An Unrecognized State in Foreign and International Courts: The Case of the Republic of China on Taiwan

50 Pages Posted: 30 Jul 2007 Last revised: 10 Oct 2012

See all articles by Pasha L. Hsieh

Pasha L. Hsieh

Singapore Management University - School of Law

Abstract

In the 1970s, Taiwan lost its United Nations seat, and most nations switched diplomatic recognition from Taiwan to the People's Republic of China (PRC). The loss of Taiwan's diplomatic recognition became a fundamental issue in judicial proceedings. Contrary to the PRC's claim, the article argues that, from the viewpoint of international law, Taiwan has never been succeeded by the PRC. The article explores the Taiwan question faced by foreign courts and finds that, albeit the lack of diplomatic recognition, the courts around the world have almost uniformly accorded Taiwan the status of state and this judicial recognition has risen to the level of customary international law. As for the standing of Taiwan before the international courts, the article analyzes whether Taiwan, as a non-UN member, may be granted standing before the International Court of Justice. The article also argues that Taiwan, as a fishing entity, has the right to access the International Tribunal for the Law of the Sea. Furthermore, Taiwan's status as a separate customs territory in the World Trade Organization enables the nation to utilize the dispute settlement mechanism. The article concludes that, to avoid the judicial black hole in terms of global justice, it is both necessary and pragmatic to deem Taiwan a state in all judicial proceedings.

Keywords: China, Taiwan, Recognition, State Immunity, UN, ICJ, ITLOS, WTO

Suggested Citation

Hsieh, Pasha L., An Unrecognized State in Foreign and International Courts: The Case of the Republic of China on Taiwan. Michigan Journal of International Law, Vol. 28, pp. 765-814, 2007, Available at SSRN: https://ssrn.com/abstract=1003263

Pasha L. Hsieh (Contact Author)

Singapore Management University - School of Law ( email )

55 Armenian Street
Level 4
Singapore, 179943
Singapore
68280345 (Phone)

HOME PAGE: http://law.smu.edu.sg/directory/pasha-l-hsieh

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