台灣是不是一個國家？－台中學研究中心

根據劍橋大學教授James Crawford，2005年增修版《國際法下國家的成立》（The Creation of States in International Law)，

「雖然台灣在事實上已經滿足除了國家承認外的其他一切國家成立的要件，但因為台灣的政府從來沒有對外明確表示，台灣是一個有別於中華人民共和國的獨立國家，造成世界各國也普遍不承認台灣是一個主權獨立的國家，所以台灣並不是一個國家」。

他的書對於國家(state)與政府(government)、國家(statehood)與承認(recognition)等名詞有深入的探討。中華民國早於1912年就宣布成立新國家，這個新國家的政府也在中國行使多年的統治權，直到1949年一個新的政府將蔣介石政權驅逐出境，繼承了原來中華民國成立的國家體，原來的中華民國政府佔據台灣，片面宣稱這是中華民國的國家領土，且原來的中華民國國家體繼續擁有全中國。

這個舉動也導致所謂兩個中國的爭議，一個中國在中國，另一個中國在台灣，擁有的國家體卻一樣：一個中國（包含台灣）。這是荒謬劇，也是悲劇的開始。

如同Crawford所言，在台灣的中華民國政府從來不願意對外明確表示，台灣是一個統治權不及中國的獨立國家，造成其他國家體無法、也不願意承認台灣是一個獨立新國家，這個狀態導致台灣人在國際上喪失國際人格，在很多場合沒有辦法得到承認。

Crawford的書是這麼被介紹的。

"Since the development of the modern international system, statehood has been regarded as the paramount type of international personality; indeed, in doctrine if not in practice, States were for a time regarded as the only international persons. This is no longer so; but the political paramountcy of States over other international actors, with whatever qualifications, continues, and Statehood remains the central type of legal personality.

Problems of definition and of application of the definition, of statehood thus occupy an important place in the structure of international law....

Perhaps the most controversial issue in this area is the relationship between statehood and recognition. The view that recognition is constitutive of State personality derives historically from the positive theory of international obligation. However, this view does not correspond with State practice; nor is it adopted by most modern writers.

On the other hand, in this as in other areas, relevant State practice - including recognition practice, especially where recognition is granted or withheld on grounds of the status of the entity in question - is of considerable importance.

Against this background, this study examines the criteria for statehood in international law, and the various ways in which new States have been created in the period since 1815.

Traditionally, the criteria for statehood have been regarded as resting solely on considerations of effectiveness. Entities with a reasonably defined territory, a permanent population, a more or less stable government and a substantial degree of independence of other States have been treated as States. Other factors, such as permanence, willingness to obey international law, and recognition, have usually been regarded as of rather peripheral importance. To some extent this represents the modern position.

However, several qualifications are necessary.

In the first place, this standard view is too simple. Much depends on the claims made by the entities in question, and on the context in which such claims are made.

In some circumstances, criteria such as independence or stable government may be treated as flexible or even quite nominal; in other cases they will be strictly applied.

Apart however from the necessary elaboration of the criteria for statehood based on effectiveness, a serious question arises whether new criteria have not become established, conditioning claims based on effectiveness by reference to fundamental considerations of legality.

Practice in the field of self-determination territories is the more developed, but the same problem arises in relation to entities created by illegal use of force...

Problems of the creation of States have commonly been regarded as matters 'of fact and not of law'. This view was again simplistic, since it assumed the automatic identification of States, whether by recognition or the application of criteria based on effectiveness.

In practice, identification and application of the criteria to specific cases or problems raise interesting and difficult problems...."