The State of Taiwan: From International Law to Geopolitics (Geopolitics and International Relations)

Contents
Preface
Acknowledgements
Figures
Part 1 Introduction, Historical Background, and Views on the Status of Taiwan
1 Introduction: Description and Topicality of the Problem
	1.1 Origins of the Taiwan Issue
	1.2 Diplomatic Isolation, but Continued U.S. Protection
	1.3 Views of the Two Regimes on the Taiwan Issue
	1.4 Threat of Invasion
	1.5 Emperor Xi and His Dream of “Rejuvenating the Chinese Nation”
	1.6 China’s Rapid Military Advance
	1.7 Substantially Deteriorating Relations between the United States and the People’s Republic
	1.8 Taiwan: The Most Dangerous Place on Earth?
	1.9 Geopolitics and Self-Determination
2 Historical Background of the Taiwan Issue
	2.1 Introduction
	2.2 Taiwan as an Area at the Edge of the Chinese Empire (Pre-1683)
		2.2.1 Oldest Inhabitants of Taiwan
		2.2.2 The Earliest Contacts between the Chinese Mainland and Taiwan
		2.2.3 Dutch-Formosa (1624–1662)
		2.2.4 Taiwan under Koxinga and His Descendants (1662–1683)
	2.3 Taiwan as Part of the Chinese Empire (1683–1895)
		2.3.1 Taiwan as a Prefecture of Fujian Province
		2.3.2 An Island in a Constant State of Turmoil
		2.3.3 Taiwan Embroiled in the Tension between China and Foreign Powers
			Opium Wars
			American and Japanese Punitive Expeditions
			Sino-French War
		2.3.4 Taiwan as a Separate Province of the Chinese Empire (1885–1895)
	2.4 Taiwan under Japanese Rule (1895–1945)
		2.4.1 The First Sino-Japanese War and the Treaty of Shimonoseki (1894–1895)
		2.4.2 The Short-lived Republic of Taiwan and the Anti-Japanese War of Resistance (May–October 1895)
		2.4.3 Taiwan under the Reign of Japanese Military Governors-general (1895–1919)
			Law and Order
			Police State
			Rapid Economic Development
			Armed Han Chinese Resistance
			Submission of the Aboriginals
		2.4.4 Taiwan under the Reign of Japanese Civilian Governors General (1919–1936)
			Assimilation Politics
			Burgeoning Taiwanese Nationalism
			Genocide of the Aboriginals
		2.4.5 Taiwan again under the Rule of Military Governors-General (1936–1945)
			Imperialization of the Population and More Pervasive Industrialization
			Involvement in the Japanese War Effort
			Last Japanese Governor-General
	2.5 Continental China from the Demise of the Chinese Empire to the Proclamation of the People’s Republic
		2.5.1 Foundation of the Republic of China (1912) and First Phase of the Chinese Civil War (1927–1937)
			Xinhai Revolution (1911)
			Kuomintang
			Civil War and Second United Front
		2.5.2 Second Sino-Japanese War (1937–1945) and Pacific War (1941–1945)
		2.5.3 Continuation and Denouement of the Chinese Civil War (1945–1949)
	2.6 Taiwan under the One-party Regime of the Kuomintang (1945–1987)
		2.6.1 Assumption of Power by the Kuomintang and the White Terror
			Proclamation as the 35th Province of China
			Incident of February 28, 1947: Beginning of the White Terror
			Period of Mobilization for the Suppression of Communist Rebellion
			Eternal Deputies
		2.6.2 International Position of the Republic of China (Taiwan) after the Defeat of the Kuomintang in the Chinese Civil War
			Doomed to Disappearance
			The Korean War as a Turning Point
			Treaty of San Francisco (1951)
			First Taiwan Crisis (1954) and Second Taiwan Crisis (1958)
			Loss of Seat at the United Nations
			United States’ Derecognition of the Republic of China
		2.6.3 Taiwanese Wirtschaftswunder
	2.7 Contemporary Taiwan (1987–Present)
		2.7.1 Democratization and Taiwanization of the Republic of China
			Lifting of Martial Law
			Taiwanese Political Miracle
		2.7.2 Contemporary Relationship between the Republic of China (Taiwan) and the People’s Republic of China
			One Country, Two Systems
			One China: a Formula that Can Cover More Than One Meaning
			Special State-to-State Relationship
			Detente under Ma Ying-jeou and Rising Tensions Since Tsai Ing-wen’s Election
	2.8 Summary
3 Views on the International Legal Status of Taiwan
	3.1 Introduction
	3.2 Taiwan as Part of the State of China
		3.2.1 Vision of the People’s Republic of China
		3.2.2 Jianming Shen and Su Wei
		3.2.3 Robert Heuser
		3.2.4 Mathias Neukirchen
		3.2.5 Other Authors Who Consider Taiwan to be Part of the State of China, including Daniel Patrick O’Connell and James Crawford
	3.3 Taiwan as an Independent State
	3.4 Alternative Theories
		3.4.1 Smooth Transition: Quincy Wright
		3.4.2 Statements by Allied Government Ministers: Taiwan as a Condominium
		3.4.3 Frank Chiang: Continuing Agency Relationship
		3.4.4 Lung-chu Chen and William Michael Reisman (1972): Suspension of Sovereignty
	3.5 Summary
Part 2 Relevant International Legal Conceptual Framework
	Introduction
4 The State: Importance of a Definition and Genesis
	4.1 Importance of a Definition of a State: States as Primary Subjects of International Law
	4.2 Genesis of the Modern State
		4.2.1 The State: A Relatively Recent Phenomenon
		4.2.2 The Medieval Political Order: Feudalism and res Publica Christiana
			Political Power in the Middle Ages: Nonterritorial and Nonexclusive
			Feudalism: Territorial Fragmentation and Entanglement
			Res Publica Christiana: Spiritual Commonwealth
			Charlemagne: Restoration of Western European Emperorship
			Holy Roman Empire
			Investiture Controversy
		4.2.3 The Rise of the Modern State
			Emancipation of Monarchs from the Church (the Pope)
			Emancipation of the Monarchs from the Empire (the Emperor)
			Territorial Integration
			The Emancipation of the State from the Monarch
		4.2.4 Summary
5 The Montevideo Criteria for Statehood
	5.1 Introduction
	5.2 Effective Government (Government)
		5.2.1 State as a Legally Legitimized Exercise of Power
		5.2.2 State as Acting Subject: The Institutional System
		5.2.3 Effectiveness: Maintaining Security, Peace, and Order as a Minimum
		5.2.4 Effectiveness as the Ability to Meet International Obligations
		5.2.5 Effectiveness as the Ability to Perform all Functions of a State
		5.2.6 Effectiveness as Actual Obedience of the Legal Community to the Legal Order
		5.2.7 Effectiveness and Legitimacy
		5.2.8 Sociological versus Ethical-legal Concept of Legitimacy
	5.3 Defined Territory
		5.3.1 Extrinsic, Legal Meaning of the Term Territory
		5.3.2 No Full Delimitation Required
		5.3.3 Defined Territory and Possession of Territorial Title
		5.3.4 Lapse of the Claim of the Parent State to Respect for Its Territorial Integrity in the Event of Secession
		5.3.5 Admissibility of Secession
	5.4 Permanent Population
		5.4.1 Population as a State’s Permanent Legal Community
		5.4.2 Population as the Aggregate of People with the Nationality of the State in Question
		5.4.3 Population as the Aggregate of People Subject to State Rule
	5.5 Capacity to Enter Into Relations with Other States
	5.6 Overall Assessment of the Montevideo Criteria
	5.7 Summary
6 Sovereignty and Independence
	6.1 Introduction
	6.2 Internal Sovereignty as Summa Potestas: A Problematic Concept
	6.3 External Sovereignty: Legal Independence
		6.3.1 Independent Legal Order and Kompetenz-Kompetenz
		6.3.2 Independent, but Subordinated to International Law: Doctrine of Self-commitment
			Relativization of the Doctrine of Self-commitment and of Kompetenz-Kompetenz
			Sovereignty as Völkerrechtsunmittelbarkeit
	6.4 External Sovereignty: Actual Independence
	6.5 Summary
7 Additional Criteria for Statehood
	7.1 Introduction
	7.2 Non-conflict with Peremptory Norms of International Law
		7.2.1 Illegality of Origin and Lack of Actual Independence
		7.2.2 Relativization of the Principle of Effectiveness in Relation to ius cogens
		7.2.3 Peremptory Norms of International Law Relevant to Statehood
		7.2.4 Maximalist Approach Based on the Legal System
	7.3 Democratic Legitimacy and Respect for Human Rights
	7.4 Recognition by Third States
		7.4.1 Recognition in Connection with the Fourth Montevideo Criterion or as an Independent Criterion
		7.4.2 Concept of Recognition
		7.4.3 Declaratory and Constitutive View of Recognition
		7.4.4 Declaratory Theory as Prevailing View
		7.4.5 Evidentiary Function of Recognition
	7.5 Summary
8 Modes of Acquisition of Territory and Special Territorial Regimes
	8.1 Introduction
		8.1.1 Relationship between the Subject Matter of this Chapter and Taiwan’s International Legal Status
		8.1.2 Concept of Territorial Title
		8.1.3 “Modes of Acquisition of Territory”: A Criticized Concept
		8.1.4 Territorial Title as a Combination of modus adquirendi and titulus adquisitionis
		8.1.5 Plan of Treatment
	8.2 Effective Occupation (occupatio)
		8.2.1 Required animus and corpus
		8.2.2 Occupatio: an Outdated Concept?
		8.2.3 Derelictio
	8.3 Cession
		8.3.1 Derivative Mode of Acquisition
		8.3.2 Cession of Territory and Self-determination of the Affected Population
		8.3.3 Change of Sovereignty by Mere Consensus?
	8.4 Annexation
		8.4.1 Annexation in Classical International Law
		8.4.2 Prohibition on Annexation under Contemporary International Law
		8.4.3 Consolidation and Validation of an Effective Territorial Situation after Annexation
	8.5 Acquisitive Prescription
		8.5.1 Controversy in Legal Doctrine
		8.5.2 Constitutive Elements of Acquisitive Prescription
		8.5.3 Limitations on Acquisitive Prescription under Contemporary International Law
	8.6 Condominium and Co-imperium
		8.6.1 Condominium: Joint Sovereignty
		8.6.2 Co-imperium: Joint Exercise of Territorial Jurisdiction
	8.7 Suspended or Undetermined Sovereignty
		8.7.1 Suspended Sovereignty as a Legal Rationalization of “Abnormal” Situations
		8.7.2 Suspension of Sovereignty Proper versus Temporary Loss of Imperium
		8.7.3 Concepts of Suspended and Undetermined Sovereignty in Relation to Taiwan
	8.8 Summary
Part 3 International Legal Status of Taiwan
Section 1 The International Legal Status of Taiwan
	Introduction
9 Taiwan as Part of the “State of China” or a Condominium?
	9.1 Introduction
	9.2 Invalidity ab initio of the Treaty of Shimonoseki
		9.2.1 The Treaty of Shimonoseki as an “Unequal Treaty”
		9.2.2 Substantive Inequality
		9.2.3 Procedural Inequality
		9.2.4 Invalidity of the Shimonoseki Convention under the Rule Underlying Article 52 of the Vienna Convention?
	9.3 Abrogation of the Treaty of Shimonoseki
	9.4 Cairo Declaration
		9.4.1 The Declaration as Binding Treaty Law?
		9.4.2 Pacta tertiis nec nocent nec prosunt
	9.5 Japanese Instrument of Surrender
		9.5.1 Characterization as a Treaty in Conjunction with the Cairo and Potsdam Declarations?
		9.5.2 Nature of the Instrument of Surrender as an Argument Against Its Characterization as a Treaty Having Binding Force
		9.5.3 Significance of Subsequent Statements on Behalf of the United States and the United Kingdom
	9.6 Japanese Surrender of Taiwan and Proclamation of Taiwan as a Province of China
		9.6.1 Annexation Theory
		9.6.2 Articles 2(4) and 51 of the Charter of the United Nations
		9.6.3 No Conquest of Taiwan and Penghu by the State of China
		9.6.4 Temporary Administration Based on Delegation by the Allies
		9.6.5 Neither Acquisitive Prescription after Annexation Nor Validation by the International Community
	9.7 Treaty of San Francisco
		9.7.1 Implicit Cession to the State of China?
		9.7.2 Reacquisition of Taiwan by the State of China Based on the Doctrine of Reversion?
		9.7.3 Reacquisition by the State of China through Occupatio?
			Taiwan and Penghu as terrae nullius upon the entry into force of the Treaty of San Francisco
			Imputability of Animus and Corpus Occupandi to the State of China?
			Revolutionary Origins of the PRC
			Influence of the Chinese Civil War on Assessment
			Conclusion Regarding the Reacquisition by the State of China through Occupatio
		9.7.4 Conclusion of the Present Section
	9.8 Treaty of Taipei
		9.8.1 No Direct Cession of Taiwan and Penghu to the State of China
		9.8.2 Significance of Japan’s Recognition of the Nullity of the Treaty of Shimonoseki
	9.9 Taiwan and Penghu as a Condominium of the Allied States Parties to the Treaty of San Francisco
		9.9.1 Subjective Interpretation of Statements Made by U.S. and British Policymakers
		9.9.2 No Indications in the Text of the Treaty of San Francisco
		9.9.3 No Condominial Delegation Arrangement in Favor of the Republic of China
		9.9.4 Subsequent Attitude of the Allied States Parties to the Treaty of San Francisco
		9.9.5 Conclusion Regarding the Condominium Theory
	9.10 Summary
Section 2 The International Legal Status of Taiwan: Independent State
	Introduction
10 Does the Taipei-based Republic of China Have a Defined Territory and a Permanent Population?
	10.1 Introduction
	10.2 Does the Taipei-based Republic of China Have a Defined Territory?
		10.2.1 Can Taiwan be the Territory of a State?
		10.2.2 No Defined Territory Because of the Chinese Claim to the Territories in Question?
		10.2.3 No Defined Territory Due to Further-reaching Territorial Claims of the Taipei-based Republic of China?
			Territories Presently Claimed by the Taipei-based Republic of China
			Claim to the Paracel Islands
			Claim to the Pratas Islands
			Claims on Macclesfield Bank and the Scarborough Shoal
		10.2.4 Conclusion Regarding the Requirement of a Defined Territory
	10.3 Does the Taipei-based Republic of China Have a Permanent Population?
		10.3.1 Perpetual and Stable Community
		10.3.2 Nationality Law of the Taipei-based Republic of China and Delimitation of the Population of Taiwan from That of the PRC
		10.3.3 “Exclusion” of the Population of Mainland China as a Result of the Democratization of the Republic of China
		10.3.4 No Taiwanese State People Because the Population of Taiwan is Ethnically Chinese?
		10.3.5 Taiwanese Sense of Belonging and Identity
	10.4 Summary
11 Does the Taipei-based Republic of China Have an Effective Government?
	11.1 Introduction
	11.2 Institutional System of the Taipei-based Republic of China
	11.3 Effectiveness of the Institutional System
	11.4 Legitimacy of the Institutional System of the Taipei-based Republic of China
		11.4.1 Sociological Legitimacy of the Institutional System
		11.4.2 Ethical-legal Legitimacy of the Institutional System
			11.4.3 Conclusion Regarding the Legitimacy of the Institutional System
	11.5 No Sustainable Effectiveness Because of the Military Threat from the PRC?
		11.5.1 Chinese Invasion as a Sword of Damocles Hanging over Taiwan
		11.5.2 Is the Situation of Taiwan Similar to that of Finland before May 1918?
		11.5.3 Taiwan: A Sitting Duck?
		11.5.4 China’s Dread of U.S. Intervention
	11.6 Summary
12 Does the Taipei-based Republic of China
	12.1 Introduction
	12.2 Abstract Ability to Enter into Relations with Other States
	12.3 Concrete Opportunity to Establish Relations with Other States
		12.3.1 Bilateral Relations with States Recognizing the Taipei-based Republic of China
		12.3.2 Bilateral Relations with Non-recognizing States
		12.3.3 Membership in International Organizations
		12.3.4 Conclusion Regarding the Taipei-based Republic of China’s Opportunity in Practice to Enter into Relations with Other States
	12.4 Significance of the Almost Universal Non-recognition of the Taipei-based Republic of China
		12.4.1 No Independent Significance for the Statehood of the Taipei-based Republic of China
		12.4.2 Reasons for the Almost Universal Non-recognition of the Taipei-based Republic of China
		12.4.3 Recognition by (most) Third States of the Chinese version of the One-China Principle?
		12.4.4 Possible Significance of Resolution 2758 for the Statehood of the Taipei-based Republic of China
	12.5 Summary
13 Is the Taipei-based Republic of China a Sovereign Entity Whose Origin Is Not Illegal?
	13.1 Introduction
	13.2 Is the Taipei-based Republic of China Sovereign?
		13.2.1 Legal Independence of the Taipei-based Republic of China
			No Legal Link between the Taiwanese Legal Order and the Legal Order of the State of China
			Relationship between Independence of Taiwan’s Legal Order and Internal Sovereignty
			Kompetenz-Kompetenz and Völkerrechtsunmittelbarkeit of the Taipei-based Republic of China
			Comparison between the Taipei-based Republic of China and the Hong Kong Special Administrative Region
			Constitution of the Taipei-based Republic of China: A Taiwanese Constitution?
			Actual Independence: A Necessarily Relative Concept
			No Chinese Puppet State
			No American Puppet State
	13.2.2 Actual Independence of the Taipei-based Republic of China
	13.3 Is the Origin of the Taipei-based Republic of China Lawful?
		13.3.1 Proviso of Legal Origin
		13.3.2 Date Relevant to the Assessment
		13.3.3 Objective Legality of Origin
		13.3.4 Subjective Legality of Origin
			Lack of Any Intention to Create an Entity Distinct from the State of China
			Prohibition of Systematic Racial Discrimination and Apartheid
		13.3.6 Right to Self-determination of Peoples
		13.3.5 Conclusion Regarding the Legality of Origin of the Taipei-based Republic of China
	13.4 Summary
14 The Taipei-based Republic of China and the Will to Statehood
	14.1 Introduction
	14.2 Self-conception of the Taipei-based Republic of China
		14.2.1 Transplanted Republic
		14.2.2 Irrelevance of (the lack of) a Declaration of Independence
		14.2.3 One China, Two Equal Political Entities
			End of the Period of Mobilization for the Suppression of Communist Rebellion
			Guidelines for National Unification (1991) and 1992 Consensus
			White paper of the Mainland Affairs Council (Relations across the Taiwan Straits)
		14.2.4 From Two Political Entities to Two States?
			One China, Two States?
			President Lee’s Interview with Deutsche Welle: Special State-to-state Relationship
			Constitutional Reforms (1991–2005) as Evidence of a Two-state Concept?
			Presidential Speeches and Self-conception of the Taipei-based Republic of China
			Attempts by the Republic of China to Become a Member of the U.N. (again)
		14.2.5 Conclusion Regarding the Self-conception of the Taipei-based Republic of China
	14.3 The will to Statehood: A Meaningful Criterion for Statehood?
		14.3.1 Impossibility for an Entity to Want Psychologically
		14.3.2 The “Will of the State” as a Construction of Attribution
		14.3.3 Absurdness of the Will to Statehood as the Will of being Able to Will
		14.3.4 Conclusion Regarding the Will to Statehood and Implications for Taiwan
	14.4 Summary
Part 4 Conclusions and Final Remarks
15 Pseudomorphosis of Sovereign Taiwan after the Historical Republic of China (1912–1949)
	15.1 Introduction
	15.2 Findings on the International Legal Status of the Taipei-based Republic of China
		15.2.1 The Treaty of Shimonoseki Effected the Cession of Taiwan and Penghu to Japan
		15.2.2 The State of China Did Not Regain Sovereignty over Taiwan and Penghu Prior to the Entry into Force of the Treaty of San Francisco
		15.2.3 The Treaty of San Francisco Terminated Japanese Sovereignty over Taiwan and Penghu, but Did Not Result in Either the Restoration of Chinese Sovereignty or the Establishment of a Condominium
		15.2.4 The Taipei-based Republic of China is a Sovereign State Distinct from the State of China, Its Territory Consisting of Taiwan in a Broad Sense
	15.3 A Pseudomorphic State Created on Terra Nullius
		15.3.1 The Taiwanese Territory: a Loaf of Bread Made of Japanese Dough and a Very Few Chinese Raisins
		15.3.2 Creation of the State of Taiwan on Terra Nullius
		15.3.3 The Taipei-based Republic of China as a Pseudomorphic Entity
	15.4 Taiwan’s Path Forward: Shedding the False Form
Epilogue: From International Law to International Relations and Geopolitics. Taiwan, Strategic Clarity and the Cohesion of the Democratic World
	1.0 Introduction
	2.0 A New Taiwan Strategy: Less Ambiguity, More Clarity
		2.1 The Need to Adjust the Geopolitical Discourse to the Changed Reality
		2.2 Taiwan in the Frontline Between Democracies and Autocracies
		2.3 Outlines of a New Taiwan Strategy for Democratic States
	3.0 The Present Policy of Strategic Ambiguity
		3.1 Strategic Ambiguity in the Narrow Sense
		3.2 Strategic Ambiguity in the Broad Sense
	4.0 The Need for Strategic Clarity in the Broad Sense
		4.1 Reasons for Abandoning Strategic Ambiguity in the Broad Sense
		4.2 Steps to Be Taken in Order to Gradually Establish Strategic Clarity in the Broad Sense
			4.2.1 Ceteris Paribus, Recognition Does Not Take Priority in the Short Run
			4.2.2 First Step: Refraining from Making Statements That Can Be Interpreted as Endorsing the Chinese Claim to Sovereignty over Taiwan
			4.2.3 Next Step: Issuing a “One China, One Taiwan” Statement
	5.0 Deterrence: Increasing the Price the PRC Would Have to Pay for Seizing Taiwan by Force
		5.1 Enhancing Economic and Military Deterrence
		5.2 Economic Deterrence
		5.3 Military Deterrence
			5.3.1 Need for an Unambiguous Military Commitment to Defend Taiwan
			5.3.2 Invalidity of the Arguments Against an Unambiguous Military Commitment
			5.3.3 Stirrings of a Multilateral Alliance
			5.3.4 Anticipating Different Possible Military Scenarios
	6.0 Taiwan: A Litmus Test for the Democratic World’s Cohesion and Resolve
	7.0 International Law and Geopolitics: Competitive Exclusion or Coexistence?
Bibliography
Cited Case Law
Index