The United States and the Republic of China

Democratic Friends, Strategic Allies and Economic Partners

Steven Mosher

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781351316507
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

In the interest of mutual security, the United States and the Republic of China have continued to cooperate closely. Both countries have kept Taiwan's military defenses strong and ensured stability in the entire region. This volume considers the international status of the Republic of China and its economic and strategic partnership with the United States.

Part One

The International Status of the Republic of China

1

The International Law of Recognition and the Status of the Republic Of China

Hungdah Chiu

The Republic of China (ROC) on Taiwan is in effective control of an area of 35,981 square kilometers (14,000 square miles), which is approximately the combined area of the states of Maryland, Delaware, and Rhode Island. It has a population of approximately 20 million, and a per capita income of more than $7,000. In terms of foreign trade, it is the twelfth leading trading nation in the world and is the sixth leading trading partner of the United States. The ROC has about half a million men on active duty in its armed forces and has reserves of more than 2 million.¹ Looking at these indicators alone, there is no doubt that the Republic of China should be recognized as a state by the international community of nations and should be represented in all major international organizations. Unfortunately, the reality is just the reverse: the Republic of China is not recognized by most countries of the world and is not represented in the United Nations and its affiliated agencies.² Only a few international organizations have accepted the Republic of China into their membership. Even then, the status of the ROC’s membership remains uncertain and unstable.³ Why is this? The international law of recognition, as it happens, does not always govern the reality of international politics. This chapter examines the status of the Republic of China under the international law of recognition and the problems this nation faces in maintaining its foreign relations through unorthodox channels.

The Political Nature of the International Law of Recognition

In the international legal system, written theory and state practice generally agree on the essential qualifications of a state, namely, (1) a permanent population, (2) a defined territory, (3) a government, and (4) a capacity to enter into relations with other states.⁴ However, because the international legal system is a decentralized one, there is no central authority to render an authoritative decision on whether an entity does possess these qualifications. As a result, this decision is left to the individual states of the international community through the system of recognition, which is “the acknowledgment of a situation with the intention of admitting the legal implications of such a state of affairs.”⁵ Ideally, each state should treat the question of whether an entity is a state as a legal one and base its decision on recognition of the objective qualifications prescribed by international law.⁶ But the practice of most states is to treat the question of recognition less as a matter of law than of policy.⁷

Another controversial question in international law is whether a particular government can represent a recognized state in the international community. Some consider that the decisive criterion is the degree to which the government in question has effective control over its population and territory. Others introduce additional criteria, such as a government’s popular support within the state, its willingness to honor international obligations, and so forth.⁸ Again, like the question of identifying an entity as a state, the determination that a government can represent a particular state is left to the decision of the individual states of the international community through the system of recognition. A review of the practice of states, however, indicates that states base their decisions primarily on policy considerations rather than legal principles.⁹

As the above suggests, the law of recognition is a highly politicized part of public international law. This politicization may partially explain why the question of recognition of states and governments has never been satisfactorily resolved, either in theory or in practice. Because of the discretionary nature of recognition, a state cannot be considered to be acting illegally in refusing recognition to an entity that in fact possesses all the necessary qualifications of statehood, or to a government that is in effective control of a state’s population and territory. This incongruity between politics and law, as regards recognition of states and governments, has created difficulty and inconvenience in international relations.

While an entity that meets the qualifications of statehood may be denied recognition by one or more states in the international community, it cannot, because of the lack of recognition, be totally denied its rights or escape its obligations under international law.¹⁰ As stated by a Third World lawyer, “It is generally admitted that an unrecognized state cannot be completely ignored. Its territory cannot be considered to be a no-man’s-land; there is no right to overfly without permission; ships flying its flag cannot be considered stateless, and so on.”¹¹

With respect to the status of unrecognized governments, the American Restatement of the Foreign Relations Law takes the view that while a state “is not required to accord formal recognition to the government of another state,” it is “required to treat as the government of another state a regime that is in effective control of that state.”¹² While no other international lawyers have discussed this issue, none of them seems ever to suggest that an unrecognized government should be denied any status in the international community. In practice, informal relations have sometimes been maintained between a state and an unrecognized regime.¹³

It is clear from this that an unrecognized state or government still enjoys certain rights and bears certain obligations in international law. Theoretically, a domestic court can deny the legal status of an recognized state or government. In reality, under certain circumstances, domestic courts have held that it is impossible in law not to adjust the rigid rules on the legal consequences of non-recognition of a de facto state or government. Thus, in the case of Wulfsohn v. Russian Socialist Federated Soviet Republic (234 N.Y. 372, 138 N.E. 24 [Ct. App. 1923]), in which an action was brought against the unrecognized RSFSR, the court dismissed the case on the ground that “whether or not a government exists … is a fact, not a theory.” In another case concerning a then-unrecognized East German corporation’s right to sue in the United States, a New York court observed:

A foreign government, although not recognized by the political arm of the United States Government, may nevertheless have de facto existence which is juridically cognizable. … The lack of jural status for such government or its creature corporation is not determinative of whether transactions with it will be denied enforcement in American courts. (Upright v. Mercury Business Machines Co., 12 App. Div 2d 36, 213 N.Y.S. 2d 417 [1961]).

In certain cases, a state has found it necessary in practice to deny the legal effect of nonrecognition of a foreign state or government. For example, after the United States derecognized the Republic of China on Taiwan on 1 January 1979, it was compelled to enact the Taiwan Relations Act (TRA) of 1979, the effect of which was to treat Taiwan as a state and the governing authorities there as a government, despite the lack of formal recognition.¹⁴ With respect to the legal status of Taiwan, the TRA provides:

Sec. 4(b)

(1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan….

(3) (a) The absence of diplomatic relations and recognition with respect to Taiwan shall not abrogate, infringe, modify, or deny or otherwise affect in any way rights or obligations (including but not limited to those involving contracts, debts, or property interests of any kind) under the laws of the United States heretofore or hereafter acquired by or with respect to Taiwan….

(7) The capacity of Taiwan to sue and be sued in courts in the United States, in accordance with the laws for the United States, shall not be abrogated, infringed, modified, denied, or otherwise affected in any way by the absence of diplomatic relations or recognition.

(8) No requirement, whether expressed or implied, under the laws of the United States with respect to maintenance of diplomatic relations or recognition shall be applicable with respect to Taiwan.

Sec. 4(c)

For all purposes, including actions in any court in the United States, the Congress approves the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to 1 January 1979, and in force between them on 31 December 1978, unless and until terminated in accordance with law.

Sec. 4(d)

Nothing in this Act may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization.

In international political relations, the need to disregard the legal consequences of nonrecognition is sometimes compelling. For instance, international agreements have been sometimes concluded between a state and an unrecognized state or government. As Dr. Marjorie Whiteman observed in 1959:

It is possible for bilateral treaties or agreements entered into not to constitute recognition. Thus, during the years 1919 and 1920 a number of bilateral treaties or agreements providing for the repatriation of prisoners of war and nationals were entered into with the [unrecognized] Soviet government.¹⁵

Official contacts between two countries or governments not recognizing each other have also sometimes been necessary in international relations. For example, between 1955 and 1971 the United States and the People’s Republic of China (PRC) engaged in more than one hundred ambassadorial-level talks despite the absence of mutual recognition.¹⁶ Similarly, from 1973 until diplomatic recognition on 1 January 1979, the United States and the PRC maintained official liaison offices in each other’s capital.¹⁷

The International Status of the Republic of China as Viewed by Certain Scholars

How to apply the international law of recognition to the Chinese case is a challenging question because the Chinese case is unique in several respects. First, there has never been any doubt that China is a state under international law. The issue is, rather, which government of China—the Republic of China government in Taipei or the People’s Republic of China government in Beijing—is the legal government of China. Until 1971 more countries recognized the ROC government than the PRC government. China was represented by the ROC government in the United Nations and in almost all international organizations. Since then the situation has changed completely. Second, the PRC government has made it clear that force will be used against Taiwan if the ROC government declares Taiwan a separate state.¹⁸ Third, no country has so far been able to recognize and establish diplomatic relations with the PRC government without derecognizing and severing diplomatic relations with the ROC government. Therefore, the status of the ROC is unprecedented in international law.

Most international lawyers have ignored in their writings the question of the status of the Republic of China under international law. The views of the few who have addressed this difficult question are summarized by country below.

United States

In February 1979, a month after diplomatic relations with the Republic of China were severed, the Committee on Foreign Relations of the U.S. Senate held a hearing on Taiwan. At that hearing, Professor Victor Li, then of the Stanford University Law School, expressed the following view on Taiwan’s status:

A … possible description of the legal status of Taiwan after withdrawal of recognition is that it is a “de facto entity with international personality.” That is, while no longer regarded by the United States as a de jure government or state, nevertheless Taiwan continues to control a population and territory and to carry out the usual functions of government.¹⁹

In my own written statement submitted to the Committee, I took the following position on the status of Taiwan:

According to international law, “the existence in fact of a new state or a new government is not dependent on its recognition by other states.” [Green H. Hackworth, Digest of International Law 1 (1940): 161. Hackworth was chief legal adviser of the Department of State and later served as a judge of the International Court of Justice.] This principle also finds support in the 1933 Inter-American Convention on Rights and Duties of States which provided in Article 3 that “the political existence of the state is independent of recognition by other states.” While the United States may not want to formally recognize the ROC even as a state and government within the territory under its control, it may take a position somewhere in between recognition and nonrecognition with respect to the international status of the ROC in Taiwan. For instance, the United States may issue a statement reiterating its position on recognition as stated by Hackworth and in the 1933 Convention and then say that “within that context the United States takes note that the ROC government is in effective control of Taiwan and is the only authority there.” This formula has the benefit of not offending the PRC, for it does not formally recognize the ROC in Taiwan. On the other hand, it takes official cognizance of the objective existence of the ROC in Taiwan and states [that] the United States will deal with Taiwan on that basis.²⁰

Among the many legal textbooks published in the United States, only two refer to the status of the Republic of China on Taiwan. In a casebook jointly edited by four professors at Columbia University School of Law and published in 1980, Taiwan was categorized to be an entity sui generis as a subject of international law. This category also includes the State of the Vatican City and the Holy See. The reason for such a classification is that these “entities have an international legal status though they do not easily fit into any of the established categories.”²¹ The book describes Taiwan’s status as follows:

The island of Taiwan, generally considered as part of China, has had an independent regime exercising full control over the island since the establishment of the People’s Republic of China in 1949 and claiming and long recognized by many states as the Government of China. In one view, the legal status of Taiwan remained undetermined even after the renunciation of Japanese claims in the Peace Treaty with Japan. On another view, Taiwan was legally part of China. Irrespective of these views, it was acknowledged that Taiwan was under the de facto authority of a government that engaged in foreign relations and entered into international agreements with other governments.²²

Professor Gerhard von Glahn explains the ROC’s status as follows: “From a factual point of view, the Republic of China continues, of course, to exist as an independent entity, even though it [is] recognized by only twenty-two members of the family of nations.”²³

United Kingdom

Professor Ian Brownlie of Great Britain includes Taiwan and the State of the Vatican City in the category of entities sui generis as subjects of international law. He wrote:

[T]he case of territory the title to which is undetermined, and which is inhabited and has an independent administration, creates problems. On the analogy of belligerent commu...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction
• PART ONE The International Status of the Republic of China
• PART TWO The Economic Partnership Between the United States and the Republic of China
• PART THREE The Strategic Relationship Between the United States and the Republic of China
• Summary of Proceedings
• Contributors
• Index