State, Sovereignty, and Taiwan
Fordham International Law Journal
Y. Frank Chiang
Copyright c 1999 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Y. Frank Chiang
Two separate statements made by the high officials of the two Chinese governments in 1999
call into question the sovereignty of Taiwan. These two statements relate to the sovereignty of
Taiwan. The first raises the question whether Taiwan is a sovereign state. The second statement
raises the question whether China has sovereignty over Taiwan. This Article concludes that
although Taiwan is a civil society, it is not a state, and offers a solution in the form of a referendum
by the people in Taiwan with an international guarantee of its result. The article suggests that the
U.S. and other governments reformulate their foreign policy toward China and Taiwan in accord
with the findings of the Article.
Two separate statements made by the high officials of the
two Chinese governments in 1999 call into question the
sovereignty of Taiwan.1 One statement was made by President Lee
Teng-hui of the government of the Republic of China (or
"ROC") on Taiwan on July 10, 1999 during an interview by
German reporter, Dr. Guenter Knabe. He said that the relation
between China and Taiwan is a "special state-to-state relation."2
The second statement was made by a government
spokesman of the People's Republic of China (or "PRC") immediately
after a severe earthquake struck the central part of the island of
Taiwan on September 21, 1999. The U.N. Office for the
Coordination of Humanitarian Affairs was planning to send a disaster
assessment team to Taiwan when the PRC government notified
Mr. Kofi Annan, the U.N. Secretary General, that the United
Nations had to ask the PRC government for permission to dispatch
an aid team to, as Mr. Annan called it, "the Taiwan Province of
* Professor of Law, Fordham University School of Law; LL.B., 1958, Taiwan
University; LL.M., 1962, Northwestern University; J.D., 1965, University of Chicago. I am
grateful to Mr. Erwin Condez and Professor Clyde Kiang for their assistance in
collecting some materials and to Mr. David Chiang, and Ms. Amy Chiang for editing the early
draft. All errors are mine.
1. Geographically, the term "Taiwan" in its strict sense refers the island of
Formosa, and, in its broad sense, to a group of islands consisting of Formosa and a few
surrounding islands, including the Pascadores (Penghu), Green Island (Kashoto, as
Japanese called it), and Lan Islet (Lan Yu). The word "Taiwan" in the political term
"The Republic of China on Taiwan" is used in its broad sense. As used in this Article,
the terms "Formosa" and "The island of Taiwan" both refer to Taiwan in its broad
sense, and the word "Taiwan" refers to the political entity existing on the island of
Taiwan with a government that is called "the Republic of China" (or "ROC"). Hence,
the term "the Republic of China" refers to the government of the political entity,
These two statements relate to the sovereignty of Taiwan.
The first raises the question whether Taiwan is a sovereign state.
The second statement raises the question whether China has
sovereignty over Taiwan.
I. THE MODERN STATE, SOVEREIGNTY, AND
A. The Origin of the State
Since the questions relate to the statehood and sovereignty
of Taiwan, a brief review of the concepts of the state and
sovereignty is in order. Although in postulating the evolution of
humankind and the origin of the state, some writers equate "state"
with "civil society,"4 these two terms are different, not only in the
process of their formation, but also after both have matured.
Although a state may exist only in a civil society, not all civil
societies are states.
The term "society" has been defined as "a community of
people living in a particular country or region and having shared
customs, lawsand organizations."' The definition indicates that
people form a society in the place or region where they settle.
This definition describes, however, a civil society, not a primitive
one. Earlier writers also spoke of a "savage society,"6 referring to
a society "when mankind derived their whole subsistence from
the fruits... hunting, fishing, and their flocks.., they had no
dwelling place nor settled habitations .... Such was the ancient
manner of living till agriculture was introduced."7 It takes a long
journey for an above described primitive society to evolve into a
civil society. The process is a slow and a gradual one.
The creation of a state is different. The process is drastic
rather than gradual. It is common that in a group of people, a
Sept. 27, 1999; UN Sends CoordinatingRescue Team to Taiwan, Sept. 2
FRANcE-PRESsE, availablein 1999 WL 25110592; Corky Siemaszko, Taiwan DiggingOut,
FranticRescuers Huntfor Quake Survivors, DAILY NEws, Sept. 2
, at 7.
4. "In the early eighteenth century, the usual explanation of the origin of the state,
or 'civil society', as it was called, began by postulating an original state of nature, in
which primitive man lived on his own." PETER STEIN, LEGAL EVOLUTION, THE STORY OF
AN IDEA 1 (1980).
5. See OxFoRD ADVANCED LEARNER'S DICrIONARY 1128
(5th ed., Oxford Univ. Press
(providing definition of "society").
6. STEIN, supra note 4, at 20.
7. Antoine Yves Goguet, De l'origine des lois, des arts, et des sciences, et de leursprogres,
chez les anciens peuples, in STEIN, supra note 4, at 21.
strong person eventually emerges as the leader. The leader in
an early society might initially have acquired his position by
consent of the people or by brute force. At a certain point of time,
the leader became their ruler-either by declaring himself their
king, ("I am the king"), or by proclamation of the people,
("Long live the king")-and established a kingdom, a state.
When the concept of the state' as we know today was
formulated, the word "state" referred to the ruler.9 This meaning
remained true after the modern concept of sovereign began to
develop in the sixteenth century.' Earlier political thinkers
attempted to support or limit the authority of the rulers by
theorizing the source of their authority. For many centuries, the
theory of most writers, such as Thomas Aquinas,"' was that the
rulers of the people received their authorities from God and
they were accepted without much question. During the
sixteenth and seventeenth centuries, the theory of social contract,
advocated by Thomas Hobbes12 and John Locke,'" emerged and
successfully replaced the theory of the theological source. In
advocating the unlimited power and authority of the king under
the theory of social contract, Hobbes regarded the ruler as the
sovereign when he argued that the "state of nature must have
been so dangerous and unpleasant for man that he would gladly
agree to surrender all the freedom and power over himself,
which he had hitherto enjoyed, to a sovereign person or body who
was strong enough to protect him from its perils."' 4 John Locke,
who advocated that the power of the ruler was limited,'" also
considered the king as the government when he said, "[C]ivil
society was consciously created by rational men . . . who first
8. The word "state" derived from the French word itat and the Latin word status.
MERIAM WEBSTERS COLLEGIATE DICTIONARY 1148 (10th ed. 1993).
9. HEINZ LuBAsz, THE DEVELOPMENT OF THE MODERN STATE 2 (1964); STEIN, supra
note 4, at 2.
10. Jean Bodin wrote about sovereignty in 1577. See infra note 28 and
11. He lived from 1224-1274. For his political theory, see THE PoLTICAL IDEAS OF
ST. THOMAS AQUINAS 188, 191 (Dino Bigongiari ed., Free Press, New York, 1953).
12. He lived from 1588-1679. For a brief statement of Thomas Hobbes' theory, see
STEIN, supra note 4, at 2-3.
13. He lived from 1632-1704.
14. STEIN, supra note 4, at 2 (emphasis added).
15. John Locke, who supported the Glorious Revolution of 1688 that replaced the
English king with another, ...argued: "[T ] he ruler was limited in what he could
command his subjects to do, and these limitations were prescribed by nature." Id. at 2-3.
agreed to combine in a community by one contract, and then, by
another.., agreed to entrust its government to a ruler chosen by
themselves."1 6 Regardless of the source of the authority of a
ruler, one of the main purposes for the creation of the state was
protection of its people. A society, which has not formed a state,
has no protection from outside invaders.
B. The Modern State
The modern state is the product of western civilization and
was created in Western Europe.17 It was transformed gradually
from the medieval feudal states during the sixteenth and the
seventeenth centuries.1 8
The earlier discussed concept of the state is not static.
Toward the end of the seventeenth century, about the time John
Locke published his book advocating the theory of social
contract, the concept of the state still referred to the king.19
the modem state began to mature, 20 the term "state" began to
refer to an abstract entity, such as ajuristic person in private law,
or an association or a corporation. 21
As the modern state ma
tured in the eighteenth century, the term "state" referred to a
16. Id. at 2.
17. LuBAsz, supra note 9, at 1.
18. See GERHARD RrjTrER, ORIGINS OF THE MODERN STATE 19-28 (Die Neugestaltung
Europas im 16. Jahrhundert, Berlin: Verlag des Druckhauses Tempelhof, 1950) (Heinz
Lubasz, trans., in LuBAsz, supra note 9, at 13). During the medieval ages, feudalism
prevailed as the main political system in Europe. Under the European feudal system,
the king ruled his kingdom through his feudal vassals by contract. The feudal vassals, in
turn, ruled their vassals, who directly ruled the people in their domains. In essence, the
feudal king did not directly rule the people. The state was based on people (vassals),
not on the territory. Such was the political system of France when the One Hundred
Years War during the first part of the 14th century erupted. Finally, the French king,
Charles VIII, succeeded in expelling the English from the most part of the European
continent (except Calais) in 1453. From this victory, Charles VIII and his successors,
helped by the new money economy, became powerful and began to deprive some
feudal vassals of their power. From this change, a modem state would begin to emerge.
19. John Locke advocated that the power of the ruler was limited. Supporting the
Glorious Revolution of 1688 that replaced the English king, he argued, "[C]ivil society
was consciously created by rational men ... who first agreed to combine in a
community by one contract, and then, by another ... agreed to entrust its government to a
rulerchosen by themselves." STEIN, Supra note 4, at 2 (emphasis added).
20. The development of the modem state was slow, and certainly did not begin in
every state in Europe at the same time. For a discussion of the development of the
modem state, see IrITER, supra note 18, at 19-28.
21. BARRY E. CARTER & PHILLIP i. TmiMBAL, INTERNATIONAL LAw 456 (Little Brown
& Co., 2nd ed., 1995).
political entity with statehood. The establishment of the United
States in the late eighteenth century may have also contributed
to the formulation of the new concept of the state. The United
States, being a republic, had no king. The ruling entity is not a
person but a government, which is an abstract concept. The
term "state" cannot refer to a tangible person, the king, or the
ruler. In 1804, Napoleon Bonaparte still proclaimed to be the
state when he uttered, "The state? It's me" ("L'etat? C'est moi").
What he said was true, but only in the past.
There are two major characteristics of the modern state.22
First, the modem state is territorial. In the European feudal
system, the king ruled his kingdom through his feudal vassals by
contract and did not directly rule the common people. The
state was built on the king's control of the vassals, not on the
territory. The king collected taxes from his vassals, who, in turn,
collected taxes from the common people. Hence, for the king,
the outer limit of his domain was not important. In the modern
era, the state rules its people directly, including collecting taxes,
and it has to define the territory in which its people reside. To
define its territory, the state now has a boundary and a frontier.
This frontier creates a "hard shell" for the protection of its
people within the territory.23 The state has power and authority to
govern not only its nationals, but also aliens within its boundary.
On the other hand, the boundary also creates a limitation on the
power and authority of the state. It has no power and authority
beyond its territory.24 This territoriality25 of the modem state
forms the basis of the part of international law that will be
Second, the modern state is sovereign. The sovereign state
has two features. Internally, it rules through its government, the
subjects, or the people in its territory directly. Externally, the
state is autonomous and, therefore, not subject to other states or
22. Other writers point out other characteristics of the modem state: (a) the
modern state is governed by the system of law, and (b) in the modern state, the distinction
between the state and society is made. These points are not discussed here because
they are not relevant for this Article.
23. John H. Herz, Rise andDemise of the TerritorialState, 9 WORLD POLITICS 473, 474
24. The territory of a state also includes its territorial sea as recognized by
25. For a discussion of the term territoriality, see Herz, supra note 23, at 473-85.
The English word "sovereign" is from the French word
"soverain," which, in turn, is from the Latin word, "superanus."
German dictionaries define sovereignty as "the highest state
authority,"27 indicating that state and sovereignty are inseparable
concepts. A French writer, Jean Bodin, wrote about sovereignty
in 1577,28 almost half a century before Hugo Grotius' The Law of
War and Peace appeared in 1625,29 probably because at the time
France had begun to transform into a modem state. 0
The concept of sovereignty has been attacked as
"obsolete,""1 "a dead duck,"5 2 or "extinct," 5 but has not been
abandoned. From 1943 to 1994, 118 states, 4 i.e., sovereigns, have
been created, more than the number of states created in the
history before World War II started.
The concept of state autonomy that is inherent in
sovereignty gives rise to the concept of equality among states. That is,
two states can engage in relations, e.g., diplomatic exchanges or
concluding treaties, on an equal footing. But, the concept of
equality between states existed long before the modem concept
of sovereignty'was formulated. In the early days, the leaders of
two or more groups of people, who had the same interest,
entered into military alliance agreements against others Leaders
also divided territory by agreements. 5 The agreements between
the rulers of the kingdoms, the kings, were called treaties. When
two kings entered into an agreement or a treaty, the two were
equal in their legal status. Equal legal status between two states,
however, did not mean that the two states had equal bargaining
Because each state is autonomous, a state is not subject to
the rules imposed by other states. Each state, therefore, in
theory, has unlimited power. Such power, if not restrained, may
encroach on the rights or interests of other states. Accordingly,
international law emerged by consensus of the states to restrain
or limit their own power.37 Thus, international law is created for
self-limitation and self-regulation, and the basis of international
law is consent.
The level of equality inherent in the concept of sovereignty
is meaningful only when the state deals with other states. Equal
status with other states means that the state can enter into
relations with other states on equal footing. Thus, the capacity to
enter into relations with other states on equal footing becomes
part of the concept of sovereignty and one of the features of a
state. In diplomatic recognition, recognition of a state means
that the recognizing state will deal with the recognized state on
an equal footing. Thus, the power of a state based on
sovereignty is twofold: (1) the power to rule or govern the people
within its territory, and (2) the power and capacity to enter into
relations with other states.
Only states have the capacity to enter into relations with
other states or to conduct foreign affairs. A few centuries ago,
treaties were concluded between two kings, or rulers. After the
end of the Thirty Years War in the seventeenth century, the
four parts. The West Frankish Kingdom (Francia Occidentalis), consisting mostly of
what is today's France, went to Charles (later Charles I), who was considered the first
true king of France. The Middle Kingdom, consisting of the Low Countries, Lorraine,
Alsace, Luxembourg, Burgundy, Provence, and northern Italy, went to Lothair (later
Lothair I). The Kingdom of East Franks (Francia Orientalis), consisting of the land
east of the Rhein River and of mostly what is today's Germany, went to Louis (later
Louis the German). The fourth part, consisting of eastern tributary provinces, did not
come under direct rule of any brother. 3 NEW ENCYCLOPEDIA BITANNICA 316
36. For instance, the losing party to a war always has less bargaining power than
the winning party. The losing party that surrenders unconditionally has no bargaining
power at all.
37. Arthur M. Weisburd, The Executive Branch and InternationalLaw, 41 VAND. L.
REV. 1205, 1205 (1998).
princes of the Holy Roman Empire sought from the empire such
capacity to enter into relations with others. They needed such
capacity to enter into an alliance with other princes. The
Roman Emperor in the Peace of Westphalia granted them powers
and capacity to enter into such alliances.38 Historians regard the
granting of such capacity as conferring sovereign independence
upon the princes of the Holy Roman Empire within the feudal
structure of the empire. 39 After the concept of the state
changed from the ruler to the political entity, the treaty was then
between two political entities. Only political entities with
statehood could conclude a treaty with another political entity with
D. InternationalLaw Based on the Concept of Sovereignty
There are three principal sources of international law:
international convention, international custom, and the general
principles of law recognized by nations.4' These sources are all
based on the consensus of the states, albeit in different ways.
Treaties or international conventions are most explicit on the
consensus. They are signed by the contracting parties/states.
International custom arose out of the consensus of the
states in state practices or based on the writings of ancient
writers. Hugo Grotius proved a posteriorithat a body of the
international law is created by the common consent of the states in his
work The Law of War and Peace.4'
The general principles of private law recognized by civilized
nations also form a basis for the creation of international law
where there is no international convention or custom. When
the rules are based on the general principles recognized by all
civilized nations, they have been accepted by civilized
nationsthe states. Samuel Pufendorf, in his book The Law of Nature and
Nations4,2 used the method a priori to deduce logically from the
rational and social nature of man, "certain universal legal
principles which [were accepted by different societies and] ... binding
on all men .... [Such principles] could then be regarded as the
basis of an international law."43 Some basic principles of
international law are deduced from the concept of sovereignty and
territoriality44 of the modern state, which are accepted by all
states. The following are some of the principles:
(a) Sovereignty and the state are inseparable. Every state is
a sovereign. In international relations, a political entity
without statehood has no sovereignty, and cannot enter
into formal relations, e.g., conclude treaties or
diplomatic exchanges with a state.
(b) Only a state may be a full member of the international
society. Only political entities with statehood have
sovereignty and are equal among each other. Thus, a
political entity without statehood cannot be a full
member of the international community. 45
(c) The power of a state ceases at its border. To avoid
conflicts arising out of the concept of unrestrained
sovereignty, the states had, by consensus, limited the exercise
of their sovereignty to territories within their borders.
Thus, exercising the police power in another state
without the latter's consent encroaches on the sovereignty
of the other state.
(d) Each state has one and only one government. A state
requires its government to exercise the state's
sovereignty. Because sovereignty is the highest state power,
41. See STEIN, supra note 4, at 4.
42. Dejurinaturaeet gentium. Id. at 2.
43. Id. at 3.
44. The term refers to the concept that the modem state is a territorial state.
45. Palestine, not being a state, can only be an observer at the United Nations.
and there can be only one who is the highest, the
sovereignty is indivisible. Accordingly, there can be only one
government in a state, which represents the state and
exercises its sovereign power.
The sovereign power of a state includes the power to
conduct foreign affairs. An executive, usually the head of the state,
has the power to conduct foreign affairs, including the power to
enter into relations with other states, unless the head of the state
is a ceremonial figure.4 6 The power to conduct foreign affairs
includes the power of diplomatic recognition. When a state
wants to enter into a relation with another state for the first time,
the former must first recognize the latter being equal and having
the capacity to enter into such relation.
State recognition is different from recognizing a
government. State recognition is recognition of another political entity
as equal with the recognizing state, and signifies that the
recognizing state is willing to enter into relations with the recognized
state on equal footing.47 State recognition is permanent and
cannot be withdrawn unless the recognized state becomes
Government recognition is recognition by the recognizing
state of a certain government as the legitimate representative of
another state. This type of recognition may be withdrawn or
re46. When the state referred to the king or prince, he, being the sovereign person,
exercised the sovereignty, including the power to conduct foreign affairs. After the
concept of the state shifted to the abstract political entity, the power to conduct foreign
affairs is in the executive, usually head of the state, such as the President of the United
States of America. United States v. Pink, 315 U.S. 203, 62 S.Ct. 552 (1942). If the head
of the state, however, is a ceremonial figure, such as Queen of the United Kingdom or
the President of Germany, then the head of the government possesses the power, e.g.,
the Prime Minster in the United Kingdom and the Chancellor in Germany. France
presents a unique situation. There is ambiguity as to who, between the President of the
Republic and the Prime Minster, has power to conduct foreign policy. The French
Constitution does not specify whether the President or the Prime Minister has such
power. General De Gaulle, at the time of establishing the Fifth Republic, said that
foreign policy was a "reserved domain" of the President. In the 1986 Cohabitation
between socialist president and RPR conservative prime minister, President Francois
Mitterand introduced "shared domain." Lionel Jospin, present French prime minister,
speaking in Bir Zeit on or about February 28, 2000, referred to the Islamic group
Hezbollah army as "terrorists." President Jacques Chirac reminded him that the
President conducts the foreign policy. (France 2 News television broadcast, Feb. 29, 2000).
47. For instance, Israel was recognized as a new state by other states in 1948 after
Israel established statehood by Declaration of the Establishment of the State of Israel.
See Declaration of the Establishment of the State of Israel, 1948, 1 L.S.I. 3 (1948).
pudiated. When a new state is just established, state recognition
and government recognition occur simultaneously, and
government recognition also implies state recognition. 48
International law writers have different views on the nature
of the creation of a state. Oppenheim regards "the formation of
a new State ... a matter of fact, and not of law."49 Some, on the
other hand, held that the problem of the state is a "mixed
question of law and fact."50 Since states are subject to international
law, they are legal entities under international law, albeit the law
is not a positive law5' in the strict sense. But, unlike corporations
or incorporated associations in private law, which are created by
registration with a municipal authority, states are not created by
registration. There is not and has never been an office for such
registration, neither the League of Nations nor the United
Two theories have dominated when a state is created: the
constituent theory and the declaratory theory. The two theories
view the effect of diplomatic recognition in the creation of a
state differently. The constituent theory holds that the
statehood of a political entity derives from recognition by other states
only.52 This is true, according to the theory, even though the
political entity exists and has all the common characteristics of
the states. The constituent theory has difficulties not only in
theory, but also in its application."
The declaratory asylum theory holds that statehood is a
legal status independent of recognition, which is declaratory
only.54' This is currently the predominant view. According to
this theory, territorial entities can, by virtue of their mere
existence, acquire legal status and become states.5 5 Both the
Convention on Rights and Duties of States 56 ("Montevideo
Convention") and the Restatement (Third) of the Foreign Relations
Law of the United States 57 (or "Restatement") adopt this theory.
Article 1 of the Montevideo Convention provides that,
"[t]he State as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a
defined territory; (c) government; and (d) capacity to enter into
relations with the other States." 58 These qualifications have
been interpreted to be the requirements for creating a state.
Recognition by other states is not a requirement under the
Montevideo Convention. 59 The term "capacity" in the last
qualification prescribed in Article 1 means ability in fact,6 0 rather than
the legal ability, legal qualification, competency," or "the
attribute of persons which enable them to perform."6 2
54. Id. at 4.
57. RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 202,
Comments a, b (3d ed. 1987).
58. Convention, supra note 56, art. 1.
59. A recent example is Macedonia. It declared independence from Yugoslavia in
1991, but was not recognized by any state until two years later. To date, only two states
have recognized it. The ROC government established a diplomatic relations with
Macedonia in 1999. The ROC government claims that it represents China, or part of China
in Taiwan. Is Macedonia a state under the constituent theory? Many states refuse to
recognize it because of Greece's objection to its name "Macedonia," not because of the
legality as to its existence.
60. See OxFoRD ENGLISH DICTIONARY 2 (2d ed. 1989) (defining "ability" as "holding
61. See BLACK'S LAW DICTIONARY 207 (6th ed. 1990) (defining "capacity").
62. See BLACK'S LAw DICTIONARY 261 (4th ed. 1957) (defining "capacity").
Interpreting the word "capacity" as "legal capacity" as a requirement of a state creates a
circuitous problem. It is a general rule that a natural person acquires capacity to enjoy
rights at birth. German Civil Code, BUERGELICHESGESETZBUCH, art. 1, (trans. by Chung
Hui Wang), states that "[ t] he capacity of natural persons to hold rights (Rechtsfiihigkeit)
begins at the completion of birth." Such capacity is not a requirement for a natural
person. Rather, the capacity comes with the legal status of a person. Likewise, since
sovereignty gives rise to the capacity to engage in relations with other states, only an
established state has sovereignty to meet the requirement. Consequently, a political
entity without statehood cannot meet the requirement.
The Restatement provides a similar nile.63 Section 201
states, "[u]nder international law, a state is an entity that has a
defined territory and a permanent population, under the
control of its own government, and that engages in, or has the
capacity to engage in, formal relations with other such entities. 64
This definition prescribes the four elements65 more as the
characteristics of a state than as requirements, though the comments
refer to them as requirements. 66
The declaratory theory holds that a territorial or political
entity, by virtue of its mere existence, becomes a state and
acquires the legal status of a state. The state exists by itself.6 7 Few
proponents of this theory, however, have treated the question of
when a state comes to exist.
As suggested earlier, a political entity acquires statehood
and becomes a state by a drastic process, not by a slow and
gradual process of evolution. This process is a declaration of the
establishment of a state. A political entity, which has the four
qualifications prescribed in the Montevideo Convention,68 does not
become a state unless and until it declares that it is a state.
This requirement is derived from international custom. In
state practice, such declaration may take a formal or an informal
form. A formal declaration in the earlier days may be an oral
declaration by a ruler to establish a kingdom. The leader or
ruler of the people established his kingdom by declaring himself
the king, or raised his hands high acknowledging his people's
proclamation, making him the king. Subsequently, a document
called a "declaration of independence," was often used. 69 There
are ample historical precedents using such method: Switzerland
from the Holy Roman Empire in 1499,7o the Netherlands from
Spain in 1648,71 the United States from England in 1776, and
Belgium from the Netherlands in 1831.72 More than 100 states
were established since World War II ended.73 Most of them were
established by a declaration of independence. Some were
granted independence by their parent states. In such case,
whether the parent state granted its colony independence at will
or under pressure, the new state often declared the
establishment of a state at the adoption of a constitution, if not before.74
An informal declaration may be found in a treaty. In the
seventeenth century, the Holy Roman Emperor granted the German
princes the right to enter into alliances with others under the
Peace of Westphalia.75 Such right or capacity is a characteristic
of sovereignty, and the German princes were then on considered
The practice of establishing a state by making a declaration
turned into an international custom in the twentieth century.
This international custom has now turned into a rule. The idea
that a declaration of the establishment of a state is necessary to
create a new state may also be deduced from the general
principles of law recognized by civilized nations a priori. After the
modern state has fully developed and the term "the state" refers
to a political entity, rather than the ruler, the state becomes an
abstract concept, 77 not unlike a corporation in private law.
Corporations and states are different from natural persons, although
they all have legal personality. Natural persons are tangible.
Once one becomes a person at birth, his or her existence is
apparent and is never questioned. A corporation is intangible. It
cannot be seen or touched. The creation of a corporation in all
civilized societies that recognize such an institution is
accomplished by registration in a public record. Until the registration,
the corporation does not exist. Registration of a corporation,
therefore, is an announcement by the incorporators to the
soci71. 24 Id. at 888.
72. 14 Id. at 867.
73. 3 Id. at 464. About 118 states were established since 1943.
74. This form was also used in the establishment of the State of Israel in 1947,
granted by the United Nations. The document is titled, "The Declaration of the
Establishment of the State of Israel."
75. Peace of Westphalia, Oct. 24, 1648, art. 65.
76. Herz, supra note 23, at 473-93.
77. LUBASZ, supra note 9, at 1. Samuel Pufendorf called "state" "a moral person."
CRAWFoID, supra note 50, at 6.
ety that the corporation has come into existence. Likewise, a
state and a political entity are abstract concepts. A political
entity with all the qualifications prescribed in the Montevideo
Convention cannot transform itself into a state unless and until it
declares that it is a state.
There are two characteristics of a declaration of the
establishment of a state. First, it is a claim of statehood. Second, it is
an announcement to the international community that the
entity is a state from the time of the declaration. A political entity
must itself claim statehood in order to become a state. The
Comment in the Restatement states that, "[w] hile the traditional
definition does not formally require it [claiming statehood], an
entity is not a state if it does not claim to be a state."7 8 An entity
that does not assert itself to be a state cannot be a state, let alone
expect recognition by other states.
The claim of statehood is based on the common will of the
people residing in the territory, which may be explicit or
implicit. In earlier days, people formed a society or a state, either
to protect themselves or to promote their well being. According
to the theories of both Hobbes and Locke, the people chose
their leaders to form a state at their own will. If the people of a
political entity have no desire to establish a state, then no other
states can force them.79 The common will of the people may be
expressed in a referendum held solely for that purpose, as in
East Timor in 1999.
A declaration of the establishment of a state is an
announcement to the international society signifying that from that time
onwards, the declaring entity is a state. The declaration implies
that it is the common will of the people to establish a state.
Unless otherwise indicated, the declaration takes effect instantly,80
so that the political entity that has the other qualifications
acquires statehood at the time of the declaration. Because the
declaration is, by definition, the beginning of the state's existence, it
does not have retroactive effect.
78. RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 201,
Comment f (3d Ed., 1987).
79. A state set up by another state without the common will of the people will be
void. For instance, the Japanese seized Manchuria and set up the Manchukuo state in
1931. 6 ENCYCLOPEDIA BRITANNICA 499; 16 Id. 137.
80. There has been no instance where a declaration for the establishment of a
state was to take effect in the future.
II. INTERNATIONAL STATUS OF TAIWAN
A. The Governments in Modern China
During the era when the modern state was developing in
Europe, there existed a large country in the Far East, which the
United Kingdom and the United States called China.s' China82
was then ruled by a government called "the Ching dynasty" or
"Ching government" that was established in 1644.
In 1911, the Nationalists led by Sun Yat-sen overthrew the
Ching government and established the Republic of China.83
After the end of World War II, the Chinese Communists defeated
the ROC government and established the People's Republic of
China84 in 1949. Meanwhile, the ROC government led by its
leader, Chiang Kai-shek, fled to Formosa, which the government
had occupied since 1945. The two governments, the PRC
government and the ROC government, have coexisted since 1949.
While the former controls the mainland Chinese territory, the
latter controls the island of Taiwan.
B. The Republic of China
In 1793, the King of England, George III, sent an envoy to
the Emperor of China, Ch'ien Lung, to open trade with
northern China. 5 Sending an envoy by one head of a state formally to
present credentials to another head of state for the first time is a
form of diplomatic recognition in international relations8. 6 So,
the sending of the envoy by the English king to meet the
Chinese emperor constituted both recognition of China as a state
and recognition of the Ching government as the legitimate
government of China. 7
In 1911, when the Nationalists established the ROC, they
did not create a new state. The state was still China, only the
government was different. Foreign loans to the Ching
government were still considered the national debts of China and
assumed by the new government, the ROC. 8 Thus, the
recognition of the ROC by foreign states was not recognition of a new
state, but recognition of the new legitimate government of
China. Likewise, in 1949 when the Chinese Communists drove
out the ROC government from China and established the
People's Republic of China, they did not create a new state, only a
new government. Their country was still China. The ROC
government, which was forced to move to Formosa, did not create a
new state either. As a matter of fact, the ROC government
claimed for many decades after its relocation to Formosa that it
remained the legitimate government of the state of China.
When the United Nations was created in 1945, the state of
China was one of its original members, represented by the ROC
government. The ROC government represented China in the
United Nations until 1972. Even though the name "the
Republic of China" occasionally is used as the formal name of the state,
the state is actually China. The word "Republic" simply indicates
the political system of the state. An analogy can be found in the
87. See HACKWORTH, supra note 86, at 167 (quoting BISHOP, INTERNATIONAL LAW,
CASES AND MAxEIALS 284 (2d ed. 1962)); see also Convention, supra note 56, art. 7.
According to Fairbank and Reischauer, the Chinese Emperor regarded other countries'
tributes, and Emperor Chien Lung praised King George III's "respectful spirit of
submission." FAiRBANK & REISCHAUER, supranote 85, at 257. The Chinese Emperor lacked
the concept of state equality and asked the English envoy, Macartney, to kowtow like
emissaries from tribute countries, which he refused. The Chinese Emperor probably
would not appreciate it if he was told that the English king would recognize China, and
treat it as equal. Nevertheless, the visit should be considered recognition from the
viewpoint of the English king.
88. SeeJackson v. The People's Republic of China, 794 F.2d 1490, 1492 (11th Cir.
1986). "In 1911 the Imperial Government of China issued bearer bonds to assist in
financing the building of a section of the Hukuang Railway .... The Republic of China
made interest payments on the Hukuang bonds until mid-1930's .... " Id. at 1491. By
paying interest on the bonds issued by the previous government, the ROC government
acknowledged the debt created by the Ching government as the debt of the state of
China, and it was obliged to pay. In 1947, the ROC government, through its Prime
Minister, announced that "China pledges her honorable intention to repay those
external loans the service of which was suspended in the course of the Sino-Japanese War."
See Debra Tarnapol, The Role of theJudiciaiy in Settling Claims Against the PRC, 25 HAIv.
INT'L L.J. 355, 360, n.21 (1984).
state of France. The Republic of France is the name of the
government and the term is sometimes used to indicate the state of
France.89 But, the state is France, which was established by
Charles I in the ninth century."0
Until 1971, when the General Assembly of the United
Nations and its Security Council were in session, the nameplate on
the desk where the ambassadors sent by the government of
China sat stated "China," not "the Republic of China." Similarly,
the nameplate on the desk where the French ambassadors sat
stated "France," not "the Republic of France." 91
In 1971, the U.N. General Assembly issued a resolution92
replacing the ROC with the PRC. There was no change of the
membership. The member state was still China. The PRC did
notjoin the United Nations as a new member. The question for
the General Assembly was which government should represent
the state of China, the ROC or the PRC. Because it was a
question of representation and not of new membership, the matter
was within the authority of the General Assembly to decide,
without the need for a prior approval by the Security Council.93
Today, the nameplate on the desk, at which the ambassador of the
PRC to the United Nations sits, still states "China."
At present, in the U.N. document listing its members, it lists
"China," not the PRC, as its member and indicates that China
was admitted on October 24, 1945, a date prior to the
establishment of the PRC government, which did not begin to represent
the state of China until 1971.
After the establishment of the PRC, most states, except the
Union of Soviet Socialist Republics ("USSR"), withheld
recognition of the new government until 1964, when France recognized
89. 19 NEw ENCYCLOPEDIA BRITANNICA 524
(15th ed. 1994)
. The Fifth Republic of
France was established in 1958.
90. See supra note 35,
91. Where a state was split into two independent states, and both states wanted to
use the original state's name as part of their new state's name in order to retain their
identity, the two states might use the government's name as the state's name to avoid
the confusion. For instance, in 1945, Germany was split into two: The Federal Republic
of Germany (West Germany), and the German Democratic Republic (East Germany),
until 1990, during which the state's name and the government's names became the
92. U.N. G.A. Res. 2758, U.N. GAOR, 26th Sess., 1976th mtg. at 358 (1971).
93. Charter of the United Nations, June 26, 1945, art. 4, para. 2, 59 Stat. 1031,
1038, T.S. No. 993, 3 Bevans 1153.
The ROC government also does not claim to be a state
either in its application to join the World Trade Organization 125
("WTO") .126 The WTO is a trade organization developed from
the General Agreement on Tariff and Trade 127 ("GATT"). After
World War II, in order to promote world trade, twenty-three
states signed the GATT. Initially, all signatories were states.
However, some members, particularly the United Kingdom and
France, had overseas territories, which, due to their special,
geographical, and economical conditions, would have hardship if
they were subject to the same customs duty and other import
regulations as their parent states. Therefore, GATT was
amended to add a type of membership called, "customs
territories." This type of membership permits these overseas territories
to join as members and to be treated differently from their
parent states. The United Kingdom was a member of the GATT and
made Hong Kong a customs territory for it to join the GATT as a
separate member. The United Kingdom did this before it
handed Hong Kong over to China pursuant to an international
agreement of 1985.1
28 In 1995
, GATT transformed into the
The ROC government has applied for membership to
GATT and, subsequently, to the WTO for many years. Although
President Lee Teng-hui claims that the ROC is a state with
independent sovereignty, when his government applies to join the
WTO as a member, it does not apply as a state. It cannot apply
in the name of "China," because a great majority of the member
states do not regard the ROC as the legitimate government of
China. It does not apply under the name of the ROC because it
127. General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947,
61 Stat. A3, 55 U.N.T.S. 187 (1950).
128. See 22 U.S.C. § 5712(3) (1994) (providing that "The United States should
respect Hong Kong's status as a separate customs territory"); 22 U.S.C. § 5713(3)
(stating that "The United States should continue to recognize Hong Kong as a
territory which is fully autonomous from the United Kingdom and, afterJune 30, 1997,
should treat Hong Kong as a territory fully autonomous from the People's Republic of
China with respect to economic and trade matters")
; 22 U.S.C. § 5722(a) (1994)
(allowing U.S. President to suspend laws of United States with respect to Hong Kong if
President "determines that Hong Kong is not sufficiently autonomous to justify
treatment under a particular law of the United States.").
is the name of a government and it does not claim that it is a
state. Thus, the ROC applies as a custom territory called, "The
Customs Territory of Taiwan, Penghu, Kinmen and Matsu."1 29
Because President Lee Deng-Hui and his government apply only
as a customs territory, the ROC does not claim that it is a state in
the international community. On July 9, 1999, in an interview by
a German TV reporter, President Lee Teng-hui said: "The
Republic of China has been a sovereign state since it was founded
in 1912. The 1991 amendment to the Constitution
(promulgated in 1947 in Nanjing, China) designated the cross-strait
relation as a special state-to-state relationship. Consequently, there
is no need of declaring independence."1 3 The day after the
interview was broadcast, many newspapers printed exciting
headlines, claiming that Lee Teng-hui advocates two Chinas.
The statement, "special state to state relationship," is not a
declaration of independence or a declaration of the
establishment of a state. First, a declaration for the establishment of a
new state is a solemn statement. The modern custom is to make
the statement in a government document officially executed and
published, not made casually to a foreign reporter in an
interview. Second, the content of the statement itself does not
indicate the statement to be a declaration of the establishment of a
new state. On the contrary, Lee Teng-hui's statement that there
is no need to declare independence negates any interpretation
that the statement is itself a declaration of independence.
Third, subsequent statements of Lee Teng-hui indicate that he
had no intention of declaring the creation of a new state in the
interview. On July 20, 1999, Lee Teng-hui said, while explaining
the "special state-to-state relation" to the representatives of a
local International Rotary Club, "[t] he government is not engaged
in the Taiwan independence [movement]. Without equal status
(between two banks of the Taiwan Strait) in a negotiation,
problems, such as smuggling of drugs and guns, or of the
Footand-Mouth disease"' are difficult to resolve." In making the
"special state-to-state" statement, Lee Teng-hui was just seeking
an equal footing in negotiation with the PRC government.
Lee Teng-hui's statements in his July 9, 1999 interview raise
two questions. First, he said
that the 1991
amendment of the
Chinese Constitution, which was promulgated in 1947 in
Nanjing, China, designated the relation between China and Taiwan
as a special state-to-state relation. But, no constitutional scholar
or official in Taiwan, including Lee Teng-hui, has ever said or
that the ROC became a state since 1991
. Lee Teng-hui
himself, in his inauguration speech in 1996, still advocated the
one-China policy. Why did he suddenly announce that the
relation between the two banks of the Taiwan Strait was a
state-tostate relation since 1991?
The second question-if the ROC is already a state, as Lee
Teng-hui claims, when did it become a state? Was it established
in 1912, when the ROC was established, as he often claims and
also claimed in the interview? Was it established in 1991 when
the Chinese Constitution was amended? Or, was it established
on July 9, 1999, when he made the "special state-to-state"
statement? There is no state in history whose leader is so confused as
to the time his state was established.
Senator Frank H. Murkowsky dismissed the suggestion that
by President Lee Teng-hui's statement about cross-strait
relations, "Taiwan has virtually declared independence." 132 A
Comment to the Restatement states that "Taiwan might satisfy the
elements of the definition [of a state], but its authorities have
not claimed it to be a state, but rather part of the state of
III. SOVEREIGNTY OVER TAIWAN
A. Sovereignty Based on Territory
The discussion will now turn to the second question raised
in the introduction-whether China has sovereignty over
Taiwan. As stated before, the modern state is contingent upon the
concept of territory. Territory is, therefore, one of the elements
of a state."' The victorious states of a war, in which the defeated
state has surrendered unconditionally, may impose any
conditions for the surrender, including annexation of the defeated
state, although in modern times such instances are rare. In most
cases, the victorious states merely wanted to take from the
defeated state a piece of its territory, which sometimes was the
source of dispute between the warring states.
From the defeated state's point of view, ceding part of its
territory to the victorious state is the price to pay in order to
preserve the state. Taking or ceding a territory has always been
accomplished by treaties,13 5 particularly after the modern state
fully developed. Thus, a treaty to cede a territory concluded at
the end of a war is binding, however unfair it may seem. No
such treaty has ever been effectively revoked on the ground of
B. Territorial Treaties
A treaty may be political, economic, military (i.e., defense
132. US SenatorSees No Changein Taiwan's ChinaPolicy, CENTRAL NEWS AGENCY, July
17, 1999, available in 1999 WL 17720726.
133. RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 201,
Comment f (3d Ed., 1987).
134. Convention, supra note 56, art. 1.
135. See, e.g., Herz, supra note 23.
alliances), cultural, or scientific. There is also a type of treaty
that changes the territories of the parties, e.g., delineating the
territorial boundary, transferring the title to a territory, dividing,
or abandoning a territory, which will be called territorial treaties
in this Article. Historically, major wars ended by concluding
peace treaties between the warring states. 136 Most peace treaties
are also territorial treaties that reallocate territories of the
Territorial treaties have peculiar characteristics. By their
nature, they are different from other types of treaties in many
ways. First, territorial treaties are proprietary as well as
contractual, while other types of treaties are purely contractual in
nature. Such treaties, like land deeds in private law, involve a
transfer of interest in land and affect the sovereign power of the
parties to the treaties. Second, territorial treaties are self-executing.
They take effect immediately unless otherwise indicated. Other
types of treaties are usually executory, i.e., promises or some acts
to be carried out in the future. Third, territorial treaties provide
a final settlement of the territories between the parties. Other
types of treaties are forward looking; for instance, they might
provide for cooperation in the future or they might establish
new rules of conduct between the contracting parties.
These characteristics formed the basis of some rules on
territorial treaties. The following are some of the rules:
Rule 1. No territory owned by a state can be taken away or
transferred without a treaty. This is true even if a warring state
has occupied the territory of an enemy state during the war.
U.S. Supreme Court Chief Justice John Marshall in American
Insurance Co. v. Cantor,13 7 said, "[t] he usage of the world is, if a
nation be not entirely subdued, to consider the holding of
conquered territory as a mere military occupation, until its fate shall
be determined at the treaty of peace. 1 38
Rule 2. In a territorial treaty, only a party to the treaty can
acquire the title to a territory. The transferee of a territory must
be a party to the treaty.
Rule 3. Territorial treaties cannot be revoked unilaterally.
Once the title to a territory is transferred by a treaty, the only
way the transferor can regain the title to a territory is by way of
another treaty. Alsace and Lorraine have changed hands
between Germany and France several times. Each time it was done
Rule 4. The victorious state in a war may validly force the
defeated state to dispose of its territories by a treaty. Title to the
territories transferred or ceded by the defeated state is valid and
cannot be denounced by the defeated state.
Rule 5. The words and language used in territorial treaties
disposing a territory are precise and unambiguous, using words
such as "grant," "cede," "divide," or words of abandonment, such
as, "relinquish," for the present transfer or disposal of a territory.
In interpreting such a treaty, the 1969 Vienna Convention
on the Law of Treaties13 9 ("Vienna Convention") applies. Article
31 of the Vienna Convention adopts the ordinary meaning, or
"objective" approach, supplemented by other methods, such as
the intention of the parties, or "subjective" approach. 140
C. HistoricalEvents Affecting the Title to Formosa
1. The Treaty of Shimonoseki
In 1895, Japan defeated China in the Sino-Japanese War
and the Ching government signed the Treaty of Shimonoseki
with Japan. 4 ' In this treaty, China ceded the island of Formosa
and the Pescadores Group "in perpetuity to Japan." 42 At first,
Japan distinguished Formosa as a colony, but later treated the
territory as its own. 14 3
2. Cairo Declaration and Potsdam Declaration
During World War II, Japan fought against the Allied
Powers, 44 which were led by the United States in the Pacific. In
1943, while the Pacific War was in progress, U.S. President
Franklin D. Roosevelt, Prime Minister of Great Britain Winston
Churchill, and Generalissimo of China Chiang Kai-Shek met in
Cairo to discuss the strategy for defeating Japan, which took
place from November 22-26, 1943."'1 On December 1, 1943, the
three governments made a joint statement, known as the Cairo
Declaration. 46 The Cairo Declaration states, in part, that "all
the territories Japan has stolen from the Chinese, such as
Manchuria, Formosa, and the Pescadores, shall be restored to the
Republic of China."147 In June 1945, President Harry Truman,
Prime Minister Churchill, and President Chiang Kai-Shek
conferred in Potsdam, 148 and on July 26, 1945 the three
governments issued a joint declaration called the Potsdam
Proclamation, which confirmed the Cairo Declaration with respect to the
future of Formosa. 149 The Potsdam Proclamation states that
"[t]he terms of the Cairo Declaration shall be carried out and
Japanese sovereignty shall be limited to the islands of Honshu,
Hokkaido, Kyushu, Shikoku, and such minor islands as we
determine." 5 o
The intention of the three government heads expressed at
the time of issuing the two declarations that Formosa be
returned to China after Japan surrendered is not questioned here.
It is the nature and the effect of the declarations that will be
examined below. First, I will discuss the nature of the
declarations. A joint declaration, like a communiqu6, of two or more
governments is often used to express the common foreign policy
of the governments that made the declaration. Such foreign
policy does not bind succeeding governments. It certainly does
not have the nature of a contract in private law, creating a
binding obligation on the governments, let alone on the states.
Thus, the declarations have no binding effect on the
governments that made such declarations.
Second, I will discuss the effect of the declarations. At the
time when the declarations were issued, Japan had not yet
surrendered. The Allied Powers were winning the war, but had not
yet defeated Japan. It is a general rule of law that one cannot
give something which he or she does not have. Even assuming,
arguendo that the declarations were considered as contractual
promises offering Formosa to China, they surely did not have
that effect. The three governments did not have the title to
Formosa and the Pescadores. Neither the three governments could,
before Japan surrendered, force it to transfer the title to
Formosa. Such transfer could have been made at a postwar
settlement in a treaty only after Japan surrendered.
3. Postwar Occupation by the ROC Government
Soon after Japan surrendered on August 15, 1945, the U.S.
Army occupied the major islands ofJapan1 5 1 and Okinawa. The
United States also assumed the post-surrender operation in
southern Korea, leaving the operation in northern Korea to
Russia, which had declared war against Japan just a week before
Japan surrendered. 152 The United States asked the United
Kingdom to take over the operation in Southeast Asia, where Japan
defeated the United Kingdom during the war. After the United
States occupied the Okinawa Islands, it could also have assumed
the post-surrender operation in Formosa. But, immediately after
the Japanese surrender, the U.S. government wanted to recall its
troops as soon as possible. The war had lasted too long since the
Japanese attack on Pearl Harbor. General Douglas MacArthur,
151. The four major islands are Honshu, Hokkaido, Kyushu, and Shikoku.
152. This took place on August 8, 1945.
as the Supreme Commander of the Allied Forces' army, decided
to assign the task of the post-surrender operation in Formosa
over to President Chiang Kai-shek and the ROC government. 15 3
After all, most U.S. Department of State officials thought that
Formosa would be returned to China pursuant to the Cairo
Declaration at a postwar settlement.15 4
The war between Japan and the Allied Powers did not
formally end until 1950, when the Treaty of Peace with Japan'5 5
("Peace Treaty of San Francisco") was signed, and the war
between Japan and China was not formally over until 1952,156 when
the Peace Treaty between Japan and China, represented by the
ROC government, was signed. Thus, the occupation of Formosa
by the ROC government was until then a military wartime
The assignment of the task of the post-surrender operation
in Formosa to the ROC government by the Allied Powers,
through General MacArthur, created an agency relationship
between the Allied Powers as the principal, and the ROC
government as the agent, pending a peace settlement. The agency
relationship would have terminated if the title to Formosa had
formally been transferred to China in a peace treaty under
negotiation at the time.
This state became a territorial state, and it is common that a
victorious army in a war occupies the territory of the defeated
state. Territory, after all, is an important element of the
defeated state. The occupation of an enemy's territory after the
enemy surrenders, pending a settlement, however, does not give
the occupying state the title to the territory that it occupies. It
has become an international custom that if title to a territory of
the defeated state is to be changed after a war, then it must be
achieved by a territorial treaty.
The nature of the occupation of Formosa by the ROC
government, before a post war settlement, was threefold. First, the
occupation of Formosa was on behalf of the Allied Powers led by
the United States and lasted until the agency relationship
terminated, in which event the ROC government would have to cease
the occupation of Formosa unless the title to Formosa was
transferred to the state of China at the postwar settlement. If the title
to Formosa were subsequently transferred to the state of China
at the postwar settlement, then the ROC government would
occupy it as the reigning government.
Second, the occupation of Formosa by the ROC
government did not give the ROC government title to Formosa. The
purpose of occupation of Formosa by the ROC government was
for post-surrender operation, and for that purpose only. The
authority of an agent is limited by its mandate given by the
principal. The right of possession or occupation of a territory and the
right to its title are two distinct rights. For instance, in the
Treaty of Paris 'of 1898 after the Spanish-American War, Spain
relinquished the title to Cuba and the United States was given
the right of occupation pending final resolution, but not title.
Third, the occupation of Formosa by the ROC government
did not give the PRC government or the state of China the title
to Formosa. In occupying Formosa, the ROC government acted
as the agent of the Allied Powers, not of the PRC government or
the state of China. Besides, the ROC government did not
acquire the title to Formosa for itself or for anyone else. There was
no legal ground under which either the PRC government or the
state of China could have acquired title to Formosa based on the
fact that the ROC government occupied Formosa pending a
4. The Peace Treaty of San Francisco
After Japan surrendered in August 1945, the Allied Powers
began to prepare for a postwar settlement. The United States,
being the leading power during the war, assumed the task of
drafting a treaty. The drafts were distributed to other Allied
Powers for comments, and exchanges of notes among the parties
followed. The Peace Treaty of San Francisco, as it came to be
called, was signed on September 8, 1951158 between Japan and
the Allied Powers. China was neither a party nor a signatory to
this treaty. Neither the ROC government that occupied the
island of Formosa, nor the PRC government, signed on behalf of
the state of China.
The Peace Treaty of San Francisco, which forced Japan to
dispose of some of its territory, is a territorial treaty. The only
provision that deals with the territory of Formosa is Article 2(b)
that provides that 'Japan renounces all right, title and claim to
Formosa and the Pescadores." 159 China did not acquire title to
Formosa under the Peace Treaty of San Francisco. It did not
acquire it by interpreting the Peace Treaty of San Francisco.
There are two approaches in interpreting a treaty: the objective
approach and the subjective approach.
Under the objective approach, i.e., by the plain and
ordinary meaning of this treaty, China has not acquired the title to
Formosa under the Peace Treaty of San Francisco language.
The treaty does not use the word "cede," which is the word
customarily used in a treaty to transfer a territory. Instead, it uses
the word "renounce." Its plain and ordinary meaning is "to give
up "16° and "to abandon."'6 1 It has the same meaning with the
word "relinquish" employed in the Treaty of Paris between Spain
and the United States. 1 6 2 Moreover, the Peace Treaty of San
Francisco provision does not mention any transferee. No state
could have received any right or title to Formosa under the
Under the subjective approach of interpretation, i.e., the
intention of the parties to the Peace Treaty of San Francisco, it was
clear that the parties did not intend for China to acquire the title
to Formosa. The U.S. government had a change of mind with
respect to the policy announced in the Cairo Declaration and
158. Peace Treaty of San Francisco, supra note 155, 136 U.N.T.S. at 46.
159. Id. art. 2(b), 136 U.N.T.S. at 48.
160. WEBSTER'S NEw COLLEGIATE DICTIONARY 972 (1981).
162. In the 1898 Treaty of Paris between Spain and the United States, Spain
relinquished its sovereignty over Cuba. The Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30
intended to leave the future of Formosa undetermined. So, it
wanted Japan to relinquish title to Formosa, and did not want
China to have it. The use of the word "renounce" in disposing
the title to Formosa was not without careful deliberation of the
drafters of the Peace Treaty of San Francisco. 163 The
government of the Union of Soviet Socialist Republics ("U.S.S.R."), in
its memorandum to the U.S. Ambassador 164 commented,
In the meantime the American draft treaty and the
memorandum of the United States of America of May 19 testify to the
fact that the Government of the United States is going on
with direct violation of the national rights of China with
respect to its territory in refusing to fulfill the Cairo agreement
regarding the return of Taiwan island and the Pescadores
Islands to China as well as with exclusion of China from
preparation of a peace treaty with Japan.1 65
Likewise, the Government of India was fully aware that
Formosa was not to be returned to China under the draft of the
Peace Treaty of San Francisco. In its memorandum to the U.S.
Department of State, 16 6 the Indian Government expressed its
intent not to participate in the Peace Treaty of San Francisco, on
the ground, among others, that,
[T] he Government of India attach the greatest importance to
the Treaty providing that the Island of Formosa should be
returned to China. The time and manner of such return
might be the subject of separate negotiations but to leave the
future of the Island undetermined, in spite of past
international agreements, in a document which attempts to regulate
the relations of Japan with all Governments that were
engaged in the last war against her does not appear to the
Government of India to be either just or expedient. 16 7
Thus, it was clear to all the states involved that China was not to
acquire and did not acquire the title to Formosa.
The Peace Treaty of San Francisco left intact the Treaty of
Shimonoseki of 1895, under which Japan acquired Formosa.
The renouncement of the title in the treaty to Formosa took
effect from the time it became effective. It had no retroactive
ef163. U.S. Memorandum of May 19, 1951, DEPT. ST. BULL., July 23, 1951.
164. Soviet Memorandum of'June 10, 1951, DEPT. ST. BULL., July 23, 1951, at 138.
165. Id. at 142.
166. India Refuses To Be Party to Treaty, DEi-r. ST. BULL., Sept. 3, 1951, at 385.
167. Id. at 386.
fect. Therefore, the renouncement of the title to Formosa did
not affect the fact that Japan acquired the title to Formosa from
the Treaty of Shimonoseki of 1895. This legal fact was not
changed by Article 10 of the Peace Treaty of San Francisco that
Japan renounces all special rights and interests in China,
including all benefits and privileges resulting from the
provisions of the final Protocol signed at Peking on September 7,
1901, and all annexes, notes and documents supplementary
thereto, and agrees to the abrogation in respect to Japan of
the said protocol, annexes, notes and document. 168
Although Article 10 requiresJapan to renounce all its rights and
interests in China under the mentioned protocol and
documents and abrogate those documents, it does not deal with the
territory of Japan, and certainly does not refer to the Treaty of
Second, China could not acquire title to Formosa under the
Peace Treaty of San Francisco because only an Allied Power,
which was a party to the treaty, could acquire title to a Japanese
territory. Under the general rule of law mentioned earlier, in a
territorial treaty, only a party to the treaty can transfer or acquire
title to a territory. The Peace Treaty of San Francisco was more
specific. Article 25 provides,
Subject to the provisions of Article 21, the present Treaty
shall not confer any rights, titles or benefits on any State
which is not an Allied Power as herein defined; nor shall any
right, tile or interest ofJapan be deemed to be diminished or
pwrheijcuhdiicsendotbyananAyllpierodvPisoiownero.1f69the Treaty in favor of a State
According to Article 23, China was not a party to the Peace
Treaty of San Francisco. Article 23 provides, 7 '
The present Treaty shall be ratified by the States which sign
it, including Japan, and will come into force to all the States
which have then ratified it, when instrument of ratification
have been deposited by Japan and by the majority, including
the United States of America as the principal Power, of the
following states, [here appear the names of such of the
fol168. Peace Treaty of San Francisco, supra note 155, art. 10, 136 U.N.T.S. at 58.
169. Id. art. 25, 136 U.N.T.S. at 74.
170. Id. art. 23, 136 U.N.T.S. at 74.
lowing States as signatories to the present Treaty] namely
Australia, Canada, Ceylon, France, Indonesia, the Kingdom
of the Netherlands, New Zealand, Pakistan, the Republic of
the Philippines, the United Kingdom of Great Britain and
Northern Ireland, and the United States of America.
China was not mentioned in Article 23. China was not an
Allied Power as defined in the first paragraph of Article 25,
which provides, that
[f]or the purposes of the present Treaty the Allied Powers
shall be the States at war with Japan, or any State which
previously formed a part of the territory of a State named in
Article 23, provided that in each case the State concerned has
signed and ratified the Treaty. 171
Because China was not a party to the treaty and not an Allied
Power under the treaty, China could not acquire the tite to a
territory owned by Japan under Article 25.
China could not acquire the title to Formosa under an
exception to Article 25 either. The exception was in Article 21.
Article 21 provides, "[n]otwithstanding the provisions of Article
25 of the present Treaty, China shall be entitled to the benefits
of Articles 10 and 14(a)2 .... As discussed before, Article 10
deals with the rights and interest of Japan in China, not with
territories. Article 14 deals with reparations and acceptance of
surrender, 173 not with territories either.
The language in Chapter 2, Article 2 (b), in which Japan
renounced the title to Formosa, and the language in Article 2(c),
in which Japan renounced the title to Kurile Island and Sakhalin
Island, are different and should be distinguished. Article 2(c)
provides that 'Japan renounces all rights, title and claim to the
Kurile Island, and to that portion of Sakhalin and the islands
adjacent to it over which Japan acquired sovereignty as a
consequence of the Treaty of Portsmouth of September 5, 1905. 1"' 7 4
The reference to the Treaty of Portsmouth is important. The
title and rights renounced are specific, i.e., those acquired under
the Treaty of Portsmouth. When Japan renounced all its rights
and claims acquired under the Treaty of Portsmouth, these
171. Id. art. 25, 136 U.N.T.S. at 74.
172. Id. art. 21, 136 U.N.T.S. at 72.
173. Id. art. 14, 136 U.N.T.S. at 60.
174. Id. art. 2, 136 U.N.T.S. at 48-49.
rights and claims terminated and were returned to Russia. 175
With respect to the title to Formosa and the Pescadores,
Japan simply renounced the title and claim to them.
Renouncement took effect at the time the Peace Treaty of San Francisco
went into effect. The language in Article 2(b) of this treaty is
similar to that in Article 2 (f) dealing with the Spratly Islands and
the Paracel Islands. In these two provisions, Japan renounced its
claim to them without qualification and without any attempt to
transfer their title, but leaving it unresolved.
From the analysis above, it is beyond any doubt that China
did not acquire the title to Formosa under the Peace Treaty of
San Francisco. The Peace Treaty of San Francisco also had two
implications. First, it did not carry out the wartime foreign
policy of the three governments announced in the Cairo
Proclamation. The Cairo Declaration and the Potsdam Proclamation
were rejected formally by the Allied Powers who signed the
Peace Treaty of San Francisco. Second, the Peace Treaty of San
Francisco did not terminate the agency relationship of the ROC
government and the Allied Powers. Because China did not
acquire title to Formosa under this treaty, the status of the ROC
government as an agent of the Allied Powers was unchanged.
Under the general principle of law recognized by civilized
nations, agency status remains the same unless and until it is
terminated by the principal, which in this case is the Allied Powers.' 76
5. Peace Treaties Between China and Japan
Since the conclusion of the Peace Treaty of San Francisco in
1951, Japan has signed two peace treaties with China, one with
the ROC government in 1952,1" and the other with the PRC
government in 1978.178 Neither peace treaty is a territorial
175. Article 2(c), however, has such effect only if Russia signed the Peace Treaty of
San Francisco. Although the U.S.S.R. was originally named a party in Article 23, it did
not sign the Peace Treaty of San Francisco. It has, however, occupied the Kurile Islands
and Sakhalin Islands, as well as four small islands north of Hokkaido, which Japan
claims to be her original territories. So, Russia will not acquire the title to the Kurile
Islands and Sakhalin Islands until it signs a peace treaty with Japan.
176. The agency relationship may be terminated by mutual consent or by either
party. In any event, the agent cannot retain the possession of the territory.
177. Treaty of Peace of 1952, supra note 156.
178. The Treaty of Peace and Friendship Between Japan and the People's
Republic of China, P.R.C.-Japan, Aug. 12, 1978, 1225 U.N.T.S. 269.
The 1952 treaty, signed by the ROC government, ended the
war between China and Japan. The treaty does not deal with
title to Formosa, but simply confirmed the disposition thatJapan
made in the Peace Treaty of San Francisco. Article II of the 1952
peace treaty provides,
It is recognized that under Article 2 of the Treaty of Peace
with Japan signed at the city of San Francisco in the United
States of America on September 8, 1951 (hereinafter referred
to as the San Francisco Treaty), Japan has renounced all
right, title and claim to Taiwan (Formosa) and Penghu (the
Pescadores) as well as the Spratly Islands and Paracel
By recognizing that Japan had abandoned Formosa, the ROC
government accepted it as officially valid. Not only did the state
of China not acquire the title to Formosa under the 1952 peace
treaty, but the ROC government, which represented China, also
formally accepted the legal fact that Japan had abandoned
Formosa without claiming it as its own. The second peace treaty
signed between Japan and China, represented by the PRC
government in 1978, does not even mention the Peace Treaty of San
Francisco or Formosa.
Under the general principles of law, China could not have
acquired title to Formosa under these treaties because Japan,
having renounced its title to the island of Taiwan in the 1951
Peace Treaty of San Francisco, had no more title or right to the
island of Taiwan to give at the time of signing these two treaties.
D. Chinese Sovereignty over Taiwan
The modern state has territorial state sovereignty that is
based on the territory that the state owns and controls. Any
sovereignty of China over Taiwan must be based on title to the
island of Taiwan. Due to the fact that China, as analyzed herein,
has not acquired the title to the island of Taiwan either under a
treaty or by occupation, China has no sovereignty over the island
Consequently, China has no sovereignty over the people in
Taiwan. A state with no sovereignty over a territory cannot have
sovereignty over the people in the territory. Under the theory of
179. Treaty of Peace of 1952, supra note 156, art. II, 163 U.N.T.S. at 38.
the territorial state, the sovereign power of a state ceases at its
There are many implications from the conclusion that
China has no sovereignty over Taiwan. One, neither the PRC
government nor the ROC government can claim for the state of
China the title to Formosa. The claim of both governments that
Taiwan is part of China has no legal basis. The one-China policy
that has been advocated by the two Chinese governments is
correct in the first part that there is only one China, but wrong in
the second part that Taiwan is a part of China.
Second, the U.S. foreign policy toward China and Taiwan
based on the "one-China policy" is flawed because it is based on
a mistaken assumption that China has title to the island of
Taiwan. In the joint U.S-China Shanghai Communique of 1972 by
President Richard Nixon and Chinese Premier Zhou Enlai, the
U.S. government was careful in its language, acknowledging that
"all Chinese on either side of the Taiwan Strait maintain there is
but one China and that Taiwan is a part of China."1 80 In other
words, the U.S. government in the communique only took
notice of the Chinese claim on the island of Taiwan and would not
lend color to legitimacy of the Chinese claim. President Clinton,
in 1998, during an official visit to China, in Shanghai, changed
the tone when he announced the "Three-nos" policy, in which
he recognized China's claim that Taiwan is a part of China. In
response to China's White paper on Taiwan threatening the use of
force against Taiwan before its presidential election, the U.S.
Secretary of Defense William Cohen said that the United States
supports "the one-China policy."1 81 The change of tone from
"acknowledge" to "support" still will not confer the legal right of
the island of Taiwan to China because title to a territory is not
transferred by such a policy statement by a third party. But, if
the term "support" is interpreted as "acceptance," 182 the change
of tone has far-reaching adverse effects on international
Third, under international law, the Taiwan issue is not a
domestic issue of the state of China. The U.N. Secretary General
Kofi Annan was misled when he said, after the September 1999
earthquakes in Taiwan, that the United Nations, in dispatching a
disaster assessment team to "the Taiwan Province of China," had
to ask the PRC government for permission.1 83 Under the Vienna
Convention, states and international organizations, such as the
United Nations, which are not parties to the Peace Treaty of San
Francisco, are also bound by its territorial arrangement. 184
IV. SOLUTIONS FOR TAIWAN
In 1951, afterJapan was forced to renounce its title to
Formosa in the Peace Treaty of San Francisco, Taiwan was no longer
subject to any sovereign. As mentioned earlier, not all civil
societies are states. A society may be a political entity, yet neither be a
state, nor be subject to any sovereign. Although the island of
Taiwan is not owned by any state, it is submitted that the island
of Taiwan has become the "people's property," a concept
derived from the Roman law concept of res humanijuris or "things
subject to human dominion."1 8 5 People's property is property
owned by a society, or, more specifically, the people of the
The situation of a group of people living in a society, but
not subject to any sovereignty is not unique for Taiwan. In the
Treaty of Paris between the United States and Spain signed after
the end of the Spanish-American War, Spain relinquished its
title to Cuba. 18 6 Even though Cuba was thereafter occupied by
the United States until Cuba established statehood, the territory
and the society were not under any sovereign." 7 East Timor is
183. See Chiang, supra note 3; UN Sends CoordinatingRescue Team, supra note 3;
Siemaszko, supra note 3.
184. Vienna Convention, supra note 139, art. 38, 1155 U.N.T.S. at 341; WALL cE,
supra note 140, at 206.
185. Gaius in his Institute Book II Section 2 states, "The first division of things is
into two classes: things subject to divine dominion, and things subject to human
dominion." Section 10 states: "Things subject to human dominion (res humanijuris)are
either public or private." GAius, ELEMENTS OF ROMAN LAw 158-59
(2d ed., 1994)
186. The Treaty of Paris of 1898 between the United States and Spain after the
end of the Spanish-American War provides: "Spain relinquishes all claim of sovereignty
over and title to Cuba." The Treaty of Paris, Dec. 10, 1898, U.S.-Spain, 30 Stat. 1754.
187. Id. art. I. Article I provides:
Spain relinquishes all claim of sovereignty over and title to Cuba. And as the
in a similar situation.18 8
The occupation of Cuba by the United States after the
Spanish-American War and the occupation of the island of Taiwan by
the ROC government after the Japanese surrender are similar in
that the occupation was authorized in both cases. In the former,
the occupation was authorized by a treaty, while in the latter, the
occupation was authorized by the Allied Powers that defeated
Japan. Although the Peace Treaty of San Francisco contains no
provision with respect to the post-treaty administration of the
affairs of Taiwan,' it was presumed that the ROC government
that was authorized by the Allied Powers, as its agent, to conduct
a military occupation in the island of Taiwan, was to continue to
administer the island. While the United States withdrew from
Cuba soon after Cuba established statehood, the ROC
government has since administered the affairs of Taiwan.
The ROC government and the state it claims to represent,
China, do not have sovereignty over the island of Taiwan. The
ROC government has administered the affairs of the island
under a constitution promulgated in Nanking, China in 1947.19°
island is, upon its evacuation by Spain, to be occupied by the United States,
the United States will, so long as such occupation shall last, assume and
discharge the obligations that may under international law result from the fact of
its occupation, for the protection of life and property.
188. East Timor, after the Indonesian Parliament ratified the inhabitants' votes for
independence in the August 1999 referendum, is not under any sovereign. Pending a
preparation for establishing statehood under the U.N. administration, the territory is
the people's property, owned by the peoples of East Timor collectively.
189. Article 14(a)2 of the Peace Treaty of San Francisco does not confer to the
ROC government any right to govern the island of Taiwan. Article 14(a)2 provides:
[E]ach of the Allied Powers shall have the right to seize, retain, liquidate or
otherwise dispose of all property, tights and interests of
(a) Japan and Japanese nationals,
(b) person acting for or on behalf Japan or Japanese nationals, and
(c) entities owned or controlled by Japan or Japanese nationals,
which on the first coming into force of the present Treaty were subject to its
Peace Treaty of San Francisco, supra note 155, art. 14(a) (2), 136 U.N.T.S. at 59.
Although China, not being an Allied Power as defined, was conferred no right, tides, or
benefits by the Peace Treaty of San Francisco, (Article 25), Article 21 provides an
exception for China so that China had the benefit under Article 14(a)2.
190. ZHONGHUA RENMIN GONGHEGUO XIANFA [CHUNGHUA JENMIN KUNGHOKUO
HSIENFA] (CONSTITUTION OF THE REPUBLIC OF CHINA) (adopted by the National
Assembly on Dec. 25, 1946, promulgated by the National Government on Jan. 1, 1947,
effective from Dec. 25, 1947), (visited Apr. 16, 2000) <http://www.oop.gov.tw/roc/charter/
echarter.htm> (on file with the FordhamInternationalLawJournal) The amendment to
Amendments to the constitution and participation by the
inhabitants in the government have not changed the character of
the government as an agent of the Allied Powers. It is time that
the people of Taiwan are allowed to decide their own political
The doctrine of self-determination has been a heated issue
during the twentieth century, especially after World War I1.191 It
is a doctrine that can be traced to the eighteenth and nineteenth
centuries' ideology of nationalism, 19 2 and is strengthened by the
twentieth century's concept of human rights. In its historical
context, the doctrine of self-determination means determination
by a group of people with the same social, ethnic, and cultural
background inhabiting one area, or sometimes a group of
people living in a territory within a state, of its own political future,
including establishing a state of its own by a referendum or
other methods. 193
An issue in international law is whether a minority group
within a state has the right of self-determination against the wish
of the sovereign state. If self-determination is recognized as a
right in international law, then it sets a limitation on the
sovereign power of the governing state. Nevertheless, most writers
support the principle of self-determination. International
conventions concluded after World War II also embrace this
principle. In practice, most of the new states established after World
War II were created out of the European and U.S. colonies in
the Constitution of the Republic of China, promulgated May 1, 1991 with respect to
Articles 1-10 and the amendment to the Constitution of the Republic of China,
promulgated May 28, 1992 with respect to Articles 11-19. Id.
191. ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES, A LEGAL REAPPRAISAL
4446 (Cambridge Univ. Press, 1995). Antonio Cassese stated:
[S]elf-determination is a powerful expression of the underlying tensions and
contradictions of international legal theory: it perfectly reflects the cyclical
oscillation between positivism and natural law, between an emphasis on
consent, that is, voluntarism, and an emphasis on binding 'objective' legal
principles, between a 'statist' and a communitarian vision of world order.
Id. at 1.
192. HURST HANNUM, AUTONOMY, SOVEREIGNTY, AND SELF-DETERMINATION: THE
ACCOMMODATION OF CONFLICTING RIGHTS 27
(U. of Pennsylvania Press, 1990)
HINTZE, THE EMERGENCE OF THE DEMOCRATIC NATION-STATE [DAs DURCHBRUCH DES
DEMOKRATISCHEN NATIONALSTAATES IN DER AMERIKANISCHEN UND FRANZOESISCHEN
REVOLUTION] STAAT UND VERFASSUNG 503-10 (2d ed. Guettingen, Vandenhoeck &
Ruprecht) (trans. by LuaAsz, supra note 9, at 69).
193. HANNUM, supra note 192, at 36.
the name of self-determination.1 9 4
194. Although some states are not as ready to recognize such rights to minority
groups of people who reside in their main territories, e.g., Turkey to Kurds, Russia to
ical future. In addition, in order to assure that the people in
Taiwan may express their will without fear of military attack by
China, the United States and the rest of the world should
guarantee that the result of the referendum will be respected by all
2. See China Threatens Envoy's Trip , GREENSBORO NEWS & REcoRD,July 17 , 1999 , availablein 1999 WL 6953820.
3. See Antonio Chiang, Taipei Crisis, Beijing Opportunity, Ir'L HERALD TRiBUNE ,
26. LUBASZ, supra note 9, at 2.
27. Die hoechste Staatsgewalt . NEW WILDHAGEN GERMAN DICTIONARY 808 (Follett Publishing Company , 1965 ); CASSEL'S NEW GEMAN DIcIONARY 475 ( 1959 ).
28. Six livres de la republique. See INGRID DELuPIs , INTERNATIONAL LAW AND THE INDEPENDENT STATE 3 (Crane, Russak & Co., 1974 ); MICHAEL R. FOWLER & JULIE M. BUNCK , LAW, POWER, AND THE SOVEREIGN STATE: THE EVOLUTION AND APPLICATION OF THE CONCEPT OF SOWREIGNTY 36, n.15 (Penn . St. Univ. Press, 1995 ).
29. Dejure belli ac pacis . See STEIN , supra note 4, at 3 (holding that Hugo Grotius was one of "most influential writers" in first half of 18th century) .
30. See supra note 18 and accompanying text .
31. HansJ. Morgenthau, The IntellectualandPoliticalFunctionsof a Theory ofInternational Relations, in THE ROLE OF THEORY IN INTERNATIONAL RELATIONS 116 ( Horace V . Harrison ed., 1964 ).
32. J.P. Nettl , The State as a Conceptual Variable , 20 WORLD POLITICS 560 ( 1968 ).
33. ALI KHAN , THE EXTINCTION OF NATION-STATES 193 ( 1996 ).
34. 3 NEW ENCYCLOPAEDIA BRITANNICA 464 (15th ed. 1994 ).
35. When Emperor Charlemagne's son, Louis I, died in 840, Louis I's three sons, Lothair, Louis, and Charles, fought over the vast territory. The war among the three brothers ended with the Treaty of Verdun (843). The treaty divided the empire into 38. The conflict between Protestants and Catholics and between Lutherans and Calvinists led to the Thirty Years War in 1618 . In 1648, the Catholic Emperor, Ferdinand III , defeated by Protestant forces, signed the Peace of Westphalia, which comprised of a series of treaties. The important provisions were:
1. Holy Roman emperor, Ferdinand III had (a) accepted French claim to Upper Alsace, (b) recognized the sovereignty of various German states, (c) formally granted the German princes the right to make alliance and choose their religions for themselves and their subjects (in Germany, only Bavaria remained Catholic), and (d) recognized Swiss independence ( 1648 ).
2. Spain recognized the independence of the Netherlands (1648), retaining, however, Spanish Netherlands (modern Belgium) .
3. All signatories guaranteed the constitution of the Holy Roman Empire. The Holy Roman Empire became a meaningless entity. Germany was left with 260 sovereign states and principalities headed by princes without an effective central government .
39. The Holy Roman Emperor himself lost the sovereignty . Herz, supra note 23 , at 473-93.
40. See Statute of the International Court ofJustice , June 26, 1945 , art. 38 , 59 Stat . 1055, T.S. No. 993 , 3 Bevans 1179; LuBAsz, supra note 9, at 1.
48. An example of this is Israel .
49. 1 0PPENHEIM 544 (8th ed. 1955 ).
50. See JAMES CRAwFoRD, THE CREATION OF STATES IN INTERNATIONAL LAw 4 (Clarendon Press, 1979 ) (explaining that some courts held that problem of state is "mixed question of law and fact.").
51. Positive law, in the view of John Austin, is "law set by political superiors to political inferiors" in his Lecture I, quoted in STEIN, supra note 4 , at 72. H.L. A. Hart sees "[positive] law as coercive orders separate from morals." H.L.A. Hart , Positivism and the Separationof Law andMorals, 71 HARv. L. REv. 593 , 594 ( 1958 ). For a discussion of positive law, see H.L.A. HART , THE CONCEPT OF LAw (2d ed. 1994 ).
52. OPPENHEIM, supra note 49, at 125. "A State is, and becomes, an International Person through recognition only and exclusively." For a discussion, see CRAwFoRD , supra note 50 , at 4.
53. CRAwFORD, supra note 50, at 17- 20 . For instance, China would not be a state under the constituent theory until the middle of the 19th century. The theory does not indicate the number of states required to recognize a new political entity before the latter become a state. It does not explain the character of the agreements signed by the new political entity with other states before it becomes a state.
56. See Convention, on Rights and Duties of States, Dec. 26 , 1933 , art. 1 , 49 Stat . 3097 , 3100 , 165 L.N.T.S. 21 , 25 [hereinafter Convention]. This was adopted by the Seventh International Conference of American States .
63. RESTATEMENT OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 202 , Comment e (3d ed. 1987 ).
64. Id . § 201 .
65. See id. § 202 , Comments a , b (stating that subsections are (a) population; (b) territory; (c) government; and (d) capacity to engage with other States) .
66. Id . § 201 ., Comment b; Reporter's Notes 1 to § 202.
67. CRAWFoRD, supra note 50, at 21.
68. The Restatement (Third) of the Foreign Relations Law of the United States (or "Restatement") provides the similar rule . RESTATEMENT OF THE FOREIGN RELATIONS LAw OF THE UNITED STATES § 202 , Comments a , b (3d ed. 1987 ).
69. This form was used where the declaring entity was a colony or part of an existing state , e.g., the United States of America in 1776.
70. 28 ENCYCLOPEDIA BRITANNICA 353 (15th ed. 1991 ).
81. The French called the country La Chine, the Germans called it Das China,and the Japanese Seikoku .
82. That country is what the Chinese today call "Chung-kuo," which means "Middle Country" in Mandarin. The people in China, however, did not call their country "Chung-kuo" until 1912, when the government of the Republic of China was established. The Manchus called the country Ta Ching Ti Kuo, or "The Great Ching Empire."
83. This is ChungHua Ming Kuo in Chinese.
84. This is ChungHua Jen Ming Kung Ho Kuo in Chinese.
85. The envoy was Macartney. JOHN K. FIaRBANK & EDWIN 0 . REISCHAUER, CHINA, TRADITION AND TRANSFORMATION 256-57 (Revised Edition , 1989 ). Ch'ien Lung Emperor reigned from 1736 to 1796 . HERBERT A. GILES, CHINESE- ENGLISH DICrIONARY 23 (2d ed. 1912 ).
86. See HACKWORTH , 1 DIG . OF INT'L L . 167 , 168 ( 1940 ) ; M.J. PETERSON, RECOGNITION OF GOVERNMENTS: LEGAL DOCTRINE AND STATE PRACTICE , 1815 - 1995 87 ( 1997 ).
125. Agreement Establishing the Multilateral Trade Organization ("World Trade Organization" ), Dec. 15 , 1993 , 33 I.L.M. 13 ( 1994 ).
126. Deborah Shen , ROC Reinforces WFOEntty Bid, FREE CHINAJ ., Dec . 13 , 1996 , at
129. In a statement accompanying the application of the Republic of China to join the General Agreement on Tariff and Trade ("GATT") and the World Trade Organization ("WTO"), it states that "[t] he Customs Territory of Taiwan, Penghu, Kinmen and Matsu (hereinafter referred to as "Chinese Taipei") is preparing to accede to the General Agreement on Tariffs and Trade (GATT), which itself has been reorganized into the World Trade Organization."
130. President Lee Teng-hui Interview, supra note 119 . The following is part of the interview broadcast on Deutche Welle: Knabe: You are considered as a renegade province by Beijing's government.
That is, of course, a permanent intimidation and threat from the Mainland . How are you coping with these dangers? Lee: The historical fact is, that since the establishment of Chinese Communist regime in 1949, it has never ruled the territory under the ROCRepublic of China, Taiwan, Penghu, Kimmoi, and Matsu. The 1991 constitutional amendment had designated cross-strait relation as special state-to-state relationship, rather than an internal relationship between a legitimate government and a renegade group or between a central government and local government .
Knabe: Declaring Taiwan as an independent state seems to be no realistic option. Beijing's "one country two systems" is not acceptable for the majority of the people in Taiwan. Is there any compromise between these two positions. And if there is one, what does it look like? Lee: The Republic of China has been a sovereign state since it was founded in 1912 . In 1991 amendment to the Constitution (promulgated in 1947 in Nanjing, China) designated cross-strait relation as special state to state relation. Consequently, there is no need to declare independence. Id. After the program showing the interview, the anchorman , Brian Thomas, asked Dr. Knabe, "Based on your discussion with President Lee, did you get the impression that he was prepared to declare independence?" Id. Knabe replied, "I think not . He stopped short of doing that." Id.
131. This is a contagious disease carried by animals from China . Deborah Kuo, In Taiwan FMD Spreads to Chiayi, Officials Say Milk Safe, WORLD Naws CONNECTION, Jan. 24 , 2000 .
136. See , e.g., The Treaty of Verdun (845); Peace of Westphalia ( 1648 ); Treaty of Paris ( 1898 ); Treaty of Versailles ( 1915 ); The Peace Treaty of San Francisco ( 1950 ); see also Herz, supra note 23.
137. 1 Pet. 511 ( 1828 ).
138. Id . at 541.
139. Vienna Convention on the Law of Treaties, May 23 , 1969 , art. 31 ( 3 )(c), U.N. Doc . A/CONF. 39/27 at 289 , 1155 U.N.T.S. 331 , 340 (entered into force Jan . 27 , 1990 ) [hereinafter Vienna. Convention].
140. See id. art. 31 (providing interpretive methodologies for all treaties ); REBECCA M.M. WALLACE , INTERNATIONAL LAw 204 (Sweet & Maxwell , 1986 ).
141. Treaty of Peace between China andJapan , May 8, 1895 , 181 Consol. T.S. 217 .
142. Article II of the Treaty of Peace between China and Japan provides: China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon: (a) The island of Formosa, together with all islands appertaining or belonging to the said Island of Formosa. (b) The Pescadores Group, that is to say, all islands lying between the 119th and 120th degrees of north latitude .
143. It required all residents in Taiwan to adopt a Japanese surname .
144. The Allied Powers consisted of the following states: France, United Kingdom, Union of Soviet Socialist Republics ("USSR"), and the United States. The following countries signed the Peace Treaty of San Fancisco as Allied Powers: Argentina, Australia , Belgium, Bolivia, Brazil, Cambodia, Canada, Ceylon, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Indonesia, Iran, Iraq; Laos, Lebanon, Liberia, Luxembourg, Mexico, The Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, The Philippines, Saudi Arabia, Syria, Turkey, South Africa, United Kingdom, United States of America, Uruguay, Venezuela, and Vietnam.
145. Russia , not being then at war with Japan, was not represented . Cairo Declaration , NEW CYCLES INAsIA 29 (Harold Isaacs, ed., 1947 ) [hereinafter Cairo Declaration].
146. Id .; Vol. IX Cairo Conference, DEPT. ST. BULL., Dec. 1 , 1943 .
147. Id . at 29.
148. Great Britain was originally represented by Prime Minister Winston Churchill, who was replaced by Clement Attlee after losing election during the Potsdam Conference .
149. Potsdam Proclamation , July 26 , 1945 (visited Apr. 5 , 2000 ) <http://metalab. unc.edu/hyperwar/PTO/Dip> ( on file with the FordhamInternationalLaw Journal) .
150. Proclamation Defining Terms For Japanese Surrender , July 26 , 1945 , § 8, DEP'T ST. BULL .
153. GEORGE H. KERR , FoRMosA BETRAYED 44 (Riverside Press, 1965 ) (assigning to ROC government task of taking over) . Anthony Eden , British Secretary of State for Foreign Affaires, stated in the House of Commons, "In September, the administration of Formosa was taken over from the Japanese by Chinese forces at the direction of the Supreme Commander of the Allied powers; but this was not a cession, nor did it in iself involve any change of sovereignty. The arrangements made with Chiang Kai-shek put him there on a basis of military occupation pending further arrangements and did not of themselves constitute the territory Chinese . . . Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the dejure sovereignty over which is uncertain or undermined." Great Britain, Parliamentary Debate (Hansard) , House of Commons, Official Report , vol. 536 , col. 159 ( Feb . 4, 1955 ).
154. Id .
155. Treaty of Peace with Japan (with two declarations) , Sept. 8 , 1951 , 136 U.N.T.S. 46 [hereinafter Peace Treaty of San Francisco].
156. China was not a party to the Treaty of Peace with Japan ("Peace Treaty of San Francisco" ) in 1951 . The Treaty of Peace between the Republic of China and Japan , Apr. 28 , 1952 , 163 U.N.T.S. 38 [hereinafter Treaty of Peace of 1952].
157. American Insurance Co. v. Cantor,1 Pet. 511m 541 , 26 U.S. 511 ( 1828 ).
180. Joint Communique , Issued at Shanghai, Feb. 27 , 1972 , 66 DEP' T ST . BULL . 435 ( 1972 ).
181. See US Businessmen Urge Cross-straitCalm, S. CHINA MOtRNING POST , Mar . 12 , 2000 , at 1; Otto Kreisher , Defense Chief Urges ' ConstructiveEngagement' with China Continue , SAN DIEGO UNION TRIBUNE, Mar . 25 , 2000 , at A16 (quoting Secretary of Defense William Cohen: "We have a one-China policy that we continue to support.").
182. SeeWEBsTER's NEW COLLEGIATE DicrONARY 7 ( 1981 ) (defining "acceptance").