The Entity that Dare Not Speak its Name: Unrecognized Taiwan as a Right-Bearer in the International Legal Order

Abstract

James Crawford's magisterial 2006 second edition of The Creation of States in International Law, updating his 1979 text in light of the intervening period's vast accumulation of international practice, was much awaited in Taiwan, which has seen a major transformation in its external relations over the last quarter-century. Though Crawford asserts that "the suppression by force of 23 million people cannot be consistent with the [United Nations] Charter," and that therefore "[t]o that extent there must be a cross-Strait boundary for the purposes of the use of force." he finds that "Taiwan is not a State because it still has not unequivocally asserted its separation form China and is not recognized as State distinct from China." Apart from its dysfunctionality in encouraging Taiwanese to believe that a more definitive expression of their desire for statehood is all that stands in the way of their goal, Crawford's analysis is not persuasive on the merits. Contrary to the prevailing objective theory of statehood that Crawford reaffirms, it is the tacit positions adopted by reacting states, whether in coordination or simply in the aggregate, that determine whether an entity possesses the rights, powers, obligations, and immunities of statehood. By this gauge, Taiwan's legal status is indeterminate. There is much concrete behavior of the community of states toward Taiwan that confutes the official rhetoric of non-recognition of Taiwan's independence. The case for attributing to Taiwan the properties of statehood improves the more that Taipei can establish external relationships beyond the permissible confines of mere de facto recognition and inconsistent with the PRC assertions of sovereign prerogative over Taiwan's external affairs.

Keywords: Taiwan, statehood, independence, international law, recognition of states, sovereignty, China, ROC, PRC