THE STATUS OF

TAIWAN’S
STATEHOOD
By: Vicente, Mario Antonio M.*

Submitted To: Judge Charito M. Sawali

Submitted On: April 25, 2015

I. Introduction

Taiwan has quite a mysterious and perplexing political status. The reason why is due to the
fact that this entity suffers a condition of ambiguity in regard to the issue of whether or not Taiwan is
an independent and distinct state from China. In this line of thought, this work aims to elaborate
Taiwan’s political status in the international sphere in the realm of law.

More specifically it shall ascertain the condition of Taiwan in terms of its characteristics
which are concerned with the concept of statehood. In essence this essay will try to attain the answer
to the question is Taiwan a state? It will do so by first discussing the entity’s history then it’s present
attributes and conditions as a social entity. Finally the essay will answer the issue itself through
elaborating the view of USA, Taiwan herself, and the U.N. concerning Taiwan’s statehood.

II. HISTORY OF TAIWAN

II.A. Taiwan under Spanish Rule

Taiwan, also known as the island of Formosa, was originally inhabited by Malayo-
Polynesian peoples organized into different tribes1. In this line of thought native Taiwanese share a
common ancestry with the Filipino Peoples for the Philippines original settlers were also of
Malayo-Polynesian origin. The two entities also share a similar history for the island of Formosa
was also briefly colonized by Spain as well as Portugal pursuant to the Iberian union in the colonial
era. These western forces occupied the northeastern part of Taiwan from the Cape of Santiago to
Keelung their reign over the island lasted from 1623 to 1642.2

II.B. Taiwan under Dutch Rule

The Dutch arrived on southern Taiwan on 1623 to execute a campaign to drive out the
Iberians in order to blockade Spanish and Portuguese trade routes in the area and further expand
its control over the region. Eventually the Iberian forces were driven out from Taiwan on 1642 by
the Dutch and assumed to colonize the areas formerly occupied by the Iberians. The Dutch,
through its Dutch East India Trading Company, colonized the northeastern part of Taiwan much
like its colonial predecessor but its dominion expanded further to the southern and eastern coasts
of Formosa. Their reign over the island lasted from 1623 to 16623. Unlike their Hispanic
counterparts the Dutch invested heavily on the technological advancement of Taiwan. They
introduced colonial age irrigation systems, oxen and other western farm animals, and introduced
Christianity to the majority of Formosa’s indigenous populace.

* The author is a graduate of literature from the University of Santo Tomas Faculty of Arts and Letters. He is currently a 2018 prospective bar
candidate and is a second year student of the Faculty of Civil Law in the same university in the section 2-C with the student number 2009-
001668.
1 History of Taiwan, Encyclopedia Brittanica (2014)
2 Ibid
3
Ibid
 II.C. Taiwan under Zheng Rule

The Dutch rule ended when the Tunging or Zheng Kingdom was established in the
southwestern area of Taiwan and eventually ousted the Dutch from the island on 1662. This
kingdom was the first Chinese affiliated government in Taiwan. It was a Ming Dynasty supporter
and ruled Formosa from 1662 to 1683. 4

II.D. Taiwan under The Qing Dynasty

In 1683 when the ruler of the Tunging Kingdom, Zheng Jing, died without a legitimate heir
civil war brewed in the Kingdom. The Qing seized this opportunity and invaded Formosa with the
intent to annex the island alongside their new ally the Dutch, in an effort on their part to reclaim
their former trade posts. Eventually the Kingdom of Tunging was indeed annexed and became part
of the Qing dynasty, the legitimate government of mainland China during that time, and became
part of its Fujian province. From 1683 to 1895 the Qing dynasty ruled over Taiwan. On the part of
the Dutch however, after reclaiming Keelung they were once more ousted from Taiwan this time
by the hands of the native Formosan tribes and Taiwanese radicals. After this the Dutch eventually
gave up their interests in the island.5

II.E. The First Sino Japanese War.

This war was between the Qing Dynasty and the Meiji Japanese Empire. It began on 1894
and ended in the year 1895. Although this war only lasted a year Japan was able to aggressively
carve its way deep into Chinese territory consuming the Korean peninsula and the eastern coast of
mainland China, even reaching Manchuria. At this time Japan had occupied Taiwan and defeated
the Qing garrison within leaving the island absent of any Chinese presence. Furthermore during
negotiations for peace Japan vehemently pressed the Qing to cede in favor of Japan the island of
Taiwan, Pescadores, and neighboring islands in which they have annexed and are completely within
their control and dominion. This unrelenting proposal eventually came into fruition in the Treaty of
Shimonoseki.6

II.F. The Treaty of Shimonoseki

This treaty, quite arguably an unfair treaty on China’s part, marked the end of the first Sino-
Japanese war. In said treaty China “ceded to Japan in perpetuity and full sovereignty of the Pescadores group of
islands, Formosa (Taiwan) and the eastern portion of the bay of Liaodong Peninsula together with all fortifications,
arsenals and public property.”7 This treaty also provides the following8:

 China recognized definitively the full and complete independence and autonomy of Korea.

4
Rubinstein, Taiwan: A New History, 84-106 (2006)
5 Ibid
6 First Sino Japanese War, Encyclopedia Encarta (2009)
7 Chiang, State, Sovereignty and Taiwan, 23Fordham International Law Journal, 988 (1999)
8
Ibid
 China agreed to pay to Japan as a war indemnity the sum of 200,000,000 Kuping Taels or Silver
Tiles approximately weighing 37.8 grams each9
 China opened Shashih, Chungking, Soochow and Hangchow to Japan. Moreover, China granted to
Japan most-favored-nation treatment.10

II.G. The Short Lived Republic of Formosa

Shortly after the perfection of the Treaty of Shimonoseki, where China surrendered Taiwan
to Japan, Qing officials in Taiwan for the first and only time declared Taiwan’s independence from
the state of China and formed the Republic of Formosa. This last minute formation of a
Republican Government independent from China by Qing officials was a desperate attempt to
combat the Japanese and prevent them from taking over their homeland of Formosa. It was
approximately created on May 23, 1895 and was eradicated by Japanese forces on October 21 of
the same year. Sadly, the Republic only lasted for five months.11

II.H. Taiwan under Japanese Rule

The dominion of Japan over Formosa lasted from 1895 to 1945. In its early years Taiwan
was headed by a military governor general. It was only after all resistance from Republic of
Formosa and native tribes were destroyed that Taiwan officially became a colony of Japan through
the appointment of Kodama Gentaro, a Japanese nobleman, the first civilian Japanese governor
general of Taiwan. During this time the Taiwanese were forced to learn the Japanese language, laws,
way of life, and Taiwanese men were made to join the Japanese Imperial Army.12

However, Taiwan benefited from Japanese occupation in such a way that Japan invested
heavily on Taiwan with regard to public infrastructure such as railways. During the Japanese
occupation Taiwan almost had the same railway length as the entire mainland China during this
timeframe.13

Moreover, Japan’s stay in Taiwan was not all that peaceful for the indigenous Taiwanese
staged several uprisings all through the occupation the most famous of which was the Wu She
incident of 1930. In said incident the Seediq tribe of the Musha province staged a surreptitious
attack on Japanese police attacking their installations and seizing their armament supplies leaving in
their wake 134 fallen Japanese soldiers and policemen. Japan of course retaliated and killed
approximately 600 of the Seediq and thus ended the uprising.14

9 Kuping Taels. Encyclopedia Britannica (2012).

10 The Most-Favoured-Nation treatment is a concept under International trade law which places the state receiving such treatment into a higher
plane when it comes to trade with the granting state giving the receiving state a commanding advantage over the other trade partners of the
grantor such as receiving lower tariif rates or high import quotas. (MFN. Encyclopedia Britannica {2012}).
11 Republic of Formosa, Encyclopedia Encarta (2009)
12 Supra note 4
13 Ibid
14
Roy, The Japanese Occupation, Taiwan A Political History 35-51(2003)
 II.I. China’s Change in Government

On 1912 The Qing Dynasty was succeeded by the Koumintang or The Republic of China
through its revolution against the Qing. The Koumintang was founded by Song Jiaoren and Sun
Yatsen in 1911 and controlled mostly the south of China but expanded further north and managed
to overthrow the Qing Dynasty on 1912. This Republic was eventually led by Chiang Kai-Shek. On
1927 the communist People’s Republic of China was beginning to gain momentum and was
ultimately led by Mao ZeDong. It is to be noted that at this time the legitimate government of the
state of China is the Koumintang and in this period Taiwan is no longer part of China but Japan.15

II.J. The Second Sino_Japanese War

In 1941 The Republic of China declared war against Japan. It also unilaterally declared the
Treaty of Shimonoseki null and void. This unilateral declaration was later on supported by the allied
powers in the 1943 Cairo Conference.

II.K. The Cairo Conference

This was a meeting between China, Chiang Kai-Shek, Britain, Prime Minister Churchill, and
the USA, President Roosevelt. It was conducted on November 22, 1943 to November 26, 1943.
This meeting was in regard to Japan’s territorial conquest and the allies sought to a plan to deal with
such. They eventually agreed that Japan should give back Formosa, Pescadores, and other
territories it stole from China to the Republic of China.16 In the same note this agreement was
reiterated in the Potsdam Declaration.

II.L. The Potsdam Convention

This was a meeting between all the allied powers conducted on the year 1945 and the
Potsdam Declaration was issued on July 6, 1945 in Potsdam, Germany. The declaration vehemently
articulated for the unconditional surrender of the Empire of Japan. It also fundamentally reiterated
the agreement in the Cairo Conference17. Here are some points of interest in said convention:

“The 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.”18

“We call upon the government of Japan to proclaim now the unconditional surrender
of all Japanese armed forces, and to provide proper and adequate assurances of their good
faith in such action. The alternative for Japan is prompt and utter destruction”19

15 Supra Note 1
16
USA State Government, Cairo Conference, http://2001-2009.state.gov/r/pa/ho/time/wwii/107184.htm, last accesed on april 11, 2015.
17 Potsdam Declaration, Encyclopedia Britannica (2014)
18 Potsdam Proclamation, July 26, 1945 (<http://metalab. unc.edu/hyperwar/PTO/Dip> (on file with the Fordham International Law Journal) last

accessed on Apr. 11, 2015)

19
Ibid
 It is worth noting that a few weeks later the atomic bombing of Hiroshima and Nagasaki took
place on August 6, 1945 and August 8, 1945 respectively.20

II.M. The Japanese Instrument of Surrender

This was signed on September 2, 1945 by Japanese Foreign Minister Mamoru Shigemitsu and
the representatives of the Allied Powers. This marked the end of World War II and declared the
Allied Powers victors. Shortly after, the Republic of China for the first time occupies Taiwan upon
orders from the Supreme Allied Commander Douglas Macarthur.21

II.N. The San Francisco Peace Treaty

This Treaty came into force on April 28, 1952. It created an agreement providing for rights
for indemnification to those who were victimized by the Japanese military during the war and
systems for repatriation and indemnification for Japanese prisoners of war. The Republic of China
was not invited to this convention for there is a conflict between different party states of the U.N.
concerning the issue as to who will represent the state of China, whether it be the Republic of
China as proposed by the USA or The Peoples Republic of China as proposed by the U.K.22

This dispute was resolved by merely not inviting both governments to the convention. One
must bear in mind that at this time the Chinese civil war is ongoing and that the Republic of China,
in October 1 1949, was forced to vacate mainland China by the People’s Republic of China and
take refuge in the island of Formosa along with 2 million of China’s intellectual elite.23 At this point
mainland China is now governed by the People’s Republic and no longer the Republic of China.

An important feature of the treaty is that Japan ceded all its rights, claims, and titles to the
island of Formosa, Pescadores, and other neighboring islands such as the Spratly’s islands.
However the treaty fails to provide an answer to the question, to who shall these islands belong to
or be given to. It merely states that Japan renounces its sovereignty over the islands and nothing
more.24 This is one of the reasons why India did not sign the treaty for in the previous declarations
the Allied forces agreed to give Taiwan and neighboring islands to the Republic of China.25

The issue as to whom Taiwan belongs to is still unresolved or at the very least unclear, this
work however shall limit these discussions to the view of the different entities stated in the
introduction and of course their view is that Taiwan belongs to the state of China which will be
further discussed later on.

II.O. The Treaty of Taipei

20 Atomic Bomb, Encyclopedia Encarta (2009)

21
Japanese Instrument of Surrender, Encyclopedia Encarta (2009)
22 Chiang, Supra note 7 956-1004
23 Id
24 San Francisco Peace Treaty , (https://treaties.un.org/.../volume-136-I-1832-English.pdf,)l (ast accessed on April 3 2015)
25
Chiang, Supra note 22
 This is an invalid treaty entered into by The Republic of China and Japan which took effect
on August 5, 1952, 4 months after Japan renounced its sovereignty over Taiwan. This treaty
provides that Japan surrenders Taiwan and neighboring islands to the Republic of China. This is an
invalid treaty for at this time Japan no longer has sovereignty over the said islands and thus no
longer has the capacity to give them away.26

II.P. U.N.G.A. Resolution 2758

This is an announcement made by the United Nations General Assembly on the year 1971
whereby they articulated that the Republic of China is no longer the legitimate government
representative of the State of China and was replaced by the People’s Republic of China. The USA
however steadfastly refused to accept this proclamation, but of course they eventually did.27

This is when the reign of the Republic of China over the mainland of China seized. It was
turned outcast by the aforementioned communist republic. Up to this date in time mainland China
is still ruled by the People’s Republic of China and the Republic of China is still forced to bide their
time in Taiwan and its neighboring islands.

III. The View of the USA on Taiwan’s political Status

On the year 1978 the subject state finally acknowledged the aforementioned announcement
and recognized the People’s Republic of China as the De Jure government of the state of China.
Furthermore, America does not view Taiwan as a separate state from china as illustrated by its
domestic laws such as the Taiwan Relations Act of 1979.28 This is an act which governs the relationship
between America and Taiwan. Note that this is a domestic law and not a treaty. It is not a treaty for
treaties can only be executed between and among states. Having stated this America then does not
view Taiwan as an independent state.

This view is further illustrated by American Jurisprudence such as the case of Lee vs. China
Airlines ltd.29 In this case the U.S. Supreme Court ruled that this indemnification case, for injuries
sustained through the negligence of the pilot, should have been filed in either Hong Kong or Taiwan
and not with U.S. courts for under the Warsaw Convention in order for a state to have jurisdiction
over an air travel case the courier’s place of business should be within the state’s territory. In this case
the airline’s place of business is in Hong Kong and Taiwan hence the case should be filed in China.
The U.S. Supreme Court applied a treaty in which the Republic of China did not sign but the
People’s Republic of China did.

It is quite clear that the USA views Taiwan as a part of China and under the control of the
People’s Republic of China at the same time has a domestic law obligating the US to give Taiwan

26 Treaty of Taipei, Encyclopedia Encarta (2009)

27 Chiang, Supra note 22
28 Id
29
Lee vs. China Airlines Ltd, 669F.Supp.979 (1987)
military support. The USA in this case seems to be playing both sides but what is clear is that it does
not view Taiwan as a state.

IV. Taiwan Today

Taiwan has a permanent population of 23,359,928 as of July 2014, consisting of mostly

Chinese. It has a government which is the Republic of China a republican democracy. Its current
president is Ma Ying-Jeou. It has its own constitution which is the 1947 Koumintang constitution. It
has a definitive territory which is composed of the following islands: Taiwan, Penghu, Kinmen,
Matsu and numerous minor islands surrounding Taiwan. It also enjoys sovereignty for is enjoys
freedom from external control. Taiwan also is a relatively economic power and enjoys the protection
of its own formidable military. In fact it even has its own currency which is the Taiwanese Dollar.30

V. View of Taiwan on its Own Political Status

Such view is divided into two coalitions the Pan-Blue Coalition and the Pan-Green Coalition.
The Pan-Blue Coalition consists of different Taiwanese political parties which advocate the position
that Taiwan is part of the state of China and China’s legitimate government is the Republic of China
and not the People’s Republic of China. While the Pan Green Coalition is for Taiwanese
independence. The ruling coalition is the Pan-Blue coalition being wherein the current president of
Taiwan belongs to.

VI. Theories Applicable in Favor of Taiwanese Independence

As the aforementioned sub-topics illustrate Taiwan is indeed not a state, even the Taiwanese
government expresses so it is only proper to tackle an issue at all sides as much possible, meaning
that one must also be familiar with concepts that are contrary to what is generally accepted.
International Theories favoring Taiwanese independence are these two, the The Declarative Theory
and the Principle of Self Determination.

VI.A. The Declarative Theory

This stems from the Montevideo Convention of 1933 which provides for the different modes
of acquiring statehood and the different elements of a state. In its article 1 it provides for the
different elements of a state:

“ARTICLE 1 The 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”31

30Taiwan, World Book Encyclopedia (2014

31International Law Students Association, Montevideo Convention, https://www.ilsa.org/jessup/jessup15/Montevideo%20Convention.pdf, last
accessed on April 11, 2015
 This provision embodies the Declarative Theory wherein an entity may be considered as a state as
long as it has all the aforementioned requisites and recognition by other states has no effect on the
entity’s statehood but merely acknowledges the fact that it is indeed a state.

Taiwan is a state under the declarative theory for as previously mentioned it has a permanent
population of 23 million, it has a defined territory as mentioned before, it has a republican form of
government, and it enjoys freedom from external control and thus is capable of entering relations
with other states.

VI.A. The Principle of Self Determination

The Principle of Self-Determination is “The right of peoples to freely determine their political
status and freely pursue their economic, social, and cultural development.”32 Essentially there are
three kinds of Self Determination namely: Colonial, Internal, and External Self Determination.33

The Colonial form of Self Determination is the original kind of Self Determination which
gives colonies the right to secede from their colonial parent and proclaim themselves independent
states. This is illustrated by world history wherein numerous colonies such as the Philippines
seceded, normally through the use of force, from their colonizer. This is seen as a form of gaining
statehood and is actually a specific kind of External Self Determination whereby a group of
peoples, herein colonies, part from their current state and create their own.34

The next kind of Self Determination is the Internal Self Determination which is the right of
the people to govern themselves freely. This involves merely the creation of a government or the
replacement of a previous government for a new one. In this concept there is no new state formed
but merely a creation of a De Jure government of an already existing state.35

The last kind is the External Self Determination. This is rather a dangerous way of forming a
state for it gives any group of people the right to secede from their current state and form a new
one. A world wide application of this mode of attaining statehood will create much chaos and
confusion whereby new states virtually pop out all over the globe36 but jurists in the field of
International Law opine that a group of people cannot apply this kind of Self Determination when
they are already in a legitimate state. There is recent jurisprudence of the ICJ which provide for the
contrary however.

VII. The Kosovo Case and Its Relevance To Taiwan’s Statehood

In the case of Kosovo37 the ICJ was tasked by the U.N. General Assembly to give its advisory
opinion concerning the validity of its unilateral declaration of independence from the state of Serbia.
In this case the UN Security Council created Resolution 1244 on the year 1999; this provided for
interim measures for the administration of Kosovo with the prospect of determining its political
status for Kosovo then was still part of the state of Serbia. On the year 2008, Kosovons unilaterally

32 Bernas, INTRODUCTION TO PUBLIC INTERNATIONAL LAW, 73 (2009)

33
Cassese, Self Determination of Peoples: A Legal Reappraisal, 111-202(1999)
34 Id
35 Id
36 Id
37
Kosovo Case ICJ Advisory Opinion (2010), (http://www.icj-cij.org/docket/files/141/16010.pdf), (last accesed on April 4, 2015)
declared themselves independent from their previous state Serbia. They created their own
constitution and formed their own government they also held elections to that effect. Because of
these spontaneous and unprecedented events many nations argued for the validity of Kosovo’s
application of Self Determination while numerous nations admonished and even rejected the validity
of said application.

Eventually the UNGA tasked the ICJ to give its opinion on the matter. The ICJ after hearing
numerous arguments from not only from Serbia and Kosovo but also from other party states of the
UN as well opined that Kosovo did not violate any international law. This however has a number of
strong dissenters not only from the ICJ but also from the international community. International Law
jurists opine that the ICJ should have limited Kosovo’s application of Self Determination to the
application of the principle of Remedial Secession which allows the execution of External Self
Determination only as a remedy of last resort in order to escape the human rights abuses done by the
parent state.38

The aforementioned principle however was not applied and the majority opinion of the ICJ
advocates the scenario of giving any group of peoples the right to proclaim themselves independent
from their current state which is a dangerous feature of External Self Determination. The ICJ
however emphasized that their opinion does not concern Kosovo’s political status but rather only
affirms the validity of their unilateral declaration of independence. The Republic of Kosovo now is
not a member of the UN, but its statehood is acknowledged by majority of the members of the UN.
It is, however a member of the International Monetary Fund and The World Bank Group.39

Since the aforementioned case abandoned the principle that external self determination
cannot be used to secede from a legitimate state Taiwan then can proclaim itself independent from
the state of China.

VIII. Conclusion

The U.N. does not view Taiwan as an independent state and thus the international community
does not view Taiwan as such as well. The USA does not view Taiwan as an independent state as
shown by their laws and jurisprudence. In fact according to Taiwan’s government it is not an
independent state but rather Taiwan is part of the state of China whose rightful government is the
Republic of China not the People’s Republic of China. However under the Declarative theory Taiwan
is a state since it has all the requisites of a state. Finally, an option for Taiwan is the principle of Self
Determination since according to the ICJ it is now applicable to peoples who seek to cede from a
legitimate state.

38 Buchheit, Seccession: The Legitimacy of Self Determination, 222(1978)

39
BBC News, Kosovo independence not illegal, says UN court, http://www.bbc.co.uk/news/world-europe-1073057, (last accesed on 04/24/2015)