Advertisement

On the Statehood of Taiwan: A Legal Reappraisal

  • Huang-Chih Chiang
  • Jau-Yuan Hwang

Abstract

Many international lawyers have advanced various arguments as to why existing states do not recognize Taiwan1 as a state or, more specifically, why Taiwan is not a state.2 Several have pointed out that the so-called One China policy, the lack of claiming statehood by the Taiwanese government in the past, and lack of foreign recognition are probably the most critical factors that would negate Taiwan’s statehood. All these arguments, however, are more or less questionable in the light of contemporary developments in Taiwan. Ever since the late 1980s, there has been much strong evidence indicating that the Government of Taiwan has asserted, expressively or implicitly, a separate statehood for Taiwan as distinct from that of China. It is the premise of this chapter that the latest developments of Taiwan during past two decades must be taken seriously by all parties concerned in evaluating its current legal status.

Keywords

Democratic Progressive Party Asian Development Bank Diplomatic Relation Legislative Yuan Nationalist Government 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Preview

Unable to display preview. Download preview PDF.

Unable to display preview. Download preview PDF.

Notes

  1. 2.
    For example, James Crawford, The Creation of States in International Law, 2nd ed. (Oxford: Oxford University Press, 2006), p. 219. (“The conclusion must be that Taiwan is not a State because it still has not unequivocally asserted its separation from China and is not recognized as a State distinct from China. Its origins as a consolidated local de facto government in a civil war situation continue to affect it.”)Google Scholar
  2. 3.
    Ralph N. Clough, “Taiwan’s International Status,” Chinese Yearbook ofInternational Law & Affairs, vol. 1 (1981), pp. 18–22.Google Scholar
  3. 4.
    Leland M. Goodrich, The United Nations (New York: Thomas Y. Crowell, 1959), p. 101Google Scholar
  4. 4.
    Lung-chu Chen, Taiwan Independence and Its Realization (Taipei: YuehTan, 1993), pp. 83–94 (in Chinese).Google Scholar
  5. UNGA Resolution 2758 (XXVI), reprinted in International Legal Materials, vol. 11 (1972), p. 561; Dusan J. Djohovich, ed., United Nations Resolutions, Resolutions Adopted by the General Assembly: 1970–1971 vol. 13 (Dobbs Ferry, NY: Oceana, 1976), p. 358.Google Scholar
  6. 6.
    For example, Stanley K. Hornbeck, “Comment to Arthur H. Dean, International Law and Current Problems in the Far East,” American Society of International Law Proceedings, vol. 49 (1955), p. 100. (“Thus there are today, in China, two governments, each controlling some territory of the whole of that country. The question, then, before the world, before those who concern themselves with questions of law and policy, is not that of China’s status, but is that of choice or choosing between two competing governments.”)CrossRefGoogle Scholar
  7. 7.
    As late as 2006, certain commentators still believed that the ruling government on Taiwan claims to be the sole legitimate government of the State of China. See Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005), p. 19.CrossRefGoogle Scholar
  8. 9.
    Exchange of Notes, No. 1 from the Japanese Plenipotentiary to the Chinese Plenipotentiary (April, 28, 1952), Hungdah Chiu, ed., China and the Taiwan Issue, reprint (New York: Praeger, 1979), p. 225.Google Scholar
  9. 13.
    Peter K. H. Yu, “On Taipei’s Rejoining the Asian Development Bank (ADB) Subsequent to Beijing’s Entry: One Country, Two Seats?” Asian Affairs, vol. 7 (Spring 1990), p. 7Google Scholar
  10. 13.
    Tzu-wen Lee, A Research Concerning the Accession to International Conventions and Agreements by Our Country (Taipei: MOFA, 1990), pp. 72, 74 (in Chinese).Google Scholar
  11. 15.
    It is noticeable that, during the 1970s and 1980s, Taiwan’s foreign practice was somewhat inconsistent. On the one hand, the ROC government seemed not to claim to represent China when it came to establish diplomatic relations with other States. On the other, the ROC government still cut its diplomatic ties with other States for their recognition of the PRC. For details, see Bruce Jacobs, “‘One China,’ Diplomatic Isolation and a Separate Taiwan,” in China’s Rise, Taiwan’s Dilemmas and International Peace, ed. Edward Friedman (London and New York: Routledge, 2006), pp. 88–98.Google Scholar
  12. 16.
    For a full text of the joint communiqué, see Hungdah Chiu, Rong jye Chen, and Tzu-wen Lee, eds., “Contemporary Practice and Judicial Decisions of the Republic of China Relating to International Law, 1981–1983,” Chinese Yearbook of International Law & Affairs, vol. 2 (1982), pp. 228, 269–270.Google Scholar
  13. 18.
    In 1951, all members of the LY were due for reelection in accordance with the 1947 constitution. Nevertheless the LY adopted a resolution that extended the members’ term for another year. Two similar resolutions were passed in the following two years. In 1954, the Council of Grand Justices, the equivalent of constitutional court, issued Interpretation No. 31, which allowed all members of both the LY and Control Yuan (CY) elected in 1948 to remain in office indefinitely. The delegates to the National Assembly simply stayed in office without reelection by their resolution. Hungdah Chiu, Constitutional Development and Reform in the Republic of China on Taiwan (Maryland: School of Law, University of Maryland, 1993), pp. 19–22.Google Scholar
  14. 20.
    Additional Articles of the Constitution of the Republic of China (May 1, 1991), in Government Information Office, 1994 Yearbook of the Republic of China (Taipei: GIO, 1994), pp. 103, 109, 705.Google Scholar
  15. 23.
    Lee Teng-hui, “Responses to Questions Submitted by Deutsche Welle (Voice of Germany),” July 9, 1999. The official English translation of the full text could be found at www.taiwansecurity.org/TS/SS-990709-Deutsche-WelleInterview.htm (last visited, May 25, 2007).Google Scholar
  16. 27.
    Ministry of Foreign Affairs, Taiwan (Department of Information and Cultural Affairs), Press Release, vol. 250 (November 22, 1993), pp. 1–2.Google Scholar
  17. 30.
    This view has been put forth as early as 1956, see D. P. O’Connell, “The Status of Formosa and the Chinese Recognition Problem,” American Journal of International Law 50 (1956), pp. 405–416 (“a Government is only recognizes for it claims to be.” (Since the ROC on Taiwan insists on the principle of “One China,” therefore Taiwan can only be regarded as part of the State of China.)Google Scholar
  18. 30.
    For similar views, see, Barry E. Carter and Phillip R. Trimble, eds., International Law 3rd ed. (New York: Aspen, 1999), p. 477Google Scholar
  19. 30.
    James Crawford, The Creation of States in International Law (Oxford, UK: Clarendon Press, 1979), p. 151; 2nd ed. (2006), p. 219 (“Taiwan is not a State because it still has not unequivocally asserted it separation from China.”) (Emphasis added)Google Scholar
  20. 30.
    Malcolm Shaw, International Law, 5th ed. (Cambridge: Grotius, 2003), p. 211CrossRefGoogle Scholar
  21. 30.
    American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States (Washington, DC: American Law Institute, 1987), section 201, n. 8 (“since the authorities on Taiwan do not claim that Taiwan is a state of which they are the government, the issue of its statehood has not arisen”).Google Scholar
  22. 31.
    American Law Institute, Restatemen n. 8; Virginia K. Demarchi, “United States-Taiwan Relations,” Harvard International Law Journal, vol. 33 (1992), p. 640, n. 47.Google Scholar
  23. 32.
    Vesa Golland-Debbas, “Collective Responses to the Unilateral Declaration of Independence of Southern Rhodesia and Palestine: An Application of the Legitimizing Function of the United Nations,” British Yearbook International Law, vol. 61 (1991), pp. 138–139Google Scholar
  24. 32.
    D. J. Devine, “The Status of Southern Rhodesia in International Law: Part I,” Acta Juridica (1973), p. 68 (contending that a declaration of independence is “merely the making of a claim to new territorial status and new representative capacity in international law”).Google Scholar
  25. 36.
    Jean-Marie Henckaerts, ed., The International Legal Status of Taiwan in the New World Order: Legal and Political Considerations (London: Kluwer, 1996), p. 275.Google Scholar
  26. 37.
    As rightly pointed out by two international law scholars that “in the absence of an armed attack on China, its [Taiwan’s] rights under Article 51 would not be triggered. Consequently, the current international status of Taiwan, the right of Taiwanese self-determination, and Taiwan’s right of self-defense would appear to make a PRC-imitated attack on Taiwan based merely upon a Taiwanese declaration of independence a violation of international law ‘inconsistent with the Purposes of the United Nations.’” See Jonathan I. Charney and J. R. Prescott, “Resolving Cross-Strait Relations between China and Taiwan,” American Journal of International Law, vol. 94 (2000), pp. 453, 477.CrossRefGoogle Scholar
  27. 38.
    Lassa Oppenheim, Oppenheim’s International Law: Peace, vol. 1, 8th ed., ed. H. Lauterpacht (London: Longmans, 1955), p. 125.Google Scholar
  28. 39.
    Ian Brownlie, Principle of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003), pp. 86–87Google Scholar
  29. 39.
    Martin Dixon, Textbook on International Law, 5th ed. (Oxford: Oxford University Press, 2005), p. 119.Google Scholar
  30. 40.
    For example, the recognition of former Yugoslav Republics indicates that state recognition was clearly used as a political tool, by both the United Nations and the members of the European Community. See Marc Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,” American Journal of International Law, vol. 86 (1992), pp. 569, 587.CrossRefGoogle Scholar
  31. 41.
    Although regarding the de jure sovereignty of Taiwan undetermined, the United Kingdom, since 1949, has not recognized the nationalist authorities on Taiwan as the government, either de jure or de facto, of the ROC. The United Kingdom’s claiming and accepting compensation from Taiwan authorities indicated that the United Kingdom regarded Taiwan having some sort of international personality of its own, without giving the latter any formal recognition of State. See Elihu Lauterpacht, ed., “The Contemporary Practice of the United Kingdom in the Field of International Law-Survey and Comment, IV,” International and Comparative Law Quarterly, vol. 6 (1957), pp. 506, 507–508.CrossRefGoogle Scholar
  32. 42.
    Brownlie, Principles of Public International Law, pp. 86–88; Hans Blix, “Contemporary Aspects of Recognition,” Recuiel Des Cours, vol. 130 (1971–II), pp. 587, 609–610Google Scholar
  33. 42.
    John Dugard, Recognition and the United Nations (Cambridge, UK: Grotius, 1987), p. 9.Google Scholar
  34. 44.
    Malcolm N. Shaw, International Law, 5th ed. (Cambridge: Cambridge University Press, 2003), p. 370; John Dugard, Recognition, p. 9.CrossRefGoogle Scholar
  35. 45.
    Jochen Abr. Frowein, “Recognition,” in Encyclopaedia of Public International Law 10, ed. Rudolf Bernhardt (Amsterdam: North-Holland, 1987), pp. 340, 342.Google Scholar
  36. 46.
    Michael Akehurst, A Modern Introduction to International Law, 6th ed. (New York: Routledge, 1987), p. 61.Google Scholar
  37. 47.
    Louis Henkin, “International Law: Politics, Values and Functions,” Recueil des Cours 216 (1989–IV), pp. 9, 31. It is interesting to note that Professor Henkin does not agree that Taiwan is an independent State because, in his view, Taiwan does not claim to be an independent State. However, Professor Henkin does agree that Taiwan can be a State if it declares independence and successfully secedes from China. Ibid. at pp. 31–32.Google Scholar
  38. 48.
    Shaw, International Law, p. 371. Crawford, The Creation of States (1979), p. 24Google Scholar
  39. 48.
    J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6th ed., ed. Sir Humphrey Waldock (Oxford: Oxford University Press, 1963), p. 139.Google Scholar
  40. 51.
    D. J. Harris, Cases and Materials on International Law, 4th ed. (London: Sweet & Maxwell, 1991), p. 103Google Scholar
  41. 51.
    Crawford, The Creation of States (1979), p. 40; Shaw, International Law, pp. 178–179.Google Scholar
  42. 52.
    Rosalyn Cohen, “The Concept of Statehood in United Nations Practice,” University of Pennsylvania Law Review, vol. 109 (1961), pp. 1127, 1133–1134.CrossRefGoogle Scholar
  43. 54.
    Crawford, The Creation of States (1979), p. 36Google Scholar
  44. 54.
    James Crawford, “The Creation of the State of Palestine: Too Much Too Soon,” European Journal of International Law, vol. 1 (1991), pp. 307, 309Google Scholar
  45. 54.
    Malcolm N. Shaw, Title to Territory in Africa: International Legal Issues (Oxford, UK: Clarendon Press, 1986), p. 146CrossRefGoogle Scholar
  46. 54.
    R. Y. Jennings, The Acquisition of Territory in International Law (Manchester: Manchester University Press, 1963), p. 2.Google Scholar
  47. 59.
    Karl Doehring, “Effectiveness,” in Encyclopaedia of Public International Law 7, ed. Rudolf Bernhardt (Amsterdam: North-Holland, 1984), pp. 70–71.Google Scholar
  48. 61.
    In the Tinoco Concession Arbitration, Arbitrator Taft pointed out: “The question is, has it really established itself in such a way that all within its influence recognize its control, and that there is no opposing force assuming to be a government in its place? Is it discharging its functions as a government usually does, respected within its own jurisdiction?” in International Law Reports, vol. 2 (1923–1924), pp. 34, 37.Google Scholar
  49. 63.
    Siegfried Magiera, “Government,” in Encyclopaedia of Public International Law 7, ed., Rudolf Bernhardt (Amsterdam: North-Holland, 1984), p. 208.Google Scholar
  50. 65.
    American Law Institute, section 201, Comment (e); J. G. Starke, Starke’s International Law, 11th ed., ed. I. A. Shearer (London, UK: Butterworth, 1994), p. 86. However, Professor James Crawford argues that such capacity “is not a criterion, but rather a consequence, of statehood…”Google Scholar
  51. 65.
    Crawford, The Creation of States, (2006), p. 61.Google Scholar
  52. 67.
    Deon Geldenhuys, Isolated States: A Comparative Analysis (Cambridge: Cambridge University Press, 1990), p. 129.Google Scholar
  53. 70.
    Though establishment of diplomatic relations is distinguishable from recognition of States, the former is universally comprehended as implicit recognition of States, but not vice versa. A State can recognize another State without establishing diplomatic relations with it. See J. Mervy Jones, “The Retroactive Effect of the Recognition of States and Governments,” British Yearbook of International Law, vol. 16 (1935), pp. 42, 53Google Scholar
  54. 70.
    Fred L. Morrison, “Recognition in International Law: A Functional Reappraisal,” University of Chicago Law Review, vol. 34 (1967), pp. 857, 870CrossRefGoogle Scholar
  55. 70.
    Hans Blix, “Contemporary Aspects of Recognition,” Recueil des Cours, vol. 130 (1971–II), pp. 589, 600Google Scholar
  56. 70.
    D. P. O’Connell, International Law, 2nd ed. (London: Stevens & Sons, 1970), pp. 154–155.Google Scholar
  57. 75.
    For a different view, see Crawford, The Creation of States, (2006), p. 219, n. 79 (“it is still the case that there is no general international recognition of Taiwan as a separate State”).Google Scholar
  58. 76.
    See Dugard, Recognition, p. 9; Brownlie, Principles of Public International Law p. 89; O’Connell, International Law, p. 132; Branimir M. Jankovic, Public International Law (Leiden: Brill Academic, 1984), p. 100Google Scholar
  59. 76.
    Joseph Modeste Sweeney, Covey T. Oliver, and Noyes E. Leech, eds., Cases and Materials on the International Legal System 3rd ed. (Westbury, NY: Foundation, 1988), p. 894Google Scholar
  60. 76.
    Colin Warbrick, “The New British Policy on Recognition of Governments,” International & Comparative Law Quarterly, vol. 30 (1980), pp. 569–570.Google Scholar

Copyright information

© Peter C. Y. Chow 2008

Authors and Affiliations

  • Huang-Chih Chiang
  • Jau-Yuan Hwang

There are no affiliations available

Personalised recommendations