In the traditional jurisprudence the state is known as unit or persona of international law which is having well defined rights within the system. For creation of new state within the present system can be done by the bifurcation or dissolution of some other state or empire. With the fall down of these empires, the problems such as state recognition are becoming order of the legal history as comparing living problems of practical consequence.
We all know States are sovereign entities this comprises a territory, population, legal framework, cohesive force and institution. According to Traditional legal theory state seen as the primary actor on the international stage and each state possesses equal sovereign powers. All states contain the element of sovereignty through which it maintains its position with other nations. Recognition of state enables it to enter into treaties, agreements with other nations, make representation and active participation before international organizations such as the International Court of Justice and the United Nations Organization.
The recognition of a state under international law can be seen as the declaration of intent by one state to acknowledge another form of power as a “state” within the meaning of international law. Declaration of intent constitutes a unilateral recognition as it is based on discretion of other state to decide and recognize another as a subject of international law. It may be express or implied. The mode by which recognition is made is of no special importance. what is essential, here is that the mode constituting recognition must give a clear notification of the intention either to accept the new State as such, or to deal with new government as the effective government of the State and to maintain relation with it, and all this act may be implied in certain circumstances. As there are many circumstances arise in which possibility to declare recognition by implication can be seen by one State in respect of another State or government. In short we can say that Recognition constitutes a declaration by any state that in its opinion other state has been recognized as a “state” within sphere of international law, and also subject of international law.
Theories for recognition of states
1. Declaratory theory
According to this theory, statehood or the authority of a new government exists independent of such recognition and even prior of such recognition. The act of recognition is nothing but mere a formal acknowledgment of an existent situational fact. This theory is supported by Brierly, fisher etc.
Brierly said that the granting or recognition to a new State is not a ‘Constitutive’ but a ‘Declaratory’ act. A state may exist even prior of recognition and if it exists in fact, then it has a right to be treated by them as a State It is immaterial that it has been formally recognized by other States .
The classical application of the declaratory theory is derived from the Montevideo Convention on Right and Duty of States. The Montevideo Convention despite being a regional treaty is regarded as a reiteration of customary international law as it codified the existing legal norms on statehood .
In the Convention, Article 1 provides about the four criteria for statehood:
(a) A permanent population;
(b) A defined territory;
(c) Government; and
(d) Capacity to enter into treaty
A Permanent Population
A permanent population refers to a living community within the recognized territory of the state, and does not require a minimum number or minimum amount of time in one place for the population to reside within defined territory. The permanent population requirements only mean that there must be stabilized community and it is the physical existence of a state.
A Defined Territory
States are territorial entities which need territory for its population but this does not mean that it must be precisely delimited and defined nor there must be minimum requirement as to the size of the territory. Similarly, even claims by other states to the entire territory of an entity do not necessarily weaken its claims to statehood.
To be considered as state, there must be government of a state who must exercise effective control over its territory and population. It must be entrusted to establish and maintain a legal order. The government must be free from any direct interference or control by other governments and must not act like puppet of any other state.
The Capacity to Enter into treaty
In light of provision mentioned under Article 3 and 6 of the Convention, this criterion should not be interpreted as to require a state to be recognized by other states in order to engage in diplomatic relations with them.
According to this theory, recognition is the only manner by which statehood comes into existence or by which a new government equipped with any authority or status in the international sphere. Anzilloti, Oppenheim, etc. are the main supporter of this constitutive theory.
According to Oppenheim that through only recognition a state comes to exist and become an international person.
In practice, however, if a territory is not recognized by States, it lacks the capacity to enter into relations with them, and thus becomes a pseudo-State. Without external recognition, the regimes are more likely to fail, because they have fewer resources at their disposal, fewer opportunities for trade and monetary exchange, less potential influence in governmental organizations and less legal claims to their territories and populations than recognized states.
Types of Recognition
De Facto Recognition: When an existing State recognizes the new State and by virtue of such recognition the existence of state comes into exist is termed as de facto recognition.
De Jure Recognition: De jure recognition is recognition of existent State, when its Government possesses all the essential attributes of statehood and it is capable representing as a member of the International Community. De jure Recognition arises after an expressed declaration or from an active act indicating clearly the intention to grant recognition to be a member of international diplomatic affairs.
Phillips Marshall Brown, said that recognition by “De jure recognition is final and once given cannot be withdrawn.
Relevance in present society
From above discussion we can conclude that two theories provide little assistance in describing recognition or determining the status of non-recognized entities in practical times. In addition, there no significant practical distance these two theories. Under the declaratory theory, state exists even without recognition and even prior to recognition and recognition is done of statement of its prior existence only. On the other hand, under the constitutive theory there has been imposed obligation on existent States to treat an entity that satisfies the criteria of statehood as a state. Moreover, the States in regarding recognition practices follow a middle path between these two theories.
However Recognition has legal effects both in the international level and in the domestic level. If an entity gets recognition as a State, it will equipped with rights and subject to some duties and that would not be relevant otherwise, and it also enjoy privileges and immunities of a foreign State and stand itself before the national courts of other States, which would not possible in another entities.
In practical pace of today society, the existence of a state as such is not dependent on whether it has been recognized. The prime factor in present scenario in determination of state is whether or not the elements of statehood such as population, defined territory, and powerful government under international law are actually present in the specific case.
Realistically, however, an entity to be function as a state there must be certain number of states to recognize it as such. In recent state practice recognition has often depend upon fulfillment of certain conditions, such as compliance with the UN Charter or observance of the rule of law, democracy and human rights. From the international law perspective, , these are not sole criteria for recognition but It has been argued that states are obliged under international law to state recognition so a new state or a new government fulfilling the legal requirements of statehood or of governmental capacity in relation to the diplomatic relations can come into exist.
 Convention on Rights and Duties of States, Dec. 26, 1933, 165 LNTS 19.
 SD. J HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW 99 (Sweet & Maxwell, 2004).
Author: Krishankant Sharma (Jagarn Lakecity University)