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 unresol.ed 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 /0ationalist1 losers of the i.il 2ar, who, howe.er, claimed to be the true go.ernment of the whole of hina, and ne.er intended to be the go.ernment 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

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 i.il 2ar and the old 2ar 4especially the Korean 2ar6. Howe.er, -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 go.ernment of hina 4at that time the nationalist :o.ernment 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 go.ernment entitled to e;ercise that so.ereignty1. %. 'pecifically, the <' and the P= ha.e agreements about the situation of Taiwan which almost correspond, but not in one important detail. In 1+)& hina affirmed that the P= is the only go.ernment of hina and that Taiwan is a pro.ince of hina, returned to the motherland, whose liberation is hina!s internal affair. The <' ac(nowledges that all hinese on either side of the Taiwan 'trait maintain there is but one hina and that Taiwan is part of hina. The <' does not challenge this position. /It reaffirms its interest in a peaceful settlement of the Taiwanese question by the hinese themsel.es1. In 1+)$, upon recognition of the P= as the sole legal go.ernment of hina, the <' said that /within this conte;t, the people of the <' will maintain cultural,
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commercial and other unofficial relations with the people of Taiwan. In 1+$& the <' added that /the question of Taiwan is hina!s internal affair1. ,. *s rawford says, while increasingly isolated in formal diplomatic terms, Taiwan /continues to maintain strong informal and trade relations with some si;ty other 'tates1 and so /the status quo has remained unchanged1. This has usually necessitated states enacting special legislation, as otherwise their courts, following general customary international law, would find it difficult to gi.e any legal effect to any relations with Taiwan. The <' Taiwan =elations *ct 1+)+ pro.ides, effecti.ely, that all <' legislation referring to foreign countries also includes Taiwan and treaties pre.iously in force, continue in force. rawford points, more contro.ersially, to commitment in the <' to pro.ide defense articles and ser.ices to Taiwan /in such quantity as may be necessary to enable Taiwan to maintain a sufficient defense capability1. The question arises how the <' can reconcile such a legal pro.ision with its commitment to a /one hina policy1. >. <K legislation also helps to illustrate the consequences generally in international law which would normally follow from a lac( of recognition and diplomatic relations among states. The Foreign orporations *ct 1++1 section 1 pro.ides, as rawford cites it, that it effecti.ely means that corporations set up under the laws of an unrecogni9ed state will be
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recogni9ed and applied in the courts of the <K, where /it appears that the laws of that territory are at that time applied by a settled court system in that territory1 The ?aw only applies to corporations and does not specifically mention Taiwan, and it means the corporations can own property and be party to litigation, i.e. in <K courts. ). 2ithout such legislation a common law court would ha.e no choice but to deny the legal status of those corporations, as owing their e;istence to a legal order which the <K did not recogni9e. There was once a .ery difficult case in the <K where in Carl Zeiss-Stiftung v Rayner & Keeler LTD (No. ! 71+>)@ 1 * $,3, where the House of ?ords had to a.oid the ob.ious consequences of the <K!s refusal to recogni9e the :erman 8emocratic =epublic by treating its legislati.e acts as essentially those of the <''=. This follows a practice e;plained by Aathew ra.en in hapter $ of B.ans, "nternational La#$ 3rd edition, &515, that in each case, such as the unrecogni9ed Tur(ish =epublic of 0orthern yprus, the main concern is to / insulate the /innocent1 population from the /illegalities1 associated with the claim to authority on the part of their go.ernments1 4p.&%,6. The need is to continue practical, e.eryday relations effecti.ely, while not completely abandoning certain legal .alues which may be represented by the refusal of full diplomatic relations with the state.

$. Taiwan is admitted as a full member of the *sian 8e.elopment #an( and as a member of the 2TC under the rubric /Taipei, hina1, e.en although membership of the former appears to be confined, by the *8# onstitution, to members of speciali9ed agencies of the <0 from which Taiwan had been e;pelled. This shows how the positi.e system of international law allows states to choose among themsel.es precisely how they will regulate their relations with entities they thin( significant in international society. These relations depend for their effecti.eness upon the principle of mutual consent, whether e;press or implied. Taipai, hina had pre.iously been the =epublic of hina. The change of name was unilaterally imposed, but the former =epublic of hina accepted the change tacitly and suffered no loss of rights under the new arrangement. For the 2TC the short form /Taipai, hina1 is an abbre.iation of a title which shows how functional international law can be1 'eparate ustoms Territory of Taiwan, Penghu, Kinman and Aatsu1. The 2TC is not recogni9ing Taipei, hina as a state, but as a ustoms Territory1.

Developments in Taiwans Status since t e !""#s

1. Taiwan now has a constitution which states that the 0ational *ssembly and President are elected by /the entire populace of the free area of the =epublic of hina1. Taiwan ma(es a statutory regulation for legal
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relations with the Aainland, co.ering Dudicial cooperation, mo.ement of persons in both directions and many other details. rawford sets out many detailed pro.isions of this 'tatute :o.erning =elations between Peoples of the Taiwan *rea and the Aainland *rea, 1++&E) 4pp.&1&"&1%6. 2ithout it, as before with the <' and <K laws, there would be a legal .acuum. The main conclusion he says one can draw from the Taiwanese legislation is that the =epublic of hina onstitution does not claim to ha.e any application to mainland affairs. &. * 1++) 'tatute :o.erning =elations with Hong Kong and Aacau also co.ers broadly relations of pri.ate persons to promote trade, economic, cultural and other relations. Those going to Hong Kong from the Taiwan *rea follow the general e;it rules, as if they were going anywhere in the world. Those going on from Hong Kong to the Aainland, follow the rules of the 'tatute regulating Aainland relations. 3. The *dditional articles amend the onstitution which was for the whole of hina. Howe.er, the territory of the mainland hina is not treated as /foreign1 territory either in the original onstitution or in the *dditional articles. The state of / hina1 to which the onstitution applies has a /free1 area and a /mainland area1. 2hile in the past the onstitution did purport to co.er conduct by mainlanders on the mainland, the tendency is towards increasing separation. The patatern of this de.elopment, as rawford points out 4p.&&1,6 is that it pro.ides a basis for the democratic
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accountability of the legislature and e;ecuti.e organs of the =epublic of hina to a %onstituen%y #hi%h is essentially Tai#anese. 4my italics6. Howe.er, 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. Howe.er, it says that hina is not yet united in a single state, /but are equals, separately ruled1. 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 hina1. Howe.er, meanwhile, the two sides /can be defined as sharing a /special state to state relationship1, prior to unification1, special in the sense that they share so much that other di.ided countries cannot match.1

,. In &55, the P= passed an *nti"'ecession ?aw 1%th march, 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 hina1 4iii6 e;haustion of possibilities for peaceful reunification. The official response of the Taiwan go.ernment said, inter alia, that /based on the Aonte.ideo on.ention of 1+33Fit is undeniable that the =epublic of hina is a so.ereign and independent state1. The &55, ?aw /infringes upon the so.ereignty of the =epublic of hina. The following .ery important statement may be compared with the conclusion of the I - in the Kosovo &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 e.ists and have no /urisdi%tion over ea%h other. This is not, says rawford, 4p.&1$6 a declaration of independence from hina. The go.ernment 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 equi.ocal position, or ultimately, declare
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independence, is a matter solely for the people of Taiwan. To say that the so.ereignty 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 dismissi.e of the idea that the principle of self" determination applies, because there is no e.idence 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 con.entions is functional. Howe.er, 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"go.ernment has tended to create one 4p.&&56. Get he says 4p.&1+6 on the pre.ious page that the conclusion must be that Taiwan is not a state because, inter aliaH / Its origins as a consolidated local de fa%to go.ernment in a ci.il war situation continues to affect it. ). Auch more fundamentally, rawford argues that 4p.&&56 attempts to sol.e 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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security1. 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. $. Howe.er, 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 <se of Force in a ross"'traight onflict 4%,,"%+&6. #riefly its conclusion is that foreign recognition would not constitute Taiwan as a state " recognition it does not ha.e anyway. In addition there can be no right of self"determination, because the inhabitants of Taiwan do not qualify as a people. He relies upon the classical 2estern doctrinal .iew 4of Aalcolm 'haw6 that self"determination does not mean that /any group defining itself as such can decide for itself its own political status up to and including secession from an already independent state1 4p.%)36. onsidering the sense of the 1+>5 8eclaration of the Independence of olonial Peoples, it has been clearly understood that this refers to territories geographically separate and ethnically andEor culturally distinct from the country administering it1. Get the Taiwanese share ethnic, religious, linguistic and cultural affinity with their contemporaries on Aainland hina1.

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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 <nited 'tates, accepts that Taiwan is a part of hina, that its affairs are part of hina!s internal affairs and therefore any attempt by anyone, including Taiwan, to secede and declare independence would be a .iolation of hina!s rights under article &E% of the harter. The <nited 'tates is .iolating article &E% says han 4p.%$)6 /)y providing ar*s to the authorities on Tai#an$ not#ithstanding the -RC,s vehe*ent o)/e%tions and )y pro%lai*ing its #illingness to defend Tai#an against any use of for%e thereon 1(uoting fro* the Tai#an Relations 2%t 3454$ se%tion ()!(6!7 the 8nited States *ay )e ta+en as assisting and en%ouraging Tai#an to se%ede fro* or resist reunifi%ation #ith China$ #hi%h violates China,s sovereignty and territorial integrity9 et%1 That is to say, the more precise terms of article &E% are such that Taiwan itself cannot .iolate them 4*ll members shall refrain from the threat or use of force against the territorial integrity or political independence of any state6, because it is not a state. It is the <nited 'tates which by .irtue of its 1+)+ T=* is in .iolation of article &E% of the harter.

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Conclusion This .ery detailed and contradictory case study of Taiwan is of practical rele.ance to the region of 'outh Bast *sia. Howe.er, it is typical of many other parts of the world where there are di.ided states. Korea I0orth and 'outh, yprus, 0orth and 'outh, Ireland I0orth 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 I which is fairly much so with Taiwan, at least in cross"straight relations. Then it is possible to pro.ide pragmatically for normal pri.ate relations among populations to continue. Howe.er, where the principle of self" determination seriously raises its head, then its relationship with the principle of statehood can become uncertain and that can ha.e 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.

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