Parsing 'Mutual Non-Recognition and Mutual Non-Denial': An International Law Perspective on Taipei’s Current Framework for Cross-Strait Relations

Abstract

The Republic of China on Taiwan has never ceased to assert its sovereignty and dignity as a co-equal member of the international legal order. Yet different governments in Taipei – pan-Green (DPP-led) and pan-Blue (KMT-led) – have advanced vastly different versions of this sovereignty claim. Whereas the pan-Green government of President Chen Shui-bian contended provocatively that “the two sides of the Taiwan Strait ... are two independent, sovereign countries, with neither exercising jurisdiction over the other,” the succeeding pan-Blue government of President Ma Ying-jeou asserts that “the cross-strait relationship is not one between states, but a special relationship for which the model of recognition under conventional international law is not applicable.” President Ma’s formula of “mutual non-recognition and mutual non-denial” – in which Beijing and Taipei both persist in their full claims to sovereignty over the undivided whole of China, yet concede the authority of the other to govern the latter’s respective geographic zone – has proved a diplomatic success for the time being. Yet from an international law standpoint, the implications are uncertain. President Ma has invoked as precedent the 1972 Grundlagenvertrag, or Basis of Relations Agreement, between West and East Germany.

This article assesses the juridical viability of “mutual non-recognition and mutual non-denial” framework, and the applicability of the analogy to the inter-German agreement. It argues that President Ma’s concession that “international law is not directly applicable to cross-strait relations” presents long-term dangers that diplomatic successes have tended to obscure, and that Taipei must walk a tightrope so as to preserve a legal foundation for Taiwan’s inviolability.