label r shifted
Session C2
Has Taiwan Declared Independence?
宋承恩 Chen-En Sung
Research and Education Department, Tang Prize Foundation, Taiwan

In the second edition of his book The Creation of States in International Law (2006), James Crawford took the view that “Taiwan is not a State because it still has not unequivocally asserted its separation from China and is not recognized as a State distinct from China.” According to Crawford, “there is even now widespread agreement that Taiwan is not a State but part of a larger China. China takes this view, other States take this view and Taiwan itself has by no means rejected it. The RoC and the PRC have long both insisted that there is only one Chinese State”. This was a view he shared with his predecessors who delved into the question of Taiwan’s statehood, indeed with the view taken by America Law Institute’s Restatement of the Foreign Relations Law.

Along this line of reasoning, notwithstanding the fact that Taiwan has long met every classic criteria of statehood, Taiwan cannot be considered a State. Absence of an unequivocal claim of separate statehood on Taiwan’s part constituted a decisive factor for arguing against an independent Taiwanese state, and that is so irrespective of what Taiwan’s official name is. On the other hand, the flip side of such a view is that, as a matter of factual situations, there existed no obstacles to consider Taiwan as an independent state, bar for its own abstaining from claiming such a status. Indeed, one can argue that Taiwan’s de facto independence from China has long been the “status quo” across Taiwan Strait, even an essential element of international peace and security in post-war East Asia.

The question then comes to, if that was the scene in early 2000s when Crawford conducted his analysis, what is the current situation? Indeed, even in Crawford’s own account, he identified a clear trend that Taiwan was “edging towards formal separation”. What has happened since then? Was the trend continuing, stayed, or reversed? Has Taiwan declared independence?

What distinguished Crawford’s was his detailed analysis of Taiwan’s own practice, ranging from the provisions of its Constitution and domestic legislation, declarations and statements of its Presidents and officials, its participation in inter-governmental organizations, and its dealings with other international actors. This paper will attempt to answer the question by analyzing the practice of Taiwan in those aspects.

The paper will consist of three main substantive parts. The first part will illustrate the geopolitical background of the period concerned, in particular against the background of the rise of Chinese powers and the intensifying of its suppress of Taiwan’s international presence. This will shed some light of the realistic options Taiwan has or does not have. The second main part will analyze Taiwan’s practice in areas of diplomatic relations, participation in international organizations, dealing with maritime issues, and criminal jurisdiction, among others. The third part will examine the threshold laid down in the “unequivocal claim of statehood” and review whether the threshold is unrealistically high for Taiwan.