The Aspirational Recognition of States in International Law

TABLE OF CONTENTS

I. Introduction

Despite the rise of international organizations and other non-state bearers of international legal personality, states remain international law’s paradigmatic actors,1 and the number of states keeps increasing.2 Under international law, statehood brings a battery of rights and duties including protections against external coercion and the right of diplomatic immunity from peer states.3 International law originated among European states.4 Traditionally, states have the ability to make treaties with other states, were exclusively competent in their internal affairs, were not subject to compulsory external jurisdiction, and were legally equal with other states.5 All this is to say that statehood has been and remains foundational to international law.6

Recognition is the practice by which pre-existing states formally acknowledge another entity as a state.7 For example, Morocco recognized the U.S. as a state when it entered into formal diplomatic relations with the U.S. in 1785.8 Since the nineteenth century, statesmen and lawyers placed great importance on recognition; for instance, U.S. representatives at the U.N. Security Council claimed in 1948 that no “country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a State[.]”9

Broadly speaking, there are two positions that concern the relationship between statehood, recognition, and international law: the declaratory theory and the constitutive theory.10 Proponents of the declaratory theory argue that a state is a state because it fulfills certain necessary and sufficient criteria of statehood, and that the practice of recognition merely declares the pre-existing fact of legal statehood.11 Proponents of the constitutive theory argue that entities receive statehood in international law when pre-existing states extend recognition.12 The constitutive option puts all the responsibility of making new states on already existing states, which seems to elevate the discretion of pre-existing states to the detriment of the right of self-determination.13 Partly because of the unattractiveness of this consequence, the dominant position today—as reflected in the Restatement (Third) of Foreign Relations Law—is the declaratory theory.14 That is, statehood is said to flow from fulfilling certain criteria established in international law, and recognition is merely declaratory of a pre-existing fact of statehood.

Though some scholars have alleged that the law of the recognition of states is largely settled, with the declaratory view winning out, recent controversies surrounding the recognition of states in eastern Ukraine and Palestine belie this assertion.15 Others claim that theories of recognition have overrun empirical studies of recognition practices and have not helped to clarify the issue of the relationship of recognition to statehood and state formation.16 This Comment argues that neither the declaratory nor the constitutive theory adequately describe the state of recognition practices today. It aims at providing an adequate description of recognition as it is presently practiced, with an eye toward the theoretical consequences of these practices. Briefly, contemporary recognition practices cannot be adequately and entirely described by either a declaratory or a constitutive theory of recognition.17 Instead, recognition today is largely aspirational, though this does not mean that recognition is arbitrary or meaningless.18

Philip Bobbitt argues that international law is uniquely conditioned to adapt to changes in the global strategic environment.19 Recognition has followed this process of adaptation.20 Today, recognition has entered yet another phase. Barring catastrophe, new states today are formed via secession from old host states, or in situations where the territory of a claimant to statehood is not fully under its control. In this situation, recognition will rarely be fully declaratory of pre-existing statehood. But just because one state recognizes a state, this does not make the act of recognition fully constitutive. Instead, recognition today is aspirational of statehood.

In the first part, this Comment describes in more depth the declaratory and constitutive theories, and points out their respective theoretical flaws. In the second part, this Comment analyzes various examples of recognition from the past two decades, including the recognition or purported recognitions of South Sudan, Kosovo, Palestine, and the Ukrainian provinces of Donetsk and Luhansk. Both the constitutive and the declaratory theories do not comprehend these cases of recognition, but the aspirational theory of recognition does.

II. What is Recognition?

A. The Declaratory Theory

Thomas Grant has defined “recognition” as roughly “an acknowledgement by a state that another state is also a state.”21 This definition, however, presupposes that the state acknowledged was a state prior to the recognition. Even the word “acknowledgement” diminishes the importance of the act of recognition. This reality is what the declaratory theory of statehood holds: the act of recognition is merely declaratory of pre-existing statehood, where statehood is understood as a factual state of affairs. The declaratory theory suggests that “how states come into being[,]” does not depend on their recognition as states.22 Rather, the declaratory theory of recognition holds that an act of recognition merely acknowledges a pre-existing fact in the world; the fact in this case being the fact of statehood, that a state is a state. The declaratory theory “claims that there is a general rule of international law under which an entity becomes a state (with the rights and other legal attributes that statehood entails).”23 Under this view, statehood is a “fact,” and recognition merely acknowledges that fact.24

The most widely held and popular approach to recognition is the declaratory position.25 The Restatement (Third) of Foreign Relations Law, for instance, in defining “recognition,” calls it “a formal acknowledgement by another state that an entity possesses the qualifications for statehood . . . and implies a commitment to treat that entity as a state.”26 Obligations following recognition include respecting the recognized entity’s territorial sovereignty, the nationality of its persons and vessels, and fulfilling “other obligations that states owe to other states generally under international law.”27 While a state “is not required to accord formal recognition to any other state,” it is required to treat “as a state an entity meeting the requirement of § 201.”28 Thus, under the declaratory theory, recognition itself is unimportant in establishing the case of an entity as a state; what matters are the factors of statehood. Restatement § 201 contains these factors: if an entity has a defined territory and a permanent population that is under the control of its own government, and has the capacity to engage in formal relations “with other such entities,” then it is a state, irrespective of its recognition by any other state.29 These criteria match those of Article 1 of the 1933 Montevideo Convention—defining territory, permanent population, control of its own government, and the capacity to engage in formal relations with other international entities.30 The Restatement attributes the criteria to the Convention, while also stating that these factors are “well established in international law.”31 The Convention also reiterates the Restatement’s view on recognition as “[t]he political existence of the state is independent of recognition by the other states.”32 An unrecognized state thus has the right to defend itself against invasion, to legislate in its own interests, and so on; the “recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law.”33

Under the declaratory view, recognition mostly has a signaling function. It does nothing more than signal that the pre-existing state recognizes the other state as being (legally) equal to itself, and that it intends to treat it as such. International legal rights and duties are supposed to be unaffected by the recognition, which is merely political or diplomatic. Theoretically, unrecognized states are thus protected from aggression: for example, though the U.N. Charter does not mention recognition, it provides for the protection of the territorial integrity of all states, regardless of membership status.34 When combined with the four-factor approach to statehood contained in the Montevideo Convention and the Restatement, this would mean that any entity meeting those factors should be protected from aggression just as much as any universally recognized state. Under this view, recognition is primarily a diplomatic, not a legal, action.

International lawyers view the Montevideo Convention’s four criteria as the primary factors in the test for statehood.35 But different criteria have sometimes been used in the course of history. Even during its drafting in 1933, not everyone would have agreed that the Montevideo Convention accurately summarized customary international law on statehood.36 Notably, European states required the new entities arising after the collapse of the U.S.S.R. and Yugoslavia to protect rights of self-determination, democracy, minority rights, and constitutional legitimacy as conditions for the recognition of their statehood.37 This has led some scholars to wonder whether the criteria for statehood have changed since 1933.38 More recently, Tuvalu’s Constitution proclaims that the “State of Tuvalu within its historical, cultural, and legal framework shall remain in perpetuity in the future, notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu.”39 This amounts to a claim that Tuvalu will continue to exist as a state regardless of having territory or not, which may be understood as an effort to change customary international law on this matter.

Such change could produce uncertainty which would undermine the primary virtue of the declaratory theory: the supposed predictability it gives to those seeking to say whether a particular entity is a state or not. This predictability flows from a rule-oriented understanding of what makes a state a state.40 Grant has suspicions about whether the factors for statehood privileged in the declaratory position are too changeable and thus whether the declaratory theory itself is ultimately “conducive to legality.”41 Sterio likewise points to such extra conditions on recognition to show how recognition practices reinforce power hierarchies in the international legal system: while in theory all states are legally equal in status once they have become states, pre-existing states can demand concessions and costs by changing the criteria of statehood.42 If the criteria for statehood can be so easily changed by powerful states, then the declaratory position seems practically constitutive. If it seems like what counts as the criteria that define statehood depend on what pre-existing states treat as the criteria for statehood, then it follows that the fact of an entity’s statehood is a consequence, even if indirect, of its recognition by other states (even if such recognition is mediated by criteria). In such a system, the so-called Great Powers recognize new entities when it serves their interests, not when the new entity satisfies the four Montevideo Convention criteria, or any other stable set of legal criteria.43 International lawyers could argue that such realist uses of recognition and statehood criteria44 have not changed customary international law, since few states, as Sterio admits, argue that their practices of recognition are mandated by international law, and thus they fail to serve as evidence of opinio juris. But even if the definition of statehood has not changed under ordinary understandings of customary international law, if most states seem to act at variance from the legal definition, then, since that definition is not justified a priori, the descriptive accuracy of that definition itself should come under suspicion. As even Ti-chiang Chen, one of the most strident proponents of the declaratory position, has said, international law “like any other system of law, cannot be divorced from fact.”45

B. The Constitutive Theory

The declaratory position has the purported effect of constraining the freedom of choice of pre-existing states, who otherwise might have the ability to choose which entities become states in a manner that is essentially political, or at least outside the scope of legal rules. It is thus a direct counter to the constitutive theory of recognition, which treats a pre-existing state’s act of recognizing an entity as constitutive of that entity’s statehood. In other words, when a pre-existing state recognizes another state, that recognition constitutes that entity as a state. The downside to this view is that it encourages people like Chen’s “Machiavellian statesmen” who have a “justification for ignoring the existence of other entities and denying them rights under international law.”46

There is an added problem with constitutive theories of recognition. Because recognition is understood as a bilateral action—one state recognizes another entity and thus makes it a state—it can produce a situation in which the same entity is a state for one state, and not a state for all other states. This seems like a contradiction: how could an entity be both a state and not a state? Some entities like Northern Cyprus are in this exact position; only Turkey has recognized Northern Cyprus, which proclaimed its independence from Cyprus in 1974, while every other state has refused to recognize it.47 And yet, the constitutive theory still appears to capture something accurate: an entity can fulfill the Montevideo Convention criteria of statehood, and yet, because it has not been recognized by a single state, it will still fail to receive many of the rights accorded to states under international law. Making the situation more difficult, it seems that a state can aim to recognize the self-determination of people but will be unable to do so or at least prevented from doing so because of its duty not to interfere in the territorial integrity of another state. Arguments to the contrary based on protection against invasion declared by U.N. Charter Article 2(4) fail to take into account that under the constitutive theory, an unrecognized state is not a state, and thus other states are not subject to the prohibition against invasion, at least under the Charter.

The purpose of this Comment is not to relitigate the conflicts between the declaratory and constitutive theories, nor is it to overturn these theories as false or trivial. The difference between these theories ultimately depends on the deeper conflict between, on the one hand, a kind of natural law and, on the other, legal positivism. If the existence of a state is determined by fulfilling essential criteria of statehood, where the acknowledgement of that entity as a state is not itself one of these criteria—absent any consent by any other state as it becoming a state—then, goes the thought, the existence of the state is determined by rules ultimately grounded in natural law, meaning here an understanding of law as arising from extra-legal sources. To recognize a state is merely to acknowledge that it is accurate to describe that entity as a state. Under this view, the “fact” of statehood is what matters. If the existence of a state, in contrast, only results from the consent of other states to recognize the entity as a state, then it does so because international law is to be found in legal materials like treaties or actions like recognition. That represents a positivistic system of law.48

Both positions have been prevalent in the history of international law; in effect, the declaratory and constitutive theories represent different substrata in the archaeology of international law, both of them ever present and ready to be applied in new situations.49 It has been suggested that these theories are best understood “as lenses which assist observers in focusing their analysis of particular incidents of recognition.”50 The problem with taking this pragmatic attitude51 toward these theories, however, is that it is unclear what recognition is without framing them in terms of the theories. To choose between them at will, relative to one’s analytical purposes, then, is to equivocate about what it means to say that a state has recognized some entity. After all, the recognition of a state is not a pre-theoretical practice that exists outside the conceptual apparatus of international law. What we understand as a particular instance of recognition depends on something like the theory employed to label an instance as an instance of recognition, as opposed to an instance of something else.

Recognition is essentially theory-laden, meaning that any perception of recognition is itself colored by theories of recognition, which affect “judgments about the salience of certain evidence and the conceptual framing of data.”52 What counts as a state as a matter of fact will be at least partially determined by what theory of recognition one accepts; there is no way to entirely leave theories by the wayside. So, we should not simply assume that any declaratory theory of recognition could focus purely on acknowledging the “fact” of statehood, as has been often suggested. This is doubly so if the criteria by which statehood is understood—those criteria constituting a theory of statehood—are themselves mutable and in a state of flux.

C. Aspirational Recognition

In view of these challenges, this Comment proposes a new way to understand recognition as it has been practiced in recent decades. I call this conception of recognition “aspirational recognition.” To recognize aspirationally is neither to acknowledge an existing fact of statehood, nor to necessarily claim that the polity in question fulfills some naturally-occurring criteria of statehood. In that sense it seems constitutive, because the entity thus recognized takes on the formalities of statehood, like, for example, foreign diplomatic immunity. But at that point the “state” still often fails to be a state in the manner that the Montevideo Convention criteria suggest are the essential attributes of statehood. An entity recognized as a state may lack an effective government, or a secure territory. It may not look like a state at all except for the fact that it has been recognized and has benefitted from the legal consequences that follow recognition.

Briefly put, an act of aspirational recognition contributes to making it so that a given political entity becomes a state, or at least is, consequently, closer to being one. Both the constitutive and declaratory theories of recognition presuppose a conception of recognition as aspirational. In a world where new states generally are born either from the dissolution of old states, or via often hostile processes of secession, a new state will almost never fully pass the test of statehood in the Montevideo sense: as this Comment argues, recognition is rarely an act of merely acknowledging the fact of statehood. On the other hand, the constitutive theory may suggest that almost any entity could, in theory, be recognized as a state, and that this recognition would make the entity into a state. But its statehood at that point would be nominal at best. It might not have an effective government, any territory, a permanent population, and so on. It would not be a state in any way beyond the fact that it has been recognized as a state. The argument of this Comment is that recognition in the modern era is almost always aspirational; in recognizing an entity as a state, another state attempts to facilitate the state formation of the entity in question.53

III. Aspirational Recognition in Practice

A. South Sudan: Bilateral Secession and Collective Recognition

The least controversial act of state creation in recent years was the creation of South Sudan in 2011.54 South Sudan became a state with the consent of its former host state, Sudan, under the auspices of the U.N., and it enjoyed the immediate recognition of most of the world’s states.55 This latter element in South Sudan’s process of becoming a state can appear to be the paradigm of declaratory recognition in the modern era; although it can also be described as constitutive. In fact, it is better understood as a case of aspirational recognition, that is, recognition that neither declares a “fact” of statehood nor constitutes an entity as a state—if this statehood is to be more than nominal. Rather, aspirational recognition describes how recognition is used to help along the process of state creation both internally and externally; aspirational recognition describes how states use recognition to push new entities toward the enjoyment of statehood. Because South Sudan became a state essentially without opposition—at least in 2011—it provides a good place to start before the Comment turns to more controversial examples.56

On July 9, 2011, with the attendance of heads of state and the U.N. Secretary-General in the capital of Juba, South Sudan became an independent state.57 South Sudan had always been a distinct ethnic and cultural region that was separate from the rest of Sudan.58 In the 1950s a southern independence drive (powered by the Ananya movement) developed a military wing, which battled against the Sudanese government.59 This led to regional autonomy for South Sudan under the Addis Ababa Agreement of 1972.60 But the self-governing status of the south, promised under the Addis Ababa Agreement,61 was quickly violated after large oil reserves were discovered in the region in the later 1970s.62 Violence broke out again, and was only stemmed in the early 2000s. After the U.N. Security Council held a meeting in Nairobi in 2004 in order to encourage the two sides to make peace, a Comprehensive Peace Agreement (CPA) between the north and the south was drawn up and signed in a soccer stadium in Nairobi, Kenya, in 2005.63 The CPA implemented the earlier Machakos Protocol of 2002, which had recognized the right to self-determination of the people of South Sudan.64 Under the CPA, there would be an interim period of six years, during which power would be shared between the north and the south, and this would be followed by a referendum on independence to be voted on by the southern Sudanese.65 This referendum was held in 2011, and the vote was overwhelmingly in favor of independence.66

Before the referendum was held, Sudan’s president announced that Sudan would abide by its results.67 South Sudan’s independence thus secured the assent of Sudan’s former host state. Moreover, U.N. support made South Sudan’s entrance into the society of pre-existing states easier, and the so-called “troika” of the U.S., the U.K., and Norway.68 Importantly, China, which had earlier supported Sudan in its struggles against separatists, did not oppose South Sudan’s independent statehood.69 Formal statements of recognition were made by all five U.N. Security Council members on the day of the referendum.70

The independence of South Sudan was understood at the time to be consistent with international law. U.S. President Obama described South Sudan’s independence as part of the wider phenomenon of decolonization in Africa, stating that “[w]e know that Southern Sudanese have claimed their sovereignty and shown that neither their dignity nor their dream of self-determination can be denied.”71 And less than a week after South Sudan declared independence, the U.N. General Assembly voted to accept South Sudan as the U.N.’s 193rd member.72

As a matter of legal state creation, South Sudan became a state in a remarkably swift timeframe. This was owing to Sudan’s acquiescence in its independence, and the swift recognitions of its statehood by other nations. The U.N. Secretary-General Ban Ki-moon said, after the U.N. General Assembly voted to accept South Sudan’s membership, that “the world gathers to say in one voice: Welcome, South Sudan. Welcome to the community of nations.”73 But South Sudan remained weak in its governmental infrastructure, beset by corruption, and rife with potential ethnic conflicts between the Dinka and Nuer peoples.74 Just three years after gaining independence, it fell into civil war, and by 2018 more than four million people had been displaced; this amounted to one-third of the entire population.75 Moreover, the territory of South Sudan remained under dispute, with three provinces claimed by both South Sudan and Sudan.76 As Kilroy states, “South Sudan’s problems do not arise from lack of state recognition, and in fact come despite considerable goodwill and practical support from most of South Sudan’s neighbors and the wider international community.”77

At least from a constitutivist perspective, South Sudan’s status as a state is not imperiled by being, essentially, a failed state.78 No state that recognized South Sudan in 2011 has withdrawn recognition. Though some scholars have argued that de-recognition is a legitimate course of action when a recognized state ceases to fulfill essential attributes of statehood, that eventuality has yet to be tested in this case.79

However, ex ante, the recognition of South Sudan was not declaratory of a pre-existing fact of statehood. Two of the Montevideo Convention criteria—effectiveness and territoriality—were not fully present when other states recognized South Sudan. As for territoriality, the borders of the state were not clarified prior to independence, since both Sudan and South Sudan claimed some of the same provinces.80 Regarding effectiveness, “[a] key reason for South Sudan’s failure is misgovernance and lack of capacity in a land that, pre-2011, lacked credible institutions and infrastructure[.]”81 In other words, South Sudan was not an effective state at the moment of recognition, and in fact, has failed to ever develop effective state capacity.82 To an important degree, then, the recognitions of South Sudan did not declare the pre-existing statehood of South Sudan, except, insofar as they acknowledged the results of the independence referendum, with which Sudan had already promised to comply. But the bare results of an independence referendum are not traditionally thought to constitute statehood, at least not in any way that goes beyond mere formality.

The recognitions by various states of South Sudanese statehood seems to demonstrate the accuracy of the constitutive theory, in part because the declaratory theory fails to describe what it was which was supposedly recognized. This understanding of the constitutive effects of recognition is bolstered by the effects of the recognitions. The recognition of South Sudan was, as the Secretary-General of the U.N. implied, nearly universal.83 This practice has come to be known as collective recognition, which Vidmar considers to be basically constitutive—collective recognition of an entity as a state can make a state.84 Recognition has been universal or near universal for South Sudan. In such a situation, according to James Crawford, “collective recognition and collective state creation virtually become synonyms.”85 In practice, a collective act of recognition could provide a remedy for when a new entity fails to fulfil the traditional criteria of statehood, as this Comment will discuss further in the Kosovo subsection.86 The problem with this view is that any statehood that results from such a collective recognition is underdetermined by it. Such recognition brings some of the formal benefits that accrue to international statehood, but it says nothing about the effectiveness of the state thus recognized. Calling an entity a “state” does not necessarily make it so, unless one already presupposes an incredibly thin and superficial conception of statehood which fails to capture what is meant by “state” in many important cases.

In the nominal sense of the term, the recognition of South Sudan was constitutive of its statehood, but this term does not explain what the recognizing states wanted to achieve with their recognitions. Instead, the recognitions of South Sudan are best described as aspirational. At the time of recognition, South Sudan did not have an effective government.87 If recognition created a state, it was only in the formal sense of a state with international legal personality, enjoying membership in the U.N., and so on. But the point of recognizing South Sudan was not merely to create formal legal entity. It was to push South Sudan in the direction of statehood as proponents of the declaratory position understand it: that is, statehood as an objective fact with an effective government, relatively secure borders, a permanent population, and so on. So, while the recognition of South Sudan was, in an important sense, constitutive, it was also aspirational in the sense that the desired end was to create a state that would fulfil the Montevideo Convention criteria.

The hope that recognition would promote internal sovereignty is what made the recognition of South Sudan aspirational. One could even call aspirational recognition teleological: old states grant recognition of a new entity, induct it into a pre-existing society of states, and they do this to further goals such as peace and the protection of human rights, not just to proliferate ambassadors and embassies. While it is possible to understand the recognitions of South Sudan as constitutive, this is to misconstrue the actual function of the recognition in this case, although unfortunately, recognition of South Sudanese statehood has so far failed to have the desired effect. In an important sense, South Sudanese statehood remains aspirational to this day.

B. Recognition of Palestine: Explanations and Rationales

In September 2025, Britain, France, Australia, and Canada jointly recognized Palestine as a state. Four of the five of the U.N. Security Council’s five permanent members now recognized Palestine, with the sole exception being the U.S., which has continued to refuse to recognize Palestinian statehood. As of September 2025, 156 nations have recognized the statehood of Palestine. Other countries, like Belgium, promised to “legally recognize” Palestine after certain conditions, such as the return of Israeli hostages by Hamas, were satisfied.88 Palestine is already present at the United Nations as a non-member observer state, a post it has held since 2014, when the U.N. General Assembly voted to elevate Palestine from its previous status as an observer entity.89

Practically speaking, the recognitions of Palestine changed little. The war between Israel and Hamas continued in Gaza, but it seems that the point of the recognition was to effect actual state formation. British Foreign Secretary Yvette Cooper, for example, announced that “[t]oday’s historic decision, taken alongside some of our closest allies, to recognize a Palestinian State, reflects our unwavering commitment to a two-state solution and affirms the inalienable right of the Palestinian people to self-determination . . . Two states is the only way to safeguard long term peace and security for Israelis and Palestinians alike.”90 Cooper thus emphasized that the act of recognition was part of “a stronger and wider push for peace,” that comprised part of a larger effort to end the hostilities ongoing in Gaza.91

In a separate statement, timed to coincide with the U.K.’s announcement, the Prime Minister of Canada further explained that “Canada recognizes the State of Palestine and offers our partnership in building the promise of a peaceful future for both the State of Palestine and the State of Israel.”92 Canada, like the U.K., affirmed that the act of recognition was meant to help bring about peace in the Middle East. In this, the recognition was grounded in human rights law: “[w]hile Canada is under no illusion that this recognition is a panacea, this recognition is firmly aligned with the principles of self-determination and fundamental human rights reflected in the United Nations Charter, and the consistent policy of Canada for generations.”93 It was also part of a wider battery of peace-making efforts, including humanitarian assistance, and it was at least in part conditional on assurances from the Palestinian Authority that it would demilitarize the Palestinian state and hold democratic elections.94

Both the Governments of the U. K. and Canada asserted that they acted as part of a broader international peace-making effort.95 They acted in tandem with the governments of France and Australia. France likewise had recognized Palestine, citing as its reason for doing so the right to self-determination enjoyed by the Palestinian people.96 The French government also remarked that the act of recognition of the state of Palestine was an attempt to acknowledge “the Palestinian actors who have chosen dialogue and peace over those such as Hamas, in particular, who have chosen war and terrorism.”97 The recognition was preparatory to an anticipated peace plan, to be negotiated between Israel and Hamas (not the Palestinian Authority, which was recognized as the government of the state of Israel), with the assistance of the U. S., Qatar, and Egypt.98 To-date, the U. S. has proposed a peace plan between the combatants. One of the sticking points of the plan is that it requires Arab states and Israel to send soldiers to train Palestinian police officers, but “Arab states would be unlikely to deploy their soldiers to Gaza if the plan did not include a pathway to establishing a Palestinian state, which Israel’s government opposes.”99 Negotiations in the U.N. Security Council surrounding a draft resolution that would support the peace plan faltered at one point because “[t]hough Mr. Trump’s plan includes a vague reference to the Palestinian aspiration to statehood, it does not outline a pathway to establishing a state.”100

In other words, the question of whether or not to recognize Palestine as a state remains a hindrance to peace. Peace is prioritized over statehood for some, as at least one Palestinian academic has argued that statehood for Palestine is beside the point. According to Yaser Alashqar, some Palestinians believe that what should be sought is not recognition of statehood, but rather humanitarian assistance, and autonomy.101 It is often thought that self-determination comes in two forms: internal and external. According to one view, internal self-determination, that is, autonomy from foreign control, coupled with peace and prosperity, might be preferable to the supposed rewards of statehood: theoretical equality with other sovereigns, access to the International Court of Justice and policy making in the U.N., and so on.102 On such a view, international recognition of Palestinian statehood does not advance the humanitarian needs of the Palestinian people.

There remains the question of whether the decision to recognize Palestine was legal under international law. France, the U.K., and Canada each explained their decision to recognize Palestine along the following lines: (a) the right to self-determination of the Palestinian people obligates each state do so, and (b) recognition would help to bring about peace in the Middle East.

Self-determination, or the idea that a people ought to be able to live within their own state, and under their own rule, is intertwined with the concepts and practices of decolonization. It is enshrined in three separate sections of the U.N. Charter.103 However, self-determination alone cannot be enough to justify the recognition of a new nation as overuse could destabilize the international system by threatening state sovereignty—another legal concept protected by the U.N. Charter.104 As former U.N. Secretary-General Boutros Boutros-Ghali has stated, “if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security and economic well-being for all would become ever more difficult to achieve.”105

The other rationale mentioned by the recognizing states is peace. Making peace between nations could be considered the raison d’être of the U.N, and modern international law more generally. The Preamble to the U.N. Charter states the purpose of the U.N is in part “to practice tolerance and live together in peace with one another as good neighbors and . . . to maintain international peace and security.”106

Notably, a number of the recognizing states had set conditions to their decision to recognize Palestine in the first place.107 In return for fulfilling these conditions, Palestine would be recognized as a state.108 But if Palestine were already a state and recognition was simply declaratory of that fact, then what would be the legal force of the conditions on recognition? If recognition were necessary to constitute Palestine as a state—at least for those countries that demanded these conditions prior to recognition—then it could be understood that statehood would in the future depend on a kind of conditional recognition, which would be seemingly at odds with the fundamental principle of sovereign equality between states.

Whatever one thinks about the legal significance of conditionalized recognition, however, the recent round of Palestinian recognitions is predicated on rationales that depart widely from past recognition practices, in which the criteria for statehood under the 1933 Montevideo Convention served an important role. In 2014, for example, when Sweden recognized Palestine, its Foreign Minister said that “[t]he purpose of Sweden’s recognition is to contribute to a future in which Israel and Palestine can live side by side in peace and security.”109 However, the announcement also stated that “[t]he Government [of Sweden] considers that the international law criteria for the recognition of Palestine have been satisfied.”110 Although these quotations come from a press release, they indicate that the Swedish government had considered whether or not the Palestinian polity qualified as a state under, presumably, the criteria of the 1933 Montevideo Convention. Yet in 2025, the recognizing states did not appeal to the Montevideo Convention criteria when they announced their decision to recognize Palestine; instead they cited the peace movement as the motivation for their acts of recognition.

The legality of the decision to recognize Palestine came under attack in the U.K.; specifically, critics argued that Palestinian state was ineffective.111 In response, Marko Milanovic has argued that “it is crystal clear” that the Palestinian people “have the right to establish their own state, by virtue of their right to self-determination[.]”112 Moreover, “it is clear that the international community, especially states acting collectively, can compensate for any defects in effectiveness[…] with the passage of time, and through the gradual increase in recognition, the statehood of Palestine has become increasingly clearer.”113 In other words, the failure of Palestine to fulfill the Montevideo criteria can be overcome by the collective recognition practices of a large number of states. Milanovic leaves unstated whether this proves that the Montevideo Convention criteria are fluid under international law, or whether statehood depends less on fulfilling certain criteria, and more on securing the recognition of other states. This latter option would steer statehood toward a kind of modified constitutive position, wherein partial fulfillment of the Montevideo criteria could be remedied by the collective recognition of an (unstated) number of pre-existing states.

What this debate about Palestine reveals is that the process whereby a political entity or polity reaches statehood is a dynamic and fluid process. In this light, the Montevideo Convention criteria appear to be only one set of factors to consider in a wider-ranging inquiry, which necessarily includes recognition as another indicium of statehood. Thus, as Milanovic states, “[r]ecognition is precisely a device through which contested claims to statehood can gradually be resolved.”114 This produces a strange situation. One of the primary reasons international lawyers prefer declaratory theories of recognition over constitutive theories of recognition was that the constitutive theory seemed to introduce too much state discretion into the question of which entities were states and which were not.115 The attraction of the declaratory theory was precisely its somewhat hard-edged lines.116 If a state fulfilled the four Montevideo criteria—or some other criteria, such as James Crawford’s independence criterion117—then the question of statehood could be considered resolved. The discretion of pre-existing states would be subtracted from the equation, and so the importance of recognition—understood thus as a purely diplomatic or political act—would be lessened. But in a world of more fluid categories of the criteria of statehood, where collective recognition by pre-existing states might hold some evidentiary value for creating a state on the international legal plane, such firm distinctions disappear.

Not everyone agrees with Milanovic’s position on supplementing the Montevideo criteria with collective recognition. As Vedirame noted, such a position contradicts declaratory theory and edges toward constitutivism.118 He points out that the Badinter Commission on the admission of former Yugoslav states declared in the 1990s that a state in international law is “a community which consists of a territory and population subject to an organized political authority [and] characterized by sovereignty; the existence of disappearance of states is ‘a question of fact’; and recognition merely declares the existence of this fact.”119 Vedirame claimed that for Milanovic’s position to be the law, the law would have had to change at some point between the 1990s and the present.120 As with any change in customary international law, such a change would require evidence of consistent state practice and opinio juris. While there have been numerous recognitions of Palestine, “[they] have been made on different bases and with various caveats.”121 To determine whether there has been real change in the law, “it would be necessary to establish that these statements evidence support for new legal principles on recognition and statehood.”122 As noted above, the only legal principles that the governments of the U.K., Canada, and France identified in their statements about recognizing Palestine were self-determination and the (political) pursuit of peace. They said nothing about changed opinions concerning the criteria for determining an entity’s statehood. Hence, “[i]t is difficult to see how there could be any serious disagreement with the proposition that, if Palestine was not a state in the Montevideo/Badinter sense (i.e. because of the facts) in 1990 or 2006, it cannot be a state in that same sense in 2025.”123

Because of the situation in Palestine, any recognition of Palestinian statehood will have to ignore the fact that no single state-entity has effective control of the territory of the purported Palestinian state. This means that one of the central factors of the Montevideo Convention criteria will be left unfulfilled, so that recognition of that state will be at least quasi-constitutive and not fully declaratory.

Marko Milanovic argued that “notwithstanding the facts,” such recognition might emerge in the course of the twenty-first century.124 He framed this proposition as essentially remedial, that is, correcting for lapses of recognition that were previously deserved: “circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.”125 It should be noted that this position relies on a kind of constitutive theory, wherein recognition does more than simply acknowledge “the facts[,]” but that it also helps to create states.126 But it is also declaratory, at least in the sense that recognition should be tied to some kind of factual situation making recognition sound on the merits and based on more than merely arbitrary discretion.

This debate about the legality of the U.K.’s decision to recognize Palestine mirrors an older debate which emerged in 2011 during the last wave of Palestinian statehood recognitions. Writing in 2011 about the impending (and successful) vote by the U.N. General Assembly to grant Palestine non-member observer state status, Rosen argued that no single entity in Palestine (understood as including both the West Bank and Gaza) fulfilled the effectiveness criteria of the Montevideo Convention, meaning that the decision to recognize Palestine as a state was misguided.127 Rosen argued that the decision to recognize was “imaginary and aspirational, not real,” because “it does not meet the legal requirements [of statehood according to the Montevideo Convention].”128

As this discussion of Palestine demonstrates, recognition in a world of pre-existing states is always, in Rosen’s words, “aspirational.” This is not a pejorative term. The Montevideo criteria no longer can be used to determine statehood, though, the criteria still exert limitations on a purely constitutive form of recognition. In other words, recognition in recent years has become a means to help bring about new states rather than a post hoc acknowledgement of states that already exist. Recognition is thus not declaratory of an existing fact. In this sense, recognition is aspirational, that is, recognition is a means used to create a state of affairs rather than one that merely declares a pre-existing one. Yet international legal rules still exist to constrain recognitions, especially when a state has been created in a manner that violates a peremptory norm of international law. So, while recognition is less tied to the theory of the state as declared by the Montevideo Convention, at least exante, it is still removed from the untrammeled discretion that the constitutive theory would seem to grant state actors.

C. Kosovo: Contested Statehood & Recognition

In February 2008, Kosovo declared independence from Serbia, which immediately responded that the unilateral declaration of independence was illegal.129 Kosovo’s declaration of independence followed eight years of international supervision in Kosovo, which was comprised of U.N. (the “Kosovo Peace Implementation Force”) and NATO forces.130 This international supervision began in 1999, and it was in part authorized by U.N. Security Council Resolution 1244, which had mandated the presence of international peace-keeping forces, the exclusion of Serb armed forces from Kosovo, and the demilitarization of the Kosovo Liberation Army.131 The international intervention had followed two years of warfare between the Serbian police and military against the Kosovo Liberation Army.132 This conflict had displaced hundreds of thousands of Kosovar people.133 These conflicts in turn comprised part of the general breakdown of the former Yugoslavia into the independent republics of Serbia, Montenegro, Macedonia (now North Macedonia), Croatia, and Albania.134

The international reaction to Kosovo’s declaration of independence in 2008 was certainly influenced by this context of humanitarian intervention and state dissolution. As Gëzim Visoka has outlined, between 2006 and 2008 the U.N. had already “led talks for defining Kosovo’s future political status, which concluded that supervised independence was the most viable solution for peace, democracy, and prosperity in Kosovo and the wider region.”135 U.N. arbitrator Martti Ahtisaari, for instance, concluded that “independence is the only option for a politically stable and economically viable Kosovo.”136 This plan of “supervised independence” was put to the U.N. Security Council.137 But owing to Russian refusal, the resolution failed to garner the required unanimous support of Council’s permanent members required under the U.N. Charter.138

Russia and Serbia specifically argued that Kosovo’s independence violated the principle of sovereignty and territorial integrity, as protected in Article 2(4) of the U.N. Charter, even though it could be said that the decision by the U.N. and NATO to place Kosovo under international administration had already “effectively removed Serbia’s sovereignty over Kosovo” in 1999.139 Yet, owing to Kosovo’s failure to garner Serbian and Russian support for its independence, “[Kosovo] failed to secure the blessings of the former host state and [it] didn’t receive [an] endorsement by the U.N. Security Council.”140 As seen in the subpart concerning South Sudan, acceptance of independence by a former host state and subsequent concomitant admission into the U.N. is the surest method by which a new state will be universally recognized. Kosovo’s failure to attain either meant that the country was led “into a complex trajectory[,] pursuing bilateral recognition and membership of second-order international organizations in the hope that it would eventually achieve a critical point and gain full international acceptance.”141

Despite all this, recognition of Kosovo took on an aspirational aspect. For instance, the Kosovar elite apparently understood recognition as important for the state-creating effect it could have within Kosovo.142 According to a diplomatic memo released by the Kosovar diplomatic service, “[r]ecognition is a priority of Kosovo’s foreign policy[,] as it determines the external dimension of Kosovo’s political existence.”143 But recognition was important not only for strengthening its bilateral relations with foreign entities; it would also “bring stability internally and in the region of the Balkans, [and] it would bring economic investments[.]”144 This internal stability was important because Kosovo had never fully achieved domestic sovereignty after its declaration of independence. Its modified sovereignty was the result not of Serbian interference, but the continued presence of international organizations, who demanded that the new Kosovo state provide equal protection for minorities.145 They also demanded that Kosovo demonstrate that it could function as a “normal state.”146 This is exactly the kind of conditionalized recognition that proved controversial in the summer of 2025 in the context of recognizing Palestinian statehood.147

Just as with recognitions of Palestinian statehood, Kosovo independence and recognitions of Kosovar statehood has been hotly debated, both at the time and in the aftermath. Broadly speaking, Russia,148 Serbia,149 and other states150 argued that Kosovo had gained independence through the violation of the principle of territorial integrity of sovereign states. In response, Kosovo argued that its independence flowed from that fact that in the 1974 Constitution of Yugoslavia, Kosovo had received autonomous rights equal to those of other federal units in the former Yugoslavia.151 Thus Kosovo independence, it was argued, merely reflected the last phase of the dissolution of Yugoslavia.152 Kosovo had not really seceded from Serbia so much as it had taken independence subject to the doctrine of uti possidetis, by which former autonomous provinces of a no-longer existing state become states themselves, and inherit the former provincial borders.153

These arguments found focus in proceedings before the International Court of Justice (ICJ), which released an Advisory Opinion on the legality of Kosovo’s independence.154 Yet the Advisory Opinion said little more than that the declaration of independence did not contravene any principles of international law, and the Court withheld commenting on the legality of Kosovar independence itself, nor did it comment on the legality of recognizing Kosovar statehood.155

For the Kosovars, recognition was thus not a mere pro forma declaration or acknowledgement of fact, but rather a way of constituting the new state: in this sense, it was aspirational. The declaratory position—at least as instantiated in the Montevideo Convention’s criteria—says nothing about the issue of self-determination and the illegality of secession. In its pleadings at the ICJ, Kosovo attempted to cabin the issue of recognition from the question of the legality of its declaration of independence.156 At the same time, it tried to bolster the legal capabilities of recognition by arguing that recognition gives a new state legal personality under international law.157 This could be understood as a strategic use of constitutive theory meant to counteract problems related both to the effectiveness criterion of the Montevideo Convention and the fact that Serbia had not consented to Kosovo’s secession.158

Kosovo’s position does not fit easily into the declaratory or the constitutive theories of recognition. Rather, the Kosovar approach to recognition was a kind of middle ground. In fact, it reflects what is meant by the phrase ‘aspirational recognition’. Kosovo may or may not have fulfilled the Montevideo Convention criteria for statehood in 2008, but because of its failure to attain Serb consent to its independence, the jus cogens norm against remedial secession was seen to stand in its way.159 Without being able to attain U.N. membership, which would have required Russian assent, Kosovo instead sought to claim statehood through numerous bilateral recognitions.160 These helped to constitute the Kosovar state not only on the international legal plane, but also domestically, since according to Visoka international recognitions were used as a means of limiting the influence of international organizations within Kosovo’s borders.161 Yet, the Kosovar government would have rejected any claim that these recognitions served to constitute the independent statehood of Kosovo. Instead, these recognitions were aspirational, in the sense that they were intended to strengthen Kosovar statehood.

D. Aspirational Recognition and the Duty of Non-Recognition in Ukraine

In February 2014, as noted above, the Crimean autonomous assembly voted to secede from Ukraine. Following this vote, the assembly voted to hold a referendum concerning union with Russia.162 According to Russian officials, 95.5% of Crimean voters supported union with Russia.163 The subsequent annexation of Crimea led to an increase in fighting between Russian-supported separatists and Ukrainian government forces in the eastern Ukrainian regions of Donetsk and Luhansk (the Donbas).164 In February 2022, Russian-supported separatists in these regions declared independence from Ukraine, and on February 21, 2022, Russia formally recognized the independence states of Donetsk and Luhansk.165

The Russian Government did not cite its belief that these states fulfilled the Montevideo Convention criteria as its rationale for recognizing them. Instead, the Russian Foreign Ministry stated that “[t]he President of Russia took this decision primarily on humanitarian grounds,” and to protect civilians living in the provinces “from the real threat to their lives and security posed by the current Ukrainian regime[.]”166 The Ministry further stated that the statehood of these entities was based on the expression of the will of the “people of Donbass,” “as per the U.N. Charter, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, the CSCE Final Act, and other fundamental international documents.”167 The Reference to the 1970 Declaration on Principles likely referred to its provision for self-determination such that “all peoples have the right freely to determine, without external interference, their political status . . . ”168 However, the Declaration also states that “[e]very state has the duty to refrain in its international relations from the threat or use of force” against another nation, and arguably recognizing a secessionist entity may be construed as infringing the obligation not to interfere with the territorial integrity of another nation.169 Nonetheless, the Russian government argued that it had a duty to recognize the recently declared states, and it based this duty on the principles of self-determination and modern human rights law. It is notable that this statement, when viewed in isolation, approximates modern recognition practice, which, from Kosovo to Palestine, tends to focus more on concerns such as peace and human rights, and less on the fulfillment of the Montevideo Convention criteria.

Ukraine and others immediately decried this act of recognition as being contrary to the fundamental principle of territorial integrity. It was argued that the two new states failed to satisfy the Montevideo criteria: “the two Oblasts declared independence . . . in the context of . . . Russian armed intervention.”170 Some scholars suggested that there was actually a duty not to recognize the self-proclaimed republics.171 This argument was based, in part, on the fact that under international law, the secession of Donetsk and Luhansk violated a jus cogens norm against the creation of new states by force supplied by another state.172 Russia had supplied arms to the separatists who ultimately declared independence.173 Though the ICJ’s Kosovo decision could be read as leaving open the legality of unilateral secession in cases of genocide, claims that the government of Ukraine committed genocide against ethnic Russians in these provinces were widely discredited.174

The duty not to recognize states created by coercion of third parties is often attributed to U.S. Secretary of State Henry Stimson’s refusal to recognize states created through the coercive tactics of other states.175 As Marc Weller has argued, the presence of Russian arms and soldiers in the eastern Ukrainian oblasts constituted “coercion” which “forms the every essence of prohibited intervention” “within another state.”176 Such coercion violates the U.N. Charter.177 Moreover, Article 40(2) of the International Law Commission’s Articles on State Responsibility declares that “no state shall recognize as lawful a situation created by a serious breach” of a jus cogens norm.178 According to this argument, Weller noted, after Russia’s intervention in the Ukrainian oblasts in 2014, “recognition [of the self-proclaimed republics] would have been manifestly illegal at any point [since then.]”179 In 2022, Russia invaded Ukraine, supposedly in support of the recently recognized oblasts, and to protect their residents from what Russia called genocidal attacks by the Ukrainian government.180 Later, Russia annexed the secessionist entities following referenda in them.181 Russian President Vladimir Putin justified the incorporation of these provinces as being in line with the self-determination of peoples and the “historical affinity” of their people with Russia.182 Commenting on these events, Weller remarked that Russia’s recognition of the two provinces as states was “a key element of the attempt to justify the wholesale invasion of Ukraine.”183 This led scholars to invoke the duty of non-recognition of a state created by the coercion of a third state.184

The concept of aspirational recognition helps explain why, in this discussion of the duty of non-recognition in cases when statehood is accomplished through the violation of jus cogens norms, the more conventional discussion of the Montevideo Criteria was largely abandoned in debates about the Russian recognition of the breakaway provinces.185 It could be argued that the two political entities in eastern Ukraine did not qualify as states largely because they failed to qualify under the criteria of effectiveness. This argument would work much the same as it does in the Palestine case, and to a lesser extent, in the Kosovo case. In all three, any government of the supposed state in question had not achieved effective control over its territory, and indeed any control it did have was heavily contested.186 Thus, it may be argued that aspirational recognition has simply overtaken the older understanding of recognition as merely declaratory or as fully constitutive.187 In a world in which recognition will almost never have the function of simply acknowledging the presence of an already formed state, newly discovered yet already fully formed, the effectiveness criterion of the Montevideo Convention will almost never be met by a new state, and this is so even when the new state has secured the consent of the former host state, as happened in the case of South Sudan. Recognition today will thus—it is hoped—have the function the Kosovar elite believed it had: solidifying internal sovereignty as much as it helps to harden external borders.

IV. Conclusion

This Comment has argued that in the modern era, recognition is neither entirely declaratory nor constitutive. The declaratory position only works if you theoretically imagine a state as somehow existing outside of the perception of the recognizing state, which at some point ‘discovers’ the fact that the entity in question is a state. In today’s world of instantaneous communications, this will never be the case. But that does not mean that recognition has become purely constitutive. Instead, it is aspirational. States recognize an entity as a state, and this establishes its statehood as a matter of international law, as a relation between the two states. But this constitutive fact of recognition itself is not the goal of recognition, nor is it sufficient for statehood in the robust sense of that term. Instead, state formation—meaning the establishment of an effective government, territorial control, and so on—is sought in part by means of recognition.

Aspirational recognition seems to take the shape described by the constitutive and declaratory theories at different times. At the time of recognition, it is constitutive. It is hoped that, ex post, the recognition will transform into a declaration of a fact of statehood. Often, as in South Sudan, many states recognize the statehood of the entity together. Such acts of collective recognition are stronger evidence of statehood, not because they can serve as evidence that all these states implicitly act on the grounds that the entity in question has fulfilled the test for statehood—as the Restatement (Third) § 201 suggests—but because such recognition will serve to solidify the statehood of the entity in question, both externally and internally. Moreover, recognition is aspirational in an additional way: it is often used to promote a human rights agenda, to secure peace and the right to self-determination. Unfortunately, it can also be used to interfere in the territorial sovereignty of an extant state. In such instances, if the host state recognizes the secession as valid, then the act of aspirational recognition has not broken any international legal norms; but when, as in Ukraine, the host state has not assented to the secession, then the aspirational recognition contravenes jus cogens norms of international law.

See James Crawford, State, in Max Planck Encyclopedias of International Law (2011), https://perma.cc/XPY6-SQPV. See also James Crawford, Subjects of International Law, in Brownlie’s Principles of Public International Law 115 (8th ed. 2012).
U.S. Dep’t of State, Independent States in the World (2025), https://perma.cc/8APE-HH79. See also Lucas Knotter, Contested Statehood in a Contested International Order, 4 Glob. Stud. Q. 1, 1–11 (2024) (explaining how more entities claim statehood though their statehood remains contested).
Crawford, State, supra note 1; Crawford, Subjects of International Law, supra note 1, at 115 ( “A subject of international law is an entity possessing international rights and obligations and having the capacity (1) to maintain its rights by bringing international claims; and (2) to be responsible for its breaches of obligation by being subjected to such claims.”).
Crawford, State, supra note 1.
See id.
Statehood also has a psychological or expressive value, analogous to the moral value of recognition on the interpersonal plane. See Mattias Iser, Recognition, in The Standford Encyclopedia of Philosophy (Edward N. Zalta ed., 2019), https://perma.cc/P4QR-2KHV (explaining that “justice is not primarily concerned with how many goods a person should have but rather with what kind of standing vis-à-vis other persons she deserves.”).
Id.
History of the U.S. and Morocco, U.S. Embassy & Consulate in Morocco, https://perma.cc/N3YH-TB2A (last visited May 14, 2026).
Quoted in Rowan Nicholson & Thomas D. Grant, Theories of State Recognition, in The Routledge Handbook of State Recognition 25 (2020) (https://perma.cc/6JHF-7E6B)).
James Crawford, The Creation of States in International Law 4 (2nd ed. 2007).
Id.
Id. Both the declaratory and the constitutive theories have their pros and cons. Proponents of the declaratory theory can argue that the declaratory theory removes power politics from the question of when an entity becomes a state, because once a state meets certain criteria, then it is a state whether or not it is recognized. But the criteria for statehood can change over time, which is consistent with customary international law. For example, the archipelagic state of Tuvalu in the South Pacific claims in its most recent Constitution that its statehood will outlast even the loss of its territories due to rising ocean levels. See The Constitution of Tuvalu, 25 July 1978, pt. I. title 2 (amended 2023) (Tuvalu)(“The State of Tuvalu within its historical, cultural, and legal framework shall remain in perpetuity in the future, notwithstanding the impacts of climate change or other causes resulting in loss to the physical territory of Tuvalu.”) Customary international law is founded on practice and opinio juris (a belief that the practice is mandated by legal norms). The proponent of the declaratory theory must also confront a circularity problem. Even if an entity becomes a state because it meets certain criteria of statehood in international law, practically there must be some actor that recognizes that these criteria have been fulfilled and does so in a public way. This means that recognition, which plays this role, remains an important part of the declaratory theory of statehood. The constitutive option puts all the responsibility of making new states on already existing states, which seems to elevate the discretion of pre-existing states to the detriment of the right of self-determination.
Salvatore Senese, External and Internal Self-Determination, 16 Soc. Just. 19, 19 (1989) (arguing that external self-determination “can be summarized as the recognition that each people has the right to constitute itself a nation-state or to integrate into, or federate with, an existing state.”)
Restatement (Third) of Foreign Relations Law § 202 cmt. b (Am. Law Inst. 1987)(“An entity that satisfies the requirements of § 201 is a state whether or not its statehood is formally recognized by other states. As a practical matter, however, an entity will fully enjoy the status and benefits of statehood only if a significant number of other states consider it to be a state and treat it as such, in bilateral relations or by admitting it to major international organizations.”).
Justin Cole et al., Recognition Rules: The Case for a New International Law of Government Recognition, 100 N.Y. L. Rev. 785, 789 (2025).
Ian Brownlie, Recognition in Theory and Practice, in The Structure and Process of International Law: Essays in Legal Philosophy, Doctrine and Theory 634 (1983)(stating that the theories “have assumed a ‘theological’ role as a body of thought with its own validity which tends to distract the student, and to play the role of master rather than servant”). The problem with this claim is that the concept of recognition remains unsettled, and without attempting to clarify what recognition is, merely empirical studies are limited in scope. At some point empirical studies must gather their findings and try to say what recognition is, but in collecting their findings, they presuppose a concept of recognition.
See Thomas Grant, The Recognition of States: Law and Practice in Debate and Evolution 73 (1999).
For the use of the term “aspirational,” see Steven J. Rosen, The Palestinians’ Imaginary State, Foreign Policy (Aug. 3, 2011 at 21:50), https://perma.cc/6TBB-RUJF . Though Rosen used the word aspirational, this Comment appears to be the first study to develop a theory of aspirational recognition.
Philip Bobbit, The Shield of Achilles: War, Peace, and the Course of History 355 (2003) (“Changes in the strategic environment inevitably produce changes in law, not simply because law tends to reflect the positions of power in a society--international society in this instance--but because law itself is composed of the practices of parties who will necessarily adjust their ambitions, their actions, and their doctrines to take accounts of changes in the strategic context. Had there been no Roman victory in the Punic Wars, can there have been a Roman law, urbi et ubique that lapped the Mediterranean as if it were a Roman lake?...The international legal environment reflects the strategic environment, much as commercial law reflects the market, or the legislation of governments reflects events in politics.").
See generally Mikulas Fabry, The Evolution of State Recognition, in The Routledge Handbook of State Recognition 37, 38–42 (2020); see also Gregory H. Fox, Self-Determination in the Post-Cold War Era: A New Internal Focus? 16 Mich. J. Int’l L. 733 (1995).
Grant, supra note 17, at xix.
Nicholson & Grant, supra note 9, at 25.
Id.
Ti-Chiang Chen, The International Law of Recognition 3 (1951).
See Conference on Yugoslavia Arbitration Commission, Opinion No. 1, 92 Int’l L. Rep. 162, 165 (1993) (declaring that statehood “is a question of fact and the effects of recognition by other States are purely declaratory”).
Restatement (Third) of Foreign Relations Law § 202, supra note 14, at cmt. a (emphasis added).
Id. cmt. c.
Id. § 202(1).
Id.
U.N. Convention on the Rights and Duties of States, Dec. 26, 1933, L.N.T.S. 165, art. 1.
Id.
U.N. Convention on the Rights and Duties of States, supra note 30, art. 3.
Id. art. 6.
U.N. Charter, art. 2 para. 4 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity of political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).
Werner Somers, The Montevideo Criteria for Statehood, in The State of Taiwan: From International Law to Geopolitics 210, 210–211 (2023) (explaining that “[t]hough this treaty concluded in the framework of the Organization of American States (OAS) was ratified by only 17 states, the Montevideo criteria are generally considered to reflect customary international law, so that they are taken to be binding on other states as well”).
Grant, supra note 17, at 83–84.
See Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, 4 Eur. J. Int’l L. 36 (1993).
Grant, supra note 17, at 83–84 (“[m]ultiplying criteria… makes recognition readily deferable and thus all the more prone to political manipulation… open-ended and ill-defined standards erode the legal character of a system.”).
See The Constitution of Tuvalu, supra note 12.
Chen, supra note 24, at 3.
Grant, supra note 17, at 84.
Milena Sterio, Power Politics and State Recognition, in The Routledge Handbook Of State Recognition 82, 95 (2020) (“Whether an emerging entity is ultimately recognized as a new state correlates directly to whether that entity enjoys the support of the most sovereign states, the Great Powers.”).
Id. at 92.
“Realist” in the sense that they have become a tool of great powers for use in power politics.
Chen, supra note 24, at 3.
Id.
Northern Cyprus Pursues Bid for International Recognition, The Brussels Times (July 15, 2024), https://perma.cc/8EL7-ZE58.
See Crawford, The Creation of States, supra note 10, at 13.
See Costas Laoutides, Self-Determination and the Recognition of States, in The Routledge Handbook of State Recognition 59, 60 (2020) (stating that in 1833, F. Saalfeld—himself an early positivist—declared nonetheless that “[i]n order to consider the sovereignty of a State as complete . . . there is no need for its recognition by foreign powers; though the latter may appear useful, the de facto existence of sovereignty is sufficient . . . thanks to the perfect independence of States a foreign power is not authorised to judge the legality or illegality of what happens in another State but has to take only facts into consideration”).
Grant, supra note 17, at 73.
Israel Scheffler, Four Pragmatists: A Critical Introduction to Peirce, James, Mead, and Dewey 1 (1974) (“Pragmatism . . . has, in general, not been understood as a philosophy; rather, it has been taken casually as an attitude: an emphasis on action, practice, society, a concern with what works.”).
Nora Mills Boyd & James Bogen, Theory and Observation in Science, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman, eds., 2025) (2009), https://perma.cc/PYZ5-28LT.
The identification and initial description of these examples only presupposes that the language of recognition has been used; they do not assume a substantive theory of recognition one way or the other. The aspirational quality of recognition in each case emerges as a consequence of the analysis and is not presupposed by it.
Wilt Kilroy, South Sudan, in The Routledge Handbook of State Recognition 391, 391 (2020).
Id.
Id.
Id.
Id. at 392.
Id. at 393–394.
Id. at 394.
The Addis Ababa Agreement on the Problem of South Sudan, Sudan-South Sudan Feb. 27, 1972, https://perma.cc/D83Y-MYJF (“granting the Southern Provinces of the Sudan Regional Self-Government within a united socialist Sudan”).
Id.
Kilroy, supra note 56, at 396-397.
Id.
Id.
Id. at 398.
Id.
Id.
Id.
Id.
Presidential Statement Recognizing South Sudan as an Independent and Sovereign State, 2011, Daily Comp. Pres. Soc. 201100497 (July 09, 2011).
G.A. Res. 65/308, Admission of the Republic of South Sudan to membership in the United Nations (July 13, 2011).
Kilroy, supra note 56, at 399 (reporting that the UN Secretary-General Ban Ki-moon said, after the UN General Assembly voted to accept South Sudan’s membership, that “the world gathers to say in one voice: Welcome, South Sudan. Welcome to the community of nations”).
Id.
Id.
Id.
Id. at 400.
Simon Tisdall, The Light that Failed: South Sudan’s ‘New Dawn’ Turns to Utter Nightmare, The Guardian (July 11 2021), https://perma.cc/67YT-6E2H .
See Victor S. Mariottini de Oliveira, Statehood for Sale: Derecognition, “Rental Recognition”, And the Open Flanks of International Law, 5 Jus Cogens 277, 278 (2023)(“when states engage in derecognition, they do not mechanically assess whether a state no longer fulfils the traditional criteria for statehood, but rather employ derecognition as a tool of foreign policy, tailored to enhance their own economic and geopolitical interests.”).
See Tisdall, supra note 78.
See id.
Id.; see also Kilroy, supra note 56 at 399.
See Kilroy, supra note 56 at 399.
Jure Vidmar, Statehood and Collective Recognition: Practice of States and UN Organs, The Routledge Handbook of State Recognition 220, 230 (2020) (stating “Where collective recognition is widespread yet not universal, we may have ambiguity with regard to legal status. Such ambiguity is a consequence of the nature of the state under international law: states are not objective physical facts, statehood is legal status under customary international law and the formation of custom is prone to ambiguities that are sometimes ended only over a longer period of time.”).
Id. at 223 (citing James Crawford, The Creation of States in International Law, supra note 10 at 501 (2007)).
Id. at 220.
See Tisdall, supra note 78.
Belgium Backs Recognition of Palestinian State but Warns Against Rewarding Hamas, Belga News Agency (Sep. 23, 2025), https://perma.cc/53XF-REPB.
UN Membership, United Nations: Dag Hammarskjöld Library, https://perma.cc/PJ8J-MHTT (last visited May 14, 2026).
Yvette Cooper, UK Formally Recognises Palestinian State, Foreign, Commonwealth, and Dev. Off. (Sep. 21, 2025), https://perma.cc/Q5YS-VK8J.
Id.
Statement by Prime Minister Carney on Canada’s recognition of the State of Palestine, Prime Minister of Canada (Sep. 21, 2025) (Can.), https://perma.cc/EF4B-6AMN.
Id.
Id. (“The Palestinian Authority has provided direct commitments to Canada and the international community on much-needed reforms, including to fundamentally reform its governance, to hold general elections in 2026 in which Hamas can play no part, and to demilitarize the Palestinian state. Canada will intensify efforts to support the Palestinian Authority’s implementation of this reform agenda, on which progress has already been made.”).
Id. (stating “[w]ith our international partners, Canada supports the development of a credible peace plan, democratic governance and clear security arrangements for Palestine, and the sustained, large-scale delivery of humanitarian aid into and throughout Gaza.”).
Announcement of the Recognition of Palestine, Ministère de l’Europe et des affaires Étrangères (July 25, 2025), https://perma.cc/C42M-EKKG.
Id.
Id.
Adam Rasgon, Farnaz Fassihi & David M. Halbfinger, U.S. Wants Security Council to Adopt Trump Plan for Gaza, N.Y. Times (Nov. 7, 2025), https://perma.cc/TH5J-W67V.
Id.
Yasser Alashqar, Palestine, in The Routledge Handbook on Recognition 347, 356–57 (2020).
Id.
U.N. Charter art. 1 para. 2; art. 55; art. 57.
Costas Laoutides, supra note 51. See also U.N. Charter art. 2 para. 4 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).
Boutros Boutros-Ghali, An Agenda for Peace: Preventive Diplomacy, Peacemaking ad Peace-keeping, Report of the Secretary-General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January 1992, United Nations Digital Library, 1, 9 (1992), https://perma.cc/2ULL-E3EB.
U.N. Charter, Preamble.
Ashely Stanley-Ryan, On Conditional and Delayed Recognition, Ejil: Talk ! Blog of the Eur. J. of Int’l L. (Aug. 12, 2025), https://perma.cc/M2RK-7T7Q.
Id.
Press Release, Sweden Recognises Palestine and Increases Aid, Swedish Ministry for Foreign Affairs (Oct. 30, 2014), https://perma.cc/2VEF-XHD8.
Id.
Marko Milanovic, No, Recognizing Palestine Would not be Contrary to International Law, EJIL:Talk! Blog of the Eur. J. of Int’l L. (Jul. 31, 2025), https://perma.cc/VW4E-BYT3.
Id.
Id. (concluding with“this is how, for example, entities such as the Holy See or the Sovereign Order of Malta have been endowed with legal personality, or how the statehood of micro-states is uncontested, or how many states emerged into being through decolonization despite having very weak governments, weak territorial control or contested borders”).
Id.
Grant, supra note 17, at 19–46.
Id.
James Crawford, The Creation of States in International Law, supra note 10, at 25.
Gugliemo Verdirame, The British Statement on Recognition of Palestine: A Reply to Marko Milanovic, EJIL:Talk! Blog of the Eur. J. of Int’l L. (Aug. 6, 2025), https://perma.cc/PNY5-X2DL.
Id.
Id.
Id.
Id.
Id.
Milanovic, supra note 110.
Id.
Id.
Steven J. Rosen, The Palestinians’ Imaginary State, Foreign Policy (Aug. 3, 2011 at 21:50), https://perma.cc/6TBB-RUJF.
Id.
See Gëzim Visoka, Kosovo, in The Routledge Handbook of State Recognition 402, 403–05 (2020).
Id.
S.C. Res. 1244 (June 10, 1999).
See Visoka, supra note 128, at 402.
Id.
Id.
Id.
Id at 405.
Id. (Under U.N. Charter Title VII, Security Council resolutions meant to resolve threats “to the peace, breach of the peace, or act[s] of aggression[,]” are binding on all UN member states.)
Id.
Id.
Id at 405–406.
Id. To-date, Kosovo claims that some 117 countries have recognized its statehood. But important holdouts include China, Russia, and Serbia. Kosovo,German Federal Ministry for Economic Cooperation and Development (last updated Nov. 03, 2022) https://perma.cc/2XNZ-B6CM. Kosovo has yet to become a U.N. member state. Hence the process of recognition is ongoing: the most recent nation to recognize Kosovo was Kenya, and this recognition occurred on 26 March, 2025. Kenya is the 84th Country to Recognize Kosovo, Kosovo Online (March 26, 2025), https://perma.cc/HB3A-KHN7.
See Visoka, supra note 128 at 409–13.
Cited by Visoka, supra note 128 at 407.
Id.
Id. at 406.
Id.
Id. at 402.
Written Statement of the Russian Federation, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (request for an advisory opinion), 2009 I.C.J. 27 (Apr. 17) (“the Declaration of independence sought to establish a new State through separation of a part of the territory of the Republic of Serbia. It was therefore, prima facie, contrary to the requirement of preserving the territorial integrity of Serbia.”).
Written Statement of Serbia, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (request for an advisory opinion), 2009 I.C.J. 208–209 (Apr. 17) (recounting evidence that self-determination does not permit secession).
See also Written Statement of the Republic of China, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (request for an advisory opinion), 2009 I.C.J. 3–4 (Apr. 16) (arguing that territorial integrity of states was paramount, and that the principle of self-determination was restricted to situations “of colonial rule or foreign occupation,” which, it was argued, did not appertain in Kosovo: thus, “[t]he exercise of the right of self-determination shall not undermine the sovereignty and territorial integrity of the State concerned.”).
See Visoka, Kosovo, supra n.128, at 407.
Id.
Id. See also Giuseppe Nesi, Uti Possidetis Doctrine, in Max Planck Encyclopedias of Int’l. L. (2018), https://perma.cc/YH8N-K87A (offering an overview of how uti possidetis shaped the formation of new states arising after the dissolution of the U.S.S.R.).
Accordance with International Law of the Unilateral Declaration of Independence by Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22).
Id. at 452 ("The adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework. Consequently, the adoption of that declaration did not violate any applicable rule of international law.”).
See Visoka, Kosovo, supra n.128, at 407.
Id.
Id. at 407–408. The Kosovar advocates noted that when Yugoslavia argued that Bosnia and Herzegovina could not legally become signatories to the Genocide Convention for having failed to obtain “its independence in conformity with an ‘imperative rule of international law—the principle of equal rights and self-determination of peoples’”, the ICJ had found that “since Bosnia and Herzegovina had been admitted to the United Nations, ‘the circumstances of its accession to independence are of little consequence.’” Similarly, the Kosovar advocates referred to the dicta of the Supreme Court of Canada in Reference re Secession of Quebec to the effect that unilateral secession, “even if it were regarded as illegal, could be successful if recognized by the international community.”
Id.
Id.
Id.
Nigel Walker, Conflict in Ukraine: A Timeline, UK Parliament: House of Commons Library (Aug. 22, 2023), https://perma.cc/4JA7-NRA3.
Id.
Id.
Id.
Foreign Ministry Statement on Recognising the Independence of the Donetsk and Lugansk People’s Republics, Ministry of Foreign Affairs of the Russian Federation (Feb. 22, 2022 12:42), https://perma.cc/P2KK-GMEV.
Id.
G.A. Res. 26/25, at 125 (Oct. 24 1970).
Id. (The Declaration proceeds to state that “[n]othing in the foregoing . . . shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”).
Marc Weller, Russia’s Recognition of the ‘Separatist Republics’ in Ukraine was Manifestly Unlawful, EJIL:Talk! (Mar. 9, 2022), https://perma.cc/P73C-6NKQ.
See Sava Janković, Russia’s Recognition of the DPR and the LPR: The Revival of the Constitutive Theory of Recognition? Opinio Juris (Dec. 3, 2022), https://perma.cc/7FM9-C2VH.
Julia Miklasová, Russia’s Recognition of the DPR and LPR as Illegal Acts under International Law, Völkerrechtsblog: International Law & International Legal Thought (Feb. 24, 2022), https://perma.cc/43YU-5238.
Id.
Id.
Thomas D. Grant, Doctrines (Monroe, Hallstein, Brezhnev, Stimson), in Max Planck Encyclopedias of Int’l L., https://perma.cc/KB46-D8MT.
See Weller, supra note 168, at 184.
U.N. Charter, art. 4 p 2 (“[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”).
See Weller, supra note 168, at 184.
Id.
Ukraine in Maps: Tracking the War with Russia, BBC (Feb. 24, 2026), https://perma.cc/TKM6-L5YU.
President of Russia, Signing Treaties on Accession of Donetsk and Lugansk People’s Republics and Zaporozhye and Kherson Regions to Russia (Sep. 30, 2022), https://perma.cc/LAM4-HPRY.
Id.
See Weller supra note 168, at 184.
Id.
But see Pavle Kilibarda, Was Russia’s Recognition of the Separatist Republics in Ukraine ‘Manifestly’ Unlawful? EJIL: Talk! (Mar. 2, 2022), https://perma.cc/DQP2-4MMF.
Clearly this does not apply to the Kosovo case so much as in the Palestine case.
Here, the constitutive view would probably be understood as obnoxious, given how Russia used the recognition to justify invasion of Ukraine and annexation of Ukrainian territory.