Taiwanese statehood is one of the case studies that challenge and expose the ineffectiveness of international law in enforcement and its jurisdictional limits. Its complexities have international relations scholars to oppose on the views of international law. The purpose of this essay is to render an argument to prove that international law does not support Taiwan’s statehood. There are two dominant theories on states recognition which are; the declarative theory and the constitutive theory. These theories shall be applied on the criteria for state; which is provided by the Montevideo Convention of 1993.
Furthermore, we shall critically analyse the ineffectiveness of international law from the outcomes of this case study. Sovereignty and statehood Taiwan has existed independently since Japan’s legal withdrawal from the territory, the question is whether we should call it sovereign and recognise it. Under the treaty of Westphalia of 1648, a sovereign state is an entity that has the ability to demonstrate internal supremacy and external independence. A sovereign entity must be the only political authority in that existing territory and no other authority can exercise political control over its population within its boundaries.
More importantly, a sovereign state ought to demonstrate independence and it needs to be recognised by the international community as a state. Recognition Recognition is a significant element of statehood it grants an entity membership to the international community. Recognition may be either unilateral or collective; unilateral recognition is when a state recognises an entity as a state, and collective recognition is when a group of states such as the United Nations and the European Union recognises an entity as a state.
The role of recognition is a debatable issue; there are two dominant theories on recognition. The declarative theory argues that an entity only becomes a state once it meets the factual criteria for statehood. Therefore, if it can prove that Taiwan does fulfil the criteria then Taiwan would be a state. For the declarative theorist recognition is merely a declaration of statehood. On the contrary, the constitutive theory argues that recognition is as important as another element in the factual criteria for statehood and should be included as a part of the requirements.
Constructivism emphasises on the importance of recognition since it is an element of legal Sovereignty. It argues that recognition is a necessary condition on statehood, since it grants the ability to enter into treaties, receive ambassadors, receive international immunities etc. Since the constitutive school adds a legal attribute to recognition, it is logically sound that it becomes favourable in international law. The Montevideo Convention of 1993; provides the traditional criteria for statehood, and they are as follows: * Population: There is no minimum population size required.
A population can be understood as a group of individuals who inhabit a territory, for international relations purpose; a population needs to live together and form a national community. Furthermore, they must identify themselves with the territory. In 2000, Taiwan had an estimated population of 22,257,000 existing in that entity; and it has a larger population than some existing states like Nauru with less than 10 000 inhabitants. * Defined territory: the international community does not have a required undisputed border for statehood.
However, the state should have a government that is in control of its community and there should be no authority higher than it. It would be true to say there is a territory (Taiwan), on the contrary, merely of its lack to be an independent territory it is not a state. Even though Taiwan has actual possession, custody and control, they do not have a legal title to the territory. * Government: there is no specified form of government, a state cannot exist without a government; it is a necessary condition for statehood. The government should be independent from any external authority.
In a context of statehood, a government should have a political organisation that exercises absolute public power within its territory over its population. Even though the Kuomintang or Democratic Progress Party (DPP) was recognised as a legitimate government between 1949 and 1971, fact is; it is no longer recognised as a legitimate government, no matter how strong their de facto is China’s sovereignty over Taiwan is widely recognised. * Capacity to enter into relations with others: for a state to have the capacity to enter into legitimate relations with others, it ought to be separate and sovereign (a necessary condition).
The international community recognises that the government of the Peoples Republic of China is the sole legitimate government of China and its entities. Taiwan has the potential to enter into limited foreign relations; however, it is not a sovereign entity. The legal status of Taiwan The concept of recognition begs the question; how many states have to recognise an entity before it is declared a state, or suppose there is the same number of states that recognise it and those that do not, what then?
Important to note; From 1970-1996, the have been 123 countries that are in Diplomatic relations with China, China insisting that they should acknowledge its sovereignty over Taiwan, however, recently there have been debates on the English words “acknowledge” and “recognition”. In addition, the United Nations recognised Taiwan as state from 1949-1971 it was then replaced by the Peoples Republic of China. Since then, Taiwan has had 219 embassies that treat it as a de facto administration. To examine Taiwan’s legal status one ought to look at its historical background.
By 1683, Taiwan became part of the Chinese Empire. In 1895, Japan ceded Formosa (Taiwan) and Penghu from China through the Shimonoseki Treaty by article 2 (b) and (c). In 1943, Japan declared its withdrawal from the two territories in the Cairo. Two years later, it showed its dedications to withdraw through the Potsdam Declaration, emphasising on returning the two islands to China. This was legally enforced through the 1951 San Francisco Treaty and the 1952 Peace Treaty with China. The treaties that were signed were not specific on who was to inherit Taiwan.
More problematic is the Cairo Declaration, in essence, it was merely an international statement; and the law on treaties does not recognise statements as legally binding. There are debates around who has the legal right to posses Taiwan; some argue that even if the San Francisco Treaty did not specify the inheritor, it should follow logical that China is the owner since Japan ceded Taiwan from China. However, to those who hold this view they need to prove when China has had control and jurisdiction over Taiwan. Since its founding in 1949, the PRC has never had actual jurisdiction and effective control over Taiwan.
The nature of international law From the above it has been shown that Taiwan is not a state from both the declarative and the constitutive theories. Neither China nor Taiwan posses the legal title to the island, however, from the significance of Chinas recognition, China has a stronger case than Taiwan in possessing the islands under international law. The Taiwanese case study has pointed to some problems and challenges about international law. The realist perspective argues that states acts in accordance to their own interests, this is due to state power in the international system; a state is seen as the primary actor.
In addition, state power has the capability to influence policy. Even though there are no legal documents that grant china the legal title to Taiwan, the international community has generally accepted China as the possessor of the territory. China is a raising global economic power; therefore, it would be in their interests to keep ties with Taiwan. International law was created to govern areas such as trade, finance, travel, and communication. It remains less effective in comparison with domestic law; there is a lack of a formal legislative that is to say the law is decided by states.
It is still in its primitive phase; there exist multiple and conflicting views norms about international law. This essay has exposed the opposing views between the declarative and the constitutive theories. In an imaginary world were only one theory was applied it would have been much easier to prove Taiwan’s statehood. Realists argue that international law exists only in theory, the reality about international law is that there is no higher authority than the state; there is an absence of authoritative structures to resolve such conflicts. In short, there is a lack for a global government possessing more power than the state.
Measures have been taken to improve the legal system by creating the International Criminal Court (ICC) and the International Court of Justice (ICJ). However, these structures are not effective in solving such disputes, the ICC functions with individual crimes like genocides; on the other hand, the ICJ would only take disputes presented to them willing by states. From the significance of recognition we may infer the following; sovereignty does not precede the international system, it is constituted by it. For international law to be effective states have to obey the law voluntarily.
From the above there following has been shown; international law is still primitive it lacks effectiveness due to state power and there is no global government that will legislate and enforce the laws on states, rather international law was created as a governing body for states relations not justice, therefore international law is weak as compared to domestic law. In conclusion, this easy was successful in proving that Taiwan’s statehood is not supported by international law, it is a territory, however, it is not a state and no one has the legal right to possess it.
This paper exposed that international law is imperfect by nature. Bibliography Croxton, D, The Peace Treaty of Westphalia and the Origins of Sovereignty, in The International history Review, Vol. 21, No. 3, September 1999 Chang, T, Chinas Claim of Sovereignty Over Spratly and Paracel Islands: A Historical and legal perspective, Vol. 23, 1991, Dugard, J. : International Law- A South African Perspective, JUTA, Cape Town, 2005, Goldsmith, J, Stanford Law Review: Sovereignty, International Relations Theory and International law, Vol. 52, No.
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[ 8 ]. Shen, J. “Sovereignty and Its Claims to Statehood, Self-determination, and the Issue of Taiwan” in American University international Law Review, Vol. 15, 1999-2000, p 1126 [ 9 ]. Kao, C. “Country Overview Location and size”, http://www. nationsencyclopedia. com/economics/Asia-and-the-pacific/Taiwan. htlm, accessed on 29 September 2010 [ 10 ]. Dugard, J Op Cit p 83 [ 11 ]. Loc cit [ 12 ]. Shen, J Op Cit p 1129 [ 13 ]. Dugard, J Op Cit p 83 [ 14 ]. Loc cit [ 15 ]. Shen, J Op Cit pp 1129-1131 [ 17 ]. Loc cit [ 18 ]. Ibid p 709 [ 19 ]. Lloyd, S. F Op Cit pp 7-11 [ 20 ]. Ibid p 11 [ 21 ].
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