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The International Legal Status of Formosa
Published online by Cambridge University Press: 09 March 2016
Extract
We consider that the isolation of Communist China from a large part of normal international relations is dangerous. We are prepared to accept the reality of the victory in mainland China in 1949…. We consider, however, that the effective political independence of Taiwan is a political reality too.
—THE HONORABLE PAUL MARTIN
The International Legal Status of Formosa has long been a subject of vigorous political and academic debate. Twenty-three years after the termination of the Second World War the matter remains completely unresolved; yet it is of fundamental importance. As one writer has stated, “The question of the international status of Taiwan has been the central issue of dispute between the People’s Republic of China and a number of western states and has constituted the primary obstacle to the establishment of formal relations between mainland China and Canada.” In the words of another scholar:
The Formosa problem is perhaps the most important cause of the hostile relationship between the United States and Communist China. Its prolonged unsettlement creates a highly dangerous situation in the Far East. As a result, many international problems, such as Chinese recognition, the seating of Communist China and disarmament remain unsolved. Accordingly, an early settlement of the Formosan problem is necessary.
- Type
- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 6 , 1968 , pp. 144 - 163
- Copyright
- Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1968
References
1 Secretary of State for External Affairs, Canada. This was part of an address entitled “Canada and the Pacific,” given at The Banff Conference on World Affairs, and published in XVIII External Affairs 431 (1966).
2 Dai, Poeliu, “Recognition of States and Governments under International Law with Special Reference to Canadian Postwar Practice and the Legal Status of Taiwan (Formosa),” 3 Canadian Yearbook of International Law 290, 302 (1965).Google Scholar
3 Tung-Pi, Chen, “Legal Status of Formosa,” 4 Philippine Int’l L.J. 99, 147 (1965).Google Scholar
4 Jain, J. P., “The Legal Status of Formosa,” 57 Am. J. Int’l L. 25 (1963)CrossRefGoogle Scholar; O’Connell, D. P., “The Status of Formosa and the Chinese Recognition Problem,” 50 Am. J. Int’l L. 405 (1956)CrossRefGoogle Scholar; Wright, Quincy, “The Chinese Recognition Problem,” 49 Am. J. Int’l L. 320 (1955)CrossRefGoogle Scholar; Dai, supra note 2.
5 Throughout this paper the use of the name “Formosa” includes the “Pescadores,” a group of islands whose history is inextricably connected with Formosa’s, and whose legal status must be identical thereto.
6 38 Am. J. Int’l L. 8–9 (1944).
7 13 Dept. State Bull. 137 (1945).
8 39 Am. J. Int’l L. 264 (Supp. 1945).
9 46 Am. J. Int’l L. 71 (Supp. 1952).
10 Mei Ju-ao in an article in the People’s Daily of January 31, 1955 (italics added).
11 212 Pari. Deb., H.L. (5th Ser.) 497 (1958). See also Lauterpacht, E., “The Contemporary Practice of the United Kingdom in the Field of International Law,” 8 Int’l & Comp. L.Q. 146, 193 (1959)CrossRefGoogle Scholar. Chen, supra note 3, at 122–25, cogently rebuts this Chinese claim.
12 39 Am. J. Int’l L. 264, Article 1 (Supp. 1945).
13 Wright, supra note 4, at 332 (italics added).
14 See O’Connell, D. P., International Law 515 (1965).Google Scholar
15 See also Chen, supra note 3, at 129–31.
16 It was on June 27, 1950 that President Truman ordered the interposition of the Seventh Fleet between Formosa and the Mainland, thereby reversing the previous policy of non-intervention. For a detailed history of the evolution of this American commitment to Formosa, see Dorsey, G. L., “Chinese Recognition: Law and Policy in Perspective,” 23 U. Pitt. L.Rev. 17 (1961–62).Google Scholar
17 25 Dept. State Bull. 454 (1951).
18 O’Connell, supra note 4, at 407.
19 See infra, 157.
20 Chen, supra note 3, at 126–27. Following the quoted passage, the author cites a number of other treaties and documents in support of his contention.
21 Non-recognition is, for the United States, a matter of necessity; recognition of Chinese sovereignty over Formosa would constitute American protection of the island as interference in a civil war.
22 536 Parl. Deb., H.C., (5th Ser.) 159 (1955) (italics added).
23 O’Connell, op. cit. supra note 14, at 516.
24 The condominium theory is, however, advanced by Chen, supra note 3, at 144–47. His arguments are more conveniently dealt with after the discussions of terra nullius: see infra, 152–54.
25 Note, for example, the disputes between France and England over Santa Lucia Island: see 3 Moore, Digest of International Law 298 (1906); between Brazil and England over Trinidad, ibid., 299–301; and between the United States and Mexico over Clipperton Island, 26 Am. J. Int’l L. 390 (1932).
26 Galban and Company, A Corporation v. The United States, 40 Ct. Cls. (1905)) 495) 506–07, cited in Hackworth, I, Digest of International Law 425 (1940) (italics added).Google Scholar
27 11 & 12 Geo. 5, c. 27.
28 O’Connell, supra note 4, at 414.
29 Chen, supra note 3, at 145.
30 Ibid.
31 Newman, Robert P., Recognition of Communist China? 264 (1961).Google Scholar
32 Brierly, J. L., The Law of Nations 137 (6th ed. by Waldock, 1963).Google Scholar
33 Ibid. (italics added).
34 For brief accounts of the history of Formosa, see Kerr, George H., Formosa Betrayed 1–6 (1965)Google Scholar; Ballantine, Joseph W., Formosa: A Problem for United States Foreign Policy c. 2 (1952)Google Scholar; and Newman, op. cit. supra note 31, at 268–71.
35 Kerr, op. cit. supra note 34, at 6.
36 There is some speculation as to whether the Treaty was, in fact, the sine qua non which led to Japanese sovereignty. Upon hearing of the Treaty the Formosans revolted and purported to set up an independent state which Japan had to crush with superior force. Newman, op. cit. supra note 31, at 269, states: “It was the events connected with China’s cession of Taiwan to Japan in 1895 which provide the Taiwanese with perhaps their strongest historical claim to independence.… A. J. Grajdanzer, the major historian of Japanese rule in Taiwan, writes: ‘Thus the fact, which may have significance for the future of the island, is that it was not acquired from China in 1895 as one of the spoils of the Sino-Japanese war, but was invaded and conquered by the Japanese despite the resistance of its inhabitants and against their wish’” (italics added).
37 Ibid., 270.
38 Dyer, , “Who are the Forraosans?”, The Reporter, Vol. 12 (March 10, 1955).Google Scholar
39 The obvious distinction between a plebiscite for purposes of self-determination and an election must be noted. In the former, the people chose either the state they wish to join or independence. In the latter, they chose only the government they desire to rule the state of which they are citizens. Thus, the marked unpopularity of Chiang Kai-shek’s government on the island, which would result in its probable defeat in a free election, does not in any way indicate that the people do not wish independence from China.
40 Newman, op. cit. supra note 31, at 275.
41 Chen, supra note 3, at 149, advocates a plebiscite, viewing it as the only way “to implement a public order of human dignity.”
42 Brierly, op. cit. supra note 32, at 138.
43 For an appraisal of the efficacy of non-recognition as an instrument of policy see “Non-recognition: A Reconsideration,” 22 U. Chi. L.Rev. 261 (1954–55). The writer therein correctly points out that: “…regardless of any duty, a state has the power to grant or deny recognition as it chooses. A government may grant recognition to any government which is able to establish itself in fact, or it may withhold recognition from certain de facto governments” (italics added).
44 Barker, , “The United States and Communist China: The Dilemma of Non-Recognition,” 3 Duquesne U.L.Rev. 251 (1965)Google Scholar. This does not mean that recognition is granted solely on arbitrary considerations. It will normally be granted when the legal tests are satisfied. However, in abnormal situations, the states of the world retain the legal right to withhold recognition from any state or government. Barker suggests (at 261) that continued non-recognition of the Communist government of China might be justified on the grounds that it is an abnormal situation.
45 Starke, J. G., An Introduction to International Law 124 (5th ed., 1963).Google Scholar
46 Starke notes that even municipal courts regard recognition as declaratory of statehood; if a question arises as to when a state comes into existence, they look to the date when the requirements of statehood were in fact fulfilled: see ibid.
47 Brierly, op. cit. supra note 32, at 138 (italics added).
48 The Restatement of Foreign Relations Law (2nd ed., 1965), supports this conclusion. Rule 99 states: “A state is not required by international law to recognize an entity as a state or a regime as the government of that state.” This is also approved by Meeker, L. C., “Recognition and the Restatement,” 41 N.Y.U.L.Rev. 83 (1966)Google Scholar. Chen, Ti-Chiang, The International Law of Recognition 133 (ed. Green, L. C., 1951)Google Scholar, also seems to think that recognition is declaratory of statehood. However, Lauterpacht in his treatise on recognition published in 1949 disagrees.
49 Rule 100 provides:
“Before recognizing an entity as a new state, the recognizing state is required to make a determination, reasonably based upon fact, that the entity
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(a)
(a) has a defined territory and population;
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(b)
(b) is under the control of a regime that satisfied the minimum requirements for recognition as a government under Rule 101;
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(c)
(c) has the capacity to engage in foreign relations; and
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(d)
(d) show reasonable indications that the requirements of Clauses (a)-(c) will continue to be satisfied.”
50 April 30, 1948. 119 U.N.T.S. 3; [1951] a U.S.T. 2416.
51 December 26, 1933. 165 L.N.T.S. 19; 49 Stat. 3097.
52 18 Am. J. Int’l L. 147 (1924).
53 Ibid., 154 (italics added).
54 See 3 Redman, , Treaties Between the U.S. and Other Powers, 1910–1923, at 3374.Google Scholar
55 [1929–1930] Ann. Dig. 11 (No. 5) (Germano-Polish Mixed Arbitral Tribunal, 1929), cited in O’Connell, op. cit. supra note 14, at 143.
56 See Wright, Quincy, “Some Thoughts About Recognition,” 44 Am. J. Int’l L. 548 (1950)CrossRefGoogle Scholar; he contends that “general recognition” is necessary before a territory can become a state.