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Summative Assessment I for Public International Law
Essay Question 1: Please write a 2500-word essay using OSCOLA referencing.
Between 1945 and 1971, the Republic of China (ROC, now Taiwan), with its capital in Taipei, was the government representing China in the United Nations.
In 1971, Taiwan lost its seat at the United Nations by the United Nations General Assembly Resolution 2758 (XXVI) of 25 October 1971.
The General Assembly decided:
“… to restore all its rights to the People’s Republic of China and to recognize the representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it.”
Since then, the People’s Republic of China (commonly known as China) is the government representing China in the world. The nature of the dispute has evolved beyond the fight about which government was the sole legitimate representative of China, and now Taiwan is seeking recognition as an independent State.
Taiwanese attempts to obtain recognition have allegedly included bribes. In 2007, Taiwan submitted its application to become a member of the United Nations. This was rejected by the United Nations Secretary General, who adhered to the 1971 General Assembly Resolution, considering Taiwan an integral part of the People’s Republic of China.
China claims sovereignty over Taiwan as one of its provinces and has threatened military action if Taiwan perseveres in achieving full independence. Most States have refrained from recognizing Taiwan as a State but maintain commercial and cultural relations with Taiwan through the Taipei Economic and Cultural Representative Office.
On 1 January 2002, 21 days after the People’s Republic of China officially joined the World Trade Organization (WTO), Taiwan became a member of the same organisation.
Please discuss:
The status of Taiwan in International Law, covering the following points:
1. Is Taiwan a State?
2. What are the criteria for statehood?
3. How does recognition (or lack of) affect statehood? What is the relevance of membership in International Organisations regarding statehood?
Essay focus and expectations
Please identify the legal subjects involved and the manifestations of their personality in International Law.
Students should discuss the implications in terms of sovereignty of the accession of Taiwan to the WTO. Please discuss whether membership to an International Organisation, in general and in this particular scenario, amounts to recognition of a State. Furthermore, elaborate on whether recognition has an impact on the creation of new States. You are expected to:
Provide informed commentary on the fundamental legal issues included in this scenario, particularly in terms of the sources and subjects of international law. This involves:
- Identification and commentary on relevant cases and the legal framework concerning Statehood, recognition of States, and the legal personality of International Organisations.
- Identification and commentary on relevant scholarship regarding the legal issues under review.
- Identify the geo-political coordinates and national interests under which international law operates.
- Demonstrate you can communicate key principles and debates concerning the law of treaties, statehood, and the right to self-determination.
- Demonstrate you are an effective researcher through efficient use of databases and written sources (including the primary sources of international law)
- Produce clear, coherent, well-written, and well-referenced work.
The root of Taiwan's special position abroad is the Chinese Civil War of the 1940's. It was then that the government of the Republic of China (ROC) moved to Taiwan after the establishment of the People's Republic of China (PRC) by the Chinese Communist Party (CCP) on the mainland. This gave rise to a perennial dispute over which government was the true representation of China.
When it was first established, the ROC represented all of China and maintained its claim to the Chinese seat in the UN Security Council up until 1971. But after the passing of the UN Resolution 2758 in 1971, the ROC lost its seat to the PRC, and recognition has gradually decreased.
In the early days of this split, Taiwan (ROC) persisted in maintaining its claim to all of China. However, as the PRC grew in its international standing, Taiwan's strategy changed to seeking dual recognition.
However, Taiwan is considered by only a few countries and international organizations under different alternative names because most states and international bodies still cling to the 'One-China' policy.
The policy notwithstanding, Taiwan is economically and politically separate from China, with a strong national spirit. Its current status is a testament to that.
Currently, there are a small number of UN member states and the Holy See with whom Taiwan has formal diplomatic relations. In addition, it also maintains informal relations with various countries.
Since the PRC's recent emergence as a world power, Taiwan is now non-existent in terms of international politics. Moreover, because the PRC adopts the One-China policy, Taiwan's involvement in all kinds of international organizations and other forms of international exchange are strongly limited.
In fact, Taiwan continues to belong to many international organizations, including the World Trade Organization (WTO) and the Asian Development Bank. It does so under various "Chinese Taipei" forms of nomenclature.
The objective of this paper is to examine Taiwan's position in international law from the standpoint of its statehood, its relationship with international recognition, and the consequences of taking part in international organizations. It will collect together relevant legal frameworks, cases and geopolitical background to give readers a well-rounded picture of Taiwan 's special international position.
The concept of statehood, perhaps most clearly defined in International Law, has been in the Montevideo Convention on Rights and Duties of States (1933).
According to the Convention, a state must possess four characteristics: a permanent population, a defined territory, a government, and the ability to engage in relations with other states. This is the basic criteria for evaluating the international status of those entities that claim to be states.
Applying these criteria to Taiwan creates a more nuanced portrait. Firstly, people in Taiwan have a fixed abode, and over 23 million people live there with a Taiwanese identity. Second, while Taiwan's territory is disputed, it is at least clearly defined and controlled with the main island of Taiwan and several smaller islands.
Thirdly, Taiwan has a government that manages its territory well. It has elections, enacts laws, maintains internal order and external defense, all characteristics of an effective government. Also finally, as for the ability to establish relations with other nations, Taiwan faces particularly grim difficulties as a result of pressure from the People's Republic of China (PRC).
Taiwan does not have full diplomatic relations with most of the countries of the world, since these countries do not recognize Taiwan as a sovereign state. Nevertheless, Taiwan maintains unofficial relations with many states, and engages in international trade and life under various guises.
Looking at Taiwan's situation in the context of the other entities or regions claiming statehood puts some unique features in relief. Take Kosovo, for example, which declared independence from Serbia in 2008. Kosovo is recognized as a state by more than 100 members of the UN, which is far more than Taiwan enjoys, but it still meets resistance abroad from Serbia and Russia.
Likewise, entities such as Palestine have partial recognition and observer status in the UN but do not have control over their entire claimed territory. Taiwan differs in that it has an established government capable of functioning, with a clearly defined territory and a separate people, but it does not have the sort of international recognition enjoyed by other nations because the PRC is too influential. But there are cases where lack of recognition is piecemeal or where territorial or governmental control is more contestable.
International law on statehood sets out four cardinal criteria in the Montevideo Convention--criteria which embody the essentials of what makes a sovereign state.
Permanent Population: A state has to possess permanent inhabitants on its territory. This criterion highlights the necessity of a stable community, the social part of the state. What matters is not so much the numbers but the permanence and stability of the population that makes the people continuous, providing the basis for every social and political identity.
Defined Territory: The state has to have a well-defined territory. This criterion does not require that the boundary is fixed or stable, only that the state's territorial limits are clear and defined. The territory can have different sizes and does not have to be universally recognized, as long as it is clear and administratively defined.
Government: A functioning government is essential. Such a government should be able to deal with its people and rule its domain. It must have the means to make and implement laws, to keep order and to provide services to the inhabitants. The type of governance (democratic, authoritarian, etc.) need not be specified, but effectiveness and control are crucial.
Capacity to Enter into Relations with Other States: This means that the state must have the capability of conducting diplomacy and foreign relations. It is not necessarily a precondition for actual recognition by other states, but symbolizes potential and ability to get involved with the global community.
Beyond Montevideo: Additional Considerations. Though the Montevideo criteria are fundamental, modern international law also takes additional factors into consideration for statehood.
Self-Determination: This principle, embodied in the UN Charter, recognizes the right of all peoples to determine their political status, as well as their economic, social and cultural developments. Following decolonization movements, it has become an important factor for the making of states. In particular, how a population defines itself and its political status is crucial in statehood claims.
International Recognition: While the Montevideo Convention does not explicitly mention international recognition, de facto it has taken on the status of a criterion.
While a state may meet all the formal criteria, without recognition, especially by the major powers and international organizations, its real ability to function as a state can be greatly limited. Recognition is frequently politicized, influenced not only by legal criteria but also by broader geopolitical considerations.
To sum up, the Montevideo criteria serve as the basis in law for statehood, but it must be recognized that modern international law goes beyond this, looking also at the movements of self-determination and the complicated realities of international recognition.
These factors intertwine with the legal criteria to produce the intricate topography of state formation and recognition that exists in the international arena today.
Recognition is a central concept in international law related to the establishment and operation of states. Recognition can be categorized into two forms: de facto and de jure.
The de facto recognition simulates acceptance that an entity functions like a state, accepting the objective reality of its existence and rule, but not confirming its legal status as a state. Such kind of recognition usually precedes full legal recognition. It recognizes the functioning efficiency of a government in controlling a territory, but not its legitimacy.
De jure recognition, by contrast, refers to other states' practical recognition of the fact that the entity in question possesses all the conditions for statehood as stipulated by international law, and as such should be treated as a legal equal. It means more than just acquiescence with control; it is a formal affirmation by one state of the sovereignty of another, and of its right to take part in international relations.
The situation within international recognition is complicated and unique as far as Taiwan is concerned. Even though Taiwan meets the criteria for statehood laid down by the Montevideo Convention, due to geopolitical factors--particularly the existence and strength of the People's Republic of China (PRC)-- de jure recognition poses a challenge for Taiwan.
The PRC's 'One China' policy says that there is only one sovereign state under the name China, which encompasses Taiwan. As a result, the PRC has been successful in keeping most countries from formally recognizing Taiwan as an independent state, affecting its de jure status.
But Taiwan does have some de facto recognition. But, economically and culturally speaking, many countries have unofficial relations with Taiwan through various means. However, in a practical sense, these contacts are not formal recognition; they are in fact an acknowledgement of Taiwan's effective governing and true sovereignty.
This lack of international de jure recognition particularly damages Taiwan's state claims. In international law, although non-recognition by other states is not a legal obstacle to statehood, it does affect the ability of an entity to participate in the international community.
This failure to recognize Taiwan translates into relatively weak participation of Taiwan in international organizations and forums, constraints upon the normalization of cross-strait relations, and obstacles to assert its sovereignty on the world stage.
This represents the interaction between legal principle and political fact in international affairs.
This may mean that Taiwan meets the technical criteria for statehood, but the political considerations involved in recognition amidst these major powers and their politics are critical to defining what status Taiwan will have as a state in the framework of international relations.
In modern international law, state recognition is oftentimes politicized. Its dynamic is consequently complex.
International organizations are playing an important role in the contemporary landscape of statehood. It is often a measure of international recognition, then, to belong to such organizations. Some, like the United Nations and its affiliated specialized agencies such as the World Trade Organization (WTO), require a condition of statehood for full-time membership.
But the admission criteria are not always identical, and many of these organizations admit persons or groups not recognized as states. This consideration can be regarded as an international gesture of approval, although it is not the same as formal diplomatic recognition. It offers entities a forum for conducting external relations and demonstrates their status as major actors on the international stage.
In terms of its sovereignty, joining the World Trade Organization (WTO) in 2002 as the “Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” is an important event. As such, this nomenclature does not directly recognize Taiwan as a sovereign state. However, accession itself has inherent impact on the sovereignty of Taiwan.
In addition, making the decision to participate in the WTO, an organization of which members tend to be sovereign states, could suggest that Taiwan has a capability of operating under conditions usually accepted only within a framework of statehood. It reflects Taiwan's ability to follow international standards and rules. This is one of the two elements of a sovereign entity.
Also, it strengthens Taiwan's economic sovereignty. The WTO provides a forum for nations to participate directly in trade negotiations worldwide, enjoy their rights and fulfil their obligations in the international trading scene and, more importantly, take advantage of the WTO's dispute settlement mechanism.
Putting the level of involvement in world economic governance like that on a par with the involvement of sovereign states brings out Taiwan's independence as an economic unit, if not as an independent sovereign state.
Whether Taiwan's WTO accession is international recognition of Taiwan is a multifaceted debate. Involvement in any international organization of such significance counts to some degree as international recognition, even if it is less than formal diplomatic recognition.
It can be seen as an early step toward more far-reaching recognition and indicates practical recognition of Taiwan's state-like characteristics and capability to act on their own as an actor in the world.
At the same time, others point out that this should not be taken as a diplomatic recognition of sovereignty. The appropriately worded Taiwan's WTO membership features make no direct reference to statehood to express how delicately the international community has managed its diplomatic balance.
Given this viewpoint, membership in the WTO is in some sense a pragmatic admission that Taiwan is economically important and capable, but without necessarily saying anything about Taiwan's sovereignty, which is determined by the major powers, particularly the PRC.
The legal basis for statehood and recognition thus rests mainly on customary international law, the Montevideo Convention, and several pronouncements of international courts. Important cases under this framework include the ICJ's Advisory Opinion on the Declaration of Independence of Kosovo and the Reparation for Injuries case, in which the legal person in international law was defined.
These cases, and others, undergird the principles of self-determination, effective government control and the positive impact of recognition on statehood. Moreover, certain UN General Assembly resolutions, like Resolution 2758 on the question of Chinese representation, are important in explaining the finer points of state recognition and representation in international forums.
The discourse about Taiwan's status in academic circles is much more diversified than might be expected, due to the interplay between legal principles and political realities. Scholars such as James Crawford and Thomas Franck have written about state recognition and its implications.
Some scholars say that Taiwan has the conditions for statehood but lacks only a wide degree of recognition, which is limited by geopolitical pressures, especially from the People’s Republic of China (PRC).
Others address the technical aspects of statehood, that Taiwan has good government and a healthy external relationship, and in fact possesses most of the characteristics of a sovereign state, even without formal recognition.
The debate also has international law repercussions. By swiping away, the very pillars of international law, such as statehood and recognition, the very foundations of contemporary global politics and power relations are shaken.
Taiwan's status handling among the geopolitical forces is decisive. The PRC's aggressive stance as expressed in the 'One China' policy profoundly affects Taiwan's international legal position.
Aided by China’s rapidly rising international status, this policy dissuades other states and international organizations from officially recognizing Taiwan as a sovereign state.
Moreover, the interests of other major powers, not to mention the ambiguous strategic stance of the United States in the Taiwan Strait, further adds to the complexity. These geopolitical factors can drown out legal considerations, leading us to see the melding and the subordination of international law to global power politics.
In this essay, the various aspects of Taiwan's status are explored in the context of international law, first looking at legal criteria, then international recognition and finally the geopolitical complications.
The analysis opened by pointing out how Taiwan meets the four basic criteria of statehood set out in the Montevideo Convention--that is, a permanent population, a defined territory, an effective government, and the ability to enter into relations with other states.
Nonetheless, the absence of general de jure recognition, almost entirely because of the People's Republic of China's political weight and the 'One China' policy, deeply affects Taiwan's international legal position.
The function of international organizations, especially Taiwan entering the WTO, was considered. On the one hand, that membership represents a recognition of Taiwan's economic self-sufficiency and ability to function in the international scene, but it does not yet constitute a practical recognition of statehood.
Essentially, Taiwan is an anomaly in international law. It seems to satisfy the traditional theory of statehood, but its status is hampered by the tangled reality of international politics and recognition.
This is a classic case of the back-and-forth interaction among legal principles and geopolitical factors in the field of international law. It shows how political considerations can sometimes outweigh legal norms in deciding the status of an entity on the world stage.
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