American University International Law Review Volume 15 | Issue 5 Article 4 2000 Sovereignty, Statehood, Self-Determination, and the Issue of Taiwan Jianming Shen Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Shen, Jianming. "Sovereignty, Statehood, Self-Determination, and the Issue of Taiwan." American University International Law Review 15, no. 5 (2000): 1101-1161, This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. SOVEREIGNTY, STATEHOOD, SELF- DETERMINATION, AND THE ISSUE OF TAIWAN JIANMING SHEN* INTRODUCTION ............................................. 1102 I. TAIWAN'S ATTRIBUTES AND THE NATURE OF THE TAIW AN ISSUE .................................... ..... 1104 A. HISTORICAL BASIS FOR CHINA'S SOVEREIGNTY OVER T A VAN ................................................ 1105 B. LEGAL BASES FOR CHINA'S SOVEREIGNTY OVER TAIWAN 1109 1. Historic Title as a Legal Basis ....................... 1109 2. Invalidity of the Shimonoseki Treat ................. 1110 3. Legal Effects of the Cairo/Potsdam Declarations..... 1112 4. The 1951 San Francesco Peace Treat ' ................ 1114 5. The 1952 Peace Treat ,............................... 1116 C. INTERNATIONAL RECOGNITION OF CHINA'S SOVEREIGNTY OVER TAIW AN ........................................... 1117 1. PRC's Continuity of the ROC and Its Legal Effects ... 1117 2. Recognition by 160+ States .......................... 1121 3. Recognition by hternationalOrganizations .......... 1122 4. Significance of the General Recognition Accorded to the P R C .............................................. 1123 II. CRITERIA OF STATEHOOD AND THE STATUS * Visiting Professor of Law, St. John's University School of Law. Formerly Re- search Fellow, University of Hong Kong Faculty of Law; Kenneth Wang Research Professor of Law, St. John's University School of Law; Assistant Professor of Law, Peking University Faculty of Law. LL.B. (Peking), M.A. (Denver), LL.M. (U. Penn) and S.J.D. (U. Penn). I welcome comments and criticism, and can be reached by e-mail at [email protected]. Finally, this Essay is dedicated to Professor Jerome A. Cohen to commemorate his 70th birthday (Qishi Dashou) (July 1, 2000). 1101 1102 AM. U. INT'L L. REV. [15:1101 O F TA IW A N .............................................. 1125 A. PERMANENT POPULATION ............................... 1126 B. DEFINED TERRITORY .................................... 1127 C. G OVERNM ENT ........................................... 1130 D. CAPACITY TO ENTER INTO FOREIGN RELATIONS .......... 1134 III. Self-Determination and Taiwan ............................. 1140 A. HISTORICAL OVERVIEW ................................. 1141 1. Doctrinal Origins .................................... 1141 2. Self-Determinationin the DecolonizationProcess .... 1142 3. Use/Misuse of Self-Determination in Non-colonial Contexts ............................................. 1144 B. MEANING OF SELF-DETERMINATION ..................... 1144 1. The UN Charter...................................... 1144 2. The Decolonization Declaration...................... 1145 3. The InternationalLaw PrinciplesDeclaration ........ 1146 4. InternationalHuman Rights Instruments ............. 1147 5. Forms of Self-Determination and Sovereignty ........ 1148 C. SELF-DETERMINATION AND UNILATERAL SECESSION .. 1.150 1. ConstitutionalSecession ............................. 1150 2. Secession by Agreement .............................. 1150 3. The Ultimate Attitude or Compromise of the Parent Sta te ................................................. 115 1 4. UnilateralSecession Opposed by the ParentState .... 1152 5. Minority Rights v. Self-Determination ................ 1155 6. Detriments of UnqualifiedSelf-Determination ........ 1157 D. THE UNAVAILABILITY OF SELF-DETERMINATION TO T AIW AN ................................................ 1158 CON CLU SION ................................................ 1 160 INTRODUCTION Since the infamous visit by Lee Teng-hui (Li Denghui) to the United States in 1995, the issue of Taiwan has received much aca- demic and political attention. More recently, Lee's separatist orien- tation became so bold that he made an unprecedented remark to German journalists on July 9, 1999. Specifically, he stated that the 2000] THE ISSUE OF TAIWAN 1103 relations across the Taiwan Strait should be "State-to-State relations, or at least special State-to-State relations...."' This irresponsible re- mark again caused a new round of tensions between China's main- land and Taiwan. Lee's "two-states" theory reinvigorated debates over a variety of issues. Some of these include: inter alia, what political status the re- gime in Taiwan possesses; whether Taiwan already satisfies the cri- teria for statehood and therefore independence; and whether Taiwan has the right to self-determination, including the right to unilaterally secede from China as a whole. This essay discusses these three broad issues from the point of view of international law. Section I discusses the attributes of Taiwan as Chinese territory and the nature of the Taiwan issue by examining the history of Chinese settlement and administration, the invalidity of the 1895 Treaty of Shimonoseki ceding Taiwan to Japan, the legal effects of relevant international le- gal instruments such as the 1943 Cairo Declaration and the 1945 Potsdam Proclamation, the effects of the PRC Government's succes- sion to the former ROC Government, and the effects of the interna- tional community's general recognition of the PRC Government as the sole legitimate government representing China as a whole, in- cluding Taiwan. Section II deals with the assertion that Taiwan is al- ready a sovereign State because it already meets the criteria for 1. See Responses to Questions Submitted b" Deutsche Welle, (visited March 25, 2000) <http://wwwv.dsis.org.tv/database/chinataiwarlee_two_statese.htm> [hereinafter Responses] (reporting statements of Lee Teng-hui that amendments to Taiwan's Constitution set special state-to-state relations between China and Tai- wan); see also Spokesman on Lee Teng-Hui Separatist Malice, (visited March 28, 2000) <http://202.99.23.245/englishl99907/12enc_990712001028TopNews. html> (reporting statements by Lee Teng-hui and other Taiwanese officials that relations between China and Taiwan are as between two states); People's Daily, 10 July 1999; New York Times, 10 July 1999. Since the completion of this Essay in late February 2000, some major changes have taken place in the political life of Taiwan. In March 2000, the opposition party in Taiwan, the Democratic Progres- sive Party (DPP), won the local general election, resulting in (1) the selection of DPP "presidential" candidate Chen Shui-bian to take office on May 20, 2000 as the new leader of the Taiwanese authorities, and (2) the loss of power by Kuomintang (KMT) for the first time in the local politics. See Terry McCarthy, Chen's Tri- umph, CNN.com Asia Now, vol. 155, no. 12 (visited Mar. 27, 2000) <www.cnn.com/ASIANOW/time/magazine/20010327/coveri.html.>. Over angry protesters and demonstrators blaming Lee Teng-hui for KMT's defeat, Lee re- signed as KMT Chairman. See Taiwan's Lee Teng-hui Resigns as Party Chief, CNN.com.Asianow (visited Mar. 24, 2000) <www.cnn.comI2000!ASIANOW/ east/03/24/bc.taiwan.politics.reut/index.html>. 1104 AM. U. INT'L L. REV [15:1101 statehood. Upon a brief review of the basic criteria for statehood, I argue that while there is a permanent population in Taiwan, the province can hardly be said to have met the requirements of a "terri- tory" and a "government" because of its lack of "legal title" in both categories, and it certainly does not meet the criterion of "sover- eignty" or "independence" because it does not possess the legal competency to represent China as a whole, or Taiwan as part of China, on the international plane. In Section III, I explore the inap- plicability of the principle of self-determination to Taiwan. After stating that linking the concept of self-determination with Taiwan in order to support its independence would amount to an abuse of the concept, I conclude that neither the Taiwanese authorities nor the in- habitants in Taiwan have the right to unilaterally secede Taiwan from China absent a constitutional structure or consent on the part of the Chinese Government and its 1.3 billion people permitting such se- cession. I. TAIWAN'S ATTRIBUTES AND THE NATURE OF THE TAIWAN ISSUE There are several possible categories for Taiwanese secessionists and their overseas supporters. One category concedes that Taiwan, under current legal framework, is not in itself a State, but endeavors eventually to turn Taiwan into a so-called independent nation. A sec- ond category considers Taiwan a political entity having an equal status with Beijing and aims at attaining eventual independence by expanding Taiwan's "international living space". A third category openly averts that Taiwan or the "Republic of China in Taiwan" is already an independent nation.2 A fourth category calls for a formal declaration of independence. Lee Teng-hui, at different times, seemed to fall into