International Recognition and its Importance

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10 Fig.1 The ROC’s Remaining Diplomatic Allies

Source: https://www.stratfor.com/sample/analysis/taiwan-loses-diplomatic-ally

As the purpose of this thesis is to analyze the reasons behind the decisions of sub-Saharan African countries to break off their diplomatic ties with the ROC, I found that two questions should be answered in this context: what is diplomatic recognition and why is this recognition important for the ROC on Taiwan? This analysis will be particularly helpful for a better understanding of the need for the ROC to have diplomatic allies and the consequences that the trend of derecognition may have in the future of the nation.

2.2 International Recognition and its Importance

International recognition is defined in legal terms as a unilateral act by which a state expresses its readiness to enter into juridical relations with another state or entity under international law, and to conduct full diplomatic, consular or other relations with it.

International recognition is seen as a voluntary declaration of intent and does not impose any obligation on the recognizing state (Akaba, 2011). There are essentially two theoretical models connected to the recognition of states: the constitutive theory and the declaratory theory (Carbonnier, n.d). The first one, the constitutive theory, considers that the act of

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recognition by other states determines the existence of a new state and grants it an international legal personality. Its implications are that the new state is established as an international person by virtue of the will and consent of already existing states (Abdulrahim, 2009).

The second one is the declaratory theory. According to the declaratory theory, a state must fulfill four criteria before it can be accepted as a state in the international community. This criterion is based on the Article 1 of the Montevideo Declaration which will be explained below. This type of recognition has no legal effects and it is purely a fact.

Thus if the entity is able to properly comply with the requirements of a state , it is a state with all international rights and duties, and therefore other states have the obligation to treat it as such (Abdulrahim, 2011; Carbonnier, n.d; Yamali, 2009).

In the past, the constitutive theory had its achievements. In the 19th Century, international law was regarded as applying mainly between states within Europe (Abdulrahim, 2011). Other nations would be admitted as states to this community only if they could attain recognition from those member states. Nowadays, recognition can occasionally have a constitutive effect, although state practice is not always consistent.

When the creation of a new state or government is not in accordance with international law, this state or government is most of the times considered as having no legal existence until it is recognized (Abdulrahim, 2011).

Yet, currently the main view is that recognition is declaratory and does not create a state.

This view was laid down in the Montevideo Convention on the Rights and Duties of States of 1933. The Article 3 of the Convention states that: “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence” (Montevideo Convention, 1933).

In fact, the two theories provide little contribution in explaining recognition or determining the status of non-recognized entities in practice. Moreover, in my opinion the distinction between them is of little significance. According to the declaratory theory, deciding whether a new entity satisfies the criteria of statehood depends on the decision of other states, and the granting formal recognition to a new state (considered a unilateral act) is left to the political discretion of states. On the other hand, the importance of the constitutive theory has lost relevance due to the obligation imposed on states to treat an

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entity that satisfies the criteria of statehood as a state. Moreover, since recognition has a political side, the state's practice regarding recognition shows that states prefer a middle way between the aforementioned theories (Yamali, 2009; Abdulrahim, 2011).

According to Yamali (2009) International law is constituted by states and it is concerned with the activities and the transactions of states. However, if roughly 50 years ago the general consensus was that states were the only legal persons of the international law, nowadays this conception has broadened and participants can be regarded as: states, international organizations, regional organizations, non-governmental organizations (NGOs), public enterprises, private companies and individuals (Yamali, 2009).

According to international law an entity able to meet the international legal criteria of statehood is able to become a state. In this regard, The Montevideo Convention⁶ sets out the requirements for statehood in its well known Article 1. The criteria for statehood as determined by the Convention are: (1) a permanent population, (2) a defined territory, (3) government (4) the capacity to enter into relations with other states (Aynete, 2011). .

1. Permanent population: population is crucial for the existence of a state, as is indicated in Article 1; a permanent population does not mean that the population has to be static at one place. Rather, it takes into account pastoralists who move seasonally from place to place. Additionally, the size of the population is not an essential requirement.

2. Territory: the territory where the permanent population resides does not imply that the boundaries have to be defined precisely. Thus a border dispute with another country does not cast doubt on the territorial status of a country. It is only important that a country has a clear core territory in order to be a state.

3. Government: A state requires a government functioning as a political body and in accordance with the law and the nation’s constitution. The government needs to exercise effective power over its territory and citizens.

4. Capacity to enter into relations with other states: defines the new entity’s recognition by other states so that they have the capacity to start relations (Aynete, 2011).

6 The Montevideo Convention: treaty signed at Montevideo, Uruguay, on December 26, 1933. The Convention codified the declarative theory of statehood as accepted as part of customary international law.

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The ROC, and other disputed territories (e.g., Somaliland or the Sahrawi Arab Democratic Republic), clearly meet these requirements for statehood (Rich, 2009). Yet, the recognition of a state internationally is rarely based on internal sovereignty, since sovereignty has both internal and external dimensions (Payen & Veney, 2001). Some authors such as Rich (2009) says that a political community claiming sovereignty, even if judged by outsiders as legitimate, cannot be called a state if in practice it cannot assert this right. In order to legitimize sovereignty claims, many entities attempt to mirror the actions of recognized states in order to be perceived as such (Rich, 2009). For instance, many disputed states (e.g. the ROC on Taiwan) declare their consent to international agreements and declarations of which they were not signatories as a means of legitimizing their claims to statehood. In 2007, Taipei, in its annual application for UN membership stated:

(Washington Times, 2007):

“We meet all of the attributes of statehood set forth in the 1933 Montevideo Convention — a permanent population (with 23 million people, we’re larger than 60 percent of U.N.

member states), a defined territory and the ability to enter into relations with other states.

Article 4 of the convention provides, “The political existence of the state is independent of recognition by other states.”

“We respect all of the rights enunciated in the 1948 U.N. Declaration of Human Rights, which many U.N. member states routinely violate. Still, they’re members in good standing and we’re not.”

Although there may be degrees of external sovereignty, a more precise indicator is diplomatic recognition (Rich, 2009).

Other authors such as Newnham (2000) contend that the very definition of state sovereignty must include diplomatic recognition. In other words, sovereignty can be conceived not only as the recognition of internal actors but also attributed to the state by other states (Payne & Veney, 2001). The greater the number of states extending diplomatic recognition to a state, the greater is the sense of external legitimacy. Moreover, recognition

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is crucial to define a state's membership in the world community as well as to support its claim as an international person.

Currently the ROC on Taiwan is in a difficult position, with only 22 nations formally recognizing its claims to sovereignty. This lack of external legitimacy leaves the ROC insecure against counter claims from Beijing, since the majority of states around the globe side with PRC due to its size, power and forcefulness on the Taiwan issue in order to avoid antagonizing Beijing (Fossen, 2007).

During the first years of the 20th century, there were nearly fifty states in the world arena, right before World War II this number had grown to reach approximately seventy-five states and in 2005 there were almost 200 (Yamali, 2009). With the creation of each new state the concept of recognition must be put on the agenda of the international community. The ROC on Taiwan, due to its ambiguous international status, has been a difficult case to solve. Recognition has become a matter of great importance essentially due to its legal and political implications. Recognition of an entity not only confirms that this entity has met the required qualifications, but also that recognizing states are willing to enter into relations with the recognized state. As a result the newly recognized state may benefit from privileges and immunities within the international legal order, such as making treaties with other entities and allowing the government to act free from the control of other states (Yamali, 2009).

Thus, it is usually claimed that, the decision to recognize a nation or not, depends on political preferences rather than on the legal grounds drafted by international law. Chiu (1992) argues that states should regard the determination of whether a new entity is a state as a legal decision and base their decisions of recognition on objective criteria prescribed by international law, however this decision is usually treated as a question of policy. This tendency of states to recognize other entities based on political preferences is understandable given that extending the benefits of recognition is intrinsically linked to the recognizing state’s interests. Therefore, when a state faces the decision of whether or not to recognize another state, they’ll first weigh the advantages against the disadvantages before deciding (Yamali, 2009; Carbonnier, n,d.). For instance, Spain contending with separatist pressures from Catalonia and Basque region on its own territory, refused to recognize the secession of the ethnic Albanian territory of Kosovo from Serbia in 2008, presumably

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fearing a chain reaction within its own borders (Reuters, 2008). For the same reason, Beijing immediately opposed Kosovo independence, anxious to stop Taiwan and separatist movements in Tibet or Xinjiang from following the example. Other Asian governments that are battling against separatism in their own countries, such as Sri Lanka, have refused to recognize as well (Chan, 2008). The Kosovo case provides a good example as to why states may decide not to enter into relations with other nations as the disadvantages of this action outweigh the advantages. Similarly, the ROC-PRC struggle for international recognition has provided several examples of countries providing recognition to either Taipei or Beijing according to their own interests. In this case, impoverished nations, highly dependent on foreign aid have consciously made use of this diplomatic competition and profited from either Beijing or the ROC, both economically and politically (Taylor, 2002). In other words, usually these nations are willing to establish relations with either Taipei or Beijing depending on how much compensation is provided by either side. For example, in 1996 Senegal switched-for the third time-from Beijing to Taipei and in return was able to receive a generous aid package. In 1994, Gambia as a result of having recognized Taipei, received funding amounting to US$35 million (Taylor, 2002). In 1998, Taipei accused Beijing of having had provided an assistance package of US$100 million to Guinea-Bissau in exchange for the country’s recognition (Rich, 2009).