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Legal Analysis of Recognition for the State Under 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 INTERNATIONAL LAW (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 Montevideo 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 United States 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. JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 107 Aditya Gunawan, Nellyana Roesa 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). JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 108 Aditya Gunawan, Nellyana Roesa 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.
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