Taiwanese statehood is one of the case studies that challenge and expose the ineffectiveness of international law in enforcement and its jurisdictional limits. Its complexities have international relations scholars to oppose on the views of international law. The purpose of this essay is to render an argument to prove that international law does not support Taiwan’s statehood. There are two dominant theories on states recognition which are; the declarative theory and the constitutive theory. These theories shall be applied on the criteria for state; which is provided by the Montevideo Convention of 1993. Furthermore, we shall critically analyse the ineffectiveness of international law from the outcomes of this case study. Sovereignty and statehood
Taiwan has existed independently since Japan’s legal withdrawal from the territory, the question is whether we should call it sovereign and recognise it. Under the treaty of Westphalia of 1648, a sovereign state is an entity that has the ability to demonstrate internal supremacy and external independence. A sovereign entity must be the only political authority in that existing territory and no other authority can exercise political control over its population within its boundaries. More importantly, a sovereign state ought to demonstrate independence and it needs to be recognised by the international community as a state. Recognition
Recognition is a significant element of statehood it grants an entity membership to the international community. Recognition may be either unilateral or collective; unilateral recognition is when a state recognises an entity as a state, and collective recognition is when a group of states such as the United Nations and the European Union recognises an entity as a state. The role of recognition is a debatable issue; there are two dominant theories on recognition. The declarative theory argues that an entity only becomes a state once it meets the factual criteria for statehood. Therefore, if it can prove that Taiwan does fulfil the criteria then Taiwan would be a state. For the declarative theorist recognition is merely a declaration of statehood. On the contrary, the constitutive theory argues that recognition is as important as another element in the factual criteria for statehood and should be included as a part of the requirements. Constructivism emphasises on the importance of recognition since it is an element of legal Sovereignty. It argues that recognition is a necessary condition on statehood, since it grants the ability to enter into treaties, receive ambassadors, receive international immunities etc.Since the constitutive school adds a legal attribute to recognition, it is logically sound that it becomes favourable in international law. The Montevideo Convention of 1993; provides the traditional criteria for statehood, and they are as follows: * Population: There is no minimum population size required. A population can be understood as a group of individuals who inhabit a territory, for international relations purpose; a population needs to live together and form a national community. Furthermore, they must identify themselves with the territory. In 2000, Taiwan had an estimated population of 22,257,000 existing in that entity; and it has a larger population than some existing states like Nauru with less than 10 000 inhabitants. * Defined territory: the international community does not have a required undisputed border for statehood. However, the state should have a government that is in control of its community and there should be no authority higher than it. It would be true to say there is a territory (Taiwan), on the contrary, merely of its lack to be an independent territory it is not a state. Even though Taiwan has actual possession, custody and control, they do not have a legal title to the territory. * Government: there is no specified form of government, a state cannot exist without a...
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