Emory University School of Law
The concept of state recognition in public international law has long been mired in a (pejoratively) academic debate between the "declaratory" and "constitutive" schools. This article strives to reappraise and recast recognition through analysis of the history and status of Tibet and its government-in-exile. I argue that, for analytic purposes, we must distinguish three forms of recognition: first, political recognition, the formal acts by which one sovereign recognizes another's claim to statehood or legitimate governance; second, legal recognition, a judgment of recognition based on some set of reasonably objective legal criteria; and third, civil recognition, the force of popular moral opinion, as expressed by civil society through its representative institutions, both governmental and non-governmental. Civil recognition has assumed a subtle, but significant, role in the era of globalization and increasing participation by non-state actors in the processes of international law. The problem with failing to distinguish political recognition from recognition based on legal and civil legitimacy is that, over time, the former begins to obscure the latter. Political recognition confers a veneer of legitimacy on governments and states, which tends, in the long term, to reinforce civil - and ultimately legal - perceptions of legitimacy as well. Yet to conflate these forms of recognition can perpetuate manifest injustices by reference to contemporary international human rights law and, in particular, the foundational right of peoples to political self-determination. Tibet, I argue, is paradigmatic example. It possesses legitimate claims to both statehood and a government based on an act of self-determination by the Tibetan people. Failure to distinguish political, civil, and legal recognition has contributed to the atrophy of the perceived right of Tibet, arguably the world's largest remaining colony, to "external" political self-determination. Recognizing the manifold nature of recognition practices in the modern era would therefore not only bring greater analytical clarity to this area of international law; more generally, it may help to prevent the "self-determination of peoples" from disintegrating into an empty relic of the era of decolonization.
Robert D. Sloane,
The Changing Face of Recognition in International Law: A Case Study of Tibet
Emory International Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/542