202 Recognition or Acceptance of States

Zhang, Dingchao 1/11/2015
For Educational Use Only
202Recognition or Acceptance of States, Restatement (Third) of Foreign Relations...
Restatement (Third) of Foreign Relations Law 202 (1987)

Restatement of the Law - The Foreign Relations Law of the United States
Database updated October 2014
Restatement (Third) of The Foreign Relations Law of the United States
Part II. Persons in International Law
Chapter 1. States
Subchapter A. Recognition or Acceptance of States and Governments
202 Recognition or Acceptance of States
Comment:
Reporters' Notes
Case Citations - by Jurisdiction
(1) A state is not required to accord formal recognition to any other state but is required to treat as a state an entity
meeting the requirements of 201, except as provided in Subsection (2).
(2) A state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for
statehood as a result of a threat or use of armed force in violation of the United Nations Charter.
Comment:
a. Recognition or treatment as state. Recognition of statehood is a formal acknowledgment by another state that an entity
possesses the qualifications for statehood as set forth in 201, and implies a commitment to treat that entity as a state. States
may recognize an entity's statehood by formal declaration or by recognizing its government, but states often treat a qualified
entity as a state without any formal act of recognition.
For the distinction between recognition of statehood and recognition of a government, see 203, Comment a.
b. Statehood not dependent on recognition. 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.
c. Treating an entity as a state. The requirement that other states accept a qualified entity and treat it as a state implies that they
have duties under international law toward that entity like those owed to states formally recognized. These include the duty to
respect its territorial sovereignty and its property; to accept its right to grant nationality to persons and vessels and to assume the
responsibility flowing therefrom under international law; and to fulfill other obligations that states owe to other states generally
under international law. However, states need not accord to such an entity the prerogatives commonly accorded to a recognized
state, such as the right to own property and carry on activities in their territory and to sue in their courts, or to have full effect
given to its laws, decrees, and judgments. See 205.
2015 Thomson Reuters. No claim to original U.S. Government Works.

The obligation not to treat an entity as a state under Subsection (2) includes a duty not to exchange diplomatic representatives
with its government or to vote for that entity's membership in international organizations, and perhaps a duty not to recognize its
claims to state property abroad. It does not prevent states from recognizing the validity of some of that entity's actions affecting
private rights. See 205, Reporters' Note 3.
d. Withholding recognition because of doubt as to viability. Even when an entity appears to satisfy the requirements of 201,
other states may refuse to treat it as a state when circumstances warrant doubt that it will continue to satisfy the requirements of
statehoodfor example, where the new entity is attempting to secede from another state which continues to resist the secession.
In such circumstances, refusing to treat it as a state may be not only justified but required, since premature acceptance is a
violation of the territorial integrity of the state theretofore in control of that territory. See Comment f.
e. Establishing or eliminating a state in violation of international law. International law forbids treating as a state an entity that
was created by threat or use of force by one state upon another in violation of the United Nations Charter. See Articles 2(4) and
51. The United Nations Security Council, acting within its mandatory authority, may impose upon member states an obligation
not to treat an entity as a state, as it did in respect of Rhodesia under the Smith regime (1965-1980) before the establishment of
the state of Zimbabwe. Similarly, states are obligated not to recognize or accept the incorporation of a state into another state
as a result of conquest in violation of the Charter.
A determination by the Security Council that there had been a threat or use of force in violation of the Charter is binding on all
members of the United Nations. In the absence of such an authoritative determination by the Security Council, states are guided
by their own determinations as to whether the Charter has been violated and, in time, are more likely to accept a fait accompli.
See Reporters' Note 5. A mandatory decision by the Security Council under Chapter VII that an entity shall not be recognized
as a state, as was taken in the case of Rhodesia, is binding on all United Nations members under Article 25 of the Charter.
f. Unlawful recognition or acceptance. Treating an unqualified entity as a state will ordinarily affect the interests of another
state. For example, accepting as a state an entity that seeks to secede from another state, but has not yet succeeded in achieving
complete control of its territory, is an improper interference in the internal affairs of the parent state, and if the seceding entity
is given military support, may constitute the threat or use of force against the territorial integrity of the parent state in violation
of Article 2(4) of the United Nations Charter. Treating as a state an entity that has achieved the qualifications for statehood as a
result of the use of force in violation of the United Nations Charter affects adversely the interests of the state that was the victim
of that use of force. In some circumstances such an action may itself be a violation of the Charter, for example, if accepting the
entity as a state is inconsistent with measures adopted by the United Nations Security Council.
g. Derecognition of a state. The duty to treat a qualified entity as a state also implies that so long as the entity continues to
meet those qualifications its statehood may not be derecognized. If the entity ceases to meet those requirements, it ceases to
be a state and derecognition is not necessary. Ordinarily, that occurs when a state is incorporated into another state, as when
Montenegro in 1919 became a part of the Kingdom of Serbs, Croats, and Slovenes (later Yugoslavia). But see Comment e.
Reporters' Notes
1. Statehood and recognition.The literature of international law reflects disagreement as to the significance of the recognition of
statehood. Under the declaratory theory, an entity that satisfies the requirements of 201 is a state with all the corresponding
capacities, rights, and duties, and other states have the duty to treat it as such. Recognition by other states is merely declaratory,
confirming that the entity is a state, and expressing the intent to treat it as a state. Another view has been that recognition by

other states is constitutive, i.e., that an entity is not a state in international law unless it is generally recognized as such by
other states. Some writers, such as Lauterpacht, Recognition in International Law (1947), while adopting the constitutive
theory, argued that states had an obligation to recognize an entity that met the qualifications set forth in 201.
This section tends towards the declaratory view, but the practical differences between the two theories have grown smaller.
Even for the declaratory theory, whether an entity satisfies the requirements for statehood is, as a practical matter, determined by
other states. Comment b. On the other hand, the constitutive theory lost must of its significance when it was accepted that states
had the obligation (Subsection (1)) to treat as a state any entity having the characteristics set forth in 201. See Lauterpacht,
supra; Meeker, Recognition and the Restatement, 41 N.Y.U.L.Rev. 83 (1966). Delays in recognizing or accepting statehood
have generally reflected uncertainty as to the viability of the new state (Comment d), or the view that it was created in violation
of international law, in which case there is a duty not to recognize or accept the entity's statehood. Subsection (2).
That an entity meeting the requirements for statehood must be treated as a state independent of recognition by other states, is
affirmed by such agreements as the Inter-American Convention on Rights and Duties of States, 1933, 49 Stat. 3097, T.S. No.
881, 165 L.N. T.S. 19 (Art. 3), and the Charter of the Organization of American States, 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361,
119 U.N.T.S. 3 (Art. 9), as amended by the Protocol of Amendment in 1967, 21 U.S.T. 607, T.I.A.S. No. 6847.
In the past, when a state treated an entity as a state without formal recognition it was sometimes said to be extending de facto
as opposed to de jure recognition. Those terms, used with varying and uncertain meaning, are avoided in this Restatement.
2. Determining qualifications for statehood.While the grant or denial of formal recognition is a political act within the discretion
of governments (and usually of their executive branches), whether an entity meets the qualifications of 201 and is entitled to
be treated as a state is an objective question, though it is often difficult to determine the relevant facts. See 201, Comment
a. In theory, those questions might be subject to judicial determination by international or national tribunals. National courts
generally defer to the executive as to whether an entity is a state. See 205. An international tribunal might be called upon to
decide whether a foreign entity was entitled to treatment as a state, as where the entity had purported to become a party to an
international agreement containing a submission to international adjudication or arbitration and other parties refused to concede
its statehood. However, no such decision has been found.
3. Treating an entity as a state.For the implications of the obligation to treat an entity as a state, see Mugerwa, Subjects of
International Law in Sorensen ed., Manual of Public International Law 269 (1968). Compare, for example, the history of
relations between the United States and North Korea. The Korean War was terminated in 1953 by an armistice agreement signed
by representatives of the United States, which held the unified command of the United Nations forces, and by the communist
regimes in China and North Korea, although the United States did not recognize or accept a state of North Korea, and did not
recognize or accept either communist regime as the government of any state. In 1968, without having recognized North Korea,
the United States asserted that North Korea had violated international law in attacking a United States vessel, The Pueblo, 58
Dep't State Bull. 196 (1968). See also Reporters' Note 6.
4. Withholding recognition because of doubt as to viability as state.Especially in circumstances of secession followed by
civil war, a long time may elapse before it becomes clear whether a new state has been established. Premature recognition
or acceptance of statehood is itself a violation of the rights of the parent state, and, if accompanied by armed support for
the rebels, would constitute the use of force against the territorial integrity of the parent state contrary to Article 2(4) of the
United Nations Charter. Comment f. Most states refrained from recognizing the secession of Biafra from Nigeria in 1967-70.
But see Ijalaye, Was Biafra at Any Time a State in International Law?, 65 Am.J.Int'l L. 551 (1971). During the years of
decolonization, however, there were numerous instances in which many states recognized the independence of a territory as a
new state, such as Algeria or Guinea Bissau, while the troops of the colonial power still seemed in firm control of the territory.
(States generally refrained from recognizing the Confederate States of America in 1861-65.)

5. Acquiring characteristics of statehood through violation of United Nations Charter.An entity might acquire the characteristics
of statehood ( 201) unlawfully, if its territory is detached from that of another state and its independence is achieved as a result
of the use of force by other states in violation of Article 2(4) of the United Nations Charter.
Whether there has been an unlawful threat or use of force, however, may be disputed. The number of entities acquiring the
characteristics of statehood allegedly through violation of law has not been large. Some states, particularly after a lapse of
time, have been willing to accept a fait accompli. On a few occasions, the United Nations Security Council, or perhaps the
General Assembly, might resolve the question. Compare the resolutions declaring North Korea and China aggressors against
the Republic of Korea. S.C. Res. 82-85, 5 U.N. SCOR Resolutions and Decisions, (S/INF/5/Rev. 1) at 4-7 (1950); G.A. Res.
498(V), 5 U.N. GAOR Supp. No. 20A, at 1 (1951). In most instances, the issue is not subject to authoritative determination. For
example, many governments judged India's intervention in Bangladesh to be a violation of the Charter, but contrary arguments
were made, justifying India's use of force as in support of self-determination or as humanitarian intervention. States generally
recognized or treated Bangladesh as a state, and Bangladesh was admitted to the United Nations. See Franck and Rodley, After
Bangladesh: The Law of Humanitarian Intervention of Military Force, 67 Am.J.Int'l L. 275 (1973); Crawford, The Creation
of States in International Law 115-18 (1979). In principle, an entity that has acquired statehood unlawfully is ineligible for
admission to an organization open only to states.
The unilateral declaration of independence by the racist minority in Southern Rhodesia was condemned by Security Council
Resolutions Nos. 216 and 217 of November 12 and 20, 1965, which called upon all states not to recognize this illegal authority.
S.C.Res. 216, 217, 20 U.N. SCOR Resolutions and Decisions (S/INF/20/Rev. 1) at 8-9 (1965). See 102, Reporters' Note 3;
115, Reporters' Note 1. Compare the Security Council resolutions that forbade recognition of the legitimacy of continued
occupation of Namibia by the Republic of South Africa, which were accepted as binding on the United States. See Diggs v.
Richardson, 555 F.2d 848 (D.C.Cir.1976). See Reporters' Note 6.
Issues implicating statehood sometimes arise when a state has lost all or a large part of its territory to conquest by another state.
International law requires states not to recognize or accept a territorial acquisition resulting from the threat or use of force.
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance
with the Charter of the United Nations, G.A. Res. 2625, 25 U.N. GAOR Supp. No. 28 at 121, 65 Am.J.Int'l L. 243 (1970).
That principle has been universally accepted as regards territory conquered by use of force in violation of the United Nations
Charter. It is disputed, however, as to territory acquired by force which was not unlawful, for example, if a victim of aggression,
acting in self-defense in accordance with Article 51 of the Charter, conquers territory of the aggressor and proceeds to annex
it. Compare 331(2)(a) and Comment d. That exception might weaken the principle, especially since often neither the facts
of an international dispute, nor the lawfulness of a use of force in the circumstances, are subject to reliable and authoritative
international determination. It remains to be seen, moreover, whether states will persist in refusing to recognize or to accept
territorial conquest after many years elapse. Compare the conquest of the Baltic States by the U.S.S.R., Reporters' Note 6.
6. Contemporary issues of statehood for the United States.As of January 1, 1987, the United States faced only a few situations
raising questions of statehood, most of the post-World War II issues having been resolved.
Transkei. Like most other states, the United States does not recognize or accept the Transkei as a state, in accordance with a
General Assembly resolution denouncing the creation of that entity as a sham and a device furthering apartheid in South
Africa. G.A. Res. 31/6, 31 U.N. GAOR Supp. No. 39 at 10 (1977). See Richardson, Self-Determination, International Law
and the South African Bantustan Policy, 17 Colum.J.Trans.L. 185 (1978). Compare DeKieffer and Hartquist, Transkei: A
Legitimate Birth, 13 New Engl.L.Rev. 430 (1978).

Zimbabwe-Rhodesia. After a long period during which the Smith regime was not recognized, Reporters' Note 5, the state of
Zimbabwe was established in 1979-80 and is now generally accepted.
Namibia (Southwest Africa). In accordance with United Nations resolutions and with the advisory opinion in Legal
Consequences for States of the Continued Presence of South Africa in Namibia, [1971] I.C.J. Rep. 16, the United States does
not recognize the legitimacy of South African control over this former mandate territory. See the United States statement in
connection with G.A. Res. 34/92, 34 U.N. GAOR Supp. No. 46 at 22, 24, 25 (1979), which requested the admission of Namibia
(as represented by the United Nations Council for Namibia) to specialized agencies and international conferences.
Estonia, Latvia, and Lithuania. The Baltic States were conquered before World War II, but [t]he United States has not
recognized the incorporation of Estonia, Latvia and Lithuania into the Union of Soviet Socialist Republics. The Department
of State regards treaties between the United States and those countries as continuing in force. Treaties in Force 53, 108, 112
(1986). The United States still treats the consul general or charg d'affaires of these states as duly accredited; otherwise, this
policy has had limited practical consequences. See 205, Reporters' Note 3.
Ukraine and Byelorussia. These two entities were given separate memberships in the United Nations and are parties to certain
other treaties, but they are not active in international relations separately from the Soviet Union and few other states treat them
as states generally.
Democratic People's Republic of Korea. North Korea increasingly maintains relations with other countries and is a party to
international agreements and a member of some United Nations Specialized Agencies. The United States has not formally
recognized the statehood of North Korea, but it has indicated that it is prepared to move towards improved relations with North
Korea. [1977] Digest of U.S. Practice in Int'l L. 21. The United States has also indicated that it was prepared to see North
Korea enter the United Nations along with the Republic of Korea. 73 Dep't State Bull. 605 (1975).
Vietnam. It has been accepted that the separate Republic of Vietnam (South Vietnam) ceased to exist. Republic of Vietnam v.
Pfizer, Inc., 556 F.2d 892 (8th Cir.1977); Tran Qui Than v. Blumenthal, 469 F.Supp. 1202, 1211 (N.D.Cal.1979), modified,
658 F.2d 1296 (9th Cir. 1981), certiorari denied, 459 U.S. 1069, 103 S.Ct. 487, 74 L.Ed.2d 630 (1982). The 1986 edition of
Treaties in Force states that the status of agreements that were in force with the Republic of Vietnam (South Vietnam) was
under review. The United States had begun discussions to explore the possibility of normalizing relations with the People's
Republic of Vietnam. [1977] Digest of U.S. Practice in Int'l L. 21; [1979] id. 120-26. But see Wolfowitz, Cambodia: The
Search for Peace, Dep't State Bull. Nov. 1984 at 51, 54 (whether United States will consider improvement in relations while
Cambodia is occupied by Vietnam).
Taiwan. See 201, Reporters' Note 8, and 203, Comment f.
The Palestinians. In the 1970's governments began to assert the right of the Palestinian people to self determination. Some
governments have accepted the Palestine Liberation Organization (PLO) as the representative of the Palestinian people, and the
PLO has been given observer status by the United Nations and some other organizations. The United States has not recognized
or accepted any formal status for the PLO. There have been international calls for a homeland for the Palestinians, but it has
not been claimed that a state of Palestine exists.
For an earlier report on the status of issues of statehood, see Bishop, International Law 330-33 (3d ed. 1971).
7. Previous Restatement.The previous Restatement discussed recognition of states and governments in 94- 95. Section
99(1) denied any duty to recognize a state, but 107 required states generally to treat as states those entities that met certain

requirements. 202, Comment f, of this Restatement follows previous 99(2). This Restatement, reflecting subsequent practice,
puts less emphasis on the act of recognition.
Case Citations - by Jurisdiction
C.A.1
C.A.2
S.D.N.Y.
Hawaii App.
C.A.1
C.A.1, 2005. Com. (b) quot. in disc. Estate and heirs of United States citizen who was killed in Israel by terrorists brought suit
against the Palestinian Authority and the Palestine Liberation Organization pursuant to the Anti-Terrorism Act. The district
court entered default judgments against defendants. Affirming, this court held, inter alia, that defendants' sovereign-immunity
defense failed because defendants did not carry their burden of showing that Palestine satisfied the requirements for statehood
under the applicable principles of international law at any point in time. Defendants also failed to show that this case involved
nonjusticiable political questions. Ungar v. Palestine Liberation Organization, 402 F.3d 274, 283, cert. denied 546 U.S. 1034,
126 S.Ct. 715, 163 L.Ed.2d 575 (2005).
C.A.2
C.A.2, 1995. Com. (b) cit. generally in headnote and quot. in disc. Victims of atrocities committed in Bosnia brought suit under
the Alien Tort Act, inter alia, against the leader of the insurgent Bosnian-Serb forces for violations of international law. The
district court dismissed the suit for lack of subject-matter jurisdiction. Reversing and remanding, this court held that subject
matter jurisdiction existed, that defendant could be found liable for genocide, war crimes, and crimes against humanity in his
private capacity and for other violations in his capacity as a state actor as titular head of the self-proclaimed Bosnian-Serb
republic of Srpska, and that he was not immune from service of process as a United Nations invitee while in the United States
at locations outside of the Headquarters District. Kadic v. Karadzic, 70 F.3d 232, 234, 244, cert. denied 518 U.S. 1005, 116
S.Ct. 2524, 135 L.Ed.2d 1048 (1996).
C.A.2, 1992. Coms. (a) and (b) cit. in disc. The exclusive licensee for the distribution of videocassettes of Taiwanese soap operas
sued several videotape distributors for copyright infringement for renting out illicit videotapes of the soap operas without a valid
sublicense from the plaintiff. The district court held that the defendants had infringed the copyrights and permanently enjoined
them from making any efforts to market the video programs. Affirming, this court held that the United States' termination of
diplomatic relations with Taiwan did not change Taiwan's status as a nation and thus the United States could continue to honor
its treaties with Taiwan, including a friendship treaty that empowered the United States to grant copyright protection to works
authored by Taiwanese citizens. N.Y. Chinese TV Programs v. U.E. Enterprises, 954 F.2d 847, 853, certiorari denied 506 U.S.
827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992), rehearing denied 506 U.S. 1015, 113 S.Ct. 639, 121 L.Ed.2d 569 (1992).
S.D.N.Y.

S.D.N.Y.1988. Rptr's Note 6 cit. in ftn. The United States sought injunctive relief pursuant to the Anti-Terrorism Act to force
the closing of the Palestine Liberation Organization's Permanent Observer Mission in New York City, which had been opened
at the invitation of the United Nations in 1974. The court held that the Anti-Terrorism Act did not require the closure of the
PLO Mission. The court said that the PLO Mission was an invitee of the United Nations under the Headquarters Agreement,
which defined the privileges and immunities of the United Nations' Headquarters in New York City, and that its status was
protected by that agreement. The court said that the agreement had not been superseded by the Anti-Terrorism Act. United
States v. Palestine Liberation Organization, 695 F.Supp. 1456, 1459.
Hawaii App.
Hawaii App.1994. Subsec. (2) quot. in ftn. A man who was found guilty of failing to render assistance after being involved
in a car accident argued that the state of Hawaii had no jurisdiction over him because the Kingdom of Hawaii was illegally
overthrown in 1893 with American assistance and still existed as a sovereign nation. The trial court dismissed defendant's
motion to dismiss the indictment, determining that even if the 1893 overthrow was illegal, that would not affect the court's
jurisdiction. This court affirmed, holding that the trial court correctly exercised jurisdiction because defendant presented no
factual or legal basis for concluding that the Kingdom existed as a state in accordance with recognized attributes of a state's
sovereign nature. Although the United States government recently recognized the illegality of the overthrow of the Kingdom,
that recognition did not appear to be tantamount to a recognition that the Kingdom continued to exist. State v. Lorenzo, 77
Hawaii 219, 883 P.2d 641, 643.
End of Document

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