To recognize a community as a State is to declare that it fulfills the conditions of statehood as

required by international law. If these conditions are present, existing States are under the duty to
grant recognition. In the absence of an international organ competent to ascertain and
authoritatively to declare the presence of requirements of full international personality, States
already established fulfill that function in their capacity as organs of international law. In thus
acting they administer the law of nations. This rule of law signifies that in granting or
withholding recognition States do not claim and are not entitled to serve exclusively the interests
of their national policy and convenience regardless of the principles of international law in the
matter. Although recognition is thus declaratory of an existing fact, such declaration, made in the
impartial fulfillment of a legal duty, is constitutive, as between the recognizing State and the new
community, of international rights and duties associated with full statehood. Prior to recognition
such rights and obligations exist only to the extent to which they have been expressly conceded
or legitimately asserted by reference to compelling rules of humanity and justice, either by the
existing members of international society or by the community claiming recognition.,These
principles are believed to have been accepted by the preponderant practice of States. They are
also considered to represent rules of conduct most consistent with the fundamental requirements
of international law conceived as a system of law. However, while followed in practice with
some regularity, they cannot be regarded as having been uniformly acted upon or clearly
perceived by governments.

Nature of the states: The principle of sovereign equality in the legal system of the United Nations
requires recognition of the state as a noble institution of international law. The structure of public
international organizations is formed from states, and thus first, we speak about states. In regard
to the importance of the state, it is necessary to remember the famous sentence of
Ansilloti :"True international law stems only from the will of the government". Triple, in the
context of the common theory of state says, "Source of law in the first place is the government."
Also in relations between the states, the source of law can be nothing but the will of the
government" . The concept of government within the framework of international law is as
follow: State is an institution; having given territory and permanent population that is under the
supervision of the relevant government and other institutions to establish formal relations Indices
of being state, in the 1933 Montevideo Convention are as follows:
The state as a person of international law should possess the following characteristics,
(a) a permanent population : The second essential requirement of statehood is a sufficient degree
of internal stability as expressed through the functioning of a government enjoying the habitual
obedience of the bulk of the population. A community may have succeeded in shaking off
allegiance to the mother country, but if it is in a condition of such internal instability as to be
deprived of a representative and effective government, it will be lacking in a vital condition of
statehood.
(b) a given territory : The possession of territory is, notwithstanding some jurisprudential
controversy which has gathered round the subject, a regular requirement of statehood. Normally
possession and administration of a defined territory is essential, since without it there cannot be a
stable and effective government. On the other hand, it has been held that the fact that the
frontiers of a new State have not yet been definitely decided does not constitute an impediment
in the way of its statehood. Most of the new States which arose after the War of 1914-1918 were
recognized de facto or de jure before their frontiers were finally laid down in treaties, although
as a rule such recognition was accompanied by stipulations relating to the acceptance by the
State concerned of the frontiers to be laid down by the peace conference.
(c) government : There must exist a government actually independent of that of any other State,
including the parent State. The independence thus required is one irrespective of the attitude of
the mother country. The attitude of the latter is of importance only insofar as the recognition by
the mother country of the independence of the rebellious province naturally raises a strong,
although not conclusive, presumption that such independence actually exists.
(d) the state must possess jurisdiction to establish international relations with other states .
Necessity of Recognition: Legal Effects
Non-recognition does not mean that the entity does not qualify for Statehood. Recognition
should however be granted because it has important legal consequences. The recognized State
acquires certain rights, privileges and immunities under international law as well as municipal
law. The typical act of recognition has two legal functions: firstly, the determination of
statehood, a question of law, secondly, the act of recognition is a condition of the establishment
of formal, optional and bilateral relations, including diplomatic relations and the conclusion of
treaties.
 Following are the main legal effects of recognition:
1. Recognized State becomes entitled to sue in the courts of the recognizing State.
2. Recognized State is entitled to sovereign immunity for itself as well as its property in the
courts of recognizing State.
3. Recognized State is entitled succession and possession of property situated in the territory
of the recognizing State.
4. Recognized State may enter into diplomatic and treaty relationships with the recognizing
State (de jure recognition).
5. Recognizing State gives effect to past legislative and executive acts of recognized State
(retroactivity of recognition).
However, non-recognition of a State does not mean that the new entity will be devoid of legal
effects in relation to the non-recognizing States. General international rules or treaties on the
coordination of States such as the norms on the high seas or respect for territorial or political
sovereignty, etc. do apply to the relationship between the new State and all other members of the
international community. Thus, a non-recognized State is immune from the jurisdiction of the
courts of the State which did not recognize it.
However, non-recognition has no effect before international courts or tribunals (Tinocco
Concessions Case). In Great Britain -Costa Rica Arbitration (Tinocco Concessions Case) (1923
UN Rep (1)), evidence clearly disclosed that Tinocco regime had in fact governed Costa Rica for
two years. Non recognition cannot outweigh the evidence as to de facto character of Tinocco
government. In reply to Costa Rica's contention that Tinocco government could not be
considered a de facto government since it was not established in accord with the Constitution of
Costa Rica, it was said that recognition was to be determined by enquiry into a government's de
facto sovereignty and complete governmental control and not into its illegitimacy or irregularity
of its origin.
Held that:
Mere fact that a State is not recognized (Britain did not recognize the Tinocco government), does
not mean that the State does not exist. Such (unrecognized) States continue to be bound by its
rights and obligations under international law. Hence successive governments (Costa Rica) is
liable for the acts of its predecessors (unrecognized Tinocco government). In international law, a
successor government cannot repudiate those contracts/acts of the predecessor which have
international ramifications (unless those contracts/acts were unconstitutional at the time of their
granting or making).
Stimson Doctrine (Non-recognition):
It was a statement of the United States national policy. The doctrine imposed a duty of non-
recognition of all territorial acquisitions brought about in breach of international law. Thus, if a
State grants recognition to another State in violation of international treaty (Paris Pact, 1928),
such recognition would be invalid. Although this doctrine has much to recommend itself, the
States does not always follow it.

Distinction between Recognition of States and Government Recognition of a State is entirely

different from the recognition of a government. Recognition of a government means that the
recognizing State regards it as the sole representative of the given State in international
intercourse. When the regime of a State is changed, it is required to be recognized by other
States. Change in the government of a State may take place either in the normal course of
political life or when it is affected through a revolt or revolution, unconstitutional means.

In the latter case, a new government usually receives recognition only when the other States are
satisfied that it commands the support of the majority of the people and may become stable.
Willingness and capacity to carry out its international obligations is also considered relevant.
Since non-recognition of a new government has nothing to do with the recognition of a State,
official intercourse and treaties are not terminated but only suspended; they revive when the old
government comes in power again or when the new regime is recognized.
Theories of Recognition

The legal significance of recognition is controversial. The theories attempt to explain the nature,
basis and effect of the act of recognition:

1. Constitutive Theory:
According to this theory, an entity does not become a State by possessing essential
attributes of Statehood; it becomes so, when other States recognize it. It implies at other
States constitute the personality of a State by granting recognition. This theory has been
advocated by Hegel, Anzilloti, Oppenheim, etc. The act of recognition is defined as, a
clearly legal act, with new States having the legal right to be recognized and established
States having the legal duty to recognize them. The traditional constitutive theory is
criticized on a number of grounds:

1. Firstly, if this theory were accepted, it would mean that other States would
determine the fate of the new State. It may be noted that recognition by no means
produces subjects of international law. The acceptance of this theory would mean
that a State exists for some States (which have granted recognition) and does not
exist for others (which have not granted recognition). This situation shows that
recognition is not a conclusive proof for the existence of a State.
2. Secondly, there is no legal duty on the part of the existing States to recognize any
community that has in fact acquired the characteristics of Statehood.

3. Thirdly, a State exists prior to its recognition.

4. Fourthly, a State does have some rights and obligations under international law,
even without recognition.

However, in support of the constitutive theory, it must be admitted that once a

State is recognized it acquires status and is recognized as such by the municipal
courts of the recognizing States. Sometimes, existence alone is not sufficient to
create an international personality. Thus, in the case of Vatican City recognition
alone is conclusive proof of its existence and not its automatic existence as a
State.

2. Declaratory/Evidentiary Theory:
According to this theory, Statehood or the authority of the new government exists
as such prior to and independently of recognition. Recognition is merely a formal
acknowledgement through which established facts are accepted. The act of
recognition is merely declaratory or evidence of an existing fact that a particular
State or government possesses the essential attributes as required under
international law. Recognition is necessary only because it enables new State to
 enter into official intercourse with other States. This theory has been advocated by
Hall, Wagner, Brierly, Fisher, etc. There is no legal duty to recognize States even
after it has attained statehood.

Thus, according to this theory, recognition depends upon the discretion or sweet will of the
recognizing States. In practice, most of the States accept the declaratory theory. Recognition
frequently has been withheld for political reasons. The theory also finds support in the fact that
recognition has retrospective effect.

The Tinocco Concessions Case seems to support this theory. However, the view that recognition
is only a declaratory act is not completely correct. In fact when a State is recognized, it is a
declaratory act. But the moment it is recognized, there ensue some legal effects of recognition
which may be said to be of constitutive nature.

Conclusions:

Recognition is declaratory as well as constitutive act. Oppenheim said:

Recognition is declaratory of an existing fact but constitutive in its nature at least so far as
concerns relations with the recognizing States. Further there is no settled view whether
recognition is the only means through which a State becomes part of the international
community.

According to Kelsen, Statehood may be distinguished into natural statehood and juridical
statehood. The former exists in a State from the moment it comes into possession of the essential
elements of statehood. The latter can be acquired by a State only when other States recognizes
it.Thus, recognition although is declaratory of the existence of natural statehood, it is constitutive
of juridical Statehood. The above view taken by Kelsen may be termed as modified constitutive
theory.
Forms of recognition :

Implied Recognition:

In the absence of formal recognition, cases of recognition by implication often arise. Recognition
does not carry with it a requirement to establish diplomatic relations, but the formal act of
recognition does imply that the recognizing state will seek to establish bilateral relations.
Lauterpacht argued that implied recognition arises only out of comprehensive bilateral treaties,
formal diplomatic relations, and consular exequaturs. Thus, one state can recognize another
without establishing diplomatic relations, but because the existence of diplomatic relations
implies recognition, the same state cannot conduct diplomatic relations with a state while
refusing to recognize it. The United States no longer has formal diplomatic ties with Cuba and
Iran, but neither the absence of diplomatic relations, nor the fact that they were revoked after
having been previously established imply non-recognition of the states of Cuba and Iran by the
United States.

The existence of informal bilateral relations does not constitute an acknowledgement of

recognition. In addition, state practice demonstrates that, with respect to the interaction between
recognizing states and unrecognized entities, participation in negotiations, establishment of
unofficial representation, accession to multilateral treaties, and membership in international
organizations do not imply recognition. vi The fact that both Cyprus and Turkey are members of
the UN cannot be taken to mean that Turkey recognizes the state of Cyprus. This would also be
the case if and when Turkey becomes a member of the European Union.

Conditional recognition : The political nature of recognition has been especially marked with
reference to what has been termed conditional recognition. This refers to the practice of making
the recognition subject to fulfilment of certain conditions, for example, the good treatment of
religious minorities as occurred with regard to the independence of some Balkan countries in the
late nineteenth century, or the granting of most-favoured-nation status to the recognised state.
One well-known instance of this approach was the Litvinov Agreement of 1933 whereby the
United States recognised the Soviet government upon the latter undertaking to avoid acts
prejudicial to the internal security of the USA, and to come to a settlement of various financial
claims. However, breach of the particular condition does not invalidate the recognition. It may
give rise to a breach of international law and political repercussions but the law appears not to
accept the notion of a conditional recognition as such. The status of any conditions will depend
upon agreements specifically made by the particular parties. It is, however, important to
distinguish conditional recognition in this sense from the evolution of criteria for recognition
generally, although the two categories may in practice overlap.

EXPRESS RECOGNITION
In the nineteenth century, there were four common methods of express recognition. The first was
returning a formal reply to a new regime's notice that it had assumed power. The most explicit
included a statement that the receiving government recognized the other, but actual use of the
word 'recognition' was not necessary. Any written response addressed to the head or foreign
minister of the new regime using that title and all the standard diplomatic greeting and closing
phrases established that the responding government accepted the new regime as a fellow
government and would conduct the full range of bilateral relations with it. Express recognition
could also be communicated by a diplomat's oral statement to the head or foreign minister of a
new regime, a treaty provision, or a joint declaration with other governments. Express
recognition - particularly in forms including the phrase 'recognize as the government'- does have
the advantage of maximum clarity. It is less subject to confusion if a change of government
coincides with a routine transfer of diplomatic personnel. The military junta that ousted President
Goulart of Brazil in 1964 was confused when the Mexican government recalled its ambassador
shortly afterwards. It was some weeks before they knew, from dispatch of a successor, that this
was a routine personnel transfer and not an expression of disapproval or a refusal to recognize.