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, Nellyana Roesa

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.

Full Text:

PDF

References


A. Book

Alina Kaczorowska, Fourth edition public international law, Routledge raylor and Francis group, London and New York, 2010.

A Verdross, Die Verfassung der Volkerrechtsgemeinschaft (Julius Springer, Vienna 1926) 180.

Lauterpacht’s Method by Patrick Capps the British Yearbook of International Law.

Adolf, Huala, Aspek-Aspek Negara Dalam Hukum International, edisi revisi, Jakarta: PT. Raja Grafindo Persada, 2002

Boleslaw Adam Boczek, International Law: A Dictionary, Scarecrow Press, 2005 – 477 pages

C.Chen, the International law of Recognition, London (1951).

Edward Friedman China's Rise, Taiwan's Dilemma's and International Peace, Routledge, 13 Mar 2006.

I Brownlie, Principles of Public International Law (7th edn, OUP, Oxford 2008) 89-90.

Jeffrey L. Dunoff, Steven R. Ratner & David Wippman, International Law: Norms, Actors, Process 138 (3d ed. 2010) [hereinafter DUNOFF ET AL.] (“An entity that meets the criteria of statehood immediately enjoys all the rights and duties of a state regardless of the views of other states.”).

Georg Jellinek, Allgemeine Staatslehre, (3d ed. 1914).

G. I. Tunkin, International Law (Translated from the Russian), (Progress Publishers, 1986),

Halliday cited in Baylis, J. and Smith, S. 1997. The Globalization of World Politics. An Introduction to International Relations, Oxford

H. Lauterpacht, Recognition in International Law, Cambridge (1947);

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.

James R. Crawford, The Creation of States in International Law second edition (Oxford Press, 2005).

J.G. Starke, Introduction International Law, tenth edition, (Jakarta: Grafika rays, 2003)

Kazancigil, A. and Dogan, M. 1986. The State in Global Perspective; Comparing Nations: Concepts, Strategies, Substance. Gower/UNESCO. France.

Martin Dixon and Robert McCorquadale, “cases and materials on International Law”, Oxford Press, 2003.

Martin Dixon, “textbook on International Law”, Oxford Press, 2007.

Malcolm N. Shaw QC International Law Sixth Edition, Sir Robert Jennings Professor of International Law University of Leicester, Cambridge University Press (2008)., pg. 460.

M. N. Shaw, International Law (Cambridge University Press, 2003), 377.

Philip C. Jessup, Modern Law Of Nations; New York: The Macmillan Company. 1948.

B. Law Legal Instrument

Montevideo Convention 1933 on the Right and Duties of the State 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

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.

The "1992 Consensus", on the "one-China" principle.

The Potsdam Declaration (July 26, 1945), Proclamation Defining the Terms for the Japanese Surrender, July 26, 1945

Treaty of Peace with Japan (with two declarations). Signed at San Francisco, on 8 September 1951

Taiwan Relations Act, January 1, 1979 TAIWAN RELATIONS ACT Public Law 96-8 96th Congress, by US Congress 1979.

C. Journal

Anthony D. Smith on nations and national identity: a critical assessment 2004.

American Journal of International Law, 18 (1924), p. 147 at p, 154. Cf. also the Hopkins claim, ibid., 21 (1927), p. 160 at p. 166; Cuculla v, Mexico (1868), Moore, International Arbitrations, vol. 3, p, 2873 at pp. 2876 '7; Wulfsohn v. R.F.S.F.R., 138 N.E. 24 (1923) per Andrews ]. At p. 25; app. diss, 266 U.S. 580 (1924).

Delanty, G. 1996. Beyond the Nation-State: National Identity and Citizenship in a Multicultural Society - A Response to Rex, Sociological Research Online, vol. 1, no. 3.

Fatima Mushurova, The Creation of New States in International Law: The Cases of South Ossetia’s and Abkhazia’s Unilateral Declarations of Independence, Eastern Mediterranean University, July 2012, Gazimağusa, North Cyprus

John J. Tkacik, Jr, Taiwan's "Unsettled" International Status: Preserving U.S. Options in the Pacific, June 19, 2008

Milena Sterio, On the Right to External Self-Determination: “Selfistans,” Secession, and the Great Powers’ Rule, 19 MINN. J. INT’LL. 137, 148 (2010).

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, magnacum laude, 2002;

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.

Vincent Wei-chengWang Law Journal, How Can Taiwan Enter the United Nations? History, Issues, and Approaches, Department of Political Science University of Miami Coral Gables, Florida.

.

D. Internet

http://geography.about.com/cs/politicalgeog/a/statenation.htm accessed on March 16 2016.

http://www.ndl.go.jp/constitution/e/shiryo/01/002_46shoshi.html accessed on September 8, 2016.

http://legal-dictionary.thefreedictionary.com/recognition Accessed on March 16 2016

https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page1_en.xml#conventions accessed on Mei 15 2016

http://www.merriam-webster.com/dictionary/sensu%20stricto. Accessed on September 15 2016.

https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/8-recognition accessed on Mei 17 2016

https://treaties.un.org/Pages/overview.aspx?path=overview/definition/page1_en.xml#conventions accessed on Mei 15 2016

http://www.unric.org/en/latest-un-buzz/26841-un-welcomes-193rd-member-state, (http://www.un.org/en/member-states/) Accessed on September 14

http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/nation-state/ accessed on 9 April 2016.

http://taup.yam.org.tw/1t1c/tp1tce05.html,accessed on September 20 2016. Taiwan's Status According to International Law.


Refbacks

  • There are currently no refbacks.


Copyright (c) 2017 Jurnal Ilmiah Mahasiswa Bidang Hukum Kenegaraan

Gedung Redaksi

JURNAL ILMIAH MAHASISWA BIDANG HUKUM KENEGARAAN

Fakultas Hukum Universitas Syiah Kuala  
Jalan Putroe Phang No.1. Darussalam, Provinsi Aceh, 23111 
Telp: (0651) 7410147, 7551781. Fax: 7551781   
e-mail: jimhukumkenegaraan@unsyiah.ac.id

ISSN : 2597-6885 (ONLINE)