Introduction to International Law
Does Taiwan qualify as a state under International law? Apply the factual criteria to this and elaborate on the role of recognition by other states. What does this case study contribute to the debate around the nature of International law?

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Lecturer: Natalie
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Author: Rofhiwa Ramahala
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Tutorial Group: 4
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Due Date: 7th March 2016 Introduction
Two separate statements made by two high profiled Chinese government officials in 1999 threw the question of Taiwan sovereignty into question. The first statement originated from then President of the government of the Republic of China (or “ROC”) Lee Teng-hui on Taiwan on July 10, 1999 during an interview with a reporter. In the interview he stated that the relationship between China and Taiwan is one of a “special state-to-state relationship”. While in the second statement a spokesperson of the People’s Republic of China (or “PRC”) after a severe earthquake struck Taiwan. The United Nation office for the Coordination of Humanitarian Affairs attempted to send a disaster management team to Taiwan, however then Secretary General Kofi Annan was informed that the U.N. had to ask the government of the PRC for permission to dispatch an aid team to Taiwan. Mr. Annan thus coined the statement of “the Taiwan Province of China”.
These two statements relate to the sovereignty of Taiwan. The first statement raises the question of whether the State of Taiwan is a sovereign state, while the second asks if China has Sovereignty over Taiwan.
With this being said, this academic piece shall seek to answer the question whether Taiwan should qualify as a state within international law. It will firstly be looking at the historical background of Taiwan, subsequently followed by the definition of statehood and the required criteria. The Montevideo Convention will be used as the base as it gives the requirements for a state to be recognized as a state in international law which looks at the population, territory, government and the capacity to enter into relations with other states. It will then provide evidence to whether or not Taiwan fulfils the criterion. It shall finally conclude if Taiwan should be considered as a state under international law.
Historical Background
The withdrawal of the ROC government from mainland China to Taiwan from 1947 and then the later establishment of the PRC government in mainland China thus created two rival governments that claimed to be the rightful representatives of China. In doing so both of the governments enacted the “one-China” policy; meaning that any country or third party wishing to interact with China in diplomatic relations could only be maintained by one of the governments. This also included international organizations, such as the UN. The question which followed was which government should be the represent elect for China in the United Nations?
With the support of the United States (US), the ROC government maintained the seat of China in the UN as well as its permanent seat in the UN Security Council over a span of two decades once it had established itself in Taipei. However, with the increasing support of a other nations states choosing to recognize Beijing (capital of PRC government) instead of Taipei (capital of ROC government), it thus become the beginning of the end for Taiwan, and truly a race against time.
Numerous attempts by the UN to remedy this solution of dual representation, either to divide the country or even a “two-China” (one China, one Taiwan), before the fateful UN General Assembly Resolution 2758 was passed by an overwhelming majority in 1971. The US tried to broker a compromise with the other states; sadly it was not as successful as initially thought. While both Beijing and Taipei were opposed to such a solution, the ROC government was particularly afraid that they would lose their legal representation of the whole of China, as well that in a two state solution they would lose the UN Security Council to the PRC, their enemy. Then leader of the ROC Chiang Kai-shek stated that “There is no room for patriots and traitors to live together.”
However, in the beginning of the 1970s, the US saw the geopolitical advantage to closer align themselves with China in a strategic move against their common enemy the Soviet Union (USSR). The US officially broke all forms of relations with the ROC in 1979, even though the ideological shift occurred in the early 1970s, this was combined as well with a large contingent of newly independent colonies that opted to side with Beijing due to similar ideologies, this turned the tide once and for all for Taipei. One can say that the final nail in the coffin for the ROC; was that both the PRC and the ROC rejected the proposal tabled by the UN, together with the global shift, and on consequence this led to the expulsion from all major international organizations.

During the UN General Assembly resolution’s adoption on the 25th of October 1971, the ROC delegation was ordered by President Chiang to walk out of the UN to avoid any further humiliation. Resolution 2758 stated that ROC was be expelled for unlawfully occupying the UN and in all other organizations related to it. It was adopted by 76 against 35 votes and 17 abstentions by the members of the UN general assembly. The US voted against the resolution, however it was part of the minority, and Taiwan found itself isolated and excluded from many international organization.
What constitutes Statehood?
According to Pasquale, “The state is an association of considerable number of men living within a definite territory, constituted in a fact as a political society and subject to the supreme authority of a sovereign”. This description written by Pasquale is one of the numerous antecedents considered to be the most widely accepted and most often cited source of the definition of statehood. The formulation of the Montevideo Convention of 1933 under the section entitled on the Rights and Duties of states which took place the Seventh International Conference of American States set out to define the necessary characteristics of what comprises statehood.
The Montevideo Convention proposes four criteria for statehood. “The entity aspiring to be regarded as a state must possess a permanent population; it must occupy a clearly defined territory; it must operate an effective government over the extent of its territory; and it must display capacity to engage in international relations-such capacity including the ability to fulfil international treaty obligations”.
Evidence as to whether Taiwan fulfils the criteria or not:
Territory
The island of Taiwan is situated about 180 kilometres off the south eastern coast of mainland China. The total area of its land mass is 36,193km2, with smaller islands off the coast which are controlled by the state. These islands are Penghu, Kinmen, Wuchiu, Matsu, Pratas and Taiping Islands. With this in mind Taiwan has fulfilled the first prerequisite of statehood by having a clearly defined and undisputed border.
Permeant Population
The current estimated population of civilians living within the borders of Taiwan is approximately 23 million people. Even so, the Montevideo Convention does not stipulate the size of the population needed for a state to be recognised nor does it stipulate the minimum time needed for the population to stabilise. With this evidence provided, Taiwan does fulfil this criterion.
Government
The government within Taiwan is one of a multiparty democratic regime lead by a president who is popularly elected and a unicameral legislature. The government is split into five branches of power called Yuan; the National Assembly (Legislative Yuan), Judicial Yuan, Executive Yuan, Control Yuan and Examination Yuan. The primary object of the Control Yuan is to act as a watchdog agency while the Examination Yuan oversees Taiwan system of exams which control access to education, jobs, civil services and other similar factors in life. The president is elected by the populous while the president appoints the premier, who wields significant amount of power due to the fact that they appoint ministers and oversee the large bureaucracy.
However Taiwan is still considered to a forgotten province of China. In 1997, the constitution of the nation was amended to reduce the amount of power provided to the provincial leader elected by mainland China to a ceremonial post. This act angered China, as they saw it as an act by Taiwan to become independent.
Many claim that Taiwan is the first Chinese democracy, a few may dispute this fact however it is one of the most open political system within the Asian continent. This is an evolution of their previous dictatorship until martial law was lifted in 1987.
Even though Taiwan has been marred with violence in the past and been under martial law, it has evolved to fulfil the requirement of having a government that is in effective control of its territory, and that is independent of any other authority. However even though the Chinese believe that they have control over the territory, the state is in full control of the decision it makes.
Capacity to enter into relations with other States
The major stumbling block for Taiwan is in satisfying this standard. The fourth criterion for state status, according to the Montevideo convention and customary international law, is the capacity to engage in relations with other states. The problem which they encounter is in the formal sense, due to the fact that no other country officially recognizes Taiwan as a separate state and only a small number of countries (now twenty-two) either recognize the ROC government or just maintain formal diplomatic relations with it. However the number has stabilized in recent times with a de facto “diplomatic truce” between China and Taiwan. At the insistence of China, Taiwan has been excluded from numerous key international organizations. The chance for Taiwan came when they participated as an observer at a UN affiliated World Health Assembly (WHA) meeting since 2009, bought a modest breakthrough on that front.
While on the hand in regard to the informal dimension of capacity to engage in international relations, Taiwan excels well in this department with an extensive network of informal relations with governments of many states, membership to international organizations, intergovernmental organizations, nongovernmental organizations and finally participation without membersh and myriad international nongovernmental organizations, and participation without membership in a good many others.

Role of Recognition by other states
We have witnessed a pattern of consistency in terms of the role which states play in granting recognition to new entities within the international community. The constitutive school of thought has remained the dominant theory in regards to recognition of new states. The school of thought states that recognition is an additional requirement. For instance, if the claimant state is recognised by state A and not state B, it then becomes a state and a non- state. Currently only 22 states recognize Taiwan as the Republic of China (ROC), however none of the members of the permanent members of the UN Security Council recognize Taiwan’s claim to sovereignty. The reason behind this is that China is a member of the Security Council and thusly using its power to exercise its will upon nation that go against its notion that Taiwan is not sovereign and is part of its territory.
However Taiwan still maintains unofficial ties with many countries that do not recognize ROC, rather focusing on trade, investment, culture and cooperation in the non-political arena. Taiwan has more than 100 representative offices in over 70 countries. We can then conclude that, under the constitutive school, Taiwan is a state to those that recognise it and a non-sate to those that have not recognised it and under the declaratory school, Taiwan is a state because “It maintains that an entity is a state upon meeting the factual criteria.
What does this particular study say about the nature of International Law? The major problem with the constitutive school of thought is that the permanent members of the Security Council have the ability to withhold statehood and prevent a resolution, due to the influence they have on the global stage. In this case of Taiwan, China believes the state is part of its territory and hence the issue of its independence cannot be solved because “States do not regard themselves as being under a legal duty to recognise entities as states once they comply with the requirements of statehood… recognition is not an arbitrary process”. In essence this means that states want to inn control, while International law remains consensual in regards to sovereignty and are not obliged to recognize Taiwan was an independent state.
In regard to the declaratory school of thought, a state does not like to be told what to do, they want the ability to be in control and make their own decision willingly without external influence. A state does not want to be told that another entity has to be recognised as an independent state in regards to Taiwan. That is why we will have to use the constitutive school shall be applied to this case. States insist on the use of consensual laws which means that they need to ensure that international law follows the same suite, and sovereignty remains consensual. Thus the states want to be in the driver’s seat in terms of recognition because it would mean that international law will remain in the passenger seat.
Some states recognise Taiwan as being a de facto entity with an international personality within the global stage. Even though the US no longer regards the ROC as a de jure government or state, it maintains its control over the population and territory while still being able to function as a government. Section 4 of the Restatement (Second) of Foreign Relations Law of the United States provides that: Except as otherwise indicated, "state" as used in the Restatement of this Subject means an entity that has a defined territory and population under the control of a government and that engages in foreign relations.
Similarly, the Convention on Rights and Duties of States in article 1 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.
In other words, whether Taiwan is regarded as a “state” in international law depends on the fact that it can carry out the usual functions of a state, rather than it being recognised as de jure by other states.
If Taiwan is a de facto entity with international personality, it may carry out the full range of foreign relations, for example they are allowed to receive and send official missions and enter into international agreements. With respect to pre-existing treaties and agreements, international law does not require that treaties entered with previously recognized governments, must lapse due to the fact that they have lost their de jure recognition while still being in de facto control. In such circumstances states can thus make political decisions to maintain their treaties on the grounds that they can continue dealings with authorities who maintain actual control over the state.
However at the end of the day, we need to take into account that the theory that dominates the global stage is realism, which constantly likes to emphasise that the notion of state sovereignty is “itself to be its own highest authority and does not recognise a higher power”. This simply means that there is anarchy in the international system and uncertainty about the nature of international law, especially in the modern epoch.
Conclusion
The PRC claims that Taiwan is part of China, while the ROC also claims to be part of China, but more recently claim to be an independent sovereign state. This article, by applying the principals of international law, has concluded that even though Taiwan is a civil society it is not considered to be a state. Due to the fact that the international community has been dragging its feet in recognizing Taiwan as the de jure claimant on the territory in fear of angering the great power of known as China. It has been stated in both the Cairo Declaration and the Peace Treaty of San Francisco that China has not acquired any title to the island of Taiwan, therefore it has no sovereignty over Taiwan. The leaders of the global arena need to stand up and be counted in the fight to afford Taiwan with the status of sovereign state.

Bibliography
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Baylis, J., Smith, S., and Owens, P. The Globalization of World Politics Fifth Edition. (New York: Oxford University Press Inc, 2011).
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[ 1 ]. Chiang Y. F. “State, Sovereignty and Taiwan”, 959.
[ 2 ]. Linda Jakobson, “The Taiwan That Beijing Doesn’t Want to See”, Washington Post, 12 March 2000.
[ 3 ]. Richard C. Bush, At Cross Purposes: U.S.-Taiwan Relations Since 1942, 103–117
[ 4 ]. Dennis V. H., Foreign Policy Making in Taiwan: From Principles to Pragmatism, 11.
[ 5 ]. UN General Assembly, “Resolution 2758 (XXIV),” October 25, 1971.
[ 6 ]. Dugard, J., International law - A South African Perspective. Chapter 5 “States”. 81-83.
[ 7 ]. Ibid.
[ 8 ]. Ibid.
[ 9 ]. Grant Thomas, D. (1998-1999) “Defining Statehood: The Montevideo Convention and its Discontents”.
[ 10 ]. "Statistics from Statistical Bureau". National Statistics, Republic of China (Taiwan).
[ 11 ]. Ibid.
[ 12 ]. “About Taiwan”.
[ 13 ]. Ibid.
[ 14 ]. Dugard, J., International law - A South African Perspective. Chapter 5 “States”. 83-84.
[ 15 ]. de Leisle, J. “Taiwan: Sovereignty and Participation in International Organizations”. 1-3
[ 16 ]. Ibid.
[ 17 ]. Dugard, J., International law - A South African Perspective. Chapter 5 “States”. 91
[ 18 ]. Department of Foreign Affairs and Trade (Australia), “Taiwan”.
[ 19 ]. Ibid.
[ 20 ]. Dugard, J., International law - A South African Perspective. Chapter 5 “States”. 91
[ 21 ]. Dugard, J., International law - A South African Perspective. Chapter 5 “States”. 92-93.
[ 22 ]. The Restatement (Second) of Foreign Relations Law of the United States § 94, Comment C (1965)
[ 23 ]. Chiang Y. F. “State, Sovereignty and Taiwan”, 960 -990.
[ 24 ]. Ibid.
[ 25 ]. Li & Lewis, Resolving the China Dilemma. Advancing Normalization, Preserving Security, 2 International Security 11 (1977); Normalization ofRelations with the People's Republic of China. Practical Implications: Hearings Before the Sub-committee on Asian and Pacific Affairs of the Committee on International Relations, 95th Cong., 1st Session 87 (1977).
[ 26 ]. Baylis, J., Smith, S., and Owens, P. The Globalization of World Politics Fifth Edition. 89
[ 27 ]. Baylis, J., Smith, S., and Owens, P. The Globalization of World Politics Fifth Edition. 87