SVKM’s Pravin Gandhi Collage of Law, Mumbai

State without Sovereignty: The State of Taiwan

Under the guidance of Vikrant Halkandar Sir

Submitted by;

Purva Alankrita

Roll- B001

F.Y.B.L.S., LL.B.
Introduction
Life of a man started with individual existence. Gathering food shelter and clothing for him by
himself. But there existed and inherent social Instinct which made man difficult to stay alone
and to integrate with each other socially and thus setting families as a union of men and
women. And yet the insufficiency of resources and desire to collect more drew him to view
collective working to be more efficient in getting works done. This thought then brought him
to integrate into villages, which was an inevitable outcome. This marked the beginning of
having a common entity to make rules and regulations in order to make collective existent
meaningful and fruitful. The need of having political entity as man is a political and rule
abiding animal the state comes into existence originating in the bare needs of life and
continuing it in existence for the sake of prosperous life. The study of the pre-existing state
led to the identification of four major criteria which a state exhibited. That is: having a definite
population which resided in defined territorial area which had a government of its on and the
inevitable sovereignty. Despite of the presence of government there needed to be an element
which would give the state the supreme law-making power and keep the state aloof of the
external interference of other powers and peaceful legislation of rules and regulations of the
Government. In words of political thinkers sovereignty is the supreme law making power of
the state over its citizens and subjects, which is supreme, perpetual, indivisible power for
which the state does not require the consent of other individual and has the ability to make
laws of its own. The further thinkers brought into picture the two aspects which the
sovereignty enroll in itself that is;

external sovereignty

internal sovereignty.

External sovereignty depicts the absence of direction from outside. Internal sovereignty
depicts the presence of supreme law making power of the state within the state itself. In the
domestic plane, internal sovereignty played its role it is the matter of constitutional
arrangement of each state it can be one or more person according to laws and function of
each nation. In international plane, external sovereignty came into picture it is power whose
actions are not subject to legal control of another. So, they cannot be rendered void by
operation of another human will. With the introduction of the Montevideo convention on the
rights and duties of state it again brought into question the existence of a state without having
sovereignty. Previously, what was being followed was the constitutive theory that was
statehood comes by the acts of recognition by the other sovereign States. By this convention
came the declaratory theory, which stated that the state as a person of international law
should possess the following qualification that is a permanent population, defined territory,
Government and capacity to enter into relation. It does not include recognition as a
constituent element of state the political existence of a state is independent of recognition
by other state. The recognition by other existing state to a new entity claiming statehood is
desirable but not essential to function in international plane. Live and a perfect example
present in the contemporary world is of Taiwan. But it not as said. It brings along a throng of
challenge for existence.

History of ROC i.e., Taiwan

The Kingdom of Tungning, lasting from 1661 to 1683, was the first Han Chinese government
to rule part of Taiwan. From 1683, the Qing Dynasty ruled much of the eastern plains of
Taiwan as a province and in 1875 divided the island into two provinces. In 1885, the island
was made into a separate Chinese province to speed up development. In the aftermath of the
1ST Sino-Japanese War, Taiwan and Penghu were ceded by the Qing Dynasty to Japan in 1895.
Jap troops in Taiwan surrendered to the Republic of China at end of World War II, putting
Taiwan under a Chinese government again after 50 years of Japanese rule. The ROC would
then claim sovereignty on the basis of the Qing dynasty's administration, Cairo Declaration,
Potsdam Declaration, and Japanese Instrument of Surrender, but this was contested by pro-
independence groups in subsequent years due to different perceptions of the mentioned
documents' legitimacys. On losing the Civil war in 1949, the ROC government retreated to
Taipei, and kept control over a few islands along the coast of mainland China and in the South
China Sea. The People's Republic of China (PRC) was established in mainland China on 1
October 1949, claiming itself to be the successor to the ROC.
The ROC, which asserted control of Taiwan in 1945, had ruled mainland China before losing
the Chinese Civil War to the Communist Party of China and relocating its government and
capital city from Nanjing to Taipei as the temporary capital in Dec 1949. The Communists
established new government on the mainland as People's Republic of China (PRC) in October
1949. From 1949 until 1979, the US continued to recognize the Republic of China (Taiwan) as
the legitimate sovereign of all China. The US maintained full diplomatic relations with the
ROC, which was considered a best ally. The US, however, refused to recognize the Peoples
Republic of China (China). On December 15, 1978, the US State Department issued a
statement announcing that effective January 1, 1979 the United States would recognize the
PRC as the only legitimate government of China and would from that date cease to recognize
the ROC as a sovereign government. Next day the US and China signed a Joint Communique
on the establishment of diplomatic relations in which the United States reiterated that there
was only one China and Taiwan was a part of it. However, applying its bipartisan approach, in
1979 US passed the Taiwan Relations Act, which reaffirmed the America' commitment to
Taiwan, its old ally. This saved Taiwan from falling out of the world of international diplomacy
to a large extent.

Development of study of IR1

As of now, Taiwan is formally recognized by twenty-eight countries, none of which are major
players in international politics. As the diplomatic isolation is in upsurge, the government has
felt a strong need to reach out in other spheres of the international community, and this has
led to a demand for a better understanding of international relations. At the same time, the
pol. science community was able to respond. Since early 1970s many of those who had
received advanced degrees in American universities began to return to Taiwan, reversing
brain drain in political science in the previous decade. Their teachings and publications laid a
firm foundation for the study of international relations in Taiwan. After three decades, this
subfield of political science had genuinely came of age. The publication of articles suddenly
increased manifolds. Mainly those were directed towards International Security and

1
Ho, Szu-yin, Yu-shan Wu. eds. 2000. Political Science: The State of the Discipline (in Chinese). Taipei, Taiwan:
Chinese Association of Political Science (Taipe).
International Economy, two topics that are of natural importance to Taiwan's current
international position. As for the field of International Organization and Law, the most studied
international organizations were the EU, WTO, UN, and regional summit meetings. Study in
these four international organizations reflects Taiwan's interest in joining or making
connections with important international organizations. The EU is important to Taiwan for
both its political weight in international politics and the economic implications. The WTO, UN,
and regional summit meetings all bear direct influence on Taiwan's foreign policy.

Legal issues following the de-recognition (with special focus

on US relation)2
There were five important issues arisen after the de-recognition of the ROC from a legal
perspective:

• Sovereignty.

• Treaty-making capacity

• Access to courts

• Diplomatic Immunity

• How courts treat the judicial decisions and laws of Taiwan

Issue of sovereignty

Based on the prevalent declaratory theory, it is hard to argue that ROC is not a state. But then
it largely depends upon the purview of treaty making nation as to what it actually follows. The
Taiwan Relations Act, of the U.S. is a very slight approaches to the declaratory theory with
regard to the ROC's sovereignty. TRA took position on the other four characteristics of
statehood that were compatible with the ROC being treated as a state.

Treaty making power

2
Dr Yu-long Ling is an Emeritus Professor of Political Science at Franklin College, where he also served as the
Distinguished Williams Chair in Law and Public Service for 20 years, and the author of An Immigrant's Journey
to the West: Confucianism.
A treaty is an agreement between the subjects of International Law, that is, states and
international organizations. Treaties create the rights and duties of the parties. Consequently,
if the ROC were no longer a state that would mean that it had lost the ability to enter into
treaties or enforce existing ones. The TRA provides for "the continuation in force of all treaties
and other international agreements. . ..” entered into by the United States and the governing
authorities on Taiwan recognized by the United States as the Republic of China prior to
January 1, 1979 and in force between them on December 31, 1978, unless and until
terminated in accordance with the law

Access to the court

Under International Law, only recognized states have right to sue or be sued. TRA states "that
the capacity of Taiwan to sue and to be sued in the courts of the US. . . shall not be abrogated,
infringed, modified and denied or otherwise affected in any way by the absence of diplomatic
relations or recognition." More broadly, foreign litigants may only sue in the US courts if their
government is recognized by the US. Here again, the TRA again expressly guarantees access
of Taiwanese nationals to the courts of the US and recognizes the status of Taiwanese
corporations.

Diplomatic Immunity

The principle of sovereign immunity plays a central role in diplomatic relations under
international law. Without diplomatic relations, how can two parties conduct business.
However, there are governmental authorities on Taiwan and established an institutional
structure for conducting unofficial relations with those authorities. Like, the American
Institute in Taiwan (AIT) was created to act as America's instrumentality for dealing with
Taiwan, while the Taipei Economic and Cultural Representative Office (TECRO) and the
Coordination Council for North American Affairs (CCNAA) were recognized to perform a
similar function for the Taiwanese People.

Recognition and Acceptance of ROC (Taiwan) Laws and Courts

Under the principle of private international law, foreign laws and judgments of courts are
treated as facts. Based on comity, local courts will treat foreign laws and judgments as
evidence. However, this comity only extends to recognized states. Like, the American the
courts have proceeded and Consequently, Taiwanese laws and the judgments of their courts
have been recognized and applied when the choice of law principles identifies Taiwan as a
governing jurisdiction.

Conclusion
Taiwan has some troubles on the “formal” side. No other country formally recognizes Taiwan
as a separate state and only a small number of countries (now twenty-three) either recognize
the ROC government or merely maintain formal diplomatic relations with it. On the “informal”
dimension of capacity to engage in international relations, Taiwan has done quite well, with
a robust and extensive network of quasi-diplomatic or informal relations with the
governments of many states, membership in many international organizations, including
some intergovernmental organizations and myriad international nongovernmental
organizations, and participation without membership in a good many others. Many
international organizations are not states-member-only organizations, and Taiwan has had
relatively high success in participating in those and often in joining them as a full member.
The World Trade Organization (WTO) is the biggest example—a large, robust and highly
important international organization that Taiwan has entered as a full member. Asia-Pacific
Economic Cooperation (APEC) is another. Other key examples include the Asian Development
Bank and the International Olympic Committee. There are also other mostly-governmental-
organizations and many, many international nongovernmental organizations as well. Taiwan
has been able to participate widely and actively in these entities, albeit at the cost of
indignities of nomenclature (“Chinese Taipei”).
Bibliography
1. Books and journal article
Szu-yin Ho and Lang Kao, The Study Of International Relations In Taiwan, Vol. 2, Journal of
East Asian Studies, No. 1, pp. 89-110, Cambridge University Press, (February 2002)

https://www.jstor.org/stable/23417712

Yu-long Ling, The TRA's Declaratory Definition of Taiwan's Sovereignty, Vol. 22, American
Journal of Chinese Studies ,SPECIAL ISSUE II, no. 1 pp. 277-282, American Association of
Chinese Studies SEPTEMBER 2015.

https://www.jstor.org/stable/44289172

2. Online sources

Taiwan: Sovereignty and Participation in International Organizations - Foreign Policy Research

Institute (fpri.org) Last date of access: 1/9/21

https://www.fpri.org/article/2018/12/a-year-in-taiwans-sovereignty/

Last date of access: 1/9/21