1. 63 STAT. 1299, 1308-09 (1948).Google Scholar

2. Id. at Art. IX.Google Scholar

3. “In any case, the nationals, corporations and associations of either High Contracting Party shall enjoy, throughout the territories of the other High Contracting Party, all rights and privileges of whatever nature in regard to copyrights, patents, trademarks, trade names, and other literary, artistic and industrial property, upon compliance with the applicable laws and regulations, if any, respecting registration and other formalities which are or may hereafter be enforced by the duly constituted authorities, upon terms no less favorable than are or may hereafter be accorded to the nationals, corporations and associations of such other High Contracting Part….” Id.Google Scholar

The Republic of China enacted a copyright statute on May 14, 1948, amended to July 10, 1984. COPYRIGHT LAWS AND TREATIES OF THE WORLD (1970 Supp).

4. “So long as the laws and regulations of either High Contracting Party do not accord to its own nationals, corporations and associations protection against translations, the provisions of the third sentence of Article IX shall not be construed to obligate that High Contracting Party to accord to nationals, corporations or associations of the other High Contracting Party protection against translations.” Id. Protocol, section 5(c).Google Scholar

5. Resolution of June 2, 1948, of the Senate of the United States of America Advising and Consenting to Ratification.Google Scholar

6. 63 STAT. 1384 (1949).Google Scholar

7. See, e.g., Copyright Office Memorandum of August 9, 1979, written by Schrader, Dorothy, General Counsel, to Michael Keplinger, Special Legal Assistant to the Register. (Unpublished), U.S. Copyright Office, Library of Congress, Washington, D.C.Google Scholar

8. President Carter's Statement of Intention to Grant Diplomatic Recognition to the PRC, December 15, 1978, reprinted in Termination of Treaties: The Constitutional Allocation of Power, Materials Compiled by the Committee on Foreign Relations United States Senate, Committee Print, 95th Cong., 2d Sess. 320 (1978).Google Scholar

9. Recognition and diplomatic relations are two separate international acts with different political and legal consequences. Recognition under the traditional international law, unlike the establishment of diplomatic relations, is not a discretionary act but rather the consequence, a political reality of a new international entity—a state or a government having attained a certain level of control. A complete control by a government qualifies that government for a de jure recognition; a mere effective control creates the attributes for a de facto recognition.Google Scholar

Li points out that under American practice de jure recognition could be extended or withheld for policy reasons. Also, under the United States practice, recognition of a state or government does not imply that the United States approves of the form, ideology, or policy of the foreign government. See, United States Recognition of Foreign Governments: Hearing before the Committee on Foreign Relations United States Senate, 91st Con., 1st Sess. on S. Res. 205 to Set Forth as an Expression of the Sense of the Senate a Basic Principle Regarding the Recognition by the United States of Foreign Governments 333 (1969); Victor H. Li, De-Recognizing Taiwan: The Legal Problem (Washington, D.C.: Carnegie Endowment for International Peace, 1977) p. 6 et seq.; see generally, B.R. Bot, Nonrecognition and Treaty Relations (Dobbs Ferry, N.Y./Leyden: Oceana Publications, Inc.—A.W. Sijthoff, 1968).

11. Taiwan Enabling Act: Report of the Committee on Foreign Relations United State Senate Together with Additional Views on S. 245, S. Rep. No. 96-7, 96th Cong., 1st Sess. 41 (1979).Google Scholar

12. The islands of Taiwan (Formosa) and Penghu (Pescadores) are the two main islands.Google Scholar

13. Relevant portions of the Treaty are reproduced in Chiu, Hungdah, ed., China and the Question of Taiwan, Documents and Analysis (New York: Praeger Publishers, 1973), p. 197.Google Scholar

14. Id. at 207.Google Scholar

15. Id. at 208.Google Scholar

16. Id. at 209.Google Scholar

17. Id. at 221.Google Scholar

18. Id. at 222.Google Scholar

19. San Francisco Peace Treaty, entered into force for the United States April 28, 1952, 3 UST 3169; TIAS 2490; 136 UNTS 45.Google Scholar

20. 138 UNTS 38.Google Scholar

21. Supra note 13, at 128; some western scholars, as for example, Professor D.P. O'Connell of Australia, have argued that it was doubtful *** whether there is any international law doctrine opposed to the conclusion that China appropriate the terra derelicta [the abandoned land] of Formosa by converting the belligerent occupation into definite sovereignty.” (See Li, “The Status of Formosa and the Chinese Recognition Problem, American Journal of International Law, 50 (No. 2, 1956), p. 415.Google Scholar

22. Supra note 9, at 9-10. Li, De-Recognizing Taiwan.Google Scholar

23. “The administration (was) prepared to move forward in any of these areas at an appropriate pace, while making it clear that U.S. relations were not directed against any third party, and that the United States retained an interest in the peaceful and prosperous future of the people of Taiwan.” Normalization of Relations with the Peoples Republic of China: Practical Implications: Hearings before the Subcommittee on Asian and Pacific Affairs of the Committee on International Relations, 95th Con., 1st Sess. 322 (1977). See generally, “Normalization of Relations Between the United States and China: Acts and Documents,” by Ivan Sipkov, 8 International Journal of Legal Information 27 (no. 1, February 1980).Google Scholar

24. Id. at 362.Google Scholar

25. Id.Google Scholar

26. Id.Google Scholar

27. Id. at 219-220.Google Scholar

28. Professor Chiu, however, pointed out that some publicists have argued that “there was a tacit, implicit pledge in the Shanghai Communique … to accept the three conditions.” Prepared Statement of Hungdah Chiu, Professor of Law, University of Maryland Law School, id. at 220.Google Scholar

29. Id. at 323.Google Scholar

30. Id. at 327.Google Scholar

31. Id. at 328.Google Scholar

32. Id.Google Scholar

33. Id. at 324.Google Scholar

34. Id. at 328.Google Scholar

35. 44 Fed. Reg. 1075 (1978).Google Scholar

36. Id.Google Scholar

37. For a different view, see supra, note 28.Google Scholar

38. Infra, note 39.Google Scholar

39. Cited in B.R. Bot, Nonrecognition and Treaty Relations, supra note 9, at 47.Google Scholar

40. Statement of Victor H. Li, Shelton Professor of International Studies, Stanford University, supra note 23, at 85.Google Scholar

41. Statement of Jerome A. Cohen, Director, East Asian Legal Studies, Harvard Law School, id. at 81.Google Scholar

42. “I believe that appropriate bills should be introduced and that the usual congressional process should be pursued short of the final step of passage of the proposed legislation. Hearings, deliberations and reports by the relevant committees and even floor debates may be desirable so that, once normalization occurs, legislation can be expeditiously enacted in order to prevent an elapse of time that might shake confidence on Taiwan and allow obstacles to impede our contacts with the island.” Id. at 83.Google Scholar

43. Taiwan Relations Act, sec. 2, 22 U.S.C. 3301 (1980).Google Scholar

44. Id., sec. 2(b).Google Scholar

45. Id., sec. 2(c).Google Scholar

46. Supra note 11, at 1.Google Scholar

47. Id. at 7.Google Scholar

48. Id. at 7. The legal scholars consulted by the Foreign Relations Committee agreed with this view. The consensus was that “it would be unwise to try to define Taiwan's international legal status.” They thought that “the best approach would be to spell out the specific manner in which relations with Taiwan will be maintained by the United States.” Id.Google Scholar

49. Supra note 43, sec. 4(3)(A).Google Scholar

50. Id. (8).Google Scholar

51. United States-Taiwan Relations Act, H.R. Rep. 96–26, 96th Cong., 1st Sess. 8 (1979).Google Scholar

52. Id.Google Scholar

53. Id. at 9.Google Scholar

54. Supra note 43, sec. 4.Google Scholar

55. Id., sec. 6 et seq.Google Scholar

56. “Whenever the President or any agency of the United States Government is authorized or required by or pursuant to the laws of the United States to enter into, perform, enforce, or have in force an agreement or transaction relative to Taiwan, such agreement or transaction shall be entered into performed, and enforced, in the manner and to the extent directed by the President, by or through the Institute.” Id., paragraph (b). (Emphasis supplied.)Google Scholar

57. O'Connell, Daniel P., International Law. (Dobbs Ferry, New York: Oceana Publications Inc., 1965), p. 109.Google Scholar

58. (1949) I.C.J. Rep., p. 117.Google Scholar

59. Id. at 185.Google Scholar

60. On January 26, 1979, the President transmitted to Congress a draft bill to provide for legislative implementation of the policy of normalizatoin of relations with the PRC. The bill was itnroduced on January 20, 1979 as H.R. 1614, by Chairman Zablocki, by request, and referred to the Committee on Foreign Affairs.Google Scholar

The full Committee conducted the hearings and received testimony from the Administration and other interested parties. The hearings revealed many shortcomings with the Administration's proposal. A new draft bill was prepared with the purpose of removing the deficiencies of H.R. 1614. On February 27, the full Committee met, using the new draft as its markup document. On February 28, H.R. 2479, a clean bill reflecting the Committee's action in markup, was introduced by Chairman Zablocki with 28 co-sponsors. On March 8 and 13, the bill was considered and passed the House. On March 5, 7, 8, 12 and 13 a companion bill, S. 245, was considered and passed the Senate. On March 14, H.R. 2479 was amended and passed in lieu. On March 28, the House agreed to conference report; March 29, Senate agreed to conference report. On April 10, 1979, the President signed into law H.R. 2479, as the Taiwan Relations Act. [1979] U.S. CODE CONG. & AD NEWS 93 STAT. 21; 15 WEEKLY COMP. OF PRES. DOC. 640 (Apr. 10, 1979).

61. Supra note 11, at 6.Google Scholar

62. Id. at 7.Google Scholar

63. Supra note 43, sec. 12(b).Google Scholar

64. Id., sec. 12(c).Google Scholar

65. Thus, for example, Article 42 of the World Bank Convention on the Settlement of Investment Disputes (CSID)Google Scholar

(1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rule of the conflict of laws) and such rules of international law as may be applicable. Various aspects of choice of law, especially the application of international law and general principles of law have been considered by many writers. See, for example, J.E.S. Fawcett, “The Legal Characteristics of International Agreements,” XXXth Yearbook of R.I.I.A. (1953), 339-340; J.F. Lalive, “Contracts Between a State or a Stage Agency and a Foreign Company,” International and Comparative Law Quarterly 13 (1964), pp. 987–1021.

66. Supra note 43, sec. 6(c).Google Scholar

67. Id., sec. 15(1).Google Scholar

68. Id., paragraph (2).Google Scholar

69. COMPENDIUM II OF THE COPYRIGHT OFFICE PRACTICES, CH. 1100, sec. 1102.4 defines “national” as “(a) citizen of a nation, or (b) a person who, although not a citizen, nevertheless owes a permanent allegiance to a nation ….”Google Scholar

70. Id., sec. 1107.Google Scholar