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Vol. 1(2) November 2017, pp. 105-118
FAKULTAS HUKUM UNIVERSITAS SYIAH KUALA ISSN : 2597-6885 (online)
105
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
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).
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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.
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
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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;
JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 110
Aditya Gunawan, Nellyana Roesa
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.
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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.
JIM Bidang Hukum Kenegaraan : Vol. 1, No.2 November 2017 112
Aditya Gunawan, Nellyana Roesa
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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Aditya Gunawan, Nellyana Roesa
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.
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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
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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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Aditya Gunawan, Nellyana Roesa
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