THE LEGALITY OF INTERNATIONAL LAW ON STATE
RECOGNITION OF THE CHINA-TAIWAN CONFLICT
Introduction
International law in general, the main requirements in the establishment of an
independent and sovereign State are, with the existence of a State's territory, the existence of
clear State boundaries, the existence of a population as a supporter in the running of a
government, and the existence of a legitimate government so that the State has the ability to
be able to run or enter into relationships with various other subjects of international law,1 by
referring to this principle, the establishment of a state has internal and external requirements,
where internal requirements are related to the ability of the state while the external is closely
related to recognition from other countries.
The existence of a state is inseparable from the way it is formed. The formation of the
state is based on the right of the nation to determine its own destiny. The formation of a state
can occur due to the proclamation of independence of a country, due to the underlying
international treaty.2 The establishment of a state is also based on the applicable law as the
main force because it concerns legality, with reference to this provision, each legal system
has a set of principles and rules that describe the rights and obligations of the legal subjects
of the system which are then known as the main rules. The protection of human rights of
humanitarian activists has been regulated in international law instruments, but the law is soft
law so it is not legally binding.3 Meanwhile, each system also has rules aimed at
implementing what is included in the main rules and how these rules can be realized, applied
and changed, which are then known as secondary rules.4 Initially, international law was only
defined as behavior and relations between states, but in the development of increasingly
complex patterns of international relations, this understanding then expanded international
law also deals with the structure and conduct of international organizations and, to some
extent, multinational corporations and individuals.
The close relationship between international law and the state is indeed inseparable,
this proves that the state is the subject of international law. As a subject of international law,
the state has a very important role. The role in question is to maintain security and order and
provide peace in the country. International law also gives meaning to the recognition of the
establishment of a state, meaning that the establishment of a state really needs law as an
umbrella that is legality. In addition, the function of international law to recognize the
formation of a state must also be in accordance with the correct principles. The principle in
question is if a country when recognized has readiness, both readiness in the form of
security, human resources and sovereign territory. Based on the Montevideo Convention on
the Rights and Duties of States 19933 in article 1 states that: "The state as a person of
international law should possess the following qualifications: a). a permanent population;
b). a defined territory; c). government; and d). capacity to enter into relations with the other
states." Or if translated into Indonesian where based on the Montevideo Convention on the
Rights and Duties of States 1933 Article 1, states that "The State as an international legal
entity must have the following qualifications: a) there must be a people; b) there must be a
territory; c) there must be a government; and d) have the capacity to enter into relations with
other states."
The 1933 Montevideo Convention is the only one to attempt to introduce a normative
definition of the concept of state. The criteria set out in this document have been significant
in the development of international law. Some jurisprudence even recognizes that this
criterion of statehood has reached the status of customary international law.6 The
requirements for the establishment of a state above are universal recognition, but if it is seen
that recognition wants to further guarantee the role of a state as a subject of International
Law, because the purpose of recognition is to guarantee a new state in order to occupy a
normal place for an independent and sovereign political organism in the midst of the family
of nations so that it can comfortably and perfectly establish ties with other countries, without
worrying that its role as a political unit will be disturbed by existing countries.
Recognition in the concept of international law also has a position on legality. It is
intended that international law must correctly recognize the existence of a state. As is known
that recognition is evidence of the factual situation. Because recognition results in certain
laws in restoring the level of diplomatic ties between the country that recognizes and the
recognized and recognition strengthens the legal status (judicial standing) of the recognized
country before the legal assembly of the country that recognizes it.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
Speaking of the legality of international legal recognition, one of the cases that
occurred was between the dispute over state sovereignty between China and Taiwan. The
hostility also occurred between the Chinese authorities and Taiwan, which became China's
23rd province but was administratively separated. The conflict that often flares up between
China and Taiwan is motivated by the history of disputes between the Chinese National
Party (PNC) and the Chinese Communist Party (CCP) in mainland China. The dispute led to
a civil war in 1945-1949. At that time the PNC troops under the command of Chiang
Kaishek, supported by the United States, suffered defeat and fled to the island of Formosa or
what is known today as Taiwan. After the PNC retreated to the island of Taiwan, there were
mutual claims of sovereignty. The PNC still declares itself as the legitimate government of
the Republic of China and has power over all of mainland China. But on the contrary, the
CCP considers its side as the new Chinese government in power under the name of the
People's Republic of China (PRC) or commonly called China, and places Taiwan as China's
23rd province.
The division between China and Taiwan occurred in 1949, precisely at the end of the
Chinese Communist Revolution or civil war between the Chinese Communist Party and the
Kuomintang. The defeated Kuomintang then fled to the island of Formosa (Taiwan) and
formed its own government, but on the one hand the Chinese government insisted that
Taiwan was part of the country. For decades, the two countries were engaged in a cold war,
during which Taiwan enjoyed tremendous economic prosperity. Relations between China
and Taiwan worsened after Taipei was led by President Tsai Ing-wen. One of the reasons is
that President Tsai Ing-wen continues to seek international recognition for Taiwan's
independence. However, de facto, Taiwan has been independent and recognized as a
sovereign state by 23 (twenty-three) countries in the world. However, this is not enough to
make Taiwan a fully independent country, and is more accurately referred to as a country
with limited recognition.9 When referring to these problems, basically the recognition of the
State of China and Taiwan must be understood fundamentally in order to obtain certainty in
international law. On October 25, 1971. The UN General Assembly passed UN Resolution
2758 which recognized the People's Republic of China as the sole legitimate representative
of China in the global body. Eventually Taiwan withdrew from the UN and in 1972, through
a Joint Communiqué, the US recognized the Communist Party-ruled government of
mainland China and Taiwan as part of China. In 1979 the US maintained relations with
Taiwan through the Taiwan Relations Act.
Research Methods
This research is a normative juridical research by collecting primary, secondary,
tertiary data obtained using literature studies. The data that has been collected is analyzed
qualitatively The description is organized systematically based on the discipline of law to
achieve clarity of the problem to be discussed.
Results and Discussion
Taiwan's status under China's sovereignty
China was originally an imperial country ruled by the Qing Dynasty. But following the
Xinhai Revolution, since 1911 the history of the Chinese Empire ended & China turned into
a republic with Sun Yat-sen as its leader. The revolution also destabilized China's domestic
situation as a result of the emergence of military commanders who controlled a number of
regions in northern China & were reluctant to submit to the central government. In order to
gain additional strength to defeat these military leaders, Sun asked for help from Western
countries, but his request for help was rejected.
Taiwan's sovereignty and status in general raise several questions, whether Taiwan
meets the criteria of statehood or something very close to statehood in the international
system and particularly in international law. Here the locus classicus is a dusty old document
called the 1933 Montevideo Convention which states what most people consider to be the
standard under customary international law. What it takes to be a state. A state must have a
distinct and substantial territory. Taiwan is an island (with some small offshore islands), and
there are few geographical arrangements better than a large island (about 23,000 square
kilometers, smaller than most countries but larger than dozens) to meet the territory criteria.
Every state that is independent and sovereign and recognized under international law has
key attributes, one of which is the right of representation. The state must respect, protect and
uphold human rights, because it is part of social life and certainly the protection and
enforcement of human rights is very dependent on politics.10 This right of state
representation has two dimensions. First, the right of active state representation is the right
to accredit its ambassadors to other countries. Second, the right of passive state
representation is to accept its representatives accredited by other states. Therefore, the right
of state representation is essentially the authority of a sovereign state to accredit its
ambassadors to other countries and vice versa.
Taiwan, meeting the standards of statehood is more complicated. The fourth criterion
for statehood, according to the 1933 Montevideo Convention and customary international
law, is the capacity to engage in relations with other states. Here, Taiwan has some problems
on the "formal" side. No other country officially recognizes Taiwan as a separate state and
only a small number of countries (now twenty-three) recognize the ROC government or only
formally maintain diplomatic relations. This number has stabilized in recent years with the
advent of a de facto "diplomatic truce" between Taipei and Beijing. On another measure of
capacity to engage in full formal international relations, Taiwan has faced difficulties as
well. At Beijing's insistence, Taiwan has been excluded from several major international
organizations, including the United Nations, its major affiliated organs and other state-only
organizations. The opportunity for "Chinese Taipei" to participate as an observer at UN-
related World Health Assembly (WHA) meetings since 2009 (but not at the World Health
Organization (WHO)) brought a modest but still weak and unreplicated breakthrough on this
front.
On the -informal‖ dimension of capacity to engage in international relations, Taiwan
has done quite well, with a strong and extensive network of quasi-diplomatic or informal
relations with the governments of many countries, membership in many international
organizations. Based on a survey conducted, 86% of Taiwanese citizens want the status quo.
Then, as many as 4% of citizens want independence and 2.3% want to immediately unite
with China. Of the total citizens who want the status quo (86%), 32.4% want the status quo
and will decide later, 24.9% the status quo forever, 21.3% the current status quo, then
independence, and 7.4% the current status quo, then joining China. So, from the existing
survey, the Taiwanese people are divided into pros and cons, some of which want
independence or the status quo to remain forever and other people want the current status
quo and join China, Taiwan's current status is the status quo where Taiwan does not have
international sovereignty, is not independent and is not unified de facto, Taiwan is a country
because it has a population, territory, a clear area, and an existing government. However, de
jure Taiwan is not recognized by many countries or the United Nations.
The Legal Effects of the Legality of International Law on Recognition by States in the
China-Taiwan Conflict
International law is a rule of law that has a fairly broad scope, international law
consists of principles, rules, and international customs regarding the behavior of states in
international relations. Article 1 of the Montevideo Convention implies that a state must
have a permanent population, a defined territory, a government and the capacity to enter into
relations with other states. The Montevideo Convention is the only one to attempt to
introduce a normative definition of the concept of state. The criteria laid out in this
document have been significant in the development of international law. Some jurisprudence
even recognizes that these statehood criteria have achieved the status of customary
international law.
In addition to the requirements outlined in the Montevideo Convention, the
international community also recognizes state recognition as a requirement for statehood.
The international community as the basis of International Law experienced a very rapid
development, especially towards the end of the 20th century and into the early 20th century.
New states emerged as a result of the separation of existing states, as well as the emergence
of new states from areas that had been under the sovereignty of a state. Recognition remains
one of the most problematic concepts in international law, especially in the context of
criteria of statehood. The problem is evident from the existence of three opposing theories,
namely the theory of constitutive, declarative and middle ground theories: Constitutive
Theory Under this theory a state becomes a subject of international law only through
recognition. So even though the elements of statehood have been possessed by a political
society, it is not automatically accepted as a state in the international community. There
must first be a declaration by other states that the political society has fulfilled all the
requirements of a state, and only then can it enjoy its rights as a new state.
Declarative Theory This theory was born as a reaction to the constitutive theory.
According to this theory, recognition is merely the acceptance of a new state by other states.
The act of recognition has no legal effect on the international personality of an entity: it does
not confer rights, or impose obligations on it. A state acquires its capabilities in international
law not based on the agreement of pre-existing states, but based on a specific state situation.
The Middle Way Theory Between these two groups there are some scholars who adhere to
the middle way stance. This theory suggests that the recognition of new states sometimes
has a constitutive effect as well as a declarative effect. In connection with the requirements
of statehood and its relationship with state recognition, it turns out that in the development
of the international community, there have been states that have been recognized even
though they do not meet all the requirements required by the Convention, including: The
Order of Malta In 1523, the Order lost its territory to the powerful forces of the Turkish
Sultan. Later, after the Order had acquired Malta as its new territory, in 1798, it lost its
sovereignty over the area again due to French and later British invasions. However, during
the incident of the Order of Malta having no territory at all, its military was still recognized
and many of its representatives still enjoyed immunity from the legal jurisdiction of the
countries where they were located. During this time, the Order also continued to enjoy full
and mutually beneficial diplomatic relations with more than eighty countries.
Kosovo In 1989, there were massive protests from ethnic Albanians in Kosovo.
Clashes between ethnic Albanians and Serbian police and military personnel even reached
the status of civil war. Therefore, the Central American, South American, African and Asian
international communities became increasingly concerned about the situation in Kosovo so
that on 10 June 1999 the UN Security Council passed Resolution 1244 (1999) authorizing
the Secretary-General to establish an international civilian organization in Kosovo to run an
interim government in which the people of Kosovo could enjoy substantial autonomy within
the Federal Republic of Yugoslavia." Thus, all legislative and executive authority with
respect to Kosovo, including the administration of justice, rests with the UN Interim
Administration Mission in Kosovo. Kosovo does have significant shortcomings in meeting
the criteria for statehood set out in the Montevideo Convention, particularly the requirement
of effective government. However, Kosovo's independence is considered to be in accordance
with international law and thus continues to attract recognition from a large number of
countries.
Somalia After the forced removal of President Mohamed Siad Barre in 1991, the
Somali state no longer had a coordinated government authority. Somalia became known as a
politically, economically, and socially failed state in the world. This lack of organization,
coupled with an unstable and unworkable government, has created an extremely dangerous
situation for Somalia's security, undermining the long-term stability of the country and its
neighbors. To this day, Somalia has a weak government and cannot effectively exercise its
authority outside of the capital, thus, Somalia no longer meets the statehood requirement of
effective governance. However, the international community treats Somalia as a sovereign
entity and under these circumstances it still retains its seat in international organizations
such as the UN. Aside from the requirements of statehood proposed by the Montevideo
Convention and the concept of state recognition, independence plays an important role as it
serves as a further vehicle for claims to statehood. It should also be emphasized that the idea
of independence has been considered a fundamental principle of international law. This is
supported by the International Committee of Jurists (ICJ) which states that a state is called
sovereign when there has been a stable political organization, and the existing public
authorities have become strong enough to assert themselves throughout the territory of the
state without the assistance of foreign troops." Therefore, without independence, an entity is
not a state. In addition, the international community apparently also recognizes a
requirement of statehood beyond those previously mentioned by the author, namely the right
to self-determination. It is important to emphasize that if the facts show a violation of the
right to self-determination, this situation can be considered as a legal basis for non-
recognition of the entity in question, in which case, the International Court of Justice
emphasized that the right to self-determination is 'one of the essential principles of
contemporary international law'.
States are free to first recognize national independence through some considerations,
in the case of China and Taiwan, only a few countries recognized Taiwan's independence
when Taiwan left the United Nations. In view of UN General Assembly Resolution 2758
adopted in response to UN General Assembly Resolution 1668, with reference to Article 18
of the Charter of the United Nations which clarifies: 1) Each member of the General
Assembly has one vote; 2) Decisions of the General Assembly on important matters shall be
taken by a two-thirds majority vote of the members present and voting, in this matter
including: recommendations on the maintenance of international peace and security, election
of non-applicable members of the Security Council, election of members of the Economic
and Social Council, election of members of the Trusteeship Council in accordance with
paragraph 1 (c) of Article 86 admission of new Members of the United Nations, suspension
of rights and privileges of membership, termination of membership, questions relating to the
operation of the trusteeship system, and budgetary matters; 3) Decisions on other matters.
Including the determination of additional categories, to be decided; 4) By a two-thirds
majority vote of the members present and voting.
Article 86 describes the Trusteeship Council as consisting of the following Members
of the United Nations: a) Members administering trust territories; b) such as Members
named by name in Article 23 as not administering trust territories, and c) such other
Members elected for a period of three years by the General Assembly as the General
Assembly considers necessary to ensure that the number of members of the Trusteeship
Council is equally divided between those Members of the United Nations administering trust
territories and those not. Article 23 describes the Security Council as consisting of five
United Nations Members. The Republic of China, France, the Soviet Union, the United
Kingdom and the United States of America are permanent members of the Security Council.
The General Assembly elects ten other Members of the United Nations as non-permanent
members of the Security Council, paying particular attention to those Members of the
United Nations who contribute to the maintenance of international peace and security and to
other needs of the Organization and to the principle of equitable geographical distribution.
The non-permanent members of the Security Council are elected for a term of two years. At
the first election of non-permanent members after the increase in the number of members of
the Security Council from eleven to five, two of the four additional members are elected for
a period of one year. Members who have completed their term of membership cannot be
immediately re-elected. Each Security Council member is represented by one delegate only.
It is proposed to change China's representation at the UN by a two-thirds vote. A resolution
passed on 25 October 1971 recognized the People's Republic of China (PRC) as "the sole
legitimate representative of the United Nations in China" and "the place of Chiang Kai-
shek's representative is illegally occupied by the United Nations". This shows that national
consciousness in the conflict between China and Taiwan is crucial to the legality of
international law.
Conclusion
Taiwan's status in China's sovereignty is a status quo where Taiwan does not have
international sovereignty, is not independent de facto, Taiwan is a country because it has a
population, territory, a clear area and an existing government. However, de jure Taiwan has
not been recognized as a country by the international community or the United Nations. The
legality of international law in the case of China and Taiwan is a set of laws that consist
mainly of principles and rules that must be obeyed by states. for this reason, there must be
permanent recognition to become one of the concepts that determine the criteria for states in
International Law contained in three opposing theories, namely Consitutive Theory,
Declarative Theory, Middle Way Theory. This theory clearly recognizes the legality of the
problem between China and Taiwan.
