Vol. 1(2) November 2017, pp. 105-118 FAKULTAS HUKUM UNIVERSITAS SYIAH KUALA ISSN : 2597-6885 (online)

LEGAL ANALYSIS OF RECOGNITION FOR THE STATE UNDER (CASE STUDY ON GENERAL ASSEMBLY OF UNITED NATION RESOLUTION NUMBER 2758 (XXVI) ABOUT RESTORATION OF THE LAWFUL RIGHT OF THE PEOPLE’S REPUBLIC OF CHINA IN UNITED NATION)

Aditya Gunawan Mahasiswa Fakultas Hukum Universitas Syiah Kuala Jl. Putroe Phang No. 1, Darussalam, Banda Aceh - 23111

Nellyana Roesa Fakultas Hukum Universitas Syiah Kuala Jl. Putroe Phang No. 1, Darussalam, Banda Aceh - 23111

Abstract - In modern law, the problems related to status and recognition of statehood is still debatable in international community. The creation of states is still questionable by the way of new entity became a new state as part of international community, the problem causing it is, there’s no such international regulation about the creation of state and about the state that lost their legal personality (such as Taiwan which not consider as a state by majority of international community) the only international legal instrument that mention about the creation of new state is Convention 1933 about the rights and duties of state. The purpose of this research article is to analyze the problem of the creation of state and the requirement which have to fulfill by an entity to become a new state, and also to analyze the problem of the state what lost their statehood in international law case study on UN General Assembly resolution number 2578.The method that used in this research is normative research. The data collected in this research is a library research, by collecting, reading, studying and understanding convention, laws and regulation, textbook, journals, and literature as well as data obtained from the internet that relevant to the issues discussed.The result of this research is that the status of an entity which only receives the limited recognition (De Facto) by other state on international community is not consider as a state because they not fully fulfill the requirements to became a new state, also the legal status of Republic of China (Taiwan) as a state or just part of People’s Republic of China (Mainland) because the impact of the resolution of General Assembly of United Nation number 2758 (XXVI) which restore all they rights as a state in UN and other organization related to it.In the order of achieve the understanding the creation of state. The entity has to get the recognition by other state in order to receive the legal personalities and became part of international communities. And also Republic of China (Taiwan) is no longer consider as a state which gain the sovereignty by majority of other state in international community, but they just part of People’s Republic of China (Mainland) and known as special administrative province of People’s republic of China and other state must respect POC rights as mainland of One China state that own international legal personality as state. Keyword: Criteria of Statehood, Legal Status, Recognition, GA UN Resolution

INTRODUCTION The International community is a living entity in the sense that it is changeable. The identity and number of States are by no means fixed and invariable. History produces many changes. The Old States disappear or unite with other States to form a new State, or disintegrate and split into several new States. Former colonies attain statehood. Even in the case of existing State, a revolution or unconstitutional event may occur, and the status of new government becomes a matter of concern to other States, which formerly had relations with the displaced government. These instances raise several problems for the international 105 JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 106 Aditya Gunawan, Nellyana Roesa community. The most important problem is the question of recognition of the new State or the new government. Each State has to decide whether to recognize the new State or the new government.1 Recognition involves legal consequences both internally and internationally. If an entity receives recognition as a State, it will be entitled to rights and subjected to duties that would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State, before the national courts, which would not be allowed to other entities.2 The state is the main subjects of international law. About the term "country" itself there is no precise definition, but with the view of the modern conditions today, can be determined the characteristics of the tree from a state. Article 1 Montevideo Convention 1933 regarding the rights and obligations of the State (which was signing it by the and some Latin American countries) presents the characteristics of the following characteristics: "Countries as private international law must have the following conditions: (a) permanent Populations; (b) Defined territory; (c) Government; (d) Capacity to enter into relations with other countries."3

RESEARCH METHODOLOGY In order to avoid matters that not relate to scope of thesis, there are several things that need to be highlighted: a. Recognition: Recognition is Ratification; confirmation; an acknowledgment that something done by another person in one's name had one's authority. An inquiry conducted by a chosen body of men, not sitting as part of the court, into the facts in dispute in a case at law; these "recognitors" preceded the jurymen of modern times, and reported their recognition or verdict to the court.4 b. International Law: International Law is a description of an entire legal system: the international legal system. It is an international legal system by which legal rules are created in order to structure and organize societies and relationships. It acknowledges the influence of political, economic, social and cultural processes upon the

1https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-recognition accessed on Mei 17 2016 2 Ibid. 3 J.G. Starke, Introduction International Law, tenth edition, (Jakarta: Grafika rays, 2003), it.127. 4 Henry Campbell Black, M. A., Black's Law Dictionary Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern. ST. PAUL, MINN. WEST PUBLISHING CO.1968.

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development of legal rules. Within this international legal system are, for example, constitutional laws, property laws, criminal laws, and laws about obligation, within the international legal system that is included under the name of “International Law”.5 c. The term State: The State is the organization of a group of people who have live in a specific area or in other words the State bond is peoples who live in a specific area which is equipped with the power to govern.6 The method that will use in this research is normative research. The data collected in this research is a library research, by collecting, reading, studying and understanding convention, laws and regulation, textbook, journals, and literature as well as data obtained from the internet that relevant to the issues discussed. In order to compile data in the research, the data that obtained from library research is applied. Sources of data used in this research are categorized as: a) Primary data which consist law, include: 1. Montevideo Convention 1933 on the rights and obligations of the State 2. General assembly of United Nation resolution number 2758 (XXVI) about restoration of the lawful right of the people’s republic of china in united nation b) Secondary data that give legal explanation for legal primary data: 1. Law books 2. Law journal 3. Internet c) Tertiary data include data providing enlightenments of primary and secondary data such as dictionary and encyclopedia. In addition, related material connected to the problem raised. Hence, the research will have obtained theory and concept needed. Data obtained from library research will be processed systematically to attain appropriate depiction with the research problem. The data subsequently will be analyzed by using a quantitative method that means only using the data consist of primary, secondary and tertiary legal sources. Therefore it can have acquired objective analysis to answer problem raised.

5 Martin Dixon and Robert McCorquadale, “cases and materials on Internasional Law”, Oxford Press, 2003, Page 1 6 Georg jelinek, Allgemeinestaatslehre, (3d ed. 1914).

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DISSCUSSION a. The status of an entity which only got limited (De Facto) recognition? The concept statehood and recognition are closely interrelated and important in both theory and practice of international law. But that’s is not the purpose of this thesis. The main task is to discuss the question of the legal action of international communities that’s against (violate) international regulation in this case is Montevideo Convention 1933. The reason why an entity is important to be a state ‟ in International Law as well as in international community as a whole is because it suggests that becoming a state automatically makes an entity” powerful and important subject of International Law. The reason is that international law applies mainly to states and states automatically are endowed with such personality. Therefore, it is desired to be a state. It is advantageous to be a state because of protection in international law, in other words because it will become an international legal person. Main capacities of an international legal person7: “to make claims before international (and national) tribunals in order to vindicate rights given by international law; to be subject to some or all of the obligations imposed by international law; to have the power to make valid international agreements (treaties) binding in international law; to enjoy some or all of the immunities from the jurisdiction of the national courts of other states.” This means that international legal person will act independently and will have legal opportunities such as making agreement with other state on international communities. Statehood has become a malleable and somewhat anomalous theory in the latter half of the 20th century, because of the phenomenon of De Facto states. De Facto states are entities that satisfy the four criteria of statehood enumerated in the Montevideo Convention. However, for political and/or strategic reasons, these entities are not recognized as states, are denied membership in major international organizations, and are thus unable to engage in international relations and become true states. Marjorie M. Whiteman on her journal stated that: “While the terms De Facto recognition and De Jure recognition are frequently employed, the expressions "recognition of a De Facto government, situation, etc., are preferable. The character of the object recognized may be recognized as "De Facto" in

7 Martin Dixon, Textbook on International Law (Oxford University Press, 2007

JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 109 Aditya Gunawan, Nellyana Roesa existence or control. In prevailing practice, when the United States extends recognition, it is recognition per se not "De Facto" recognition.”8 According to Miss Whiteman, then, the terms De Facto and De Jure refer only to the character of the government and not to the character of recognition. This view disagrees with the position that different legal and political consequences flow from De Facto and De Jure recognition by denying the latter distinction. Mr. Leonard Meeker, the Legal Adviser of the Department of State, in an interview with the author in March, 1966, said that he was "not sure" if there was a difference between De Facto and De Jure recognition. Mr. Meeker then cited the case of the recognition of Israel in 1948 as an example of an instance when, for a time, "something less than De Jure recognition might have been intended9 The significance of the case of Israel to the discussion necessitates brief review of the situation. The British Mandate over the area that was to become the Jewish state of Israel was to end on May 14, 1948. That morning the Provisional Government of Israel sent a note to President Truman assuring him that the government had been "charged to assume the rights and duties of government "for that state and to discharge its international obligations. President Truman replied to the note that same day announcing that:10 “This country recognizes the Provisional Government as the De Facto authority of the new State of Israel. When a permanent government is elected in Israel it will promptly be given De Jure recognition.” The statement definitely appears to indicate something less than the traditional concept of "De Jure recognition." However, Philip Jessup, the Deputy United States Representative in the Security Council said in December, 1948, "the United States extended immediate and full recognition to the state of Israel as a De Facto authority of the new state.", The extension of "full recognition" indicates the traditional concept of "De Jure recognition, "while De Facto authority describes the type of power the government enjoyed.11 Another example of such De Facto states includes Northern Cyprus, Republican Srpska, Northern Kosovo, South Ossetia and Abkhazia.12

8 Marjorie M. Whiteman, B.A., LL.B., M.P.L., J.S.D., LL.D. (HON.) law journal “Digest Of International Law” prepared by and under the direction of Assistant Legal Adviser, the Department of State 9 Ibid. 10 Ibid. 11 Ibid. 12 Milena Sterio, Law Journal “A Grotian Moment: Changes in the Legal Theory of Statehood” Assistant Professor of Law, Cleveland-Marshall College of Law. J.D., Cornell Law School, magna cum laude, 2002;

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Cyprus was a British colony until 1960, inhabited by a majority of ethnic Greeks living in the south, and a minority of ethnic Turks living in the north.116 Great Britain decided to negotiate Cypriot independence with representatives from Greece and Turkey; after the initial agreements were drafted, Greek Cypriot and Turkish Cypriot representatives were also invited to a meeting to finalize the agreements. According to a series of treaties negotiated in 1960, Cyprus would be an independent state, governed through a power- sharing agreement between the Greeks and the Turks. Each ethnic group would have adequate representation in the government and in the parliament, and both groups would respect each other’s rights. The agreement worked briefly, but the two groups found themselves unable to share their state in a peaceful manner. In 1974, Turkey staged an intervention on behalf of the Cypriot Turks and invaded the northern part of the island, where the Turkish Cypriots predominantly live. Through the invasion, the northern part of Cyprus De Facto separated from the south, to form an independent entity. The United Nations sent peacekeepers to Cyprus to prevent conflict from escalating between the island’s north and south, but attempts by the international community to reunify Cyprus have been unsuccessful. No country has ever recognized Northern Cyprus as an independent state, although in reality, it functions as such. Just like Taiwan, Northern Cyprus has a defined territory, a permanent population, a government, and some capacity to enter into international relations. The fourth criterion of statehood seems to be the most difficult one to fulfill in the case of Cyprus, because a state may not be able to engage in meaningful international relations if other states do not want to treat it as a sovereign partner. However, because Northern Cyprus functions as a De Facto state in every other aspect, it would have true potential to entertain international relations with other states.13 Republic Srpska is technically a part of Bosnia. It is inhabited by ethnic Serbs and represents the northeastern part of the country. Ever since the Yugoslav civil wars, Republic Srpska has functioned as a De Facto state. It has its own system of law enforcement, government, schools, and public offices and services that are entirely separate from those existing in the other part of Bosnia. Because of political reasons, like Northern Cyprus, no external actors have recognized Republic Srpska as a state. When addressing the legality of secession issues as they applied to the various Yugoslav republics and provinces in the early 1990’s, the Badinter Commission, a body of experts commissioned to deal with these

13 Ibid.

JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 111 Aditya Gunawan, Nellyana Roesa difficult issues, refused to recognize that Serbs in Republic Srpska had the right to self- determination. However, the Commission’s opinions were legally inconsistent as they applied to the different Yugoslav republics, and the Commission’s diverse treatments afforded to the different republics are widely attributed to the political situation at the time. Serbia was portrayed as the culprit and initiator of the Yugoslav civil wars, and the international community feared that if Republic Srpska had been allowed to secede from Bosnia, it would have rejoined Serbia and augmented the territory and power of this “rogue” state. While this reasoning could have been accurate in the early 1990’s, it is no longer reflective of the political situation in the Balkans. Since the 1995 Dayton Peace Accords, the new states created through the wars have peacefully existed, and Republic Srpska has functioned, somewhat isolated, as a De Facto state. Like Northern Cyprus, it has a defined territory, government, a permanent population, and would enjoy the capacity to enter into international relations, if other states were willing to treat it as a state.14 All those cases above is the examples of a Grotian Moment type change in the legal theory of statehood. In fact, several state-like entities exist on our planet and function as De Facto states. If one were to apply the legal theory of statehood to these entities stricto sensu (in a narrow or strict sense)15, they could all potentially qualify as states. However, because of the political unwillingness of powerful states to treat these entities as sovereign partners, these De Facto states have been denied the official designation of statehood. It can be inferred that the legal theory of statehood now comprises a fifth element: the need for recognition by the Great Powers of any statehood-seeking entity. This Grotian Moment most likely resulted from the Great Powers Rule phenomenon itself, and the fact that the power balance on the world scene shifted at the end of the Cold War to provide for an unchecked concentration of power in the most potent states. The Grotian Moment in the legal theory of statehood has resulted in the adding of a fifth, political criterion: the need for recognition by the Great Powers of any non-state entity seeking to prove that it ought to be treated as a state.16 b. The status of Republic of China (Taiwan) After General Assembly Of United Nation Resolution Number 2758 (XXVI) About Restoration Of The Lawful Right Of The People’s Republic Of China In United Nation

14 Ibid. 15 http://www.merriam-webster.com/dictionary/sensu%20stricto. Accessed on September 15 2016. 16 Milena Sterio, Op.cit.

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First of all, China's claim regarding the territorial integrity of a sovereign country is based on a principle of traditional international law. Modern international law pronounces the idea that, people have a right, which is above the territorial right of a state, to found a government that can truly represent all the people in the said region and not to be subject to oppression as a result of racial, religious, ethnic and other differences. The principle of self- determination has been asserted time and again in the Declaration on the Granting of Independence to Colonial countries and peoples (1960), in the Declaration on Principles of International Law concerning Friendly Relations and co-operation among States in accordance with the chart of the United Nations (1970), and in various opinions of the International Court of Justice.17 Therefore, when a certain number of people, or the minority groups within an existing state are oppressed, they have the right to demand independence and self-determination. That is, a state's territorial right cannot override the principle of self-determination. Tibet under the Chinese regime best illustrates this point. It is widely recognized and supported that Tibetans are entitled to the right of self-determination which overweighs China's right of territorial integrity. In the case of Taiwan, it is more so since Taiwan has never been ruled by the People's Republic of China. In other words, Taiwan's effort to become an independent country conforms fully to the principle of self-determination widely adopted in international law.18 Secondly, China's assertion that Taiwan historically has been part of China cannot definitively determine whom the jurisdiction of Taiwan should belong to. While such a rule may have been applied to the resolution of territorial disputed in the past, it was mainly used to settle disputes among two or more states such as those between China and India, and China and Southeast Asian countries, etc. Therefore, it is inappropriate to apply this principle to our case. Moreover, this rule was adopted during the feudal era when a lord treated his people on his land as his own possession at his disposal. In modern societies, the will of the people on the land in dispute has become decisive in the judicature of the International Court of Justice. Therefore, Taiwan should not be all the disposal of any alien power; the will of the people should decide the future of the land, not vice versa. The claim of territorial supremacy laid by

17Taiwan’s Status According to International Law, ttp://taup.yam.org.tw/1t1c/tp1tce05.html accessed on September 8, 2016. 18 Ibid.

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China, while neglecting the will of the Taiwanese, not only violates international law but also reveals its territorial ambition.19 Thirdly, China invokes the Cairo Declaration of 194320 and Potsdam Declaration of 194521 as proof that Japan returned Taiwan to China after the war. However, it is questionable whether the proclamation made at the Cairo conferences is legally equivalent to an international treaty. Above all, since Japan was not among the attendants of these conferences, it was not legally bound by the proclamation made during these conferences. That is, the Cairo Declaration had no virtual constraining power with regard to Japan and its occupied territories. Since international law recognized only mutual peace treaties signed by the warring states, the San Francisco Peace Treaty (SF) (1951)22 is much more appropriate in determining the status of Taiwan.23 The SF Peace Treaty stated that Japan gave up its claims on Taiwan and the Pescadores. However, there were no remarks saying that Taiwan would be given to China (According to Article 21, what China would gain was stipulated in Articles 10 and 14)24. After signing this treaty, Japan no longer has any right to give Taiwan away because according to international law it did not own Taiwan anymore.25 Fourthly, to justify its intent to annex Taiwan, China suggests that one hundred and fifty-seven countries recognize that Taiwan is part of China. In fact, these countries use words such as "understand" or "notice" instead of "endorse" of "confer" referring to the "One China" policy. Above all, countries not directly involved in a territorial dispute have no right

19 Ibid. 20 This is known as the "Cairo Communiqué." It was made public on December 1, as a result of the Cairo Conference from November 22 to discuss their policy on Japan, by the President of the U.S. Franklin Roosevelt, Prime Minister of the U.K. Winston Churchill, and President of the Republic of China Chiang Kai-shek. In response to a question from President Roosevelt, Chiang Kai-shek said that it was the Japanese people themselves who should decide whether or not the Emperor system would be abolished. The declaration, which was drafted by the U.S. and amended by the U.K., mentioned the unconditional surrender of Japan, the restoring to China of Manchuria, Formosa and the Pescadores, and the freedom and independence of Korea. The policy toward Japan in the Cairo Declaration was accepted as a basic policy of the Allied Powers and carried over into the Potsdam Declaration. http://www.ndl.go.jp/constitution/e/shiryo/01/002_46shoshi.html accessed on September 8, 2016. 21 The Potsdam Declaration (July 26, 1945), Proclamation Defining the Terms for the Japanese Surrender, July 26, 1945. 22 Treaty of Peace with Japan (with two declarations). Signed at San Francisco, on 8 September 1951 23Taiwan's Status According to International Law, ttp://taup.yam.org.tw/1t1c/tp1tce05.html accessed on September 8, 2016 24 The Potsdam Declaration (July 26, 1945), Proclamation Defining the Terms for the Japanese Surrender, July 26, 1945. 25 Ibid.

JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 114 Aditya Gunawan, Nellyana Roesa to decide on the ownership according to international law. For example, it means little if Japan recognizes Hawaii as a part of Canada.26 All in all, international law is constructed on facts and actuality. If in fact, countries recognize Taiwan as part of China, they would and should have to acquire China's permission when they trade with Taiwan and when their people, aircraft, ships travel in and out of Taiwan; otherwise, these actions would clearly violate China's sovereignty. The fact that they do not have to deal with Taiwan vis-a-vis China again demonstrates their recognition that Taiwan is not part of China. 27 Lastly, by asking the international world to recognize Taiwan as a part of China, the Chinese government indeed exposes its insecurity toward this false claim. Why would a country request that others recognize its sovereignty over a piece of land if it really governs and owns this land? Obviously, China knows that its claim of Taiwan is factually and logistically weak.28 Despite there are 193 member of UN29 and also 2130 parties of Montevideo convention (they also member of UN) there’s just several (22)31 state recognize Taiwan as a state but majority of international community is not do the same, with respect to participation in international multilaterals Convention and international public organization (international relationship) as long as the PRC participate so it will be impossible to ROC participate as independence state and as the result Taiwan is just a special administrative province of China.

CONCLUSIONS In some situations, the term ‘recognition’ may also be used to describe acts that are properly speaking constitutive of a particular State; for example, a multilateral treaty establishing a new State will at the same time extend the signatories’ recognition of that State. But the constitutive acts here are those involving the establishment of the State, the stipulation of its constitution, the definition of its borders, etc. Collective recognition is ancillary and is not a substitute for action by the competent authorities. The conclusion must be that the status of an entity as a State is, in principle, independent of recognition, although

26Taiwan’s Status According to International Law, ttp://taup.yam.org.tw/1t1c/tp1tce05.html accessed on September 8, 2016. 27 Ibid. 28 Ibid. 29http://www.unric.org/en/latest-un-buzz/26841-un-welcomes-193rd-member-state (http://www.un.org/en/member-states/) accessed on September 14, 2016 30 Montevideo convention 1933 on the rights and duties of state 31http:/\/www.dfat.gove.au/geo/Taiwan/pages/Taiwan-country-breif.aspx

JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 115 Aditya Gunawan, Nellyana Roesa the qualifications already made suggest that the differences between declaratory and constitutive schools are less in practice than has been depicted. But this conclusion assumes that there exist in international law and practice workable criteria for statehood. If there are no such criteria, or if they are so imprecise as to be practically useless, then the constitutive position will have returned, as it were, by the back door. And by changing the recognition from “De Facto Recognition” to “full recognition” has meaning that id the state only got “De Facto” recognition just like explanation above, the cant fully expressed they sovereignty as independence state on international communities, but if they want to do so, they have to achieved “full recognition” by other state and it goes same to other state that have been mention above in this research thesis. After the implementation of resolution number 2758 of united nation general assembly 1971, there’s major changes occurred in the recognition of the Government of China, the China State was originally represented by Chiang Kai-Shek as representative of the Republic of China (Taiwan), but after it was implemented all rights owned by the Republic of China was revoked and then handed over to a representative of the Chinese Government which represents mainland China (people's Republic of China) which until now recognized they Government in the international community. As mention above, the recognition is unconditional and irrevocable by meaning the recognition could not be canceled or withdrawing whatever the reason, then if some state (or more) withdrawing to recognize the other state, legally it is not effect at all, but in cases of Taiwan there’s an exception of the article 6 of Montevideo convention. In theory Taiwan is a state because they’ve been fulfill all the requirements that mention on Montevideo Convention 1933 but in practice Taiwan is no longer recognize as a state by majority of international Community because of the international communities is recognize Taiwan as part of Peoples Republic of China territory. Judging from the principle of international law recognition, the ROC should be recognized as a state by all countries. However in reality this has not been the case. Since, under international law to grant recognition is primarily a political act, and since Law is the product of politic so theory is just theory (Das Sien Das Sollen), it is unlikely that the USA or other advanced State (such as G20) would like to re-recognize ROC because they won't disturb the political interest wit PRC, also PRC is a permanent member of UN security council. By other meaning, if other states would re-recognize ROC they have to face with undeniable bilateral conflict with PRC. Only several state recognize Republic of China (Taiwan) as a state but majority of international community did not do the same.

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