Preface

Werner Somers

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In: The State of Taiwan

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Werner Somers

Werner Somers
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Dar Hadith al Hassania

The topic of my Ph.D. dissertation from which this book emerged was the international legal status of the current Republic of China (henceforth in this book designated as the Taipei-based Republic of China), that is, the entity whose capital is Taipei and which actually exercises power over Taiwan in a broad sense, that is, Taiwan, Penghu, Kinmen, Matsu, and a number of other insular territories. All these territories are located in the Pacific Ocean between Japan and the Philippines. In total, this is an area of 36,197 km²,¹ smaller than Denmark, the Netherlands, or Switzerland, but larger than Belgium, Rwanda, or Israel.² The actual territory controlled by the People’s Republic of China (PRC) on the Chinese mainland, with a surface area of 9,596,960 km²,³ is almost 265 times the size of Taiwan in a broad sense. The territories controlled by the Taipei regime are home to a total of 23,580,712 people (2022).⁴ This is almost 60 times less than the estimated population of the PRC, which is the most populous country in the world with 1,410,539,758 people (2022), but more than Sri Lanka, Syria, Chile, the Netherlands, or Cambodia.⁵

The island of Taiwan (Formosa)—with its capital Taipei—is located about 153 km (95 miles) from the southeastern coast of mainland China,⁶ from which it is separated by the Taiwan Strait named after it. It represents more than 99% of the area under the control of the Republic of China,⁷ making the concepts of “Taiwan” and “Republic of China”—partly in light of the democratization and Taiwanization of the Republic of China over the past few decades—largely interchangeable. In this book, the term Taiwan is used not only in a narrow sense (as the geographical name of the island) but also in a broad sense (as pars pro toto of the area under the control of the Taipei-based Republic of China). Which of the two meanings is relevant will normally be apparent from the context. If need be, however, I will specify in which sense the term Taiwan is used.

FIGURE 0.1

Political map of Asia. Credit: Aotearoa (April 20, 2006)

About 45 km southwest of Taiwan is the archipelago of Penghu (Pescadores), which consists of 64 islets with a total surface area of 128 km².⁸ Like Taiwan, Penghu was ceded by the Chinese Empire to Japan in 1895 after the First Sino-Japanese War by the Treaty of Shimonoseki,⁹ and it was governed by Japan until the end of World War II. In contrast, the mini-archipelagos of Kinmen (Quemoy) and Matsu, located near the Chinese mainland, were never Japanese territory and always remained part of China,¹⁰ at least until the proclamation of the PRC on October 1, 1949. Kinmen, which consists of 12 islands with a combined area of 152 km², is located less than 2 km from Xiamen, a port city in southeast China’s Fujian Province. Matsu, which comprises 36 islands with a total area of 28.8 km², is even less than 1 km from mainland China.¹¹

FIGURE 0.2

Map of Taiwan and appertaining islands. Credit: Nations Online Project

A better understanding of the international legal status of the Taipei-based Republic of China is highly relevant today and may help the international community to take informed and considered stances on the Taiwan issue. It would, of course, testify to a boundless naiveté to assume that the determination of positions and actions of international actors flow linearly from international legal insights. Were this the case, international politics would be nothing but applied international law and raison d’état would play no role whatsoever. However, politics and law can by no means be regarded as completely separate worlds or universes between which there is no interaction. Neither international law nor international relations take shape in a vacuum. The norms of international law rest on the will or consent of the states that are their principal addressees, and they are in turn binding on those states and other subjects of international law. The validity—in the sense of the binding character—of international law is moreover generally recognized by states and international legal norms are generally observed by them.

Finnish international law scholar and former diplomat Martti Koskenniemi notes that, while the formation of international law is “a matter of subjective, political choice,” it is subsequently binding “regardless of the interests or opinions of the State against which it is invoked.”¹² Thus, while the content of international law has an essentially political (subjective) origin, international legal norms lead an objective existence from their inception and are independent of “momentary State views.”¹³ Thus, these norms temper the subjectivity of the choices that states make in their international relations and justify certain solutions to normative problems, in part by making it possible to distinguish solutions permissible under international law from solutions inadmissible under international law.¹⁴ Koskenniemi thus calls international law “a kind of reservoir of directives for problem-solution.”¹⁵ International policy is always conducted against the background of certain rules.¹⁶

The question of Taiwan’s international legal status can be answered in a variety of ways. The main views imply, respectively, that the island is part of the state of China, that it is an independent state, and that it is a condominium of the Allied States parties to the Treaty of San Francisco, the peace treaty between Japan and most of the Allies that came into force on April 28, 1952. Although the Taiwan issue has already been extensively addressed in the literature, it can be noted that there are no contemporary works that comprehensively deal with all possible aspects of that issue based on an explicitly formulated and theoretically grounded international legal framework. As Crawford notes, the literature on the international legal status of Taiwan initially focused almost exclusively on “the acquisition of territory by ‘China’.”¹⁷ The Taiwan issue was therefore associated with the modes of acquisition of territory traditionally distinguished in public international law. Because the regimes on both sides of the Taiwan Strait stressed that there was only one state of China of which Taiwan was a part, almost no attention was paid to the question of whether Taiwan became a state distinct from the state of China upon the entry into force of the Treaty of San Francisco in 1952 or at a later date.¹⁸ Since the 1990s, on the contrary, the literature has often focused on the question of whether there is now an independent state of Taiwan, which is the result of the democratization and Taiwanization of the Republic of China. While the older literature focused unilaterally on the acquisition of sovereignty over Taiwan by the state of China, the more recent literature usually assumes that Taiwan—before its possible independence—belongs or belonged to the state of China. Implicitly, then, it is assumed that the Treaty of Shimonoseki (1895) concluded after the First Sino-Japanese War was invalid, so that Taiwan never became Japanese territory, or that the state of China regained sovereignty over Taiwan (and Penghu) at some point after the entry into force of that treaty. Why this should be the case is not explained (in detail). In other words, the modes of acquisition of territory are not addressed.

It should be stressed that the question of the international legal status of Taiwan can only be answered satisfactorily if that status is related to both the modes of acquisition of territory and the criteria for statehood. Accordingly, it is first necessary to examine whether Taiwan and Penghu became Japanese territory upon the entry into force of the Treaty of Shimonoseki and—if so—whether the state of China has regained sovereignty over these territories at any time since then. As noted before, the entry into force of the Treaty of San Francisco—one of the events that possibly led to China regaining sovereignty over Taiwan and Penghu—could also have resulted in the establishment of a condominium of the Allied States parties to that treaty over those territories. Finally, it is necessary to determine whether the Taipei-based Republic of China is an independent state today. This question must be answered regardless of whether Taiwan and Penghu became Japanese territory upon the entry into force of the Treaty of Shimonoseki, the state of China subsequently regained sovereignty over those territories, or Taiwan and Penghu became a condominium upon the entry into force of the Treaty of San Francisco. The fact that sovereignty over Taiwan and Penghu did not pass to Japan when the Treaty of Shimonoseki entered into force, that they subsequently became Chinese territory again, or that the entry into force of the Treaty of San Francisco led to the establishment of a condominium of the Allied States parties to the latter treaty, does not preclude the creation in the meantime of a state distinct from the state of China and comprising only Taiwan in a broad sense as its territory.

Several international legal topics need to be addressed, in particular the ways in which states acquire (and lose) territory, as recognized in international law, and the international legal criteria for statehood. There are numerous controversies around the concept of statehood—notably, when is there a state under international law—such as the importance of recognition by third states, the precise meaning of the requirement of a defined territory (inter alia, in connection with the principle of territorial integrity and the admissibility of secession), the required degree of actual independence, the requirement of lawful origin (inter alia, in connection with the prohibition on the use of force and other international legal norms that are part of ius cogens), the significance or otherwise of democratic legitimacy and respect for human rights, and the question whether the international legal concept of the state leaves room for a subjective criterion such as the “will to statehood.” In other words, the question of whether the Taipei-based Republic of China is an independent state cannot be answered by the mechanical application of ready-made criteria, but requires normative choices that fit within the systematics of international law as a whole.

In light of the multitude of controversies relating to the criteria for statehood (according to Krystyna Marek “one of the most difficult and recalcitrant notions of law in general”)¹⁹—and, albeit to a slightly lesser extent, to the modes of acquisition of territory by existing states—it is necessary to develop, first, a comprehensive and consistent international legal framework in order to test various hypotheses regarding the international legal status of the Taipei-based Republic of China (part of the state of China, condominium or independent “state of Taiwan”) and provide possible solutions/courses of action. This includes an attempt to provide a conclusive definition of the state as a subject of international law, rather than a knee-jerk reference to the Montevideo criteria, as is usually the case in the specific international legal literature on the Taiwan issue. Consequently, my Ph.D. project was not only a search for the international legal status of the Taipei-based Republic of China, but also a quest for the essence of the state as a subject of international law. To this end, I examined, among other things, the criterion of the “will to statehood,” which is not infrequently mentioned in literature in connection with Taiwan’s international legal status, without, however, explaining exactly what the criterion in question entails and arguing theoretically in a convincing manner why it is or is not a condition that entities—in general—must satisfy in order to qualify as a state.

This book, as it has developed from my Ph.D. thesis, consists of four parts. Part 1 is the introductory section, which includes the introduction proper (Chapter 1) and the largely descriptive Chapters 2 and 3. Chapter 2 outlines the history of Taiwan in order to place the Taiwan issue in its historical context. This includes a focus on its complex relationship with the history of mainland China, which is characterized by both continuity and discontinuity. Chapter 3 provides an overview of the various stances on the international legal status of the Taipei-based Republic of China.

In Part 2, which consists of Chapters 4 through 8, the international legal conceptual framework relevant to the question of Taiwan’s international legal status is outlined. Chapter 4 discusses the importance of a definition of the state in relation to the fact that states are the primary subjects of international law (Chapter 4.1) and outlines the genesis of the modern state in order to gain a better understanding of the state as a political-legal phenomenon as it exists today (Chapter 4.2). Chapters 5 to 7 discuss the criteria for statehood under international law.

Chapter 5 is devoted to the criteria for statehood laid down in Article 1 of the Montevideo Convention (Convention on the Rights and Duties of States) of December 26, 1933: permanent population, defined territory, effective government, and capacity to enter into relations with other states. The Montevideo criteria are generally considered to reflect customary international law. The chapter concludes with an overall assessment of these criteria, raising in particular the question of whether they allow for an adequate definition of the state as a subject of international law.

Chapter 6 discusses the concepts of sovereignty and independence, which together with the Montevideo criteria constitute the traditional international legal criteria for statehood. With respect to sovereignty, a distinction must be made between internal sovereignty and external sovereignty. External sovereignty is also called independence, a concept that can be further decomposed into legal independence and actual independence.

Chapter 7 considers the (possible) additional criteria for statehood. These include non-conflict with peremptory norms of international law (Chapter 7.2), democratic legitimacy and respect for human rights (Chapter 7.3), and recognition by third states (Chapter 7.4). Another possible additional criterion for statehood, the “will to statehood” is not addressed in Chapter 7 but in Chapter 14, in Section 2. The reason is that this criterion is (almost) exclusively associated with Taiwan’s international legal status.

Chapter 8 focuses first on the various modes of acquisition of territory by states, traditionally distinguished in international legal literature. Of particular interest to the international legal status of Taiwan are effective occupation or occupatio (Chapter 8.2), cession (Chapter 8.3), annexation (Chapter 8.4), and acquisitive prescription (Chapter 8.5). Second, Chapter 8 discusses a number of special territorial regimes, to wit the concepts of condominium and co-imperium (Chapter 8.6) and the concept of suspended sovereignty or undetermined sovereignty (Chapter 8.7).

Part 3, which consists of Chapters 9 through 14, examines the case of Taiwan against the international legal conceptual framework set forth in Part 2. Section 1, which comprises Chapter 9, is devoted to two views of Taiwan’s international legal status, namely, the view that Taiwan is part of the state of China and the view that Taiwan is a condominium of the Allied States parties to the Treaty of San Francisco. With regard to the first view, it should be noted that it can only be concluded that Taiwan is now part of the state of China if the Taipei-based Republic of China cannot be regarded as a state distinct from that state and having as its territory the territories it controls. However, the question whether the Taipei-based Republic of China is such a state is not answered in Chapter 9 (Section 1), but in Section 2. Therefore, the validity of the thesis that Taiwan is now part of the state of China can only be definitively ruled on in Chapter 9—and in the negative—if it is established that the state of China lost sovereignty over Taiwan and Penghu as a result of the Treaty of Shimonoseki and did not regain that sovereignty at any time after the entry into force of that treaty.

Chapter 9.2 answers the question whether sovereignty over Taiwan and Penghu effectively passed from the state of China to Japan when the Treaty of Shimonoseki came into force in 1895. It will be shown that the contention that this treaty was invalid ab initio is unfounded. Therefore, that treaty did result in the cession of Taiwan and Penghu to Japan. Chapters 9.3 through 9.8 contribute to answering the question whether the state of China regained sovereignty over Taiwan and Penghu after the entry into force of the Treaty of Shimonoseki. For that purpose, attention is paid successively to the (possible) legal consequences of the abrogation (invalidation) of, among other things, the Treaty of Shimonoseki on December 9, 1941 as a result of the official declaration of war by the Republic of China on Japan (Chapter 9.3), the Cairo and Potsdam Declarations, which were concluded during and at the end of World War II respectively (Chapter 9.4), the Japanese Instrument of Surrender of September 2, 1945 (Chapter 9.5), the acceptance of the Japanese surrender on Taiwan on October 25, 1945 and the proclamation of Taiwan as a province of China (Chapter 9.6), the Treaty of San Francisco signed on September 8, 1951 (Chapter 9.7), and the Treaty of Taipei signed on April 28, 1952 (Chapter 9.8). Chapter 9.9 revisits the Treaty of San Francisco, but from the standpoint of the thesis that Taiwan is a condominium of the Allied Parties to that treaty, and not—as in Chapter 9.7—from the standpoint of the view that sovereignty over Taiwan and Penghu passed back to the state of China upon its entry into force.

Section 2, which consists of Chapters 10 through 14, answers the question whether there is now an independent state with as its territory the territories actually controlled by the Taipei-based Republic of China (Taiwan in a broad sense). To this end, an attempt is first made—in the introduction to Section 2—to provide a (preliminary) definition of the state as a subject of international law based on the findings of Chapters 5 through 7. This definition is then applied to the case of Taiwan. Chapters 10 through 12 examine whether the Taipei-based Republic of China meets the Montevideo criteria: defined territory and permanent population (Chapter 10), effective government (Chapter 11), and capacity to enter into relations with other states (Chapter 12). Chapter 13 examines the sovereignty of the Taipei-based Republic of China, in particular whether the conditions of legal and actual independence are met. The same chapter also examines whether peremptory norms of international law preclude the view that the Taipei-based Republic of China is a state.

The argument that Taiwan is not a state on the grounds that it does not demonstrate a “will to statehood” is discussed in Chapter 14. This possible international legal criterion for statehood is not discussed in the theoretical Part 2 because it is mentioned in literature almost exclusively in connection with Taiwan’s international legal status. Consequently, Chapter 14 also has an important theoretical dimension. That it is to say, it depends on the conclusion regarding the criterion of the will to statehood whether the (preliminary) definition of the state as a subject of international law given in the introduction to Section 2 should be adjusted or expanded to include that criterion.

Part 4 consists, first, of Chapter 15, which summarizes this book’s findings on the international legal status of the Taipei-based Republic of China (Taiwan). This is the starting point for considerations about the actions Taiwan could take in order to strengthen its position in view of Beijing’s desire to incorporate it into the People’s Republic of China. Secondly, an epilogue throws a bridge between the international legal findings of this study and geopolitics. In particular, it outlines the strategy (the democratic part of) the international community should adopt in light of those findings.

Werner Somers

January 28, 2023

See Ministry of Foreign Affairs of the Republic of China (Taiwan), “Taiwan at a Glance 2021- 2022,” p. 4: https://multilingual.mofa.gov.tw/web/web_UTF-8/MOFA/glance2021-2022/2021-2022%20Taiwan%20at%20a%20Glance%20(English).pdf, last accessed February 11, 2023.

Cf. CIA, “The World Factbook,” https://www.cia.gov/the-world-factbook/field/area/country-comparison, last accessed January 28, 2023.

Ibid.

CIA, “The World Factbook,” https://www.cia.gov/the-world-factbook/field/population/country-comparison, last accessed January 28, 2023.

See CIA, “The World Factbook,” https://www.cia.gov/the-world-factbook/field/population/country-comparison, last accessed January 28, 2023.

Copper 2015, p. 1.

See Executive Yuan, Republic of China (Taiwan), The Republic of China Yearbook 2016, p. 45: https://issuu.com/eyroc/docs/the_republic_of_china_yearbook_2016, last accessed January 28, 2023. Cf. Neukirchen 2004, p. 106.

See The Republic of China Yearbook 2016, p. 41. Cf. Easton 2017, p. 120.

Treaty of Shimonoseki, April 17, 1895: www.taiwandocuments.org/shimonoseki01.htm, last accessed January 28, 2023.

Cf. Kaminski 1971, p. 179; Neukirchen 2004, pp. 243–244.

See The Republic of China Yearbook 2016, p. 42. For a description of Kinmen and Matsu, see also Easton 2017, pp. 114–115.

Koskenniemi 2005, pp. 17–18.

Koskenniemi 2005, p. 31.

Koskenniemi 2005, p. 25 and pp. 27–28. Cf. Herdegen 2017, p. 36.

Koskenniemi 2005, p. 28.

Cf. Armstrong, Farrell, & Lambert 2012, p. 23.

Crawford 2011, p. 206.

Crawford 2011, p. 207.

Marek 1968, p. 161.

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The State of Taiwan

From International Law to Geopolitics

Series: Geopolitics and International Relations, Volume: 2

E-Book ISBN:: 9789004538153

Publisher:: Brill | Nijhoff

Print Publication Date:: 04 May 2023

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- International Law
- International Relations
  - International Relations
  - Geopolitical Studies

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