The contemporary international community is unique in many ways. One of its characteristics is the abundance of sovereign states; currently, 193 of them are members of the UN. These states enjoy worldwide recognition, but nothing guarantees them such a status indefinitely. As Chinese international lawyer Chen Tiqiang wrote, ‘Whenever there is an outbreak of civil war, a change of government or a transfer of territory or other important changes, the question of recognition is immediately involved’ (Chen, 1951: 13). Of course, a newly independent state wants to be fully integrated into the international community. It wants to be able to communicate with other states and actors without interruptions. It wants to be considered not just as a subject of International Relations, but also as a legal person, with rights and obligations according to international law.

However, the process of recognition of a new state, and its admittance to the international community, is not an easy one. In international law, two main theories address the nature of the recognition of states: constitutive and declaratory. The first one argues that only fully recognized states can engage in international communication, whereas the second one asserts that the act of recognition is of a declaratory nature; a state becomes a state when it fulfils conditions for statehood, not because of formal recognition (Turk, 2007: 90). The constitutive view on recognition is, according to Chen, Eurocentric. ‘The historical fact that international law originated among the States of Europe has made this notion of a “closed club” a constant feature in the theories of international law’ (Chen, 1951: 35). Entering such a club is not easy, but that does not mean that one should be oblivious to the fact that states which lack formal recognition and, consequently, face limited access to the international community, nevertheless do exist.

Diplomacy then and now

Traditionally, diplomacy has been seen as an ‘application of intelligence and tact to conduct official relations between governments of independent states; or, more briefly still, the conduct of business between states by peaceful means’ (Satow et al, 1995: 3). ‘Together with the balance of power, which it both reflects and reinforces, diplomacy is the most important institution of our society of states’ (Berridge, 2015: 1).

The roots of diplomacy can be traced as far back as the 15th century BC (Potemkin, 1947), but like any other human activity, the content of diplomacy changes over time. It is determined by the given situation at a certain point of history (Benko, 1997: 256). So, for example, in a 1945 article published in Foreign Affairs, Andre Geraud found the system of alliances as obsolete – as a kind of ‘old’ diplomacy. For him, the collective security introduced by the League of Nations represented an entirely new context, in which multilateralism played a bigger role than in the past, hence the dawn of the ‘new’ diplomacy as he has called it (Geraud, 1945: 256). In the new global order, emerging after the end of the World War Two, the term diplomacy has been given new meanings and interpretations to reflect changes in the conduct of international politics. This is how we can explain the modern interpretation of the term conference diplomacy. Kaufmann defines it as a ‘part of the management of relations between governments and of relations between governments and inter-governmental organizations that takes place in international conferences’ (Kaufmann, 1996: 7). Changes caused by globalization have demonstrated that classic, state-to-state diplomacy cannot always equally address all walks of international life. Non-governmental organizations (NGOs) feature ever more prominently in international negotiations, for example in the field of environmental protection, which has led authors to introduce NGO diplomacy as a research field (Betsill and Corell, 2008).

Studies of diplomacy in which not just states but other actors may be involved are many. Human rights diplomacy, for example, is defined as the ‘utilization of diplomatic negotiation and persuasion for the specific purpose of promoting and protecting human rights’ (O’Flaherty et al, 2011: 1).

The modern international community is made up of two categories of states: those that are universally recognized, and those that are not. Some of the non-recognized states try (in vain) to convince more states to recognize them, others are unlikely ever to be recognized. We are reminded every now and then – such as during the current COVID-19 pandemic – that isolation and limited representation in international relations may have serious negative consequences for these countries. This unfortunate division is reflected in the academic literature on parliamentary diplomacy. We learn from it that parliamentarians and parliamentary diplomacy can play an important role in international relations, but that these findings are limited to the world of recognized states. We know very little about how parliamentary diplomacy works when it includes parliaments and parliamentarians from unrecognized and unrepresented states.

The book has sought to fill in this research gap. Some of the findings will not surprise anyone. The short overview of parliamentary diplomacy of unrepresented and unrecognized states has shown that in most of them its development is, at best, at a rudimentary level. The lack of universal recognition is undoubtedly the main obstacle, but other factors also restrict possibilities for parliaments and parliamentarians of unrepresented and unrecognized states to be active internationally. The majority of states we have studied are considered partially free in terms of political freedoms they ensure for their citizens, or not free at all. This, in turn, questions the legitimacy of their parliamentary representatives. Further, their isolation reduces diplomatic tools they can use to pursue their foreign policy goals. Participating in parliamentary diplomacy is particularly difficult for them because they have either insufficient contacts or rather limited financial means to send parliamentarians abroad to meet their peers from other states. The lack of funding causes the transfer of tasks originally assigned to parliamentarians on to their governments’ representative offices abroad. Such is the situation in the Sahrawi Arab Democratic Republic (SADR) and Somaliland.

One group of parliamentarians is particularly limited internationally, because of their dependence on the so-called patron states. Governments and parliaments in Abkhazia, South Ossetia and Transnistria depend on protection by the Russian Federation. The Turkish Republic of Northern Cyprus and its parliament depend on Turkey. The government and parliamentarians in Nagorno-Karabakh (Artsakh) are in a particularly bad situation.

The contextualization of Taiwan's international relations

The real size of a small island

The number of states that recognize Taiwan is the first indicator of the extent to which this country is isolated from the rest of the world. At the time of writing, Taiwan was recognized by 14 UN member states plus the Holy See. This is not much higher than the number of UN members that recognize Abkhazia and South Ossetia, and significantly less than Western Sahara, Kosovo and especially Palestine. Like other unrepresented and unrecognized states, Taiwan is not a member of the UN. It is not a member of any specialized agency within the UN system. It is, however, a member of the World Trade Organization (WTO), which recognizes it under the name Chinese Taipei, rather than its official name.

But there is another side of Taiwan, which allows little room for comparison with other unrepresented and unrecognized states. Let us make a very practical case in point: Abkhazia and South Ossetia issue their own passports, but these are not ‘recognized in most of the world, and their citizens mostly have dual-citizenship that grants them a valid passport from another country’ (Li, 2019). In contrast, at the time of writing carriers of the Taiwanese passport could travel visa-free to 146 countries, which puts them in 33rd place, ahead of, for example, the Russian Federation and the PRC.

Taiwan's contribution to the international community is often high profile, as has been recently demonstrated by its handling of the COVID-19 virus that has plagued the entire world, with Taiwan being the least affected among developed states. Indeed, in terms of relative development, Taiwan is considered one of the richest countries in the world. According to the 2019 data generated by the International Monetary Fund, Taiwan had the 22nd largest economy and was in 17th place in the ranking of countries by GDP per capita. This explains all the attention that Taiwan attracts, which dwarfs that received by all other unrepresented and unrecognized states combined. Starting with a simple insertion of the keyword ‘Taiwan’ into the Google search engine (Figure 4.1) the difference already becomes obvious. We get a similar picture if we limit our research to non-fiction literature via the Google Scholar engine (Figure 4.2).

The concluding chapter argues that the scope of refugee protection forms a complex picture of instability. Due to the refugee definition’s double rationale – Convention grounds and persecution – and the consequent conundrum of whether to focus on persecutor or persecuted, the scope of protection is subject to a variety of tensions and ambiguities which overlap and intersect in significant and complex ways. For example, human rights standards can be used as a benchmark when it comes to deciding both, which identities and which actions, fall within or outside of the scope of protection. And although ‘discretion’ reasoning is created at the level of the Convention ground, it moves around and is often debated in other elements of the refugee definition. These complex connections make everything unstable – not only ‘discretion’ itself but also its rejection. ‘Discretion’ functions as a patch for all these instabilities that emerge from the refugee definition. The book shows both the breadth and the depth of the ‘discretion’ logics: it is an unresolvable issue at the core of the refugee concept that surfaces at different layers, in different locations and in different ways – if it is put down in one place and form it will resurface in another place and in another form.

Chapter 6 is dedicated to decision-making practice regarding sexuality-based asylum claims in Spain. Here, the act/identity emerges from the holding that ‘mere membership’ is not sufficient for a claim to be accepted; claimants needed to have been ‘singled out’ for persecution. This involved the requirement that the claimant had already been ‘outed’ and identified by the persecutor. The focus is on the claimant’s past externalising act. If claimants had not been ‘outed’ to the persecutor and therefore suffered prosecution, they were not entitled to protection in Spain. Spanish jurisprudence developed largely independently from international developments and there was no notable impact of the UK Supreme Court or the CJEU judgments on this approach in Spain. The Qualification Directive, however, which stipulated that persecution can also emanate from non-state actors (which had previously been rejected in Spain), led to the invention of the doctrinal figure of ‘significant transcendence’ in Spanish jurisprudence: claimants who had suffered harm at the hands of non-state actors had to provide written proof that the harm was inflicted due to their sexual orientation (irrespective of their identity) – otherwise they would be returned to (re-)concealment.

The starting point for the analysis is the debate that accrued from the 2010 United Kingdom Supreme Court judgment in HJ (Iran) and HT (Cameroon) and an article that refugee law scholars James Hathaway and Jason Pobjoy wrote in response to it. The UK Supreme Court had rejected the previously common requirement that claimants act ‘discreetly’ in their country of origin in order to avoid persecution. Hathaway and Pobjoy criticised the judgment for being too broad and failing to distinguish protected from unprotected conduct. The chapter argues that the controversy that was triggered following the publication of the article crystallises the broader dispute concerning the claimant’s future behaviour and the question of what is protected under refugee law. The question arises out of the observation that claimants have at least notionally some control over the disclosure of the persecuted characteristic. The chapter reviews case law and literature that has dealt with these questions and suggests that the debate is shaped by two principles in refugee law that are shared by the community, although they are in tension: the notion that to require the claimant to hide the persecuted characteristic undermines the raison d’être of refugee law, and the notion that the purpose of refugee law is not to provide for the full range of available rights and freedoms.

Chapter 7 shows that the struggles concerning the claimant’s potential ‘discretion’ have remained the same since Grahl-Madsen’s groundbreaking 1966 book. On the one hand, it may be the persecutor who defines what and who is persecuted. In this case, it is relevant whether harm is differentially inflicted due to the fact that the persecutor imputes or assumes a political opinion, irrespective of the claimant’s ‘actual’ convictions. On the other hand, it may be the claimant who defines group membership. Here, it is relevant whether the claimant has a deeply held political opinion. The task for the decision-maker is then to establish the deep conviction. The approaches do not necessarily map onto each other. When what is defined as the protected group does not equal the persecuted group as defined by the persecutor, ‘discretion’ logics emerge: Ultimately, in all these approaches, the protected group is made up of those who have been or are deemed at risk of being discovered by the persecutor – that risk being deduced either from their identity or their conduct, but always linked to their past or presumed future visibility. Those deemed ‘unrecognisable’ fall outside the protected group and are returned to (continued) ‘discretion’.

Part I explored decision-making practice concerning sexuality-based asylum claims in France, Germany and Spain. The different countries’ jurisprudence revealed that ‘discretion’ reasoning was prevalent in all three jurisdictions, and remained resistant to challenges over time, albeit with significant differences in focus. France, for example, granted protection only to those who had manifested their sexual orientation, whereas Germany limited protection to those with a determined identity. Either act or identity can stand in for the group, while the respective counterpart can be assessed as part of another aspect of the Convention definition. The fact that it is sometimes the act that counts for the Convention ground, and other times the identity, makes the reasoning more difficult to reconstruct.

Chapter 2 lays out the theoretical and methodological approach for the analysis. The study draws on discourse analysis, understanding the category of homosexuality to be a construction built on an ‘external dimension’ (a regime of acts) and an ‘internal dimension’ (identity). Queer theory provides insights into the interplay of this act/identity distinction, which functions as an unstable dichotomy where sometimes one is favoured and sometimes the other. Within this system, the gay person is caught in a delicate situation, faced with contradictory expectations as to their ‘discretion’ and disclosure, while at the same time never in full control of what others know about their sexuality. In terms of methodological approach, the analysis is based on discourse analysis on refugee law doctrine. Unlike a classical doctrinal analysis seeking the right legal answer, this study is interested in the ways in which legal doctrine is constructed. Three case studies add an empirical element from the Common European Asylum System: sexuality-based asylum claims from Germany, France and Spain are submitted to analysis.

Part I focuses on ‘discretion’ reasoning in sexuality-based asylum claims in three core European jurisdictions. So far, there is generally little research into sexuality-based claims in these countries, and it is important to note that ‘discretion’ reasoning is only one aspect of relevance in the context of this set of cases.

Chapter 5 addresses ‘discretion’ reasoning in sexuality-based asylum jurisprudence in Germany. In contrast to France, Germany has a tradition of focusing on the claimant’s identity – only if the claimant was irreversibly and fatefully determined by their sexual orientation were they entitled to protection. The rationale was that under such circumstances, the sexual orientation would inescapably become visible. In cases where a ‘mere inclination’ was found, claimants were deemed able to exercise restraint such that they could be returned to their countries of origin. Germany takes part in the transnational judicial dialogue more actively than France or Spain, and the judgments rejecting the ‘discretion’ requirement have had a notable impact. Whereas the notion of irreversibility has been given up, however, it has in substance been transformed, such that decision-makers now require the sexual orientation to be ‘identity-defining’. As a result, the focus on the claimant’s identity persists, and claimants whose sexuality is not found to be defining their identity are rejected.

Chapter 8 addresses the competing definitions of the Convention ground ‘particular social group’: the ‘protected characteristics’ approach and the ‘social perception' approach. Whereas both are capable of encompassing sexuality-based claims, they each hold the potential for ‘discretion’ reasoning in different ways. The ‘protected characteristics’ approach is designed to exclude ‘trivial’ claims. If claimants fear harm for what is considered a non-fundamental aspect, they can be returned to be ‘discreet’. The ‘social perception’ test in contrast, which would more appropriately be called the ‘persecutor’s perception’ approach, in principle precludes any a priori exclusion of certain particular social groups. In this approach, it is the persecutor who defines what is persecuted. Yet the chapter shows that even this broader approach is prone to ‘discretion’ logics: the limit that is reverted to is the ‘singling out’ requirement, providing protection only to those who are singled out for persecution whereas those deemed able to pass unnoticed can be returned. As such, in both approaches, the protected group is not the same as the persecuted group, such that those who are persecuted but not protected must remain ‘discreet’.

Chapter 9 argues that a new layer of complication was added with the so-called human rights–based approach to refugee law. The challenge is that refugee protection is lesser in scope than human rights protection. That ‘lesser’ protection is usually located in the persecution element: while reference to human rights has opened up refugee law to a wider range of harms, not every human rights violation reaches the threshold of persecution. The chapter shows that one consequence of the human rights–based approach is the risk of conceptually merging Convention ground and persecution. According to the human rights approach, a violation of the freedom of religion or the freedom of thought can amount to persecution. In other words, prohibitions on the expression of the Convention grounds in themselves can be considered persecutory. The chapter reveals that this has led to the invention of an alternative or additional kind of harm that stands next to the harm that is inflicted in case the claimant does express the Convention ground – or is discovered in another way. This approach builds on and reinforces ‘discretion’ reasoning, because it distinguishes on the basis of the claimant’s future behaviour and requires ‘discretion’ under certain circumstances.