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Taiwan and Hong Kong : Special Cases of International Legal Personality
1. The purpose of considering Taiwan and Hong Kong is practical.
International Personality is necessary to be able to conduct legal relations
across frontiers and yet the question may arise whether such relations
imply recognition of statehood or of something less than statehood. For
historical reasons, this affects directly relations of Hong Kong with the
land of Taiwan, as it also affects hina!s own relations with Taiwan. It is
a separate question from that of self"determination of peoples, because it
does not raise specifically the question of the identity of the hinese
people. #efore 1$%& Hong Kong was part of hina, and before the treaty
of 'himonose(i of 1) *pril 1$+, when Formosa was ceded to the
-apanese, so was Taiwan.
&. *fter 1+% the international legal position remained unresoled because
there was no Peace Treaty whereby -apan ceded Formosa bac( to hina.
#y the 1+1 'an Francisco Peace Treaty -apan ceded Formosa but not to
anyone. The Island continued to be occupied by the /0ationalist losers
of the iil 2ar, who, howeer, claimed to be the true goernment of the
whole of hina, and neer intended to be the goernment of an
independent state of Taiwan. That remains the case.
3. rawford considers 4p.&5+6 that the better iew of the legal status of
Taiwan at present is as follows. 0ormally final ownership of territory lost
1
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in a war could only be obtained through a 7peace treaty between the two
warring countries. There is no peace treaty between hina and -apan
because of the hinese iil 2ar and the old 2ar 4especially the
Korean 2ar6. Howeer, -apanese abandonment of Formosa /too( place
against a bac(ground of a commitment to return Taiwan to hina 4stated
in the wartime airo and Potsdam 8eclarations6 and the continued
occupation of Taiwan by a recogni9ed goernment of hina 4at that time
the nationalist :oernment of hina was recogni9ed by ery many
'tates6 operated to re-invest sovereignty in China as a State 4my italics6
without ta(ing any position as to the goernment entitled to e;ercise that
soereignty.
%. 'pecifically, the
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commercial and other unofficial relations with the people of Taiwan. In
1+$& the .
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recogni9ed and applied in the courts of the
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$. Taiwan is admitted as a full member of the *sian 8eelopment #an( and
as a member of the 2TC under the rubric /Taipei, hina, een although
membership of the former appears to be confined, by the *8#
onstitution, to members of speciali9ed agencies of the
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relations with the Aainland, coering Dudicial cooperation, moement of
persons in both directions and many other details. rawford sets out
many detailed proisions of this 'tatute :oerning =elations between
Peoples of the Taiwan *rea and the Aainland *rea, 1++&E) 4pp.&1&"&1%6.
2ithout it, as before with the
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accountability of the legislature and e;ecutie organs of the =epublic of
hina to a %onstituen%y #hi%h is essentially Tai#anese. 4my italics6.
Howeer, that is not enough to point otwards the establishment of an
independent state of Taiwan. 2hile there is no constitutional lin( with
the P=, rawford points out that /the coe;istence in fact of two distinct
entities with their own constitutional systems and electorates on particular
territory does not necessarily entail the e;istence of two 'tates in
international law. It is a general rule of international law that the
international identity of a state is not the same as its constitutional
identity.
%. The Taiwan Aainland *ffairs ouncil defined the position of Taiwan in
relation to the Aainland in a statement of 1 *ugust 1+++, which shows
clearly no intention of Taiwan to become or be considered as an
independent state. Howeer, it says that hina is not yet united in a single
state, /but are equals, separately ruled. ross state relations are special
because of shared culture, historical origins and ethnic bonds. Bspecially
/ the two sides are willing to wor( in concert and engage in consultations
on an equal basis to ensure the future unification of hina. Howeer,
meanwhile, the two sides /can be defined as sharing a /special state to
state relationship, prior to unification, special in the sense that they
share so much that other diided countries cannot match.
)
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. In &55 the P= passed an *nti"'ecession ?aw 1%thmarch, It reaffirms
that Taiwan is part of hina 4art&6, that the Taiwan question is an internal
affair 4art36. *rt $ defines conditions under which hina may use force in
relation to Taiwan 4i6 attempted separation of Taiwan from hina 4ii6
/incidents entailing Taiwan!s secession from hina 4iii6 e;haustion of
possibilities for peaceful reunification. The official response of the
Taiwan goernment said, inter alia, that /based on the Aonteideo
onention of 1+33it is undeniable that the =epublic of hina is a
soereign and independent state. The &55 ?aw /infringes upon the
soereignty of the =epublic of hina. The following ery important
statement may be compared with the conclusion of the I- in theKosovo
pinion' The status uo is that the Repu)li% of China is independent and
sovereign. The sovereignty of the Repu)li% of China rests in the hands of
the t#enty three *illion people of Tai#an. nly the t#enty three *illion
people of Tai#an have the right to *a+e the final de%isions on any
%hange to the nation,s status and future. The Repu)li% of China and the
eople,s Repu)li% of China )oth eists and have no /urisdi%tion over
ea%h other. This is not, says rawford, 4p.&1$6 a declaration of
independence from hina. The goernment still calls itself, the =epublic
of hina, stressing continuity, while increasingly practicing discontinuity,
says rawford. Get the statement does appear to say that, whether it
chooses to remain in an equiocal position, or ultimately, declare
$
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independence, is a matter solely for the people of Taiwan. To say that the
soereignty of the =of rests with the twenty three million people of
Taiwan appears to say that they can become a state if they choose, at any
time. rawford is dismissie of the idea that the principle of self"
determination applies, because there is no eidence of it in state practice.
This is true in the sense that no one recogni9es Taiwan as a state and its
participation in international institutions or multilateral conentions is
functional. Howeer, it is strange that rawford contests the principle of
self"determination that Taiwan may not be transferred to the control of
the P= with the consent of the Taiwanese people.
>. In fact there remains a fundamental ambiguity about the position of
Taiwan, which one can piece together from two passages of rawford!s
te;ts. He still agrees, with respect to the idea of self"determination, that,
whether there was a Taiwanese people in 1+%), the e;perience of 5
years of self"goernment has tended to create one 4p.&&56. Get he says
4p.&1+6 on the preious page that the conclusion must be that Taiwan is
not a state because, inter alia / Its origins as a consolidated local de fa%to
goernment in a ciil war situation continues to affect it.
). Auch more fundamentally, rawford argues that 4p.&&56 attempts to
sole the problem of Taiwan otherwise than by peaceful means must be a
iolation of article 33 of the harter, because such attempts would create
a situation /li(ely to endanger the maintenance of international peace and
+
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security. He says that although the P= denies that there is a Duridical
boundary between the parties /the suppression by force of &3 million
people cannot be consistent with the harter. To that e;tent there must be
a cross"'trait boundary for the purposes of the use of force.
$. Howeer, as has been seen, this position is not accepted by the P=. *lso
in an article published in the Chinese 0ournal of "nternational La# 4&55+6
Phil han considers The ?egal 'tatus of Taiwan and the ?egality of the
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+. han!s position is that the right of self"defense in international law
applies only to states and Taiwan is not a state. Instead, under article &E%
the harter has the principle of upholding the territorial integrity of a
state. The world, including the
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Conclusion
This ery detailed and contradictory case study of Taiwan is of practical
releance to the region of 'outh Bast *sia. Howeer, it is typical of many
other parts of the world where there are diided states. Korea 0orth and
'outh, yprus, 0orth and 'outh, Ireland 0orth and 'outh, and, most of
all Israel and the so"called Cccupied territories of the 2est #an( of the
-ordan and the :a9a 'trip, which might ma(e up a state of Palestine.
International law wor(s well with the idea of the state as long as its
legitimacy is not contested. It also wor(s quite well, where there is
contest, while and as long as the contest is well managed which is fairly
much so with Taiwan, at least in cross"straight relations. Then it is
possible to proide pragmatically for normal priate relations among
populations to continue. Howeer, where the principle of self"
determination seriously raises its head, then its relationship with the
principle of statehood can become uncertain and that can hae
destabili9ing consequences for the application of many fundamental
principles and rules of international law, and particularly the rules on the
use of force. That is not really the case with Taiwan and Aainland hina,
nor is it with the case of Ireland 0orth and 'outh, but it is with respect to
yprus, Israel and Korea.
1&
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