On Conditional and Delayed Recognition

Identifying the moment at which an entity becomes a State remains one of the most challenging and most fundamental questions of international law. Although the question is never theoretical — there are enough state-like entities in the world to ensure its continued relevance — it has attracted particular attention in recent days due to a series of announcements by States regarding conditional or delayed recognition of the State of Palestine. Much debate has occurred on EJIL:Talk! and elsewhere regarding these announcements. Posts here have focused mainly on the legality of the United Kingdom’s proposal for recognition of Palestine (on which, see Milanovic and Verdirame), while elsewhere, Scott has discussed the dangers of “precedent” associated with placing preconditions on Statehood, and Lederman has attempted to synthesise the discourse.

In this piece, I propose a different way of understanding conditional and delayed recognition. My argument is that States which precondition recognition should be understood as placing conditions on their entry into legal relations with another State, rather than contesting that State’s existence as a subject of international law. Preconditions on engagement necessarily assume that there is a State to engage with; that is, as Kilibarda has argued (page 228), recognition governs only the opposability of the other State’s rights.  Accordingly, I argue that the recent announcements by the United Kingdom and Canada can be understood as acts affirming the present existence of the State of Palestine. Delayed recognition too is premised upon the factual pre-existence of a State and is best understood as a unilateral act, the perfection of which is delayed.

This piece proceeds in three parts. First, I explain why in contrast to others, I do not deeply engage with the so-called Montevideo criteria. Second, I briefly describe four categories of statements made in recent weeks, and situate their contents with regard to the law. Third, I analyse and critique these statements in support of my central argument, as outlined above.

On Montevideo

I do not, in this piece, engage with the relevance of the Montevideo Convention’s criteria. As Marko has previously noted, there is extensive debate on whether, in the case of the State of Palestine, these criteria are met — although that contestation extends well beyond the Palestinian context, and is perhaps better described as a question of whether the Montevideo criteria are capable of capturing in legal terms the highly varied circumstances from which a new State may emerge. Here I note only three points:

(1) Whether the Montevideo criteria are an accurate reflection of customary international law is regularly disputed, including by prominent publicists.

(2) Despite this, the Montevideo criteria remain the closest thing we have to an accepted description of the constituent elements of Statehood.

(3) The States placing conditions upon or delaying their recognition, importantly, are not preconditioning that recognition on fulfilment of the Montevideo criteria.

Statements on Recognition

The statements made in recent weeks fall into four categories.

(1) Palestine will be recognised unless Israel takes certain steps to guarantee respect for international humanitarian law and the prohibition of annexation. (United Kingdom)

(2) Palestine will be recognised if the Palestinian authority makes certain constitutional and structural changes by a given date (Canada).

(3) Palestine will be unconditionally recognised on a given date (France).

(4) Fifteen States together take a more generic line, that they “[h]ave already recognized, have expressed or express the willingness or the positive consideration of […] [their] countries to recognize the State of Palestine”.

Categories (1) and (2) are politically coherent, but their legal coherence is a more difficult question. In my view there are essentially three bases on which such conditional recognition could be validly made.

(A) The law governing the emergence of a State contains customary rules beyond those described in the Montevideo criteria, assuming those reflect custom.

(B) Recognition relates to the legal relationship between States rather than their factual emergence.

(C) Recognition is conditional because some fundamental defect attaches to the emergence of a State, which must be remedied.

(A) is a challenging proposition to defend. Scholars — including Lauterpacht in 1947 (§13), Crawford in 2006 (chapter 2.2 generally, except as concerns the notion of independence), and Kilibarda in 2024 (pages 95-97) — have generally rejected the notion that other rules beyond the “constituent elements”, to use the language of the ICJ, govern the factual emergence of a State. This view dominates in the doctrine and in State practice. Palestine, as the most apposite example, is already recognised by 147 other States; those few States explicitly proposing conditional recognition are not consistent as to what their preconditions are, or to whom they are addressed. There is no general practice to speak of which could support the emergence of additional customary criteria.

(B) is a more plausible argument. If this is the rock upon which conditional recognition rests, then conditional recognition should be understood as evidentiary of the factual existence of a State — it is not possible to propose entering into legal relations with a State, after all, if that State does not exist. As Kilibarda has noted (page 95), treating recognition as governing the emergence of a State “would make the act its own prerequisite.”

(C) is an important line of argumentation, but does not reflect a view explicitly held by any States proposing conditional or delayed recognition. It is, in my view, a description of the basic obligation of all States not to recognise as lawful a situation arising from the serious breach of a peremptory norm. This was the case with regard to the Apartheid Bantustans, and arguably is also the case with breakaway quasi-States which emerge from acts of aggression. The basis underlying such an entity is so tainted that unless it can be remedied, no State can lawfully be said to emerge.

Category (3) is, I suggest, less complex. It is a delayed unilateral act which upon its perfection (in the case of France, September 2025) will render the rights of the State of Palestine opposable. It, too, contains an implicit acceptance that an entity capable of being recognised as a State already exists.

Category (4) is eclectic. It includes States which lack a clear position beyond an affirmation of their willingness to eventually recognise Palestine (Australia [prior to 11 August 2025]), States which have attached political conditions to recognition (New Zealand) or States which have committed only to considering recognition (Portugal). Some of these States are properly understood as falling within categories one or two (including Canada). Others, like Ireland, have already unconditionally recognised the State of Palestine (or, like France, Malta, and San Marino, have announced their future unconditional recognition).

Analysis and critique

Given the above, what is the best way to understand the recent statements made regarding conditional, delayed or future recognition of Palestine? I suggest that there are three key observations and one conclusion to draw from these.

(A) Those using recognition as a coercive tool with regard to Israel are using legal terminology and the threat of a unilateral act for political reasons. This does not render the act of recognition unlawful; it rather means that the decision, for such States, should be understood as a political rather than legal one. Others have raised a concern that this sets a “precedent” of coercive recognition — I do not share that concern, in part because I reject the implicit suggestion that recognition is constitutive rather than evidentiary of Statehood. I do, however, share the associated concern — which is yet to be clearly expressed in commentary — that conditional recognition dependent on the future actions of a third State, including an Occupying Power, is fundamentally at odds with respect for the peremptory norm of self-determination. It instrumentalises the norm in pursuit of other goals — such instrumentalisation should be fiercely opposed, even (especially) if it is in pursuit of compliance with other legal obligations.

(B) Those demanding reform within Palestine prior to recognition could, if read in a charitable sense, be challenging the effective government of the territory — that is, they may be contesting Palestine’s satisfaction of the Montevideo criteria. In my view, a more accurate description of their position is that they are demanding fundamental constitutional changes which are not directly related to effectivity, such as the disarmament of the State of Palestine the exclusion of Hamas from any future government. As discussed above these conditions are not preconditions for Statehood; they are best described as political. This category, too, can be understood as an acknowledgement that the State of Palestine already exists; it places political preconditions on any future entry into legal relations.

(C) Those delaying recognition are simply delaying the legal consequences of a unilateral act which, too, rests upon the assumption that a State exists.

This leads to my overall suggestion. States proposing conditional or delayed recognition, and some States affirming their willingness to consider recognition in the future, are accepting the State of Palestine’s existence as a factual premise. Rather than bringing it into being, they are conditioning their future relationship with that State. They are free to do so as a matter of law because are under no obligation to enter into any particular form of legal relations with any other State; but their position necessarily presupposes the existence of the State of Palestine.

Aside from the above, one final observation seems warranted. Some analysis suggests that the recent statements by the UK, Canada, and France “make it very unlikely that any international tribunal or organization would conclude that Palestine is not a state”. I note only that these States are a minority of a minority. The UK, France, Canada, and the group of fifteen States (which includes both France and Canada) are only sixteen States. The practice of the group of forty-six UN member States which continue non-recognition of Palestine, and of these sixteen States within that group, should not be afforded undue weight as evidence either for or against the factual existence of the State of Palestine, or the existence or non-existence of additional customary rules governing the emergence of a State.