2. Literature Review
2.1. Recognition, Statehood and Sovereignty
2.1.1. Recognition
2.1.1.3. United Nations’ Membership
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exequatur5, the exchange of ambassadors, and the visit by a Cabinet Minister of the unrecognized regime (Wu, 1996). According to traditional law theory, the conclusion of a bilateral treaty was one of the strongest presumptions of recognition. This is because a bilateral treaty concedes the ability of both contenders to enter in a relationship, which in theory would put them in the same level, implying that a state would not enter into this kind of relationship with a non-recognized entity if it doesn’t have the intention to recognize it. The American Law Institute (ALI), under the heading Manifestation of Intention to recognize, concede that ‘The coming into effect of a bilateral international agreement between a state and an entity implies recognition of that entity as a state and recognition as its government of the regime that makes the agreement for it’ (Orakhelashvili, 2015: 203). However, in practice the concept of recognition under these criteria has lost much, if not all, its validity. Since the end of World War II we can see that this idea no longer holds. Many governments have entered in bilateral agreements or treaties with the ROC, and they certainly don’t aim to recognize the government any time soon.
In any case, the constitutive theory states that the creation of a new State depends on the acceptance of present States. However, this presents some complications that can be applied to the case of Taiwan, such as what happens if some existing States recognize a new State but others don’t?
2.1.1.3. United Nations’ Membership
This issue has been partially resolved by United Nations admission practice. It could be said now that membership to the UN constitutes the necessary evidence in the international system to prove the statehood of any given entity that wants to become a State. The membership practice in the UN was first coded on the Covenant of the League of Nations, a treaty that entered into force on 1920, and that share similar provisions with today’s UN Charter on membership. Article 1 (2) of the Covenant provided that: Any fully self-governing State, Dominion or Colony not named in the Annex may become a Member of the League if its admission is agreed to by two-thirds of the Assembly, provided that it shall give effective guarantees of its sincere intention to observe its international obligations, and shall accept such regulations as
5 An exequatur is a patent which a head of state issues to a foreign consul, guaranteeing the consul’s rights and privileges of office and ensuring recognition in the state to which the consul is appointed to exercise such powers.
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may be prescribed by the League in regard to its military, naval and air forces and armaments.
With the creation of the UN, the criteria for membership was covered in the Charter of the United Nations6, where its article 4 provides:
1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.
Thus, there are five conditions for membership: (1) to be a State; (2) to be peace-loving; (3) to accept the obligations of the Charter; (4) to be able to carry out these obligations; and (5) to be willing to do so.
Sometimes membership to the UN has become controversial, and as it has been pointed out earlier in this paper, political considerations are often more important when considering the admission of a new state. According to Crawford, disputes about status or membership were treated in a low-profile basis because UN organs have tended to wait until bilateral issues were resolved (Crawford, 2007). It will be seen later how decisive has been, and still is, to be a member of the UN for statehood and recognition, and how important political and ideological dynamics have been, especially during the Cold War.
In the past, a State would be recognized when it fulfilled the four criteria. However, since recognition has acquired an important political side, in practice a State used these theories halfway and political approval by the rest of the States became important. In fact, the Constitutive theory fails to explain why certain entities that count with all the criteria and that have received numerous recognitions are not considered States. In any case, regardless of whether or not recognition is a legal or a political act, the act of recognition itself is a reflection of state sovereignty. In the next section I attempted to explain what sovereignty really means nowadays. We will see how understanding this concept can guide us in the understanding of Taiwan’s international status.
6 The Charter of the United Nations is the foundational treaty of the United Nations. It was signed at the San Francisco War Memorial and Performing Arts Center in San Francisco, United States, on 26 June 1945, by 50 of the 51 original member countries (Poland signed it two months later)
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Sovereignty, same as it happens with independence, does not appear in the Montevideo Convention as a formal requirement for statehood. However, it has become an essential part of the discussion about statehood. We could describe sovereign states as autonomous actors. They have the right and the ability to enter into contractual relationships, and even if these contracts may lessen their freedom of action, they are an expression of the sovereignty of the state. For international law, individual states are the basic pieces of the international system. These states are sovereign because they have a juridical independence and can freely enter into treaties to promote their interests. Political leaders can rewrite rules if they decide to. This kind of situation can happen voluntarily, either unilaterally or through agreements with other states, or using coercion as a way to achieve their goal. Heller and Sofaer express it this way:
The concept of sovereignty is not a set of established rules, to which states must bend their conduct in order to preserve their capacities. It is instead an ever-changing description of the essential authorities of states, intended to serve rather than control them in a world that states dominate.
Hence, virtually anything that states choose to do to enhance their capacity to deal with the complicated problems of a changing world is seen by those engaged in the practice of statecraft as perfectly normal – an exercise rather than a diminution of sovereignty. If states lacked the power to commit themselves in advance to specific policies, or to delegate authority to international institutions or private entities to implement such policies, they would be weaker –not stronger- entities than the sovereign states of today’s complex world. (Heller and Sofaer, 2001: 45)
In any case, absent of coercion or voluntary actions, the rules of sovereignty are widely recognized and, therefore, they are considered the default rules to follow in any given situation. For most observers, the default sovereignty has been described as a series of attributes linked to one another. These attributes include a territory, a population, an effective domestic hierarchy of control, de jure 7 constitutional independence, the de facto absence of external authority, international recognition, and the ability to regulate transborder flows.
7 The de-facto recognition is extended where a government has not acquired sufficient stability. It is provisional (temporary or conditional). It is not legal, however, it is recognition in principle. The de-jure recognition is the legal recognition. It means that the government recognized formally fulfils the requirement laid down by International law. De-jure recognition is complete and full and normal relations can be maintained.
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Stephen Krasner’s definition of sovereignty has become very common among many authors. In his definition he first explains that a government enjoys internal legal sovereignty if it is widely recognized by other states and routinely participates in treaties and multinational conventions. Membership to the UN, as explained before, would be suitable evidence in this regard. A government possessing domestic sovereignty is also one that effectively controls events within its own borders. Thus, crime, population protests or radical political groups should not rise to the level where it can put at risk the established order. International capital flows, information exchanges, and other forms of “interdependence” have to be controlled or regulated to prevent them from threatening the state’s viability. And finally, a government is sovereign in a Westphalian sense if its institutions are “autonomous” and not subject to significant interference from outside powers. (Madsen 2001: 142)
But the part about Krasner’s definition that interests us the most is his division of sovereignty into four aspects, four different ways in which sovereignty can be understood. This division is also very useful for the case at hand as it allows us to see what Taiwan is lacking to be accepted as a State in the international community. Thus, we have interdependence sovereignty, domestic sovereignty, international legal sovereignty, and Westphalian sovereignty. As Krasner describes it,
‘interdependence sovereignty refers to the ability of a government to regulate the movement of goods, capital, people, and ideas across its borders. Domestic sovereignty refers both to the structure of authority within a state and to the state’s effectiveness or control. Internal legal sovereignty refers to whether a state is recognized by other states, the basic rule being that only juridically independent territorial entities are accorded recognition. Westphalian sovereignty, which actually has almost nothing to do with the Peace of Westphalia8, refers to the autonomy of domestic authority structures –that is, the absence of authoritative external influences.’ (2001: 2)
The one that is more important for us is international legal sovereignty, as it involves the status of a political entity in the international system. Recognition of this type of sovereignty means that a state can enter into agreements with other entities, that has embassies and consulates with extraterritorial status, its diplomats are entitled to immunity. Almost all leaders have looked for this type of sovereignty because it gives
8 Most of the specific terms of the Peace of Westphalia have nothing to do with the modern state system and many of which actually violated Westphalian sovereignty. These is farther explained by Krasner in “Westphalia and All That” (1993). In Judith Goldstein and Robert O. Keohane, eds., Ideas and Foreign Policy. Ithaca: Cornell University Press.
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them both material and normative resources. It facilitates the signing of treaties, contracts, agreements; it also made alliances possible, enhancing security;
membership to institutions like the World Trade Organization can improve the access of the state to the markets, and membership to the World Bank can provide financial resources.
Clearly the Republic of China, since democratization at least, has met all the requirements stated above, both in the case of recognition theory, and in the case of the concept of sovereignty. However, international recognition is seldom based solely on international sovereignty, especially when other states are also claiming a territory (Rich, 2009: 162). Recognition has been used as a political tool for years; in fact, it has been revoked from governments that met widely recognized criteria, but granted to those with barely or even no control over the territory they claimed to rule.
The rules which international law is based upon are, as the basic principle I quote at the beginning of this chapter states, pactasuntservanda. Agreements must be kept, and disregarding the well-established and widely accepted norms only damages the international system. The constant violation of these basic laws, particularly by nations that are looked up to for leadership in the international community, causes appalling harm to the entire system. There is a long list of controversial acts by the U.S. during the Cold War, such as uses of force –the prohibition of the use of force is a first order norm9. This behaviour caused harm not only to the authority of the norm but to the institution that it supposed to implement those norms. The entire UN system is built upon the prohibition of the use of force, as the basis for maintaining international peace and security. One example of the United States violation of the international norms can be seen in the case of Nicaragua in 1986.10 This kind of
9 Establish with the U.N. system after World War II, it prohibits any and all use of force against other states (Art. 2(4) of the U.N. Charter), except for the purpose of individual or collective self-defense (Art. 51), or as authorized by the U.N. Security Council for the purposes of restoring or maintaining collective security (Art. 39-42)
10 On 9 April 1984, Nicaragua filed an Application instituting proceedings against the United States of America concerning a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua. On 18 January 1985, the United States announced that it intended not to participate in this case. In its Judgment of 27 June 1986, the Court rejected the justification of collective self-defense advanced by the United States and stated that it had violated the obligations imposed by customary international law not to intervene in the affairs of another State. The Court also found that the United States had violated certain obligations arising from a bilateral Treaty of Friendship, Commerce and Navigation of 1956. In March 1988, the United States maintained its refusal to take part of this case. In September 1991, Nicaragua informed the Court that it did not wish to continue the proceedings. (In Case concerning military and paramilitary activities in and against Nicaragua, 1986 I.C.J. 14, General List No. 70)
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actions weaken the system, which in turn affects less powerful countries, like the ROC, whom after de-recognition looked for alternative ways to stay in the system.
The question is whether or not the ‘unofficial’ diplomacy can last in the long term or not. The ROC has to rely now on the pragmatic approach to diplomacy to develop its international relations. However, as we will see in the next chapter, it seems that a further development of this “informal” or “pragmatic” diplomacy could mean that the most the ROC can aspire to is to maintain the status quo.
2.2. International Status of Taiwan
The traditional views on statehood, as we have seen, focus almost exclusively on political or ideological reasons, ignoring more reasonable criteria stated in all the different theories concerning statehood, sovereignty or recognition. But Taiwan’s approach to diplomacy also has had many authors and experts on statehood perplexed, because it has managed to create a new state of affairs by circumventing the traditional conception on recognition. Robert A. Madsen argues that formal legal sovereignty is not essential for a state to survive in the international system. To assure its interests, a government just have to maintain constant and dependable communications with the rest of the international actors. Of course, sovereignty grants a state the ability to perform formal diplomacy, which is helpful because a sovereign state won’t have the need to spend time and resources creating unique institutions that would allow them to get around the established norms. However, an isolated entity can still accomplish most of its objectives. Taiwan’s case illustrates the perfect example as how to function in the international system as a “pariah state”. This kind of state can ‘design its domestic policies to engender goodwill abroad and, upon this foundation, construct an informal diplomatic structure that suffices to protect its most vital foreign interests.’ (Madsen, 2001: 1)
The actual situation between the PRC and the ROC provides a unique case where the rationale for granting recognition has evolved over time. Once based to a large extent on Cold War ideological rationales, the situation has evolved into a debate in which recognizing states have few ideological imperatives. Taiwan has become an entity that has many of the attributes of fully sovereign states –territory, population, and
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domestic and Westphalian sovereignty11- but very limited international legal sovereignty. Moreover, the government of the ROC has not formally declared themselves as a state, this is, they have not formally made any claim to juridical autonomy (Madsen, 2001: 17). This is supposedly because for the ROC government there is no need for this, as they were and are a state to begin with. The nature of ROC’s informal diplomacy is actually not different from diplomacy of any other sovereign state. Taipei has kept in regular and close touch with other states, has resolved differences and cooperated to achieve mutual goals. How did we get here in the first place? Economic success, social progress and political reforms have given the ROC the necessary diplomatic tools with which to handle informal foreign policy.
The support of the U.S. during and after the Cold War has proven to be an important, if not the most important, component of their actual status. This doesn’t mean it has been for the better. U.S. support has indeed help to build the ROC’s relations with the international community, and more importantly, it has helped to build its alliances.
But it has also cemented the status quo in which the ROC finds itself immersed. A status from which escaping might be arduous, if not impossible. Taipei continued to exercise informal diplomacy in order to obtain international acknowledgement and recognition of its statehood. However, the inability to solve the sovereignty issue, the tremendous economic cost and inconvenience that has entailed, mean that the informal diplomacy has its limitations (Wu, 1996)
In any manner, after World War II the most used rationales for withholding recognition were ideological. Throughout the Cold War, opposing sides routinely withheld recognition. Today, purely ideological rationales have fallen out of favour.
But regardless of the stated rationale, the underlying goal of withholding recognition has been to coerce states to act in a manner favourable to another state (Rich, 2009)
2.2.1. Background
After 1949, anti-communist policies were strengthen, especially with the start of the Korean War, which renewed the support of the U.S. for the ROC, allowing the nationalist government to maintain and gain some diplomatic representation post-1949. In the 1960s the only Latin American country that recognized the PRC was
11 The basic rule of Westphalian sovereignty is that external authority structures should be excluded from the territory of a state. Moreover, the government of a Westphalian sovereign can determine the character of its own domestic sovereignty, its own authoritative institutions.
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Cuba. Even when the international support for the PRC started to increase, supporting their entry in the UN, the ROC didn’t change their “one China” policy.
Is it important to bear in mind that during the first years after the retreat of the ROC to the island of Formosa, both the PRC and the ROC were looking towards the same goal: who of the two states would be recognized by the international community as the sovereign government of China. Therefore, at the beginning the ROC wanted to
Is it important to bear in mind that during the first years after the retreat of the ROC to the island of Formosa, both the PRC and the ROC were looking towards the same goal: who of the two states would be recognized by the international community as the sovereign government of China. Therefore, at the beginning the ROC wanted to