Doctrine of State Recognition and Its Implications for the International Status of the Republic of China (Taiwan) as a Sovereign State

Abstract

On March 14, 2005, the People's Republic of China (PRC) passed the Anti-Separate Law (ASL). The law requires the Republic of China (ROC) to follow only one political belief - unification with the PRC. The law also authorizes the military to use "non-peaceful means" to accomplish the goal of unification. This law came as a reminder to the international community that the cross-strait relations issue and of the international status of the ROC on Taiwan remains a situation resulting from the entanglement of political and legal factors. At present the ROC on Taiwan is not officially recognized by most of the states in the international community and is represented in neither the United Nations nor its affiliated agencies. What are to be inferred from these circumstances? Is the ROC on Taiwan not an independent state under international law and as such should not be recognized as a state? This is what this dissertation attempts to examine and clarify.

This dissertation is divided into seven chapters. The legal and political issues cannot be clearly understood without an introduction to the historical facts. Therefore, Chapter One will provide a brief history of the Republic of China and describe the current developments in cross-strait relations in order to facilitate the latter chapters' legal discussion. When the Peace Treaty of San Francisco terminated the sovereignty of Japan Over Taiwan, the succession to the sovereignty of Taiwan was equivocal. The only territory controlled by ROC now is Taiwan and its proximate islets. If the ROC does not possess the legal title for Taiwan, it would be difficult for the ROC to assert that it fully satisfies the criteria of statehood since it would lack the requirement of defined territory. Therefore, Chapter Two will argue that the ROC acquired legal title to Taiwan based on the Doctrine of Prescription which is one of the traditional modes of territorial acquisitions.

However, the practice of applying traditional territorial acquisition to individual cases has been criticized as inadequate. I n other words, traditionally, only a state could have sovereignty over territory und er international law. This state-centric approach, however, has declined in acceptance. Onstead, the use of the word “people” in describing entities entitled to the right of self-determination has produced a significant challenge to the framework of the traditional state-centric approach. Therefore, in Chapter Three I argue that the principle of self-determination is applicable in the case of the ROC on Taiwan and legitimizes the authority of the ROC which retreated from mainland China in 1949, acquiring the territorial sovereignty over Taiwan in the process.

International law provides that for an entity to be a state, it must have the following attributes:

(1)    A defined territory

(2)    A permanent population

(3)    An authority exercising governmental functions

(4)    A capacity to conduct foreign relations

Does the ROC on Taiwan meet these criteria? In Chapter Four, I will argue that the ROC on Taiwan fulfills the requirements for statehood and does qualify as a legally constituted State.

Judged by the international legal standards for statehood, the ROC on Taiwan is a sovereign, independent state in every sense yet that in not apparent by the network of diplomatic relations in maintains. In Chapter Five, I explore the One China Policy as articulated in the 1971 Shanghai Communique in which the Peoples Republic of China (PRC) declared Taiwan as an integral part of the territory of China, subject to PRC sovereignty. I also discuss how other states have reacted to the One China Policy with particular focus on the United States, a party to the Shanghai Communique, and the United Nations. Because a majority of the members of the community of nations have embraced the One China Policy only twenty-six states currently recognize the ROC as an independent sovereign state and the ROC is not even a member of the United Nations. An alternative view is presented in this chapter where I argue that recognition of a State by individual nations does not prove that entity has “statehood” and rights under international law. Refusal of individual nations to recognize a state does not mean that it is not a state, on the other hand, nor is the international system barred from recognizing it as such because the law of recognition is a highly politicized part of international law. Therefore, in consideration of the above statement, I argue that the ROC on Taiwan is a legal person according to international law whether or not it is recognized by other states.

Although a lack of membership in the United Nations does not deprive a state of its sovereignty, membership in the United Nations is still significant because only States can be members. This is the reason why the problem of UN membership is take very seriously by the government and people of the ROC on Taiwan. Therefore, Chapter Si will argue that the ROC’s membership in the United Nations should be viewed as a human rights issue for the 23 million people on Taiwan; and, as such, the United Nations cannot continue to disregard the human rights of the citizens of the ROC on Taiwan. Finally, in Chapter Seven, I summarize the arguments raised in the foregoing chapters.

Subject Area

Law

Degree Date

2005

Document Type

Dissertation

Degree Name

S.J.D.

Department

Dedman School of Law

Advisor

Ndiva Kofele-Kale

Second Advisor

Gail M. Daly

Third Advisor

Tzu-Wen Lee

Number of Pages

327

Creative Commons License

Creative Commons Attribution-Noncommercial 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial 4.0 License

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