In: Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 41, 2023
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Abstract
In this special report, the author examines the status of the Republic of China (ROC)/ Taiwan from the view of statehood and international legal personality. As state secession is one of internal factors and state recognition is one of external factors, both of them affect a state’s possession of international legal personality. Accordingly, how internal factors affect external factors is examined by observing the decisions held by the Japanese courts. The Government of the People’s Republic of China (PRC)is recognized as the sole legal Government of China in the 1972 Communiqué, but the PRC can neither legally nor factually represent the ROC.
Although political pledges and international treaties have different consequences on sovereignty over Taiwan, the ROC has acquired terra nullius Taiwan by occupation. It should have the consent of the ROC government if the 1972 Communiqué claims the PRC has territorial sovereignty over Taiwan. Without doing so, the nature of the 1972 Communiqué is that one government agrees with another government to annex the territory of the common unrecognized third state. The external factor for the ROC’s loss of international legal personality is that the General Assembly Resolution deprived the ROC of its international legal personality without giving it another personality. The internal factor is that the Constitution of the ROC prevents the ROC from pursuing a new personality.
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