RESOLVING CROSS-STRAIT RELATIONS
BETWEEN CHINA AND TAIWAN
-v94 #3 American Journal of International Law
By Jonathan I. Charney and J. R. V. Prescott(1)
Much has been written about the legal relationship between China and
Taiwan. The discussion often focuses on whether the People's Republic of
China (PRC) or the Republic of China (ROC) is the government of China or
what entity has territorial sovereignty over Taiwan.(2)
It is hard to find definitive answers to these questions. This article
seeks to reexamine aspects of the issues in the light of the relevant historical
facts and contemporary international law. Although no conclusive answers
are possible, this study attempts to open new perspectives that could facilitate
the development of a solution acceptable to all interested parties.
I. History of Chinese Sovereignty over Taiwan
The history of China's relations with Taiwan has been well explored,
but the legal and political issues cannot be put into context without a
brief account of the salient facts.(3) Beginning
in 1386, the Pescadore Islands, which lie twenty-five nautical miles off
the west coast of Taiwan, were considered part of China. Taiwan, however,
was not included in the Chinese Empire.(4)
John Robert Shepherd has explored the anomaly that Taiwan, which is comparatively
large and close to the Chinese mainland, was rarely mentioned in contemporary
Chinese archives that referred to trade with Southeast Asia, Japan, and
the Ryukyu Islands.(5) He concludes that
the island did not attract traders because it lacked valuable exports and
a domestic market for imports.(6) In addition,
some of the island's populace were headhunters.(7)
Formosa, as the Portuguese named Taiwan, was known to European powers
and Japan by the middle of the sixteenth century, and both Spain and Japan
tried unsuccessfully to take control of it before 1609 and 1616, respectively.(8)
The end of the twelve-year Dutch-Spanish truce in 1621 was accompanied
by reports that Spain intended to resume its plans to occupy Taiwan. The
Dutch East India Company feared being squeezed out of its profitable Chinese
trade by Portugal, which maintained a base in Macau, and by Spain, which
would operate from the Philippines and Taiwan. A Dutch attack on Macau
failed, but the Pescadores were occupied by Dutch marines.(9)
The Chinese then urged them to vacate the islands for an establishment
on Taiwan, which the Dutch did in 1623 in the mistaken belief that Taiwan
was part of China.(10) But they soon discovered
that China was unable to deliver a monopoly over trade with Taiwan and
the company annexed the whole island.(11)
Spanish authorities in the Philippines, fearful that the Dutch would interrupt
their trade with China, responded by establishing two ports on Taiwan.(12)
China's first occupation of the island in 1661 occurred in circumstances
anticipatory of 1949. By the 1650s, the invasion of China from Manchuria,
north of the Great Wall, had absorbed Beijing and was extending southward
and westward to establish the Ch'ing Dynasty.(13)
Supporters of the faltering Ming Dynasty in southern and central China
prepared for a strategic retreat to Taiwan by encouraging Chinese to migrate
to the island.(14) Cheng Cheng-kung, leader
of the Ming rearguard, mounted the operation to capture Taiwan so that
it could be used as a base for the recovery of the mainland. The operation
was successfully completed by the end of 1661, when the Dutch surrendered
and sailed away with all their possessions except their weapons.(15)
It can be argued that Chinese sovereignty dates from 1661 because Cheng
Cheng-kung still had ambitions to restore the Ming Dynasty to the throne
in Beijing. The rule of Cheng Cheng-kung, who died in 1663, and that of
his son Cheng Ching, who died in 1681, brought increasing orderliness and
prosperity to the Chinese immigrants to Taiwan.(16)
A system of taxation was introduced and applied to both the Chinese and
the aborigines.(17) Furthermore, the authorities
protected the economy of the fifty thousand aborigines living on the western
plains of Taiwan, which was based on deer hunting and the cultivation of
rice and millet under a system of shifting agriculture.(18)
After the death of Cheng Ching, corruption in the ruling group and rebellion
in some outlying parts of the island presented the Ch'ing Dynasty with
an opportunity to capture the remaining Ming bastion.(19)
The preliminary invasion of the Pescadore Islands on July 19, 1683, posed
such a strategic threat that the Ming forces on Taiwan surrendered two
days later.(20) After this success, the
court was inclined to evacuate Taiwan by repatriating the approximately
120,000 Ming supporters to the mainland while maintaining a strong military
and naval force in the Pescadores.(21)
Shepherd notes that "[i]n 1683 the Ch'ing court was impressed more by the
burdens of the incorporation of Taiwan into the empire than by its benefits."(22)
Admiral Shih Lang, who led the force that captured Taiwan, argued forcefully
and successfully for retaining control of the island.(23)
Thus, for the next 212 years after 1683, Taiwan formed part of the Chinese
Empire ruled from Beijing.
During this period, Chinese authorities exercised sovereignty by governing
Taiwan and Chinese sovereignty was recognized by other countries. Shepherd
gives a masterly account of the political administration and economy of
Taiwan during these years. He clearly describes the administration of the
island and the ways the authorities changed policies to avert problems
caused by various political, strategic, and economic circumstances. A few
examples will suffice to confirm China's exercise of sovereignty over Taiwan.
The empire quickly established an administrative system for Taiwan,
which was designated a prefecture within the mainland Province of Fukien.(24)
At this stage there were three counties, each headed by a magistrate aided
by assistant magistrates and subdistrict magistrates. Importantly, only
a minority of Chinese counties could boast this level of support for the
magistrate.(25) A fourth county was created
in 1723 following a recommendation the previous year by the censors. Censors
were appointed by the emperor and authorized to inspect the administration
of the prefecture and make recommendations for its improvement.(26)
Taiwan became a province in 1886.(27)
The administration maintained strict immigration rules.(28)
To prevent food shortages, the government restricted Taiwanese exports
of rice from 1683 to 1725; subsequently, increased production allowed the
restrictions to be eased.(29) An important
duty of the prefect was to oversee the welfare of the fifty thousand aborigines
living in the settled areas of the western plain.(30)
From 1704 to 1790, the prefect issued sixteen major decrees governing and
defining aboriginal land rights.(31) The
prefect was also charged with defending all Taiwan citizens from the attacks
of the other fifty thousand aborigines, who lived beyond the settlement
frontier in the mountainous region of eastern Taiwan. To assist the first
prefect, three thousand marines and five thousand soldiers were stationed
at eleven military posts mainly in the southern half of the island.(32)
Over the next two hundred years, the authorities established additional
posts and distributed them more uniformly throughout Taiwan.(33)
After 1722, aborigines were recruited into military service to defend the
frontier between the settled areas and the mountainous region occupied
by hostile aborigines.(34)
Shepherd notes a common historiographical theme, that corruption and
rebellion resulted from neglect by the Ch'ing administration.(35)
Taiwan underwent many rebellions of various scales, but none succeeded.
The frequency of rebellions in Taiwan during the Ch'ing Dynasty might encourage
some to argue that Chinese sovereignty was either fragile or so compromised
as to be open to serious question. Shepherd argues, however, that Chinese
sovereignty over Taiwan must be judged by comparing the situation in Taiwan
with that in other Chinese borderlands during the same period, rather than
by applying twentieth-century standards of administration and stability.(36)
He concludes: "Certainly [my] study demonstrates that the Ch'ing ruled
Taiwan with the same repertoire of policies it applied to other regional
societies . . . ."(37)
If we take into account the nineteenth-century history of China's other
political frontiers, from the northern frontier beyond the River Amur through
Mongolia, Sinkiang, and Tibet, it can be asserted that the rebellions in
Taiwan before its cession to Japan in 1895 were not exceptional.(38)
Indeed, when compared to Outer Mongolia, finally lost to China in 1921,
and Tibet, which was adrift from 1911 until 1949, Taiwan experienced the
most substantial Chinese control. Even if China's sovereignty over Outer
Mongolia or Tibet is considered debatable, there does not seem to be any
basis for arguing that China's sovereignty over Taiwan in 1894 was less
During the 1830s, China was subjected to pressure by European powers
that wished to increase their trading opportunities. Sometimes that pressure
included the use of military force. One such case involved actions by British
forces after the emperor prohibited the import and use of opium in the
early 1840s.(39) Through the next decade,
some foreign powers formed the impression that perhaps China did not control
the eastern part of Taiwan occupied by aborigines beyond the settlement
frontier.(40) They wished to access coalfields
on the island and protect the safety of seamen stranded on the east coast.(41)
These interests did not ultimately undermine China's sovereignty but, rather,
validated it.(42) In 1858, after British
and French belligerence, assisted by American and Russian neutral cooperation,
China signed the treaties of Tientsin with each of the four powers. By
these treaties China granted access to the Taiwanese ports of Tamsui and
Taiwan-fu on the west coast of the island and incidentally confirmed Chinese
sovereignty over Taiwan.(43)
In December 1871, the massacre of fifty-four Ryukyu castaways on the
southeast coast of Taiwan by the Botan clan of aborigines ignited a serious
dispute between China and Japan.(44) Japan
occupied part of southeast Taiwan before a treaty was signed that resolved
the matter in October 1874.(45) By the
terms of the treaty, China paid compensation to the families of the murdered
men; the actions of Japan were stated to be in defense of its citizens;
China agreed to take the steps necessary to control the eastern aborigines
so that future castaways would be safe; and the two countries resolved
to drop all discussions on the matter forever.(46)
This treaty confirmed Japan's recognition of China's sovereignty; it was
reconfirmed in the 1895 Treaty of Shimonoseki, by which Japan required
China to cede specific territories to it, including Taiwan and the Pescadore
The Treaty of Peace between China and Japan was signed at Shimonoseki
on April 17, 1895, after six months of conflict. Article II, entitled "Island
of Formosa," includes the following description of territory transferred
from China to Japan:
(b) The island of Formosa, together with all islands
appertaining or belonging to the said Island of Formosa.
Fifty years later, Japan lost World War II and by its defeat surrendered
many of its overseas territories, including Taiwan. The loss of Taiwan
was confirmed through a chain of instruments in which Japan formally relinquished
Taiwan and the Pescadore Islands. The specific elements of this documentary
sequence, beginning with the Allies' intentions before the war ended, can
be briefly described.
(c) The Pescadores Group, that is to say, all islands lying between
the 119th and 120th degrees of longitude east of Greenwich, and the 23rd
and 24th degrees of north latitude.(48)
In 1943 the so-called Cairo Declaration by the United Kingdom, China,
and the United States included the following statement:
It is [the three powers'] purpose that Japan shall be stripped
of all the islands in the Pacific which she has seized or occupied since
the beginning of the first World War in 1914, and that all the territories
Japan has stolen from the Chinese, such as Manchuria, Formosa, and the
Pescadores, shall be restored to the Republic of China.(49)
This declaration indicates that the United Kingdom and the United States
believed that Taiwan and the Pescadore Islands had been an integral part
of China in 1895 and should be returned to it.
The 1945 Potsdam Proclamation reiterated the policy on Japanese territorial
sovereignty set out in the Cairo Declaration and identified the major islands
that Japan would be permitted to retain: "The terms of the Cairo Declaration
shall be carried out and Japanese sovereignty shall be limited to the islands
of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."(50)
In September 1951, the multilateral Treaty of Peace included the following
statement in Article 2 of chapter II dealing with territory: "(b)
Japan renounces all right, title and claim to Formosa and the Pescadores."(51)
Article II of the Treaty of Peace between the Republic of China and Japan,
signed at Taipei on April 28, 1952, similarly provided: "It is recognized
that under Article 2 of the [multilateral Peace Treaty of 1951], Japan
has renounced all right, title and claim to Taiwan (Formosa) and Penghu
(the Pescadores) as well as the Spratly Islands and the Paracel Islands."(52)
Article IV of the 1952 ROC-Japan Treaty moreover confirms that "all treaties,
conventions and agreements concluded before December 9, 1941, between China
and Japan have become null and void as a consequence of the war."(53)
This lack of clarity in the peace treaties of the 1950s may be attributed
to recent developments in the area. While the ROC traces its lineage to
1912, the Communist-led civil war commenced in 1928. In the 1940s, the
ROC represented China in negotiations leading to the establishment of the
United Nations in 1945 and served as the government representing China
at the United Nations, including on the Security Council as a permanent
member. After occupying Taiwan in 1945 as a result of Japan's surrender,
the Nationalists were defeated on the mainland in 1949, abandoning it to
retreat to Taiwan. In that year the PRC was established.
II. The Legal Implications
The Territorial History of Taiwan
Because as a formal matter the 1951 multilateral Peace Treaty with Japan
merely renounced Japanese sovereignty over Taiwan,(54)
the history of Taiwan and the Chinese Empire prior to the cession of Taiwan
to Japan by the 1895 Treaty of Shimonoseki must be factored into the analysis.
Certainly, before 1895 China held sovereignty over Taiwan. Depending upon
how one interprets the history reviewed above, the legal basis for this
sovereignty and the date it was perfected may vary. Arguably, China assumed
sovereignty over the islands at an early date based on having discovered
and/or occupied them before any other state. Occupation requires the state
to assert sovereignty over the territory and to effectively exercise governmental
authority superior to that of other states.(55)
These conditions may have been fulfilled early in the above history. It
remains unclear, however, whether by their subsequent actions Western occupiers
claimed or effectively exercised sovereignty over the islands contrary
to Chinese claims, enabling the occupiers to establish their own sovereignty
on the basis of either conquest or prescription. Nevertheless, by 1894
and perhaps as early as the 1660s, China had confirmed, reestablished,
or consolidated its sovereignty over Taiwan.
The sovereignty of Japan over Taiwan under the 1895 Treaty of Shimonoseki
continued until its defeat at the end of World War II; but sovereignty
over Taiwan after the war is more difficult to resolve. The 1943 Cairo
Declaration by the United Kingdom, China, and the United States seemed
to express an intention to return the islands to the ROC,(56)
at that time still the only Chinese government. The 1945 Potsdam Proclamation
evinced the same intention.(57) Since neither
was a treaty or other legally binding instrument per se, these documents
did not directly transfer sovereignty over the islands. The multilateral
Peace Treaty of September 1951 did have the legal effect of formally surrendering
Japanese sovereignty over Taiwan, the Pescadores, and arguably the Diaoyu
Islands, but China was not a party to the Treaty, through either the ROC
or the PRC.(58) Moreover, the Treaty did
not specifically identify the entity that was to inherit Taiwan.(59)
That question was not clarified by the bi-lateral Peace Treaty of 1952
between Japan and the ROC, which simply recognized Japan's renunciation
in the multilateral Peace Treaty of 1951.(60)
Thus, none of the post-World War II peace treaties explicitly ceded
sovereignty over the covered territories to any specific state or government.
Rather, they formally nullified the sovereignty of Japan that was derived
from the 1895 Treaty of Shimonoseki. Consequently, one question to be resolved
is what entity succeeded to sovereignty over Taiwan after World War II.
In the Eritrea-Yemen arbitration award (Phase I) of October 9,
1998, the Permanent Court of Arbitration declared, without citing authority,
that the doctrine of reversion of territorial title is unproven in international
law.(61) Ultimately, the tribunal found
that this conclusion was not necessary to the decision. Thus, as a doctrinal
matter, the award on this point has little persuasive value. Nevertheless,
the tribunal did examine historical evidence in the context of the doctrine
of reversion of territorial title,(62)
and exploration of this issue may help to resolve questions relating to
The Eritrea-Yemen dispute concerned sovereignty over small, uninhabited
islands in the Red Sea, in contrast to the large and populous island of
Taiwan. Before World War I, the Ottoman Empire appeared to hold sovereignty
over the islands. As a consequence of the empire's loss in World War I,
Article 16 of the Treaty of Lausanne of 1923 not only revoked Ottoman sovereignty
over the islands, but expressly provided that their disposition was to
be determined by "the parties concerned."(63)
The "parties concerned" were not defined in the Treaty, but they included
the treaty parties identified in Article 1: "the British Empire, France,
Italy, Japan, Greece, Roumania and the Serb-Croat-Slovene State . . . and
Turkey," and perhaps other states such as Yemen.(64)
No such disposition ever took place, leaving sovereignty over the islands
The tribunal's examination of the islands' history prior to the Ottoman
period revealed no established sovereignty over them. The lack of such
historical title, interruptions in the arguable chain of title, and the
disintegration of the Ottoman Empire led the tribunal to base its decisions
concerning sovereignty on proximity and the minimal contemporary evidence
of authority exercised by the coastal states.(65)
The facts that the ultimate disposition of the islands had been expressly
vested in "the parties concerned," that historic title was unproven, and
that the Ottoman Empire had dissolved eased the way for the tribunal to
assert that the doctrine of reversion is unproven in international law.
At the same time, it avoided the consequences of that declaration. In the
absence of treaty-based authority to dispose of forfeited territory or
a doctrine of reversion, such territory would become res nullius,
which would encourage instability and conflict. Such results would not
be desirable from a policy perspective.
The Eritrea-Yemen dispute differs from the Taiwan situation,
in which China held indisputable sovereignty prior to the conclusion of
the Treaty of Shimonoseki. Unlike the Treaty of Lausanne, the post-World
War II peace treaties with Japan did not expressly authorize any state
or group of states to dispose of the territory of Taiwan lost by Japan.
Moreover, consideration of the Cairo and Potsdam instruments and the Peace
Treaty between Japan and the Republic of China supports the interpretation
of the multilateral Peace Treaty that sovereignty over Taiwan was intended
to revert to China, if not particularly to the ROC as the successor government
of the China that existed prior to 1895.
Even if one considers that the peace treaties did not as treaty law
result in the automatic reversion of sovereignty over Taiwan to the successor
to the "China" of 1895, the subsequent events produced similar results.
When Japan surrendered, the Republic of China took possession of Taiwan
and governed it. One can argue that the ROC governed Taiwan on behalf of
China as a whole or that the government on Taiwan then or subsequently
established sovereignty over the island as a separate entity. At one level,
regardless of whether reversion exists as a matter of international law,
the results are the same--either the government on Taiwan or the PRC is
the government that is entitled to exercise sovereignty over Taiwan. At
another level, it may make a difference. If reversion is good law, then
historical China received sovereignty over Taiwan and the legal issue becomes
whether the government on Taiwan or the PRC is the government that represents
the successor to that state. If reversion is not good law, then one must
decide whether the ROC could have obtained sovereignty over Taiwan separately
from China. This argument would be difficult to make because the government
on Taiwan did not claim statehood for Taiwan independent of China and the
PRC gained control over the entire Chinese mainland in 1949. On the other
hand, support for separate sovereignty over Taiwan might be based on contemporary
arguments recognizing that non-state entities could hold territorial sovereignty
or that Taiwan, as now governed, is de facto an independent state. Consequently,
regardless of one's interpretation of the post-World War II peace treaties
or views on the doctrine of reversion, only Taiwan, represented by the
ROC, or China, represented by the PRC, could succeed to sovereignty over
Taiwan under an international legal analysis. Neither the peace treaties
nor the doctrine of reversion definitively settles the dispute.
A more interesting question is whether the right of self-determination
for the population of this (orphan) territory might produce a different
result. In the late 1940s and the early 1950s, the people of Taiwan definitely
did not wish to be ruled by the government in Beijing. On this basis, an
interpretation of the peace treaties that placed the island's population
under Beijing's control would violate the doctrine of self-determination,
at least as it later came to be understood.(66)
Nevertheless, whether the post-World War II peace treaties are determinative
of the disposition of Taiwan merits further examination. The key question
is which government or governments represent "China." Different views on
this issue can be envisioned. One could argue that, implicitly, the ROC
was the China that inherited the islands under the peace treaties. It was
the government that represented China in concluding the Peace Treaty of
1952 with Japan. Moreover, the peace treaties should be interpreted consistently
with their intention and that intention may be found in the Cairo Declaration,
which identifies the ROC as the intended recipient of the Japanese territorial
surrender of Taiwan, and the Potsdam Proclamation, which appears to endorse
that intention. The ROC claimed to be the government of China and exercised
sovereignty over its territory, with the exception of some foreign activities
in limited areas, until the Communist rebellion.
These intent-based interpretations of the post-World War II settlements,
however, are debatable. Evidence demonstrates that the victorious states
intended the return of Taiwan to the ROC to be more a temporary arrangement
than a permanent resolution of the sovereignty question. In 1951 the Allied
powers found themselves in some disagreement over whether the PRC or the
ROC represented the legitimate government of China.(67)
In 1954 Secretary of State John Foster Dulles stated that "technical sovereignty
over Formosa and the Pescadores has never been settled" and that "future
title is not determined by the Japanese peace treaty, nor is it determined
by the peace treaty which was concluded between the Republic of China and
Japan."(68) The British and French governments
similarly stated, even well after the ROC took control of Taiwan, that
the de jure sovereignty over Taiwan was yet to be determined.(69)
If the ROC's custodianship of Taiwan was viewed as tentative, the recipient
of sovereignty over the island may plausibly have been intended to be whichever
government succeeded in inheriting control over the whole of China.
The United States changed its position on this issue in a short period
of time. On January 5, 1950, President Truman appeared to maintain that
it had already been settled: "In keeping with these [Cairo and Potsdam]
declarations, Formosa was surrendered to Generalissimo Chiang Kai-shek,
and for the past 4 years, the United States and other Allied Powers have
accepted the exercise of Chinese authority over the Island."(70)
Six months later, after the outbreak of the Korean War, President Truman
asserted an international role in Taiwan's disposition: "The determination
of the future status of Formosa must await the restoration of security
in the Pacific, a peace settlement with Japan, or consideration by the
Developments Subsequent to the World War II Settlements
One may argue that de facto, if not de jure, the PRC was the victor
in the revolution, leaving only an insignificant part of Chinese territory
in the hands of the former government. From the time of the peace treaties
to the present, the PRC has exercised full governmental control over virtually
all of the extensive Chinese territory held in 1895 (with the exception
of Taiwan and Mongolia), which makes it the successor to the 1895 state
of China that had previously acquired sovereignty over the island. By 1952
the PRC's governmental authority over historical China certainly existed
de facto, if not yet de jure. This authority derived from the military
victory and effective territorial control by the PRC, as well as its continuous
existence subsequently, its recognition as the government to which the
Chinese seat at the United Nations is accredited,(72)
and its recognition by the vast majority of states.(73)
On the other hand, this conclusion overstates the de facto, if not the
de jure, situation, which includes the different governing authorities
in Beijing and on Taiwan. Some have argued that the PRC cannot be considered
the legitimate government of the historical state of China. In their view,
the PRC is the government of a secessionist territory that created a new
state, leaving the ROC as the government of the historical China that held
sovereignty over Taiwan before the Treaty of Shimonoseki and has continued
as the government of that state (despite losing all the other parts of
China) to the present.(74) Moreover, arguably
the PRC never successfully completed the revolution since the ROC, as the
government of the historical state of China, still holds Taiwan--the very
focus of the matter under study--albeit with United States support.(75)
A more persuasive consideration is that the PRC has never exercised
any governmental authority over Taiwan. In fact, with the minor exception
of a few years, over the last 105 years the population of Taiwan has been
independent of the rule of the Chinese government in Beijing. The only
exception was when the Nationalist government in China took control of
the island after the Japanese defeat in 1945, arguably as the representative
the victorious Allied powers.(76) However,
four years later when the Nationalists lost control over the mainland to
the PRC, they retreated completely to Taiwan. While claiming to rule all
of China, the Nationalists exercised governmental authority only over Taiwan.
Since the establishment of the ROC on the island more than fifty years
ago, the government on Taiwan has maintained continuous authority over
the territory under a claim of right that has not been terminated by the
PRC. Arguably, on this basis the government on Taiwan has established itself
as an independent sovereign, if it did not previously exist as such. Thus,
even if the traditional Nationalist claim to all of China is invalid, the
included lesser claim to govern Taiwan may stand.
A judge on the International Court of Justice lends support to the argument
that by allowing another to exercise authority over a territory, a state
may lose title to it. In the 1962 Temple of Preah Vihear case, Judge
Alfaro wrote in his separate opinion:
[Title to territory is abandoned] by letting another country
assume and carry out for many years all the responsibilities and expenses
in connection with the territory concerned. Could anything be imagined
more obviously amounting to acquiescence, that is in effect abandonment?
Such a course of action, or rather inaction, disqualifies the country concerned
from asserting the continued existence of the title.(77)
It is uncertain, however, what extent of inaction or acquiescence suffices
to vitiate a claim to sovereignty. As J. L. Brierly wrote:
It is a nice question as to exactly how far diplomatic and
other paper forms of protest by the dispossessed state suffice to "disturb"
the possession of the interloper so as to prevent the latter from acquiring
a title by prescription. Paper protests may undoubtedly be effective for
a certain length of time to preserve the claim of the dispossessed state.
If, however, the latter makes no effort at all to carry its protests farther
by referring the case to the United Nations or by using other remedies
that may be open to it, paper protests will ultimately be of no avail to
stop the operation of prescription.(78)
Yet the PRC has hardly acquiesced in the status quo. Although China has
not commenced litigation before an international tribunal, its actions
and threats to thwart international recognition of Taiwan do not reflect
passivity. The PRC managed to oust the ROC from China's seat in the United
Nations in 1971, and the PRC has made its claim to Taiwan known to the
international community through diplomacy and some minor military actions.
In light of the requirement of the UN Charter that international disputes
be resolved peacefully, one cannot argue under international law that China
is required to use violence to prevent Taiwan from obtaining independence
by prescription. On the other hand, with the passage of time the actualities
of independence should have legal effects. International legal rights should
reflect current realities and avoid anachronistic situations, which are
themselves destabilizing. Thus, the maintenance of the status quo cannot
be ignored as a matter of law. While an opposing state may be forbidden
to use force, it may be required to change the situation by other means
before a long-term status quo sets in.
Furthermore, Taiwanese independence was complicated by the Nationalists'
original position that there was but one rightful Chinese government, the
ROC.(79) As long as Taiwan maintained that
claim, it risked losing territories it might otherwise have gained on the
basis of prescription or occupation, because the PRC was the more plausible
government for the historical territories of China. In recent pronouncements,
however, former Taiwan president Lee Teng-hui, while careful not to make
an express claim to separate and independent statehood for Taiwan, conceded
that Taiwan may be a separate state that does not include all of China
but, rather, only the islands it occupies.(80)
In fact, the government on Taiwan may claim that it has been an independent
state since 1912 when the ROC was founded and that the PRC wrested its
own independent statehood from historical China by 1949, leaving the ROC
as the government of China but with sovereignty only over Taiwan.(81)
Implicitly, Taiwan has taken this position for some time.(82)
From the 1950s on, the ROC formally claimed to be the government of all
of China in its diplomatic relations with other members of the international
community, but over time this claim amounted more and more to diplomatic
posturing and did not reflect the realities of these relationships. In
1994 it officially announced that it would no longer compete for the right
to represent all of China "in the international arena" and recognized that
China comprises "two essentially equal political entities."(83)
At the same time, it continued to resist the PRC's efforts to govern Taiwan.(84)
Internally, the electorate for representatives in Taiwan's Legislative
Yuan was limited to the residents of Taiwan, dropping the fiction of having
representation expressly from other territories.(85)
Regardless of the official or unofficial position of the government
on Taiwan or whether it can trace its lineage to historical China, an express
and official claim that Taiwan is a state separate from the rest of China
may not be necessary if the facts establish this independent status.(86)
That Taiwan's president appeared to be close to making an express claim
to Taiwanese statehood may be distinguished from questions related to the
status of territory beyond Taiwan, which unquestionably falls under the
full and exclusive control of the PRC.
Certainly, Taiwan satisfies all the generally accepted criteria for
statehood. It has a population, a territory under its control, a government,
and the capacity to enter into international relations independently of
any other government.(87) Moreover, its
territory and population are considerable, its economy strong, and its
standard of living relatively high.(88)
Thus, it would be (is) viable as an independent state. Under current circumstances,
Taiwan as a self-governing entity (state) would not be comparable to an
artificial ministate with no actual ability to function independently.
While the vast majority of states do not expressly recognize Taiwan as
a state, quite a few have accorded it such recognition.(89)
Many others have established a variety of functional relationships, many
of which, in all but name, are based on recognition of Taiwan as an independent
state.(90) Some states are known to have
expressly abstained from taking a position on the question.(91)
At the same time, Taiwan participates in the work of a variety of intergovernmental
organizations and serious negotiations continue in regard to its formal
association with the World Trade Organization.(92)
In sum, Taiwan may have a basis for claiming to be a state with sovereignty
over only the islands.
The Decline of Absolute State Sovereignty
Even if one were to conclude that the PRC is the government of the entire
historical China and has sovereignty over Taiwan, this sovereignty may
not be sufficient to resolve the core issues. Today a non-state entity
may hold territory in opposition to the state with sovereignty over that
territory, and the population of a territory may have rights of self-determination
that deny the sovereign state the unqualified authority to control that
territory and its population. Clearly, Taiwan is independent of China,
having achieved economic and governmental autonomy despite Beijing's efforts
to the contrary. Traditionally, only states could have sovereignty over
territory or rights under international law.(93)
This state-centered approach, however, has eroded.(94)
Specifically, the use of the word "peoples" in describing those entities
entitled to the right of self-determination has proved to be a notable
challenge to the traditional state-centered framework.(95)
Overall, the growth of human rights in international law has diminished
the extent of states' domestic jurisdiction. Thus, at the domestic level,
international human rights law requires a state to provide its population
with the right of internal self-determination. This does not imply that
the peoples within a state are entitled to an automatic right of secession
or independence but, rather, a degree of freedom to maintain their own
cultural, linguistic, and governance traditions consistent with reasonable
allegiance to the state.(96) Only if internal
self-determination is unreasonably denied might questions of international
supervision or secession arise.
In such situations, the international community has established trusteeships
and mandates in territories not within the sovereignty of any state or
subject to conflicting or questionable claims. Recent developments have
demonstrated other ways non-state entities may obtain a degree of independence.
Sometimes, the United Nations provides this independence, presumably to
avoid threats to international peace. Thus, while Kosovo remains part of
the territory of the Federal Republic of Yugoslavia (FRY), the UN Security
Council has stripped the FRY of actual governance authority there.(97)
Bosnia has enjoyed limited self-governance for over five years through
intensive and independent administration of the area by NATO with the approval
of the Security Council.(98) Although a
Palestinian state has not been established as of this writing, a degree
of autonomy is exercised by the Palestinian Authority over territory claimed
or controlled by Israel pursuant to an agreement between Israel and the
authority in the context of a history of UN involvement.(99)
Subsequent to the war against Iraq authorized by the Security Council,
the United States and its allies established a zone in northern Iraq to
protect the Kurds against the Iraqi government even without express Council
authority.(100) Recently, Indonesia allowed
an international peacekeeping force to enter East Timor to prevent pro-Indonesian
militia units from thwarting the will of East Timorese citizens, as expressed
in a plebiscite on independence from Indonesia.(101)
The United Nations has assumed custodianship over East Timor during the
transition to independence. Although Indonesia technically gave its consent,
it was the product of strong multifaceted pressure by interested states
and organizations.(102) The duty of these
ostensibly sovereign states to relinquish their claimed authority to govern
these areas appears to reflect contemporary international law derived from
the right of self-determination and other human rights.
Unilateral Secession as a Legal Right
Can it then be said that the right of self-determination enables a territorially
centered population to secede from the state of which it is a part? Traditionally,
claims directed against the political and territorial integrity of an existing
state were viewed as untenable because of the primacy of sovereignty under
international law. From that perspective, the proper domain of international
law concerned the relationships between states and not domestic
affairs within states (such as the relationship of a state to its
nationals).(103) In this light, even when
the international community had begun to recognize a right of self-determination,
it did not appear to support a general right to secession.(104)
Instead, the right of self-determination appeared to many to be a limited
one: "It was not widely contemplated that the entitlement of self-determination
would continue to empower 'peoples' after the decolonization task had been
completed. Self-determination thus came to be interpreted almost as the
right of peoples of color not to be ruled by whites."(105)
Not only has this right evolved beyond that limited description, but it
probably had a broader application even earlier.(106)
Human rights law has developed to the point that states are no longer
considered to be ends in themselves but, instead, to exist to serve their
populations.(107) According to this line
of reasoning, states that fail to live up to their essential commitments
(for example, the obligation to protect the life and physical integrity
of their population) "begin to lose their legitimacy and thus even their
very existence can be called into question."(108)
Therefore, in 1970 the Declaration on Principles of International Law Concerning
Friendly Relations adopted by the UN General Assembly suggested the possibility
that their sovereignty would not be protected under international law when
states did not respect the principles of "equal rights," "self-determination,"
or representative government "without distinction as to race, creed or
colour."(109) On this basis, in certain
circumstances a state may not claim rights to national unity and territorial
integrity against claims to self-determination or even secession. Accordingly,
in 1981 a rapporteur of the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities stated:
The principle of equal rights and self-determination . . .
does not grant an unlimited right of secession to populations living in
the territory of an independent sovereign State . . . . The right of secession
unquestionably exists, however, in a special, but very important case:
that of peoples, territories and entities subjugated in violation of international
law. In such cases, the peoples concerned have the right to regain their
freedom and constitute themselves [as] independent sovereign States.(110)
The idea that the interests of the mother state must give way to a right
of secession in certain circumstances was echoed in the Canadian Supreme
Court's decision that examined the possible secession of Quebec.(111)
In this opinion, the Court reported that commentators support a right to
secession under international law outside the context of decolonization
when "a people" is subject to oppression in the form of nonrepresentative
government or discrimination.(112) Thus,
some have argued that the right to secession arises, as a last resort,
State does not satisfy a people's claim to cultural rights
and autonomy. . . . Only if a State deprives a people of its right to internal
self-determination (which by the way does not absolve the people from its
duty of allegiance to the State as a whole), must territorial integrity
stand behind the right of self-determination.(113)
Early United Nations General Assembly resolutions on the right of self-determination
couched this matter in ambiguity.(114)
On the one hand, they recognized that under some circumstances such "peoples"
have the right of self-determination, including the right to rebel, to
establish their independence, and to obtain outside support.(115)
On the other hand, they recognized the duty to maintain the integrity of
the established state and prohibited disruption of its unity and independence.(116)
Traditionally, this tension was reconciled by limiting the right of self-determination
to the independence of colonies physically separated by large distances
from the metropolitan state.(117) While
this solution may have been valid in the past, recent events support the
view that the right of self-determination also applies to "peoples" within
an established state even in the absence of a colonial history.(118)
The Canadian Supreme Court sought to address this question in the light
of more recent developments. Yet the Court issued its decision on an ostensibly
domestic matter as a domestic court, a circumstance that may limit the
persuasiveness of its analysis as evidence of general international law.(119)
On the other hand, as a rare contemporary judicial decision on point by
a relatively sophisticated court that relied on international authorities,
its analysis is especially important.(120)
The Court found that in the noncolonial context of a population residing
in a political subdivision of a state, the potential legal right (de jure)
to secede was limited to situations in which "peoples" were denied democracy,
minority rights, or fundamental human rights.(121)
It also recognized that, even if a legal right to secede on these grounds
did not exist, a population might unilaterally secede de facto.(122)
In the latter situation, the Court believed, the ultimate status of the
secessionist entity would be determined by the judgment of the international
community, not the mother state.(123)
Thus, a people's successful wresting of independent control over a part
of the mother country automatically converts the matter from a domestic
to an international issue. Implicitly, the mother country is forbidden
to reverse the action by force, a controversial proposition that could
have broad application.(124) According
to this reasoning, the legitimacy of the independence effort becomes an
international issue beyond the domestic jurisdiction of the mother country.(125)
The Canadian Supreme Court's opinion addresses a transitional period during
which part of the territory of a state obtains independence and moves toward
establishing a new state. It necessarily recognizes the autonomy of that
territory even though it may not be a state under international law during
the transition period.
Similarly, the European Community, the Conference on Security and Co-operation
in Europe (CSCE), and the United Nations, in reaction to the breakup of
the Socialist Federal Republic of Yugoslavia, accepted the view that the
fate of de facto secessionist movements is to be decided by the international
community.(126) After the Yugoslav Federal
Army attempted to resist the Slovenian secession, "governments . . . ,
although still supporting the 'integrity' of Yugoslavia, now deplored the
use of force to maintain it."(127) Additionally,
the CSCE "concluded that 'any recourse to force in the present crisis in
Yugoslavia continues to be absolutely inadmissible.'"(128)
The UN Security Council then unanimously adopted Resolution 713 (1991),
which expressed the "concern 'that the continuation of this situation constitutes
a threat to international peace and security' and takes account of the
heavy loss of human life and the adverse consequences of the conflict for
countries of the region."(129) Thus, the
Council has made clear that, at least in some circumstances, it is impermissible
for a sovereign to use force against a secession, be it de facto or de
jure, because it threatens international peace and security.
Despite the views of commentators, the analysis of the Canadian Supreme
Court, and United Nations resolutions, as a matter of state practice territories
integrated into the motherland have rarely seceded unilaterally.(130)
Of course, examples of secession by distant colonies abound. More recent
examples that may support secession in a noncolonialist situation primarily
concern the establishment of new, or the reestablishment of old, states
upon the breakup of the mother state, as happened with regard to the Soviet
Union and the Socialist Federal Republic of Yugoslavia. Other examples
may be found, however, such as Bangladesh's secession from Pakistan, the
contemporary secession of East Timor from Indonesia, and, despite denials,
the de facto secession of Kosovo from the Federal Republic of Yugoslavia.
Another contemporary development is Eritrea's secessionist war. The situations
in Kosovo and Eritrea have involved the participation of intergovernmental
organizations, including the United Nations.
At the same time, states have failed to support secessionist efforts
in Chechnya, despite Russia's brutal actions to thwart them, and many other
examples of unsuccessful secessionist efforts could be named.(131)
This history does not establish the required consistent pattern of state
practice traditionally sought for the creation of customary international
law.(132) Whether opinio juris
supports such secession except in particularly unusual circumstances is
unclear. On the other hand, some state practice, combined with United Nations
resolutions and the opinions of writers, may suffice to establish a certain
right of secession from a mother state, especially in the context of gross
violations of human rights.(133)
Taiwan, however, may be exceptional. During the fifty years of PRC ascendancy,
Taiwan has been separately governed, a circumstance that distinguishes
its situation from virtually all the other examples, including those envisaged
by the Canadian Supreme Court. The prototype situation assumes that the
population of a territory under the actual governance of a mother country
seeks to change the status quo and obtain independence in fact. That effort
might be undertaken by a peaceful and amicable process. The more troubling
situations involve the use of violence to obtain independence. The mother
state is likely to claim that its territorial integrity is being prejudiced
and/or that the forceful action is being conducted by terrorist organizations
that do not represent the will of the population in the ostensibly secessionist
territory. Arguments for the mother state to resist may have legal and
political credibility. Taiwan's situation does not resemble the prototype
situation, which makes untenable the argument for China to use force against
the island. Taiwan is, and for decades has been, de facto, if not de jure,
independent of China. Taiwan does not need to change the status quo so
as to realize self-governance. Thus, if force is to be used to defend the
territorial integrity of "China" or to obtain Beijing's rule over Taiwan,
it would necessarily (absent an inconceivable effort by Taiwan to recapture
China) be initiated by China, directly or through some form of provocation.
Even if a mother state's military resistance to force initiated by a secessionist
group might find some credible support in international law, after fifty
or more years of independence the initiation of force by a state to recapture
an area it claims to have been part of its territory a century ago would
be impossible to justify under contemporary international law.
Since Taiwan has never been subjected to the actual governance of the
PRC, allegations that the PRC has violated human rights, including the
exercise of the right of internal self-determination, cannot be made with
regard to the residents of Taiwan. For this reason as well, the prototype
situation does not fit the example of Taiwan. China argues that reintegration
of Taiwan into China would not lead to human rights violations. Thus, the
precondition for Taiwan's independence on a de jure basis arguably does
not exist. On the other hand, the Chinese revolution itself and the Nationalists'
retreat to Taiwan, together with Taiwan's refusal to be governed by the
PRC, may alone satisfy such possible prerequisites. In light of the PRC's
questionable human rights record,(134)
to require a period of PRC governance over Taiwan before the acquisition
of a right to secede under a claimed de jure right of self-determination
arguably would serve no legitimate purpose. Furthermore, the PRC's authoritarian
character could make it difficult to ensure a free and fair plebiscite
on independence after a period of PRC interim control over Taiwan. A reasonable
alternative might be to hold a plebiscite within Taiwan prior to any change
in the status quo, giving its population the option whether or not to choose
some form of association with China.
In this context, one might ask whether the PRC's offer of Taiwanese
self-government based on the "one China, two systems" approach would undermine
Taiwan's possible unilateral right of secession (assuming that Taiwan is
part of the territory of China). A requirement that Taiwan engage in good-faith
negotiations with the PRC to seek a solution before it could legally claim
independence would certainly be reasonable and may be necessary. On the
basis of its analysis of international legal authorities, the Canadian
Supreme Court found that the conducting of good-faith negotiations was
a prerequisite for a "people" to qualify under international law to secede
from its mother country de jure.(135)
This duty to conduct good-faith negotiations in certain circumstances
finds substantial support in the UN Charter and more generally in international
law.(136) The International Court of Justice
recently addressed good-faith negotiations in the Gabíkovo-Nagymaros
Project case.(137) The Court quoted
its Judgment in the 1969 North Sea Continental Shelf cases, stating
that in international maritime boundary disputes the parties "are under
an obligation so to conduct themselves that the negotiations are meaningful,
which will not be the case when either of them insists upon its own position
without contemplating any modification of it."(138)
Continuing in Gabíkovo-Nagymaros, the Court held that under
applicable treaty obligations, "bilateral negotiations [should be conducted]
without pre-conditions [and that] both Parties can profit from the assistance
and expertise of a third party. The readiness of the Parties to accept
such assistance would be evidence of the good faith with which they conduct
bilateral negotiations . . . ."(139) Significantly,
the dispositif requires the parties to "negotiate in good faith
in the light of the prevailing situation, and [to] take all necessary measures
to ensure the achievement of the objectives."(140)
By requiring such negotiations, the Court determined that whether good-faith
negotiations were conducted is a justiciable issue and enforceable under
international law. Although it is difficult to assure that the parties
will engage in good-faith negotiations, their success could resolve the
dispute. In the case of Taiwan, their failure would serve as an appropriate
basis for the island to claim a legal right to separate statehood.
One further issue remains for consideration. Is the population of Taiwan
a "people" that may claim a right of self-determination? The term remains
undefined. In fact, it may have little or no substance. A "people" may
merely refer to any territorially based population that seeks self-determination.
Most commentators believe, however, that the term should be understood
to have greater substance. For example, in the context of decolonization,
most colonies were located at a considerable remove from the metropolitan
state, and the ethnic and cultural identities of their populations differed
substantially from those of the metropolitan state. Should these factors
be included in assessing whether a specific group is a "people" entitled
to self-determination? Recent conflicts over the right to self-determination
reflect this distinctiveness to a degree, but it is less marked, especially
in some multicultural contexts. The Province of Quebec is physically integrated
into the Canadian Confederation. Both Francophile and Anglophile persons
inhabit the province, as well as native groups that occupy its northern
reaches. In view of this complexity, the Canadian Supreme Court avoided
determining whether those in Quebec who might wish to secede constituted
a "people" for the purposes of self-determination.(141)
It is equally difficult to apply the doctrine of self-determination to
the Yugoslav conflicts because the populations that claim separate ethnic,
cultural, and religious affiliations have often resided in the same areas
and classifying individuals is problematic. Nevertheless, the law of self-determination
seems to be applicable to that situation. Contemporary situations such
as those in the former Yugoslavia, therefore, have liberalized the term
"peoples" for purposes of self-determination.(142)
Taiwan's population does include descendants of aboriginal groups that
have lived on Taiwan for centuries and might once have been considered
ethnically distinct from the mainland Chinese. That distinction may be
harder to maintain now as a result of the significant integration of the
groups. Most of the population moved to Taiwan from mainland China prior
to the twentieth century. The most recent significant infusion of persons
from mainland China occurred during the Nationalists' final retreat in
1949, more than fifty years ago. But this migration increased the population
by only about 17 percent.(143) Consequently,
the newcomers from the mainland made up only 15 percent of the population.(144)
The roots in the island of the other 85 percent had been established before
1895, mostly several centuries earlier. Nevertheless, the population of
Taiwan might be considered ethnically and culturally identical to the mainland
Chinese population since the majority migrated from the mainland. On the
other hand, the longtime historical separation of the Taiwanese population
on islands that are physically removed from China, especially during the
fifty years of Japanese rule and the subsequent fifty-year rule of the
government on Taiwan, has resulted in systems of governance, cultures (including
the fifty-year Japanese influence and the absence of religious suppression
on the island), and economies that clearly distinguish Taiwanese society
from that of China. From a contemporary perspective, the population of
Taiwan may be considered a separate "people" having the right of self-determination.
A claim to self-determination by the Taiwanese may rest on the distinct
territory they have inhabited for a significant period of time, their preferred
form of self-governance, and a distinct socioeconomic system and culture
that differ in many substantial ways from those of the mainland. This right
of self-determination would deny China the authority forcibly to impose
its governing authority over the population of Taiwan. Thus, even if Taiwan
were legally deemed part of the territory of China, that fact alone would
not resolve the important issues. It would not delegitimize the claim of
Taiwan's population to a right to independence. Former president Lee's
moves to suggest the entitlement of Taiwan to its own statehood and sovereignty
strengthen its claim to self-determination as an independent entity despite
the assertions of China.(145) Nevertheless,
in light of China's claim to Taiwan, even if the Taiwanese satisfied all
the legal requirements for self-determination and/or statehood of Taiwan
alone, that would not resolve the territorial dispute as a political matter.
It is irrefutable that under contemporary international law the population
of Taiwan holds rights that cannot be unilaterally set aside. Settlement
of the cross-strait dispute calls for an amicable resolution by the parties
themselves. In its absence, the alternative extreme solutions are the total
independence of Taiwan and the total absorption of Taiwan into China. At
present, neither of these solutions is acceptable to both governments.(146)
Whether the statehood of Taiwan should be pursued requires the consideration
of a myriad of interests. For example, while Taiwan is economically strong
and independent, its future lies in international trade, particularly within
the East Asian region. Full and open access from Taiwan to the markets
of China must be an important consideration in any solution. Even now,
China and Taiwan benefit economically from trade and good business relations,
which they have a strong interest in enhancing.(147)
Failure to reach an amicable settlement is likely to have a negative economic
impact on both populations. The risks of military conflict and threats
to Taiwan's security are salient destabilizing factors, with both Taiwan
and China continuing to enhance their military capabilities. The aspirations
for self-governance and human rights are equally important interests, but
they might be obtained for the people of Taiwan, if not also for the entire
Chinese population, through a variety of conceivable solutions.
The dispute may be resolved by the use of force, adjudication or arbitration,
masterly inactivity, or negotiations. Not only is the use of force undesirable,
but its initiation by either side would violate international law. Resort
to binding dispute settlement through adjudication or arbitration seems
especially improbable. The parties are unlikely to entrust resolution of
this important matter to a third-party tribunal, especially since states
in this part of the world rarely adopt that approach. Masterly inactivity
seems to be the approach of choice at present and it may well be continued
in the future, though its indefinite maintenance appears doubtful. Domestic
and international developments may upset this precarious stability, encouraging
one side or the other to consider extralegal solutions. Time may work to
the disadvantage of one side and thus render the status quo unacceptable
over the long term. In theory, the best route toward resolution of the
dispute is through peaceful negotiations, either bilateral or with the
assistance of third parties. However, the so-called cross-strait discussions
and relations have yet to produce hopeful results.(148)
To be successful, a solution will require exquisite negotiating skills
and the will and ability of both sides to resolve the dispute.
What should be clear is that simplistic conceptions of the international
legal system of the past, in which a territory either was under the complete
sovereignty of a state or was not, are not valid today. A non-state entity
may have international legal personality with rights and duties under international
law.(149) Individuals are endowed with
human rights that cannot be abridged by a government claiming sovereignty
over the territory in which they reside.(150)
The rights of individuals and the interests of states may be reconciled
in a variety of ways that do not require the binary choice between total
state sovereignty and subjugation, on the one hand, and complete independence,
on the other. A contemporary analysis demonstrates that relations between
states, including relations with non-state entities, involve not a unitary
relationship based on "sovereignty" but, rather, the apportionment of a
multifaceted bundle of rights and obligations that may be shared in innumerable
ways. A variety of sophisticated arrangements developed in the past through
various forms of federation and confederation. Unlimited possibilities
are presented today.
One solution would regularize the current ambiguous relationship. Another
solution might replicate the arrangements with Hong Kong and Macau based
on the theory of one China, two systems.(151)
How successful that solution would be remains a matter of conjecture, although
recent developments raise questions about its viability from the Taiwanese
perspective.(152) Furthermore, the Taiwan
situation involves different circumstances. Its significant population
and territory, diverse and substantial economy, and history of self-governance
distinguish Taiwan from Hong Kong and Macau, as has been recognized by
Authority for foreign affairs, economic affairs, human rights, and other
governance matters might be divided in a multitude of ways. Taiwan might
be incorporated into China but its people given special legal rights or
governance roles within the government itself. An even weaker relationship
could be designed that technically recognized Chinese sovereignty but otherwise
retained the elements of complete independence for Taiwan.
For example, the British Commonwealth has evolved from a system in which
the dominance of England was unchallenged into a productive and flexible
arrangement that can serve as a model to be explored. The mandate and trusteeship
systems by which the League of Nations and then the United Nations supervised
certain territories have been superseded by new approaches evolving with
regard to Somalia, Haiti, Yugoslavia, Kosovo, and East Timor. Although
none of these examples may be directly relevant to Taiwan, they demonstrate
that its dispute with China may be resolved through any one of a variety
of alternatives short of separate statehood or complete integration if
there is a will to do so. The arrangement may be sufficiently nuanced to
assuage sensitivities on both sides to their mutual satisfaction, assuming
a willingness to compromise and the application of the diplomatic skills
necessary to develop an appropriate solution.
While separate statehood is a possible solution, it, too, is fraught
with risks and uncertainties, including the possibility of a military conflict
that could draw in other powers, such as the United States. One should
not underestimate the likelihood that this dispute would escalate into
a major military conflict between two large and powerful states--the United
States and China--as recent statements and reports have emphasized.(154)
Such a situation could well violate the prohibitions on the use of force
in Article 2(4) of the United Nations Charter. Moreover, threats by the
PRC to use force if Taiwan were to proclaim independence might also constitute
violations of this article. Consequently, it is in the interest of all
to find a peaceful solution, which can be attained only through the willingness
of both sides to consider a wide range of possible solutions. Those efforts
should be grounded in knowledge of the historical and current realities,
the benefits and risks at stake, and contemporary developments in international
law. Positions that, in reality, are designed to attain entrenched objectives
would not satisfy the requirements of good-faith negotiations and would
doom any possibility of a peaceful solution.
The long-held position of the PRC, that Taiwan is a renegade province
of China, contains the seeds of a military conflict. The PRC claims that
the dispute is to be resolved as an internal matter, even by the use of
force if Taiwan claims statehood. Taiwan has in fact maintained complete
independence from the PRC for over fifty years and is loath to exchange
the benefits it has realized for subjugation by the PRC. Given no viable
alternative, Taiwan may very well move toward separate statehood. International
law, as codified in Charter Article 2(4), forbids the use of force in "international
relations . . . against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of
the United Nations." Regardless of whether Taiwan is a separate state,
developments in international law with respect to internal conflicts establish
that the dispute between Taiwan and China is governed by international
law, especially in light of the strong international concern. Any use of
force to resolve it would constitute a breach of the peace and fall under
the Chapter VII authority of the UN Security Council.
States have used force to prevent secession by territorially based groups.
At the same time, the United Nations Charter protects the right of self-determination.
General Assembly resolutions interpreting the Charter on this point have
endorsed the use of force to realize that right, while seeking to preserve
the territorial integrity of existing states. The current law seems to
be self-contradictory. For the purposes of this article, however, these
general international law issues need not be resolved in all respects.
Rather, the specific circumstances of the cross-strait dispute present
a factual setting for which the law provides a relatively clear answer.
As explained above, Taiwan has not been governed by Beijing for decades.
Despite contrary claims and ambiguous characterizations, the long-term
status quo is that Taiwan has been independent of China. No change in actual
governance or control would result if Taiwan claimed its own statehood
separate from China. The claim would be diplomatic only. Arguments by the
PRC that force was necessary to protect its territorial integrity would
be wrapped in the pretext of a technical legal argument, but in reality
such integrity has not existed for the entire duration of the PRC and hardly
for China for over a hundred years. The use of force by China in this circumstance
would be intended to change the long-term status quo by extending PRC governance
to Taiwan. It would certainly not fall within the single express exception
to the prohibition on the use of force found in Article 2(4)--the right
of self-defense under Article 51 of the Charter--especially if the Taiwanese
claim to statehood or other form of independence were made merely by diplomatic
communications unaccompanied by the use of force.
In the absence of an armed attack on China, its 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-initiated attack on Taiwan based
merely upon a Taiwanese declaration of independence a violation of international
law "inconsistent with the Purposes of the United Nations."
Such an attack by China would justify the exercise of self-defense by
Taiwan, including by seeking outside support through collective self-defense.
Of course, the situation might be more complex; questions of who initiated
the use of force or who was on the verge of doing so could alter the allocation
of justification for the use of force in self-defense. However, all analyses
must proceed from the specific facts of this situation in which Taiwanese
independence from PRC governance is a long-term historical fact. A unilateral
claim to statehood would not require the use or threat of force by Taiwan
and would thus be unlikely to justify the use of force by China to stop
Despite the above conclusions of law, the practical and political realities
should not be ignored. If a substantial military conflict does occur, Taiwan
would probably be devastated, no matter which side wins. China could absorb
a substantial military attack but not without significantly weakening its
economic and military situation, which would not be easily remedied and
could result in internal instability. Politically, the PRC might be viewed,
both internationally and regionally, with great distrust, and perhaps even
be branded as a pariah. Thus, a military conflict could only amount to
a loss for all sides.
Unfortunately, the serious differences of opinion across the Taiwan
Strait stem from deep cultural, political, and historical foundations.
These differences might make war inevitable. At the same time, contemporary
developments enable the parties concerned to consider sophisticated solutions
that could avoid such a catastrophe. All interested parties should understand
these facts and work to this end. The solution will not come easily or
The government on Taiwan is a young and dynamic democracy; the domestic
polity will not readily forge a decision of this importance, especially
in the period closely following the recent elections.(155)
The PRC is engaged in a process of change by which it could evolve from
an autocratic, socialist-oriented system into a democratic and capitalist
system. Beijing does not currently appear to be in a position to engage
in the difficult bargaining or to make the credible long-term commitments
required to attract serious Taiwanese participation. In the near term,
the best that can be expected is that the PRC will step back from threats
to use force and other efforts to rein in Taiwan, and that Taiwan will
restrain the movement toward expressly claiming independent statehood.
This mutual constraint would make room for progress through confidence-building
measures, primarily based on economic relations and open exchanges at the
political, social, and environmental levels. Over time, one hopes, the
links will strengthen rather than fall into the abyss and the political
circumstances will evolve to enable the negotiations to reach an appropriate
durable solution. While one can always hope for a near-term solution, realistically
during this period, creative ambiguity, long the hallmark of the relationship
between China and Taiwan, should be expected to prevail.
1. Co-Editor in Chief; and Honorary
Professor, Department of Geography, University of Melbourne; respectively.
Research assistance to Professor Charney was provided by Hewson Chen, J.D.
Vanderbilt, 2001. An earlier version of this article was prepared for a
meeting entitled "Rethinking the Cross-Strait Relationship" (Feb. 10-13,
2000), sponsored by the Rockefeller Brothers Fund, the Council on Foreign
Relations, and the United States Institute of Peace.
2. For the purposes of this article,
the term "Taiwan" refers to the island of Formosa and its associated islands.
3. See generally Hans Kuijper,
Taiwan a Part of China? in The International Status of Taiwan in the
New World Order 9 (Jean-Marie Henckaerts ed., 1996) [hereinafter International
Status of Taiwan]; John Robert Shepherd, Statecraft and Political Economy
on the Taiwan Frontier, 1600-1800 (1993); William Campbell, Formosa Under
the Dutch (Southern Materials Center 1987) (1903); John King Fairbank,
The Great Chinese Revolution, 1800-1985 (1986); Colin Mackerras, Modern
China: A Chronology from 1842 to the Present (1982); Frederic Wakeman,
Jr., The Fall of Imperial China (1975); Lloyd E. Eastman, Throne and Mandarins:
China's Search for a Policy During the Sino-French Controversy, 1880-1885
(1967); W. G. Goddard, Formosa: A Study in Chinese History (1966); George
H. Kerr, Formosa Betrayed (1965); Sophia Su-fei Yen, Taiwan in China's
Foreign Relations, 1836-1874 (1965); Ling Shun-sheng, People of the
Ancient Min-Yueh and the Native Tribes of Taiwan, in 1 Collected Essays
on the Culture of Taiwan 1 (Lin Hsiung-hsiang ed., 1954); Joseph W. Ballantine,
Formosa: A Problem for United States Foreign Policy (1952); Ludwig Reiss,
der Insel Formosa [History of the Island of Formosa], 6 Mitteilungen
der Deutschen Gesellschaft für Natur- und Völkerkunde Ostasiens
4. See Yen, supra note
2, at 4; Shepherd, supra note 2, at 6-7.
5. Shepherd, supra note 2, at
7. See id.
8. See Yen, supra note
2, at 5-6.
9. See id. at 8.
10. See id. at 6-7; Goddard,
note 2, at 50-51; Campbell, supra note 2, at 36.
11. See Goddard, supra
note 2, at 51-53.
12. The Spanish first established
a port in northern Taiwan at Santissima Trinidad, and then at San Domingo
at the mouth of the Tamsui River. See id. at 53-54. The Dutch
drove out the Spaniards by 1642. See id.; Yen, supra
note 2, at 7-8.
13. See 1 P. M. Roxby &
T. W. Freeman, China Proper 352-54 (Great Britain, Naval Intelligence Division,
14. This migration was possible because
the Dutch had agreed with China in 1633 that trade between the mainland
and China should be carried in Chinese vessels. See Goddard, supra
2, at 66-69.
15. See id. at 76-77.
16. See id. at 80-81; Yen,
note 2, at 9.
17. See Shepherd, supra
2, at 7, 97.
18. See id. at 7, 32-33.
19. See Goddard, supra
note 2, at 91-94.
20. See Yen, supra note
2, at 9.
21. See Shepherd, supra
2, at 106.
22. Id. at 137.
23. See id. at 106.
24. See Yen, supra note
2, at 10.
25. See Shepherd, supra
2, at 179.
26. See id. at 198.
27. See Taiwan, 28 New Encyclopaedia
Britannica 375, 380 (1993); Taiwan, 22 Collier's Encyclopedia 37,
28. Ming supporters were repatriated,
except those who had families on Taiwan, because it was considered that
such family units had a vested interest in maintaining peace on the island.
Shepherd, supra note 2, at 15. Until 1732, families were not
allowed to emigrate to Taiwan from the mainland. Instead, single men could
go there to work, but they were required to travel on government vessels
and were only allowed to return to the mainland if their behavior had been
good. See id. After the prohibition on family migration was lifted
in 1732, it was alternately reimposed and abandoned in 1740, 1746, 1748,
1750, and 1761. See id. at 143 tbl. 6.2.
29. See id. at 107, 140 tbl.
30. A policy of limiting colonization
and sheltering the aborigines helped suppress the spread of Taiwanese settlement
to areas within state control. See id. at 7, 107.
31. See id. at 302 tbl. 9.1.
32. See id. at 192 map 7.2.
33. See id. at 196 map 7.3.
34. See id. at 19, 186-91,
35. Id. at 3.
38. See id.; J. R. V. Prescott,
Political Frontiers and Boundaries 36-51 (1987); J. R. V. Prescott, Harold
John Collier, & Dorothy Francis Prescott, Frontiers of Asia and Southeast
Asia 6-7 (1977); Gerard M. Friters, Outer Mongolia and Its International
Position 183-93 (1949); 2 Alastair Lamb, The McMahon Line: A Study in the
Relations Between India, China and Tibet, 1904-1914, at 436-56 (1966).
39. See Yen, supra note
2, at 22-28.
40. See id. at 47.
41. See id. at 48.
42. Similarly, in the early 1850s
some well-connected Americans favored a trusteeship or protectorate over
Taiwan. The U.S. government was unenthusiastic, and after the election
of President James Buchanan in 1857, these ideas were abandoned. Though
Chinese control over Taiwan appeared weak, the opening of Taiwanese ports
to foreign trade was accomplished by treaty and not by force. See id.
53-71; text at note 42 infra.
43. See Treaty of Peace, Amity,
Commerce and Navigation, June 1(13), 1858, China-Russ., 119 Consol. TS
113; Treaty of Peace, Amity and Commerce, June 18, 1858, China-U.S., 119
Consol. TS 123; Treaty of Peace, Friendship and Commerce, June 26, 1858,
China-Gr. Brit., 119 Consol. TS 163; Treaty of Amity, Commerce and Navigation,
June 27, 1858, China-Fr., 119 Consol. TS 189.
44. See Yen, supra note
2, at 156-58.
45. See id. at 156-81;
Engagement Respecting Formosa, Oct. 31, 1874, China-Japan, 148 Consol.
46. Engagement Respecting Formosa,
note 44, at 224; see Yen, supra note 2, at 158, 165, 288.
47. Treaty of Peace, Apr. 17, 1895,
China-Japan, 181 Consol. TS 217; see Wakeman, supra note
2, at 191-92.
48. Treaty of Peace, supra
note 46, at 218.
49. Final Text of the Communiqué,
Dec. 1, 1943, 3 Bevans 858, 1943 Foreign Relations of the United States,
The Conferences at Cairo and Tehran 448 [hereinafter Cairo Declaration].
50. Proclamation by the Heads of Governments,
United States, China and United Kingdom, July 26, 1945, para. 8, 3 Bevans
1204, 1945 Foreign Relations of the United States, 2 The Conference of
Berlin (The Potsdam Conference) 1474 [hereinafter Potsdam Proclamation].
51. Treaty of Peace with Japan, Sept.
8, 1951, Art. 2, 3 UST 3169, 136 UNTS 45.
52. Treaty of Peace, Apr. 28, 1952,
ROC-Japan, Art. II, 138 UNTS 3.
53. Id., Art. IV.
54. Treaty of Peace with Japan, supra
note 50, Art. 2(b).
55. See Eritrea v. Yemen, First
Stage, Territorial Sovereignty and Scope of the Dispute, paras. 106, 239,
451-52 (Perm. Ct. Arb. Oct. 9, 1998), obtainable from <http://www.pca-cpa.org>
[hereinafter Eritrea v. Yemen, Phase I]; Legal Status of Eastern Greenland
(Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53, at 27-28, 45-46; Island of
Palmas (Neth./U.S.), 2 R.I.A.A. 829, 838-39 (Perm. Ct. Arb. 1928).
56. Cairo Declaration, supra
57. Potsdam Proclamation, supra
58. Treaty of Peace with Japan, supra
59. Hans Kuijper wrote the following:
The Treaty of Peace with Japan was signed on September
8, 1951 in San Francisco by 51 Allied Powers but without any Chinese participation.
Article 2(b) thereof merely stipulated that "Japan renounces all rights,
title and claim to Formosa and the Pescadores," without making any provision
for the State which would succeed Japan in exercising sovereignty over
Kuijper, supra note 2, at 13 (footnote omitted).
60. Treaty of Peace, supra
note 51. It does make clear, however, that this renunciation covers the
Spratly and Paracel Islands, in addition to other claimed parts of Taiwan,
including the Pescadores.
61. Eritrea v. Yemen, Phase I, supra
note 54, para. 125.
62. Id., paras. 370, 443. See
generally id., paras. 362-88, 441-50.
63. Treaty of Lausanne, July 24, 1923,
28 LNTS 12, reprinted in 18 AJIL 4 (Supp. 1924). Article 16 of the
Treaty of Lausanne provided:
Turkey hereby renounces all rights and title whatsoever
over or respecting the territories situated outside the frontiers laid
down in the present Treaty and the islands other than those over which
her sovereignty is recognised by the said Treaty, the future of these territories
and islands being settled or to be settled by the parties concerned.
See also Eritrea v. Yemen, Phase I, supra
note 54, paras. 121-25. Prior articles of the Treaty expressly disposed
of specific territories and described boundaries.
64. Treaty of Lausanne, supra
note 62, Art. 1; see Eritrea v. Yemen, Phase I, supra note
54, para. 158.
65. Eritrea v. Yemen, Phase I, supra
note 54, paras. 441-526.
66. See discussion infra at
67. As mentioned in note 58 supra,
neither the ROC nor the PRC participated in the 1951 multilateral peace
See Jianming Shen, International Law Rules and Historical
Evidences Supporting China's Title to the South China Sea Islands,
Hastings Int'l & Comp. L. Rev. 1, 50 (1997). Professor Hungdah Chiu
has given the following explanation for the absence of Chinese participation:
The United States initially planned to invite the ROC
to the Japanese peace conference but subsequently changed its mind because
of the strong objections raised by the United Kingdom and other countries
that recognized the People's Republic of China (PRC) as the legitimate
government of China. In June 1951, Secretary of State [Acheson] finally
reached a compromise with the United Kingdom on the question of Chinese
participation in the peace conference. According to this compromise, neither
the ROC nor the PRC would be invited to the peace conference and after
the conclusion of the multilateral peace treaty, Japan would conclude a
bilateral peace treaty of similar content with the ROC or the PRC.
Hungdah Chiu, The International Legal Status of Taiwan,
in International Status of Taiwan, supra note 2, at 3, 4-5 (footnotes
68. Purpose of Treaty with Republic
of China, 31 Dep't St. Bull. 896 (1954), reprinted in Formosa,
Korea, Sakhalin, and Kuriles, 3 Whiteman Digest §23, at 564.
69. See Parris Chang &
Kok-Ui Lim, Taiwan's Case for United Nations Membership, 1 UCLA
J. Int'l L. & Foreign Aff. 393, 410 n.65 (1997).
70. United States Policy Toward
Formosa, 22 Dep't St. Bull. 79 (1950).
71. U.S. Air and Sea Forces Ordered
into Supporting Action, 23 Dep't St. Bull. 5 (1950).
72. GA Res. 2758 (XXVI), UN GAOR,
26th Sess., Supp. No. 29, at 358, UN Doc. A/8429 (1971).
73. As of January 1998, the PRC reported
having established diplomatic relations with 161 states. People's Republic
of China, Foreign Policy: Countries with Which China Has Established
Diplomatic Relations and the Date When Established (Jan. 1998) <http://www.china.org.cn/English/China/Policy.html>.
The government on Taiwan reports that it has 31 embassies abroad. ROC Ministry
of Foreign Affairs, Republic of China's Embassies Abroad (Feb. 2000)
<http://www.mofa.gov.tw/emofa/eframe18_1.htm>; see also 15 Chinese
Y.B. Int'l L. & Aff. 576-82 (Hungdah Chiu ed., 1996-97) (identifying
27 states); ROC Information Office, Statistical Data on the Republic
of China (reporting 29 states with diplomatic ties) <http://www.gio.gov.tw/info/98html/stat-e.htm>
(visited May 30, 2000); Information Division, Taipei Economic & Cultural
Office in New York, The Current State of ROC Diplomacy: An Abridgment
of the Report by Foreign Minister Jason C. Hu to the Foreign and Overseas
Chinese Affairs Committee, Legislative Yuan, March 31, 1999,
(reporting 28 states with diplomatic ties) <http://www.taipei.org/info/98html/c-diplom.htm>.
74. See Lee Teng-hui, Understanding
Taiwan, Foreign Aff., Nov./Dec., 1999, at 9, 11.
75. The United States movement toward
Taiwan accelerated after the PRC initiated shelling of Taiwanese-held islands
in September 1954, resulting in the 1954 United States-Taiwan Mutual Defense
Treaty. Mutual Defense Treaty, Dec. 2, 1954, U.S.-ROC, 6 UST 433, 248 UNTS
213. See Lung-chu Chen & W. M. Reisman, Who Owns Taiwan:
A Search for International Title, 81 Yale L.J. 599, 616 (1972). The
U.S. Senate also passed the "Formosan Resolution" authorizing the use of
U.S. armed forces by the President "as he deems necessary for the specific
purpose of securing and protecting Formosa and the Pescadores against armed
attack." H. J. Res. 159, 69 Stat. 7 (1955); see Chen & Reisman,
at 616-17. In 1972 the United States and the PRC formally began the process
toward normalization of relations. Text of Joint Communique Issued at
Shanghai, February 27, 66 Dep't St. Bull. 435, 437-38 (1972),
in 11 ILM 443 (1972) [hereinafter Shanghai Communiqué];
Jerome Alan Cohen, Recognizing China, 50 Foreign Aff. 30 (1971).
When the United States abrogated the Mutual Defense Treaty upon the establishment
of diplomatic relations with the PRC in 1979, it was replaced by the Taiwan
Relations Act of 1979, 22 U.S.C. §3301 (1994).
See Warren Christopher,
Agreements with Taiwan, Dep't St. Bull., Jan. 1980, at 10; Joint
Communique on the Establishment of Diplomatic Relations Between the United
States of America and the People's Republic of China, January 1, 1979,
Dep't St. Bull., Jan. 1979, at 25, reprinted in 18 ILM 274 (1979).
The U.S. defense policy toward Taiwan was continued despite representations
to Beijing in the Shanghai Communiqué that it would be changed.
Shanghai Communiqué, supra, at 437-38;
Tyler, A Great Wall 14, 141-42, 167 (1999); Chen & Reisman, supra,
at 619; Earl C. Ravenal, Approaching China, Defending Taiwan, 50
Foreign Aff. 45 (1971). This U.S. policy has made it virtually impossible
for the PRC to gain control over Taiwan through military force to this
day. See Tyler, supra, at 9, 14, 21-39.
Some maintain that the PRC is an illegally formed entity
that cannot hold legal rights over the territory of China, much less Taiwan.
Part of this argument is grounded on the PRC's failure to abide by important
human rights obligations. See Robbyn Reichman-Coad, Human Rights
Violations in China: A United States Response, 15 N.Y.L. Sch. J. Int'l
& Comp. L. 163, 164-70 (1994). The Chinese Communist Party has been
accused of killing many millions of its own subjects. See Jean-Louis
Margolin, China: The Long March into Night, in The Black Book of
Communism 463 (Stéphane Courtois et al. eds., Jonathan Murphy et
al. trans., 1999); R. J. Rummel, Death by Government 98, 105 (1994). An
argument based on human rights violations can also be made against the
ROC, which had a questionable record in that regard during the 1949-1987
period of martial law. In contrast, comprehensive protections of human
rights are now provided by the government on Taiwan. See Winston
Hsiao, The Development of Human Rights in the Republic of China on Taiwan,
5 Pac. Rim L. & Pol'y J. 161, 178, 180-83 (1995). Some limited progress
by the PRC in that area has also been reported. See David M. Lampton
& Gregory C. May, Managing U.S.-China Relations in the Twenty-first
Century 40-42 (1999). But the PRC's human rights record remains in doubt.
Erik Eckholm, High U.N. Official Sees Loss of Rights in China, N.Y.
Times, Mar. 3, 2000, at A11. While support for the proposition can be found,
most doubt that the denial of human rights alone would dislodge a government's
legal authority over a state. See
1 Georg Dahm et al., Völkerrecht
125, 133 (2d rev. ed. 1989); Thomas D. Grant, Defining Statehood: The
Montevideo Convention and Its Discontents, 37 Colum. J. Transnat'l
L. 403, 442 n.150, 442-44 (1999); Catherine J. Iorns, Indigenous Peoples
and Self Determination: Challenging State Sovereignty, 24 Case W. Res.
J. Int'l L. 199, 273-74 (1992).
76. Directive by the Office of the
Supreme Commander of the Allied Powers to the Japanese Imperial General
Headquarters (Sept. 1945), para. (a), 3 Whiteman Digest, supra note
67, at 487, 488; see Chen & Reisman, supra note 74, at
77. Temple of Preah Vihear (Cambodia
v. Thail.), 1962 ICJ Rep. 6, 45 (June 15) (sep. op. Alfaro, J.) (quoting
Reply of Mr. Fitzmaurice (Fr. v. U.K.), 1953 ICJ Pleadings (Minquiers and
Ecrehos) 367 (Oct. 6, 1953)); see I. C. MacGibbon,
International Law, 7 Int'l & Comp. L.Q. 468, 509 (1958).
78. J. L. Brierly, The Law of Nations
170-71 (Humphrey Waldock ed., 6th ed. 1963).
79. "Despite its ouster from control
of the mainland, the KMT [Chinese Nationalist Party] refused to acknowledge
defeat by the Communists, and continued to declare itself as the legitimate
government of all China. Chiang gathered his remaining forces in Taiwan
and established a supposed 'interim' capital of China in Taipei." Angeline
Taiwan's International Personality, 20 Loy. L.A. Int'l
& Comp. L.J. 223, 231 (1998).
80. Lee Teng-hui, supra note
73, at 11; see also Seth Faison, Taiwan President Implies His
Island Is Sovereign State, N.Y. Times, July 13, 1999, at A1; Marcus
W. Brauchli, Taiwan Breaks Ranks on "One China" Policy, Wall St.
J., July 13, 1999, at A14. Within Taiwan this issue remains a matter of
serious debate. See Lampton & May, supra note 74, at
45-48. Whether Taiwan's president has the authority unilaterally to claim
Taiwanese statehood separate from China is a question for Taiwanese legal
authorities. During the presidential elections in the spring of 2000, the
main opposition candidate and ultimate victor in the election, Chen Shui-bian,
while making clear that he did not favor any specific changes, stated,
"Taiwan is already a sovereign and independent state." Erik Eckholm, Opposition
Candidate in Taiwan Won't Push China on Independence Issue, N.Y. Times,
Jan. 31, 2000, at A8. After his inauguration, he appeared to moderate his
position in order to facilitate dialogue with China. See Erik Eckholm,
New Leader Ends Decades of Nationalist Rule, N.Y. Times, May 20, 2000,
at A3; Erik Eckholm, Change of Power in Taiwan Is Meeting a Moderate
Response from Beijing, N.Y. Times, May 21, 2000, at A12.
81. See Lee Teng-hui, supra
note 73, at 10-11.
82. Thus, over time it dropped the
fiction that non-Taiwanese constituencies were represented in the government
on Taiwan. See Piero Tozzi, Constitutional Reform on Taiwan:
Fulfilling a Chinese Notion of Democratic Sovereignty? 64 Fordham L.
Rev. 1193, 1243-45 (1995).
83. Mainland Affairs Council, Executive
Yuan, ROC, Relations Across the Taiwan Straits, pt. III (July 1994),
International Status of Taiwan, supra note 2, App. 4,
White Paper on Cross-Strait Relations 278, 283, 285.
84. See Tzu-wen Lee, The
International Legal Status of the Republic of China on Taiwan, 1 UCLA
J. Int'l L. & Foreign Aff. 351, 373-74 (1997); Tozzi, supra
note 81, at 1243-45.
85. See Tozzi, supra
note 81, at 1243-45.
86. The Restatement (Third) of the
Foreign Relations Law of the United States §201 cmt. f (1987)
requires that an entity must claim to be a state to achieve statehood.
id., reporters' note 8 (Taiwan). However, given China's threat that
it will not hesitate to use force to enforce its sovereignty claims over
Taiwan and U.S. pressure on Taiwan not to proclaim independent statehood,
the international community arguably should not require such an express
claim in this instance. See Chen, supra note 78, at 243-44.
In view of this fear of a military reaction by China and U.S. pressure,
Taiwan may have already established separate statehood through other, more
subtle means. See Lee, supra note 83, at381-82. See generally
Attix, Between the Devil and the Deep Blue Sea: Are Taiwan's Trading
Partners Implying Recognition of Taiwanese Statehood? 25 Cal. W. Int'l
L.J. 357 (1995). See also supra note 79.
87. See Attix, supra
note 85, at 367-68.
88. See Lee Teng-hui, supra
note 73, at 11.
89. The following have established
official diplomatic and consular ties with the government on Taiwan: Belize,
Burkina Faso, Chad, Costa Rica, Dominica, the Dominican Republic, El Salvador,
Gambia, Grenada, Guatemala, Haiti, the Holy See, Honduras, Liberia, Macedonia,
Malawi, the Marshall Islands, Nauru, Nicaragua, Panama, Paraguay, Saint
Christopher and Nevis, Saint Vincent and the Grenadines, So Tomé
and Principe, Senegal, the Solomon Islands, Swaziland, and Tuvalu. See
ROC Ministry of Foreign Affairs, supra note 72.
90. The following have permitted Taiwan
to establish consulates or representative offices in their territories:
Angola, Argentina, Australia, Austria, Bahrain, Belarus, Belgium, Bolivia,
Brazil, Brunei, Canada, Chile, Colombia, the Czech Republic, Denmark, Dubai,
Ecuador, Fiji, Finland, France, Germany, Greece, Hong Kong (China), Hungary,
India, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kuwait, Latvia,
Luxembourg, Macau (China), Madagascar, Malaysia, Mauritius, Mexico, the
Netherlands, New Zealand, Nigeria, Norway, Oman, Papua New Guinea, Peru,
the Philippines, Poland, Portugal, the Republic of Korea, Russia, Saudi
Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Thailand,
Turkey, the United Kingdom, the United States, Uruguay, Venezuela, and
Vietnam. See ROC Ministry of Foreign Affairs, Republic of China's
Consulates & Representative Offices Abroad (Feb. 2000) <http://www.mofa.gov.tw/emofa/eframe18_2.htm>.
91. States such as these "neither
recognize the PRC as the sole legitimate government of China nor mention
the Taiwan sovereignty issue. The communiqués between the PRC and
these countries only state that diplomatic relations would be established
on a particular date." Lee, supra note 83, at 359.
92. The government on Taiwan participates
in various ways in numerous intergovernmental organizations, including
the Organization for Economic Co-operation and Development, the Asia-Pacific
Economic Cooperation forum, the Asian Development Bank, the International
Cotton Advisory Committee, the Asian Productivity Organization, the Afro-Asian
Rural Reconstruction Organization, and the Central American Bank for Economic
Integration. It is an observer member of the World Trade Organization (WTO),
the Inter-American Development Bank, and the International Bank for Reconstruction
and Development. Linked with WTO negotiations with China on its entry into
the organization is the entry of Taiwan as the China-Taipei Customs Territory.
Ying-jeou Ma, The ROC (Taiwan)'s Entry into the WTO: Progress, Problems
and Prospects, 15 Chinese Y.B. Int'l L. & Aff. 32, 46 (Hungdah
Chiu ed., 1996-97); Erik Eckholm, W.T.O. Head Hopeful on China Entry,
N.Y. Times, Feb. 19, 2000, at A4; see also Web site of the ROC Ministry
of Foreign Affairs <http://www.mofa.gov.tw/emofa/eindex.html> (visited
Mar. 6, 2000). The ROC seeks to expand and deepen those relationships.
93. See Island of Palmas (Neth./U.S.),
2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).
94. See generally Thomas M.
Franck, Community Based on Autonomy, in Politics, Values,
and Functions: International Law in the 21st Century: Essays in Honor of
Professor Louis Henkin 43 (Jonathan I. Charney, Donald K. Anton, &
Mary Ellen O'Connell eds., 1997), and 36 Colum. J. Transnat'l L. 41 (1997);
Are We Being Propelled Towards a People-Centered Transnational
Legal Order? 9 Am. U. J. Int'l L. & Pol'y 1 (1993).
95. See Thomas M. Franck, The
Power of Legitimacy Among Nations 166 (1990); Ved P. Nanda, Self-Determination
Under International Law: Validity of Claims to Secede, 13 Case W. Res.
J. Int'l L. 257, 275-77 (1981); Anne Hsiu-An Hsiao, Is China's Policy
to Use Force Against Taiwan a Violation of the Principle of Non-Use of
Force Under International Law? 32 New Eng. L. Rev. 715, 732 n.98 (1998).
96. See, e.g., International
Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 27, 999 UNTS
97. SC Res. 1244, para. 7 (June 10,
1999), 38 ILM 1451 (1999).
98. See Bosnia and Herzegovina-Croatia-Yugoslavia:
General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes,
Dec. 14, 1995, 35 ILM 75 (1996) (Dayton Accords and related documents);
Report of the Secretary-General on the Transition from UNPROFOR to IFOR
and Addendum on Cost Estimates, UN Docs. S/1995/1031, S/1995/1031/Add.1,
in 35 ILM 235 (1996); SC Res. 1031 (Dec. 15, 1995), reprinted in
35 ILM at 251; SC Res. 1035 (Dec. 21, 1995), reprinted in 35 ILM
99. See generally George Ivezaj,
Breakdown: The Failing Israeli and Palestinian Peace Process, 7 J.
Int'l L. & Prac. 275 (1998); Israel-Palestine Liberation Organization,
Declaration of Principles on Interim Self-Government Arrangements, Sept.
13, 1993, 32 ILM 1525 (1993); Israel-Palestine Liberation Organization,
Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995,
36 ILM 551 (1997); Israel-Palestine Liberation Organization, Protocol Concerning
the Redeployment in Hebron, Jan. 17, 1997, 36 ILM at 650.
100. See SC Res. 688 (Apr.
5, 1991), reprinted in 30 ILM 858 (1991).
101. See David Usborne &
Richard Lloyd Parry, Habibie to Accept a UN Force But Killings Go on,
Sept. 13, 1999, at 1; see also SC Res. 1236 (May 7, 1999), reprinted
in 38 ILM 1457 (1999); SC Res. 1246 (June 11, 1999),
38 ILM at 1459.
102. See SC Res. 1272 (Oct.
25, 1999), reprinted in 39 ILM 240 (2000); Christopher S. Wren,
Creates an Authority to Start Governing East Timor, N.Y. Times, Oct.
26, 1999, at A8.
103. See Christian Tomuschat,
in a Post-Colonial World, in Modern Law of Self-Determination 1, 8
(Christian Tomuschat ed., 1993).
104. See Dietrich Murswiek,
Issue of a Right of Secession--Reconsidered, in Modern Law of Self-Determination,
note 102, at 21, 22-23. The declaration on decolonization, while expressly
promoting self-determination and independence, also noted that actions
threatening the national unity or territorial integrity of a country are
"incompatible with the purposes and principles of the Charter of the United
Nations." Declaration on the Granting of Independence to Colonial Countries
and Peoples, GA Res. 1514 (XV), paras. 2, 6, UN GAOR, 15th Sess., Supp.
No. 16, at 66, UN Doc. A/4684 (1960). In the Declaration on Principles
of International Law Concerning Friendly Relations and Co-operation Among
States in Accordance with the Charter of the United Nations, GA Res. 2625
(XXV), annex, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028
(1970) [hereinafter Declaration on Friendly Relations], the General Assembly
supported the right of self-determination, provided that such a right would
dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-determination
of peoples as described above and thus possessed of a government representing
the whole people belonging to the territory without distinction as to race,
creed or color.
Id. Even where self-determination was declared
to be a right that existed generally (outside the context of decolonization),
reservations to this right were included to proscribe actions violating
the territorial integrity of each of the participating states. See
Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975,
Principle VIII, 73 Dep't St. Bull. 323 (1975), reprinted in 14 ILM
1292, 1295 (1975); see Murswiek, supra, at 23-24. Additionally,
U Thant, Secretary-General of the United Nations in 1970, stated: "As an
international organization, the United Nations has never accepted and does
not accept and I do not believe it will ever accept the principle of secession
of a part of its Member State."
Secretary-General's Press Conferences,
UN Monthly Chron., Feb. 1970, at 34, 36, quoted in Murswiek, supra,
105. Thomas M. Franck, Postmodern
Tribalism and the Right to Secession, in Peoples and Minorities
in International Law 3, 10 (Catherine Brölman et al. eds., 1993).
106. See, e.g., Western Sahara,
Advisory Opinion, 1975 ICJ Rep. 12 (Oct. 16).
107. See Tomuschat, supra
102, at 9.
109. Declaration on Friendly Relations,
supra note 103; see Murswiek, supra note 103, at 24.
110. A. Cristescu, The Right to
Self-Determination: Historical and Current Development on the Basis of
United Nations Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.1, para. 173
(1981), reprinted in Murswiek, supra note 103, at 25.
111. Reference re Secession
of Quebec,  2 S.C.R. 217.
112. Id., paras. 134, 138,
113. Murswiek, supra note
103, at 38-39. However, prior to the reference on the secession of Quebec,
some argued that there was no express right to secession, only lack of
a prohibition on secession. See Franck, supra note 104, at
11-12; R. Higgins, Comment on id. at 29, 33 ("The perceived need
of secession is understandable when minorities are denied their rights
as minorities . . . . But I am less sure than Professor Franck that even
this entails a legal right to secession, in contra-distinction to a compelling
political imperative."). Higgins raises the prospect of global balkanization
as an argument against the right of secession. Higgins, supra, at
35. U.S. President Clinton took a similar position on the subject, arguing
in favor of federalism and against the breakup of states along ethnic and
religious lines. He made an exception for extreme cases of human rights
abuses, oppression, lack of minority rights, failure to respect different
heritages, denial of long-term economic and security interests, and ability
to cooperate. William J. Clinton, Remarks on the Forum of Federations Conference
in Mont-Tremblant, Canada, Oct. 8, 1999, 35 Weekly Comp. Pres. Doc. 1991,
1995-96 (Oct. 18, 1999).
114. See UN Charter Arts.
1, 55; International Covenant on Civil and Political Rights, supra
note 95, Art. 1; International Covenant on Economic, Social, and Cultural
Rights, Dec. 16, 1966, Art. 1, 993 UNTS 3; Declaration on Friendly Relations,
115. The Declaration on Friendly
Relations, supra note 103, allows the right of self-determination
to be implemented by the "establishment of a sovereign and independent
State," implying a right to unilateral secession.
116. The Declaration on Friendly
Relations, id., also asserts that the right of self-determination
should not be construed as authorizing or encouraging any action that would
diminish the sovereignty of a state acting in compliance with the principles
of equal rights, self-determination, and representative government.
117. "The United Nations' support
of the right of all people to freely determine their political status and
its failure to recognize a right of secession in general has been interpreted
to mean that the U.N. supports self-determination only in the decolonization
process." Carsten Thomas Ebenroth & Matthew James Kemner, The Enduring
Political Nature of Questions of State Succession and Secession and the
Quest for Objective Standards, 17 U. Pa. J. Int'l Econ. L. 753, 805
(1996); see also Lee C. Buchheit, Secession: The Legitimacy of Self-Determination
118. The breakups of the former Yugoslavia
and the former USSR are good examples. Additionally, as Higgins points
out, there is early evidence that the right of external self-determination
was not limited to situations of decolonization:
In the 1960 Declaration on the Granting of Independence
to Colonial Countries and Peoples, the reference to "peoples" is conditioned
by many references to colonialism. But within six years the right of self-determination
has made its appearance in the two International Covenants on Human Rights
of 1966 as a freestanding precept, no longer confined to decolonization.
Higgins, supra note 112, at 31 (footnote omitted).
119. Even though the Court addressed
questions of international law, it made clear that its purpose was to understand
its implications for Canadian law. Reference re Secession of Quebec,
 2 S.C.R. 217, paras. 19-23. Furthermore, as an arm of the central
government of Canada, it may not be viewed by all as strictly neutral as
regards the secession of one province of the confederation.
120. See generally Jonathan
I. Charney, Is International Law Threatened by Multiple International
Tribunals? 271 Recueil des Cours 101 (1998).
121.  2 S.C.R. 217, paras.
134, 138, 154.
122. Id., para. 155.
124. See id. This conclusion
in regard to the use of force by the mother country was not expressly stated,
although it appears to be a necessary element of the Court's conclusion.
While not uncontroversial, it finds significant support in international
law and in the international community. If de facto secession creates an
international dispute, the limitation on the use of force in Article 2(4)
of the UN Charter becomes applicable. Article 33(1) of the Charter requires
the settlement of disputes by peaceful means if they might "endanger the
maintenance of international peace and security." Article 39 of Chapter
VII grants the Security Council authority over a "threat to the peace,
breach of the peace, or act of aggression." Historically, the application
of these rules to internal conflicts might be traced to the UN involvement
in the Korean War and the intervention in the Congo. Recently, these obligations
have been found applicable to conflicts in Haiti, Somalia, Rwanda, and
the former Yugoslavia (including Kosovo). Each of those situations involved
domestic conflicts deemed to have potential international effects. Two
General Assembly resolutions are directly on point. The Declaration on
Friendly Relations, supra note 103, states: "Every State has the
duty to refrain from any forcible action which deprives peoples . . . of
their right to self-determination and freedom and independence." In the
Definition of Aggression, the preamble "[r]eaffirm[s] the duty of
States not to use armed force to deprive peoples of their right to self-determination,
freedom and independence." GA Res. 3314 (XXIX), UN GAOR, 29th Sess., Supp.
No. 31, at 142, UN Doc. A/9631 (1974).
125.  2 S.C.R. 217, para. 155;
Franck, supra note 104, at 19-20 (summarizing the positions of the
European Community, the Conference on Security and Co-operation in Europe,
and the United Nations); Higgins, supra note 112, at 33 ("[E]ven
if international law does not authorize secession, it will eventually recognise
the reality once it has occurred and been made effective."). In contrast,
if the conflict in Chechnya satisfies the alleged requirements for secession
on self-determination grounds, it would stand for the opposite proposition
since, other than pleas to protect the human rights of the civilian population,
the international community has not condemned the forceful Russian resistance.
See the joint statement of High Commissioner on National Minorities of
the Organization for Security and Co-operation in Europe (OSCE) Max van
der Stoel, Secretary-General of the Council of Europe Walter Schwimmer,
and United Nations High Commissioner for Human Rights Mary Robinson, Concern
Expressed over Civilian Situation in Chechnya, Press Release by the
OSCE High Commissioner on National Minorities, Dec. 8, 1999, obtainable
from <http://www.osce.org/indexe-se.htm>; OSCE Secretariat, Conflict
Prevention Centre, Survey of Long-Term Missions and Other OSCE Field
Activities 39 (Jan. 17, 2000), obtainable from <http://www.osce.org/indexe-se.htm>.
On Chechnya's right to secession, see Thomas D. Grant, A Panel of Experts
for Chechnya: Purposes and Prospects in Light of International Law,
40 Va. J. Int'l L. 115 (1999).
126. See Conference on Yugoslavia,
Arbitration Commission, Opinion Nos. 1-7 (Jan. 11, 1992), 8-10 (July 4,
1992) (so-called Badinter Commission reports), reprinted in 31 ILM
1488 (1992); SC Res. 757, UN SCOR, 47th Sess., Res. & Dec., at 13,
UN Doc. S/INF/48 (1992), reprinted in id. at 1453; European Community
Ministerial Meeting, Declaration on the "Guidelines on the Recognition
of New States in Eastern Europe and the Soviet Union" (Dec. 16, 1991),
in id. at 1485.
127. Franck, supra note 104,
at 22 (referring to a reported statement by British Foreign Minister
Douglas Hurd, who after having "watch[ed] the crisis escalate--and particularly
after seeing the use of force-- . . . . was obliged significantly to qualify
an earlier statement supporting the 'integrity of Yugoslavia' by adding
that this should not include the use of force." Michael Wise & Sarah
Helm, Yugoslavia: First Test for New Europe, Independent, June 28,
1991, at 13, available in LEXIS, News Library, Arcnws File); see
Marc Weller, The International Response to the Dissolution of the Socialist
Federal Republic of Yugoslavia, 86 AJIL 569, 572 (1992).
128. CSCE Committee of Senior Officials,
Urgent Appeal for a Cease-Fire (Prague, July 3, 1991), quoted in
Weller, supra note 126, at 573.
129. Franck, supra note 104,
at 23 (quoting SC Res. 713, UN SCOR, 46th Sess., Res. & Dec., at 42,
UN Doc. S/INF/47 (1991), reprinted in 31 ILM 1431 (1992)).
130. See James R. Crawford,
Practice and International Law in Relation to Unilateral Secession
(Feb. 19, 1997),
obtainable from <http://canada.justice.gc.ca>
(this paper is located on the Web site of the Canadian Department of Justice
and appears to have been written in connection with the Canadian position
taken in Reference re Secession of Quebec).
131. It is unclear, however, whether
preconditions necessary to support a right to secession under international
law are present in the Chechnya situation. See supra note
124. On the historical failures to secede, see Crawford, supra note
129, paras. 49-59.
132. See Crawford, supra note
129, para. 67, and previous supporting arguments.
133. See generally Jonathan
I. Charney, Universal International Law, 87 AJIL 529 (1993).
134. Current reports are not hopeful.
Eckholm, supra note 74. Nor has the human rights record of the past
been positive. See Margolin, supra note 74; Rummel,
135. Reference re Secession
of Quebec,  2 S.C.R. 217, paras. 91, 103, 106, 152, 154, 155.
136. The duty to settle disputes
peacefully is a core principle of the UN Charter and applies to states'
efforts to resist the exercise of the right of self-determination. See
supra note 123. For a discussion of the duty in various areas of international
law, see Frederic L. Kirgis, Jr., Prior Consultation in International Law:
A Study of State Practice (1983).
137. Gabíkovo-Nagymaros Project
(Hung./Slovk.), 1997 ICJ Rep. 7 (Sept. 25).
138. North Sea Continental Shelf
(FRG v. Den.; FRG v. Neth.), 1969 ICJ Rep. 3, 47, para. 85 (Feb. 20), quoted
in id. at 78, para. 141.
139. 1997 ICJ Rep. at 79, para. 143.
140. Id. at 82, para. 155(2)(B).
141. Reference re Secession
of Quebec,  S.C.R. 217, para. 125.
142. In 1981 Nanda wrote:
Both objective and subjective elements need to be considered
to identify such "peoples." . . . From an objective standpoint, the group's
sense of identity may be traced to a combination of elements such as a
common ethnic background, a shared history, language or religion, while
from a subjective standpoint it may be due primarily to an ethos or state
Nanda, supra note 94, at 276 (footnote omitted).
143. See Monte R. Bullard,
The Soldier and the Citizen 37 (1997).
144. See id.
145. See Mark S. Zaid, Taiwan:
It Looks like It, It Acts like It, But Is It a State? 32 New Eng. L.
Rev. 805 (1998).
146. The threats and pressure placed
on the Taiwanese population by the PRC to deter the voters from electing
Chen Shui-bian as president because of his past advocacy of independence
led to his overwhelming election. See Elisabeth Rosenthal, China
Warning to Taiwan Voters, N.Y. Times, Mar. 16, 2000, at A8; Erik Eckholm,
Nationalists Ousted After Half-Century Reign, N.Y. Times, Mar. 19,
2000, at A1; Elisabeth Rosenthal, Deep Feeling That China Owns Taiwan
Is Put to Test, N.Y. Times, Mar. 20, 2000, at A8.
147. At the same time that recent
military threats were made by the PRC, it also expressed the wish to maintain
and enhance economic relations. See Qian Qichen Warns Taiwan Against
'Independence,' Foreign Broadcast Information Service [FBIS] Doc. FBIS-CHI-2000-0128
(Jan. 28, 2000) (Beijing Xinhua in English). It is reported that indirect
exportation from Taiwan to China during the period 1990-Jan. 2000 amounted
to U.S.$147.3 billion. Indirect importation to Taiwan from China during
the same period was U.S.$24.2 billion. Approved indirect investment by
Taiwan in China during that period was U.S.$14.8 billion. See Straits
Exchange Foundation, ROC, Cross-Straits Economic Statistics (Apr.
24, 2000) <http://www.sef.org.tw/www/html/economic/eco100/steco.htm>.
Similar economic information for somewhat different periods is available
from other sources. See, e.g., Mainland Affairs Council, Executive
Yuan, ROC, Taiwan's Approved Outward Investment (Mar. 2000) <http://www.mac.gov.tw/english/CSExchan/invest.gif>;
Mainland Affairs Council, Executive Yuan, ROC, Preliminary Statistics
of Cross-Strait Economic Relations: February 2000 (Apr. 2000), obtainable
from <http://www.mac.gov.tw/english/CSExchan/>; 1 China State Statistical
Bureau and Euromonitor/Soken, China Marketing Data and Statistics (2d ed.
1999); International Monetary Fund, Direction of Trade Statistics Yearbook
159 (1998); Economist Intelligence Unit, Country Profile: Taiwan 1997-98,
at 52 (1997).
Even the above statistics on cross-strait trade and investment
are believed to be substantially lower than the actual figures. Trade and
investment through unapproved routes and various financial arrangements,
including those through third countries, may provide an explanation. SeeIndirect
Trade Between Taiwan and Mainland China, Estimation of Indirect Trade Between
Taiwan and Mainland China, Taiwan Indirect Investment in Mainland China,
tables 5, 6, 10, Cross-Strait Econ. Stat. Monthly, Nov. 1999 (prepared
by Chinese Management Association, Mainland Affairs Council, Executive
Yuan, ROC) <http://china.management.org.tw/T&C-Eco-Month/087-1999-11/menu.htm>;
Ministry of Economic Affairs, ROC, Charng Kao, Research of Chinese Economic
Studies (July 7, 1997) <http://www.moea.gov.tw/~ecobook/season/ss203.htm>;
Yun-wing Sung, Hong Kong and the Economic Integration of the China Circle,
The China Circle 41, 60-66 (Barry Naughton ed., 1997).
148. See Lee Teng-hui, supra
note 73, at 11-12. While the political discussions have not been productive,
economic relations have blossomed, creating pressures on the political
side. See Hung-mao Tien, Taiwan's Perspective on Cross-Strait
Relations and U.S. Policy, Am. Foreign Pol'y Interests, Dec. 1999,
at 13; Ralph N. Clough, Cooperation or Conflict in the Taiwan Strait? 93-95,
97-100 (1999); John Pomfret, Taiwanese Negotiator, Jiang Meet in Beijing;
Contact Is Highest Since China's Civil War, Wash. Post, Oct. 19, 1998,
149. Significantly, it appears that
de facto entities would be protected from force used to deny them the right
of self-determination. General Assembly Resolution 2160 (XXI) states that
"[a]ny forcible action, direct or indirect, which deprives peoples under
foreign domination of their right to self-determination and freedom and
independence and of their right to determine freely their political status
and pursue their economic, social and cultural development constitutes
a violation of the Charter of the United Nations." GA Res. 2160 (XXI),
UN GAOR, 21st Sess., Supp. No. 16, at 4, UN Doc. A/6316 (1966).
150. The UN Charter, to which virtually
all states today are parties, obligates states to respect certain human
rights. Additionally, some human rights are characterized as jus cogens
norms) from which no derogation is permitted. See Restatement,
note 85, §702 cmt. n & reporters' note 11; Lawrence Friedman,
On Human Rights, the United States and the People's Republic of China
at Century's End, 4 J. Int'l Legal Stud. 241, 245-47 (1998).
151. See Taiwan Affairs Office
and Information Office, State Council, Beijing, China, The Taiwan Question
and Reunification of China, pt. III (1993), reprinted in International
Status of Taiwan, supra
note 2, at 267, 272, App. 3, The Chinese
White Paper on Cross-Strait Relations; John F. Copper, Words Across
the Taiwan Strait: A Critique of Beijing's "White Paper" on China's Reunification
73 (1995). This PRC statement on the Taiwan question is often referred
to as the "PRC White Paper on Cross-Strait Relations." The paper advocates
the application of the one country, two systems approach for Taiwan, as
used in Hong Kong. Over the years, several solutions of this type have
been floated. See Tyler, supra note 74, at 310, 314.
152. See George E. Edwards,
of the "One Country, Two Systems" Hong Kong Model to Taiwan: Will Hong
Kong's Post-Reversion Autonomy, Accountability, and Human Rights Record
Discourage Taiwan's Reunification with the People's Republic of China?
32 New Eng. L. Rev. 751 (1998); Mark Landler, Hong Kong Radio-TV Chief
Shifted to Japan, N.Y. Times, Oct. 20, 1999, at A12; Mark Landler,
2 Years, Hong Kong Looks More like China, N.Y. Times, July 1, 1999,
at A3; Ng Ka Ling v. Director of Immigration,  2 Hong Kong Ct. Final
App. Rep. 4 (Jan. 29 & Feb. 26, 1999), reprinted in 38 ILM 551,
579 (1999), summarized in 94 AJIL 167 (2000).
153. See Qian Qichen Warns Taiwan
Against 'Independence,' supra note 146.
154. This is the principal thesis
put forward by Tyler, supra note 74. See also Clough, supra
note 147, at 88. For reports on recent public exchanges and threats, see
Erik Eckholm with Steven Lee Meyers, Taiwan Asks U.S. to Let It Obtain
Top-Flight Arms, N.Y. Times, Mar. 1, 2000, at A1; Jane Perlez, Warning
by China to Taiwan Poses Challenge to U.S., N.Y. Times, Feb. 27, 2000,
at A1; Eric Schmitt, U.S. Rejects China's Taiwan Views, N.Y. Times,
Feb. 23, 2000, at A10; Erik Eckholm, China Says Taiwan Cannot Continue
Delaying Reunion, N.Y. Times, Feb. 22, 2000, at A1; China's Statement:
'The Right to Resort to Any Necessary Means,' N.Y. Times, Feb. 22,
2000, at A10; Craig S. Smith, New Chinese Guided-Missile Ship Heightens
Tension, N.Y. Times, Feb. 9, 2000, at A1; Qian Comments Seen as
PRC's Stance on Cross-Strait Issue, Doc. FBIS-CHI-2000-0205 (Jan. 29)
(dispatch of Taiwan Central News Agency WWW); Qian Qichen Warns Taiwan
Against 'Independence,' supra note 146. These exchanges may
have been primarily connected to the March 2000 presidential elections
in Taiwan. The PRC has sought to portray its statements as not diverging
from prior policies. See Elisabeth Rosenthal, China Dismisses
Furor over Its Taiwan Policy, N.Y. Times, Mar. 1, 2000, at A12.
155. For the recent election reports,
see supra note 145. For reports on the resulting violent protests
arising from the defeat of Taiwan's Nationalist Party, see Mark Landler,
Protests in Taiwan Follow Election Defeat, N.Y. Times, Mar. 20, 2000,
at A1. It will take some time for the new president, Chen Shui-bian, and
his insurgent Democratic Progressive Party to gain effective governmental
control and establish its policies regarding relations with China.