The legal relevance of the doctrine of non-recognition: The preservation of the international legal order and the settlement of intractable conflicts

Non-recognition as lawful of a situation created by a serious breach of a peremptory norm is regarded as a well-established customary duty. Since such a duty fulfils an important function in the preservation of the international legal order, scholars have generally considered its emergence as a welcome development. However, while State practice confirms that there is an established trend towards non-recognition of unlawful situations, it also illustrates that its content is controversial. More specifically, there is a gap between State practice and the prevailing scholarly understanding of this duty, which roughly corresponds to that of the ILC enshrined in Article 41(2) ARSIWA. The cases in which non-recognition has been invoked as a response to certain violations of international law are more complex than is generally assumed and each of them is rather specific. It seems that this norm was consolidated mostly thanks to a political consensus on the underlying primary norms that characterize the contemporary international legal order—ie, the right to self-determination and the prohibition of conquest. In addition, there is one question that has been mostly glossed over by the scholarship, that is whether the international community can subsequently validate by means of recognition such a breach. The problem is that when States face intractable conflicts, the consensus in favor of the norms that should be protected by non-recognition is weakened by the competing consensus that peace processes aimed at settling long-standing conflicts should not be jeopardized. In these cases, there is an erosion of non-recognition in the sense that while States support in principle this duty, their behavior leads to the gradual validation of the unlawful situation.