International Law and the Extraordinary Interaction between the People's Republic of China and the Republic of China on Taiwan
Indiana International & Comparative Law Review, Vol. 19, p. 233
Posted: 21 Feb 2010 Last revised: 25 Jan 2014
Date Written: January 12, 2010
Since 1987, the relationship between the People’s Republic of China (PRC) and the Republic of China (ROC) has defied existing categories of cross-border interaction. This Article examines major aspects of the PRC-ROC relationship, contrasts this relationship with state-based and nongovernmental cross-border interactions, and discusses the implications of this complex and unique relationship for international legal scholarship.
To proponents of the state-based perpsective, the state is the most powerful social form of political organization in the contemporary world, and state-based interaction is the backbone of the contemporary world order. Adherents of the traditional state-based perspective point out that the United Nations, the most influential international organization, admits only sovereign states as members. Some scholars of the PRC-ROC relationship have emphasized that the ROC should enjoy greater participation in international organizations, or even that the ROC should be considered a separate state, rather than part of the Chinese state. Other scholars have emphasized the extent to which Chinese history and the Westphalian concept of sovereignty constrain the choices that the contemporary PRC and ROC governments may make.
An alternative perspective posits that nongovernmental cross-border interaction is playing an increasingly important role in the world. Scholars of the PRC-ROC relationship have studied the economic exchanges and have highlighted such social phenomena as migration and marriage to lend support for this perspective. As an example, analysts have pointed out that since 2003, the PRC has been the largest market for exports from the ROC, while citizens and companies from the ROC have become the fifth largest source of foreign direct investment in the PRC.
My thesis is that the current PRC-ROC relationship cannot be categorized according to the traditional categories of cross-border interaction. The relationship is not state-based for several reasons. First, to say that the PRC-ROC relationship is unequivocally state-based is to ignore the official attitudes of the PRC and the ROC. The PRC has always vehemently contended that its relationship with the ROC is not state-based, while the ROC’s attitude is more ambiguous. Several indicators of the ROC’s attitude, which changes in tandem with changes in its administration, present mixed signals. Second, several mechanisms of enormous importance in the PRC-ROC relationship have intentionally been made to appear nongovernmental. Third, activities such as marriage, trade, investment, and crime have been undertaken with little, if any, regard for government-to-government diplomacy.
While the current PRC-ROC relationship cannot be characterized as state-based, neither can it be characterized as composed of purely nongovernmental interaction of the type that has informed the basis of much current scholarly writing regarding informal government networks. First, PRC and ROC courts, which are governmental in nature, adjudicate and resolve a variety of conflicts that arise out of nongovernmental interaction. Second, the efforts to make several mechanisms of enormous importance in the PRC-ROC relationship appear nongovernmental underscore that they are, or at least initially were, governmental mechanisms. Third, even though activities such as marriage, trade, investment, and crime have been pursued with little or no regard for government-to-government diplomacy, they have been undertaken with the legal rules established by governments in mind. Human traffickers and smugglers, for example, know they are violating either PRC or ROC laws.
This Article supports my thesis by examining conflict-of-law rules and cross-border crime control within the PRC-ROC relationship. To date, these issues have not received adequate scholarly examination. Part I describes the historical background of the PRC-ROC relationship, lays out the official positions of the PRC and ROC on the nature of their bilateral relationship, and chronicles major events in their relationship. Part I further explains the distinction between state-based and nongovernmental cross-border interaction by examining the nature of informal government networks and discussing Paragraph 125 of the 1971 Namibia advisory opinion of the International Court of Justice (ICJ). It is within this advisory opinion that the ICJ acknowledged that the registration of births, deaths, and marriages of an unrecognized regime is a public or state-based act, and, upon this acknowledgement, ruled that the registration of such matters should not be invalid simply because a regime is not accorded diplomatic recognition.
Parts II and III examine the interaction between the civil and criminal justice systems and related institutions of the PRC and ROC with the purposes of demonstrating these mechanisms’ nongovernmental appearance and the efforts behind creating such an appearance. As stated earlier, this nongovernmental semblance and the attempts to create it are critical to the conclusion that the current PRC-ROC relationship defies existing categories of cross-border interaction. Parts II and III will additionally detail the instances in which PRC and ROC courts have met the challenges that were created by the extensive interaction between the two entities. It should be noted that throughout Parts II and III, the dates on which various events occurred will be provided whenever possible. Viewing these dates alongside the chronology of the major events in the PRC-ROC relationship supports the conclusion that activities such as marriage, trade, investment, and crime have been undertaken with little or no regard for government-to-government diplomacy.
Parts II and III present PRC and ROC court decisions as a useful lens through which observers may examine the PRC-ROC relationship. Most studies of this relationship have rarely discussed court decisions. However, this Article demonstrates that lawyers and judges have paid much heed to these materials, which reflect the efforts of the PRC and ROC to come to grips with the challenges created by their extensive interaction. Court judgments illustrate the real-world impact of the application of legal rules - one party loses while the other party wins - as well as the extent to which extralegal motivations are translated into legal arguments. This Article contends that anyone wishing to gain an understanding of the PRC-ROC relationship cannot ignore these court decisions.
Certainly, a focus on adjudication can lead to misunderstandings. Readers must understand that court cases present only a snapshot. Some corporations and individuals may choose to settle outside of court, and estimating the number of disputes resolved in this manner is difficult. Furthermore, while court cases and settlements arise from disputes, not all PRC-ROC interactions, such as marriages or transactions, end in disputes, nor can PRC and ROC police catch every criminal. In addition, the PRC does not yet have a centralized database that systematically reports cases in its court system. Therefore, although court decisions present a valuable opportunity to understand the PRC-ROC relationship, they are still only part of the complicated relationship.
The Conclusion of this Article discusses the stability of PRC-ROC interaction and its implications for international legal scholarship. The unique nature of the PRC-ROC interaction may lead to questions regarding its stability, an issue which I shall do my best to address. Beyond the immediate consequences in the region, the PRC-ROC interaction has implications for international legal scholarship. The PRC-ROC interaction suggests the need for more focus on the substance of the international law, and the focus on the substance of international law will also have implications for the PRC-ROC interaction.
Keywords: international law, China, Taiwan, conflict of laws
Suggested Citation: Suggested Citation
Register to save articles to
By Wei Shen
By Shen Wei