevideo Convention, under Article 1, which defines a State as an entity that satisfies the criteria of Permanent Population, Defined Territory, Effective Government, and Capacity to hold International Relations.[10] This Criteria has been expanded to include a Duty on States to not recognize or aid in cases of serious breach of International Law in attaining Statehood or attempting to maintain such a situation, under Article 41(2) of International Law Commission Report,[11] This was further expanded to include a duty not to recognize illegal acquisition of territory.[12]

A Contested State may satisfy the Factual criteria, but without Recognition it is moot as 'statehood in isolation cannot be considered statehood proper.'[13] Recognition has a role in influencing Statehood; it is seen in the case of Palestine's Statehood claims, wherein modifications and concessions in territorial claims were needed for State's Recognition[14], this is a scenario of 'Negotiated Statehood',[15] wherein Contested States limited their self-determination claims for International Recognition.[16]

Commodification of Statehood exists wherein regardless of the contested State satisfaction of Factual Criteria, Recognition is negotiated through Foreign Policy interests.[17] This affects the integrity of Statehood under International Law.[18]

Derecognition is often used as a political tool to influence States. Montevideo Convention under Article 6,[19] provides that State recognition is unconditional and irrevocable, but the actual State practice has been inconsistent as in the case of Taiwan.[20] Derecognition by itself does not eliminate Statehood. However, it has the effect of negating the established factual aspects of Statehood.[21] A State merely satisfying the factual criteria would not be able to function or assert its rights in the exclusion of Recognition. Thus, leading to a situation of Rental Statehood enforced through the threat of Derecognition.

States take into consideration several varied factors when making decisions on Recognition. Previously, new States were recognised collectively with UN membership confirming Statehood,[22] where Territorial integrity was given predominance over Self-determination and secession. There was a shift in this stance wherein Recognition was based on criteria beyond the Montevideo Convention with greater emphasis to right to Self-Determination, Human Rights, and Democracy, as evidenced by the EU Guidelines during the dissolution of Yugoslavia which provided for such factors to be considered. [23]

Another illustration is the Recognition of Kosovo by US, EU and UK affirming the Declaration of Independence by Kosovo based on considerations of human rights violations moving away from the strict constructs of Territorial Integrity and Serbian Sovereignty. However, this had a diminished effect as Kosovo was considered an exceptional Case.[24]

One of the issues of the Western Sahara Conflict is regarding the Status of Statehood of SADR. Applying the Montevideo convention to Western Sahara, it is found that the permanent population criteria to be satisfied as held in the ICJ's Advisory Opinion.[25] Further, Article 6 of the Convention between Spain and France declared that the territory of Western Sahara was distinct from Morocco.[26] It is found that the SADR has a democratically elected Government with sufficient control and associated relations with some Nations.[27] Thereby satisfying the criteria prescribed by the Montevideo Convention.

States have based their Recognition and Non-Recognitions of SADR on the interpretation of the facts as well as on other considerations. At the time of SADR's declaration as a State, 84 States recognized SADR as a State, but this number has fallen since then.[28] Many of these Derecognitions were Foreign Policy decisions to further ties with Morocco.[29]

UN designation of western Sahara is that of a non-self governing territory subject to a decolonisation process, thereby not recognising Moroccan sovereignty over the territory.[30] SADR is a member of the African Union Article IV of its Charter,[31] which entitles all African States to become members. The Admission into the African Union is a sign of International Recognition strengthening the SADR's position.

The Swedish Parliament cconsidered factual evidence of Statehood to be satisfied, recognising the right of self-determination of the Sahrawi people. But the parliamentary vote to recognise SADR failed due to Political considerations and the Swedish State practice was dependent on factual as well as effectiveness criteria.[32] In 2016, the Floren Report found SADR's effective control to be lacking and an absence of international consensus on Western Sahara.[33]

EU's 2018 Judgement,[34] though not expressly addressing recognition, has in its decision to exclude the territory of Western Sahara under the Agreement shows an implied inference that Western Sahara has a separate existence from Morocco, though this is not Recognition of Statehood. The US officially recognized Morocco's Sovereignty over Western Sahara.

US proclaimed their support for Morocco's Autonomy Plan as the only credible and feasible solution for the Western Sahara Conflict. The US consideration for Non-Recognition didn't address the factual criteria for Statehood, rather considered surrounding factors of Stability and Foreign policy to make its decision.[35]

To conclude, while Recognition may not be the sole criterion of Statehood, it has a significant impact, as it legitimises and aids in effectively enforcing State's rights in International Law. Individual State Practice is varied and there is a lack of uniformity or consistency in factors considered when Recognizing or withholding Recognition, with a heavy influence of political considerations.

States have adopted a positive change towards greater emphasis on Right to Self-Determination and other Moral Ethical Considerations. However, the lack of Consistency on weightage allotted to such considerations and to the Factual criteria have led to arbitrariness in interpretation and Standard needed to Attain Statehood.

Therefore, there is a need for clarity on value assigned to State Recognition for Statehood under International law as well as a need for consistent State Practice defining the relevant considerations to be ascertained when deciding on Recognition.

Bibliography
Journals

• Crawford JR, The Creation of States in International Law (2nd edn, Oxford University Press 2007)
• Bachmann S and Prazauskas M, 'The Status of Unrecognized Quasi-States and Their Responsibilities under the Montevideo Convention' (2019) 52 Int'l Law 393
• Griffiths R and Wasser L, 'Does violent secessionism work?' (2019) 63 Journal of Conflict Resolution 1310.
• Kursani S, 'Costs of International Recognition: Palestine's and Kosovo's Struggle with Negotiated Statehood' (2023) Geopolitics, Routledge
• Lauterpacht, Recognition in International Law (1947, repr with introduction by Crawford, 2013).
• Knotter L, 'why declare independence? Observing, believing, and performing the ritual' (2021) 47 Review of International Studies 252
• Oliveira V, 'Statehood for Sale: Derecognition, "Rental Recognition", and the Open Flanks of International Law' (2023) 5 Jus Cogens, 277
• Dugard J, Recognition and the United Nations (Cambridge University Press, 1987)
• Newman E and Visoka G, 'The Geopolitics of State Recognition in a Transitional International Order' (2023) Geopolitics Routledge, 14.
• Smith JJP, 'State of Self-Determination: The Claim to Sahrawi Statehood' (2010), www.arso.org/Self-DeterminationJSmith310310.pdf, accessed 1 November 2023.
• 'SADR Recognitions' (Universidade de Santiago de Compostela) https://www.usc.es/en/institutos/ceso/RASD_Reconocimientos.html, accessed 20 November 2023.
• Fernandez-Molina I and Porges M, 'Western Sahara from: Routledge Handbook of State Recognition' (2019) Routledge https://www.routledgehandbooks.com/doi/10.4324/9781351131759-29, Accessed 23 Nov 2023.
• Badarin E, 'Recognition of states and colonialism in the twenty first century: Western Sahara and Palestine in Sweden's recognition practice'(2021) 42 Third World Quarterly, 1276.

Statutory Instruments

• Convention on Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) (Montevideo Convention)
• International Law Commission, 'Draft Articles on the Responsibility of States for Internationally Wrongful Acts' (2001) UN Doc A/56/10
• European Community: Declaration on Yugoslavia and on the Guidelines on the Recognition of New States 31 ILM 1485 (1992).
• Treaty Between France and Spain Concerning Morocco (1912) 6 The American Journal of International Law, 116
• Proclamation 10126-Recognizing the Sovereignty of the Kingdom of Morocco Over the Western Sahara, (2020) https://www.govinfo.gov/app/details/DCPD-202000886, accessed 21 November 2023.
• Organisation of African Unity Charter, (1963)https://au.int/en/treaties/oau-charter-addis-ababa-25-may-1963, accessed on 23 November 2023.

Cases

• Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory opinion) 2010 https://www.icj-cij.org/sites/default/files/case-related/141/16010.pdf, accessed 22 November 2023.
• Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004 https://www.icj-cij.org/sites/default/files/case-related/131/1677.pdf, accessed 21 November 2023.
• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) I.C.J. Reports 1996, 595.
• Western Sahara, Advisory Opinion [1975] ICJ Rep 12.
• Case C-266/16 Western Sahara Campaign UK v Commissioners for Her Majesty's Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs [2018]

End-Notes:

1. James Crawford, Brownlie's Principles of Public International Law (Oxford University Press 2012).
2. Sascha Dov Bachmann & Martinas Prazauskas, 'The Status of Unrecognized Quasi-States and Their Responsibilities under the Montevideo Convention' (2019) 52 Int'l Law 393.
3. Crawford (n 1).
4. ibid.
5. ibid.
6. Ryan Griffiths and Louis M. Wasser, 'Does violent secessionism work?' (2019) 63 Journal of Conflict Resolution 1310.
7. Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory opinion) 2010 https://www.icj-cij.org/sites/default/files/case-related/141/16010.pdf accessed 22 November 2023.
8. Convention on Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) (Montevideo Convention), Art 3.
9. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) I.C.J. Reports 1996, 595.
10. Montevideo Convention (n 8) Art 1.
11. International Law Commission, 'Draft Articles on the Responsibility of States for Internationally Wrongful Acts' (2001) UN Doc A/56/10, Art 41(2).
12. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004 https://www.icj-cij.org/sites/default/files/case-related/131/1677.pdf accessed 21 November 2023.
13. Victor S. Mariottini de Oliveira, 'Statehood for Sale: Derecognition, "Rental Recognition", and the Open Flanks of International Law' (2023) 5 Jus Cogens, 277.
14. Shpend Kursani, 'Costs of International Recognition: Palestine's and Kosovo's Struggle with Negotiated Statehood' (2023) Geopolitics, Routledge.
15. Ibid 11.
16. Kursani (n 14) 22.
17. Oliviera (n13) 14.
18. Oliviera (n13) 14.
19. Montevideo Convention (n 6) Art 6.
20. Oliviera (n13) 10.
21. n 9.
22. John Dugard, Recognition and the United Nations (Cambridge University Press, 1987)
23. European Community: Declaration on Yugoslavia and on the Guidelines on the Recognition of New States 31 ILM 1485 (1992).
24. Edward Newman and Gezim Visoka, 'The Geopolitics of State Recognition in a Transitional International Order'(2023) Geopolitic Routledge, 14.
25. Western Sahara, Advisory Opinion [1975] ICJ Rep 12.
26. Treaty Between France and Spain Concerning Morocco (1912) 6 The American Journal of International Law, 116, 118.
27. J.J.P. Smith, 'State of Self-Determination: The Claim to Sahrawi Statehood' (2010), www.arso.org/Self-DeterminationJSmith310310.pdf accessed 1 November 2023.
28. 'SADR Recognitions' (Universidade de Santiago de Compostela) https://www.usc.es/en/institutos/ceso/RASD_Reconocimientos.html accessed 20 November 2023.
29. Oliviera (n 13).
30. Irene Fern�ndez-Molina and Matthew Porges, 'Western Sahara from: Routledge Handbook of State Recognition' (2019) Routledge https://www.routledgehandbooks.com/doi/10.4324/9781351131759-29 Accessed 23 Nov 2023.
31. Organisation of African Unity Charter, (1963)https://au.int/en/treaties/oau-charter-addis-ababa-25-may-1963 accessed on 23 November 2023.
32. Emile Badarin, 'Recognition of states and colonialism in the twenty first century: Western Sahara and Palestine in Sweden's recognition practice'(2021) 42 Third World Quarterly, 1276, 1283.
33. ibid.
34. Case C-266/16 Western Sahara Campaign UK v Commissioners for Her Majesty's Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs [2018]
35. Proclamation 10126-Recognizing the Sovereignty of the Kingdom of Morocco Over the Western Sahara, (2020) https://www.govinfo.gov/app/details/DCPD-202000886 accessed 21 November 2023.