The September session of the General Assembly of the United Nations (22-30 September, UNGA) was even more anticipated by the press, politicians and the public in general as usual. Lawyers interested in international law were curious about how the session will go down, as many states in advance have announced or hinted ahead that they will recognize the statehood of Palestine in September.

State recognition is important not only from a political perspective, but it has important legal effects and some other practical consequences that may have a significant effect on international relations and the global stage in general. Recognizing a state can be relevant not only for the state in question, but for other states in its region as well, especially if they have some tension between them, like in the case of Kosovo, or Palestine.

The plenary session was the perfect stage for political theatre. Emmanuel Macron, president of France held a long and ceremonial speech about the recognition of Palestine as a state, embedded in historical analyses and presumptions regarding achieving long-lasting peace in the Middle East.

Surprisingly, it was not only a head of state who talked about the recognition of Palestine. The president of the European Council (EUCO), Antonio Costa also made a couple of bold statements, which were not echoed by the president of the European Commission, Ursula von der Leyen, standing in the same room and following Costa on the podium. Even though Article 17 TEU states that the European Commission is independent and it is a well-established fact that the president of the European Commission should represent the interest of the whole European Union, the presidents of the European institutions cannot forget their past and homeland completely.

President Costa talked about the two-state solution and the recognition of Palestine in his speech hinting that with time, all of the Member States of the European Union should have the same position on this issue. „A negotiated two-State solution is the only path to peace. (…). We have been, over the years, the largest supporter of the Palestinian Authority. Supporting them in their reform agenda and in their efforts to ensure effective control of all the territory of Palestine.” He also announced at the UNGA meeting that the majority of the majority of EU Member States, sixteen, recognize the state of Palestine (Belgium, Slovenia, Spain, Ireland, Poland, Luxembourg, Romania, Sweden, Slovakia, Portugal, Malta, France and Cyprus, among others).

Sixteen Member States might have agreed with the statement of Costa, whose tone was clear on which development he supported, but what about the rest of the Member States? State recognition is a sovereign right of states under international law and according to the Montevideo Convention, the fourth element of statehood is the capacity to enter into international relations with other states. Furthermore, Article 15 (4) TEU states that „Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus” and Article 15 (6) (c) TEU the president of the European Council „shall endeavour to facilitate cohesion and consensus within the European Council;”.

Did president Costa overstep his competence by his statements at the UNGA, an organ of universal jurisdiction, where most of the international community is represented and has significant effect on international relations? Did he have the competence to make a statement regarding issues where there was no consensus between the Member States in the European Council and on a question that is part of the core of the sovereignty of states and thus is exclusively in its competence? The goal of this blog post is to reflect on these issues and try to draw a fine line between the law and the politics of recognition of states.

You are one of us now. The concept of state recognition.

The original subjects of international law are states. Before the developments of the 20^th century, states were considered to be the only subjects of international law and thus the only ones capable of international lawmaking, and the only members of the international community. They had a variety of important legal and political tools at their disposal under international law, one of them being the recognition of states.

According to the Montevideo Convention, there are four qualifications of statehood, one of them being the capacity to enter into international relations with other states. If the entity is recognized by enough states from the international community, this requirement is fulfilled. According to the declaratory theory, other states only acknowledge the existence of the other states, and it has no effect on its existence, it is a mere political declaration, while the constitutive theory argues for the necessity of the recognition of other states for a state to achieve this status. Belonging to this exclusive club means inter alia that one can be part of international treaties, member of international organizations, can participate in more negotiations and have more political recognition by other players. It has a myriad of practical uses, like having stronger diplomatic connections or being able to influence processes in international law more effectively by having a say in additional and more prestigious forums.

Recognizing another state is therefore an integral part of the sovereignty of states. It can only be practised by states, through their declarations, accepting other states into the community of nations. International organizations derive their personality from the fact that they were founded by (dominantly) states and therefore cannot participate in the process of recognizing the existence of other states. It is an important political declaration that can be analogous to saying hello and introducing oneself to an unknown person, who thus becomes known and is one step closer to being an integral part of one’s community. It allows the other state party to be a more integral part of international relations; it opens and extends their capacity for acting in the international environment. This phenomenon might influence the vital interest of other, especially neighbouring states. The significance of this act is therefore clear.

The President said what? The scope of the competence of the president of EUCO.

The main question is, if the states have the right to recognize other states, what role if any does the president of the European Council have in this regard? TEU clearly draws the limits of the competence of the president of EUCO and of foreign and security policy of the EU.

Article 15 TEU states the role of EUCO, which is defining the general political directions of the EU and not the exercise of legislative functions. It takes decisions with consensus as a rule. Its president is elected by a qualified majority of the members of EUCO. The president of EUCO has a catalogue of functions in the same article: chairing the meeting of EUCO and driving its work forward, ensuring the preparation and continuity of its work, facilitating cohesion and consensus within EUCO and reporting to the European Parliament after each EUCO meeting. The president of EUCO also ensures the external representation of the EU on foreign and security policy issues, without prejudice to the powers of the High Representative. The article also clearly states that the president may not hold a national office, as of course, the president of EUCO must represent the common interests of all Member States and the common position of EUCO.

 Is the declaration of the recognition of the statehood of an entity a matter that falls under the common foreign and security policy? It is not, as it falls under the competence of the Member States and outside of CFSP, being closely tied to their sovereignty. Do the Treaties include any clauses regarding state recognition? No, which means it stayed in national competence. Therefore, the president of EUCO, based on Article 15 TEU, could only form a position on this issue outside of EUCO, in foreign policy and especially in a forum of a universal, general international organization, the UN itself, if there was a unanimous position of EUCO on this issue.

The act of the president of EUCO therefore was ultra vires during the September UNGA plenary, violating the principle of conferral, of loyal cooperation and article 15 TEU.

The politics of recognition.

What was the goal of the president of EUCO with the recognition anyway? One can only think of political reasons, ones that are influenced by national party politics. If this is the case, the president of EUCO clearly violated his duties stemming from the Treaties. Will any sanction follow his ultra vires act? Unlikely. Without the political support from a considerable majority for it in EUCO, it will not happen. Most of the members of EUCO did recognize the entity in question as a state, thus they have no interest to pursue this question. Furthermore, this misconduct did not gain spotlight for more than a couple of days, the political appetite is missing for further action and the president of EUCO does not seem to have lost the trust of most members of the EUCO.

Still, the story of this misconduct clearly shows that in some cases it is not possible to enforce clear clauses of the Treaties and if there is political will, organs and people entrusted by the Treaties do overstep their legal boundaries leading to significant legal breaches, which warrants further attention.

Árpád Lapu is an adviser at the Minister’s Cabinet of the Ministry of European Affairs of Hungary and an assistant research fellow at the Károli Gáspár University of the Reformed Church in Hungary. He was a policy adviser on constitutional issues at the European Parliament between 2019-2024. Between 2017 and 2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an LLM in international law at the Catholic University of Louvain (UCLouvain). His field of research is neutrality and non-participation in armed conflicts in international law and constitutional norms regarding permanent neutrality. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals, and policies of the EU, and conducted research in the field of social sciences.

Photo: AFP