Taiwan and Hong Kong.doc

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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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