1 For the purposes of this article, the term “Taiwan” refers to the island of Formosa and its associated islands.

2 See generally Kuijper, Hans, Is Taiwan a Part of China? in The International Status of Taiwan in The New World Order 9 (Jean-Marie, Henckaerts ed., 1996)Google Scholar [hereinafter International Status of Taiwan]; John, Robert Shepherd, Statecraft and Political Economyonthe Taiwan Frontier, 1600–1800 (1993)Google Scholar; Campbell, William, Formosa Under The Dutch (Southern Materials Center 1987) (1903)Google Scholar; John, King Fairbank, The Great Chinese Revolution, 1800–1985 (1986)Google Scholar; Mackerras, Colin, Modern China: A Chronology from 1842 to the Present (1982)Google Scholar; Wakeman, Frederic Jr., The Fall of Imperial China (1975)Google Scholar; Eastman, Lloyd E., Throne and Mandarins: China’s Search for a Policy During the Sino-French Controversy, 1880–1885 (1967)Google Scholar; Goddard, W. G., Formosa: a Study In Chinese History (1966)CrossRefGoogle Scholar; Kerr, George H., Formosa Betrayed (1965)Google Scholar; Sophia, Su-Fei Yen, Taiwan in China’s Foreign Relations, 1836–1874 (1965)Google Scholar; Ling, Shun-sheng, People of the Ancient Min-Yueh and the Native Tribes of Taiwan, in 1 Collected Essays on the Culture of Taiwan 1 (Lin, Hsiung-hsiang ed., 1954)Google Scholar; Ballantine, Joseph W., Formosa: a Problem for United States Foreign Policy (1952)Google Scholar; Reiss, Ludwig, Geschichte der Insel Formosa [History of the Island of Formosa], 6 Mitteilungen Der Deutschen Gesellschaft Für Natur-Und Völkerkunde Ostasiens 405 (1897)Google Scholar.

3 See Yen, supra note 2, at 4; Shepherd, supra note 2, at 6–7.

4 Shepherd, supra note 2, at 6–7.

5 Id.

6 See id.

7 See Yen, supra note 2, at 5–6.

8 See id. at 8.

9 See id. at 6–7; Goddard, supra note 2, at 50–51; Campbell, supra note 2, at 36.

10 See Goddard, supra note 2, at 51–53.

11 The Spanish first established a port in northern Taiwan at Santissima Trinidad, and then at San Domingo at the mouth of the Tamsui River. See id, at 53–54. The Dutch drove out the Spaniards by 1642. See id.; Yen, supra note 2, at 7–8.

12 See 1 Roxby, P. M. & Freeman, T. W., China Proper 352–54 (Great Britain, Naval Intelligence Division, 1944)Google Scholar.

13 This migration was possible because the Dutch had agreed with China in 1633 that trade between the mainland and China should be carried in Chinese vessels. See Goddard, supra note 2, at 66–69.

14 See id. at 76–77.

15 See id. at 80–81; Yen, supra note 2, at 9.

16 See Shepherd, supra note 2, at 7, 97.

17 See id. at 7, 32–33.

18 See Goddard, supra note 2, at 91–94.

19 See Yen, supra note 2, at 9.

20 See Shepherd, supra note 2, at 106.

21 Id. at 137.

22 See id. at 106.

23 Sec Yen, supra note 2, at 10.

24 See Shepherd, supra note 2, at 179.

25 See id. at 198.

26 See Taiwan, 28 New Encyclopaedia Britannica 375, 380 (1993)Google Scholar; Taiwan, 22 Collier’s Encyclopedia 37, 42 (1991)Google Scholar.

27 Ming supporters were repatriated, except those who had families on Taiwan, because it was considered that such family units had a vested interest in maintaining peace on the island. See Shepherd, supra note 2, at 15. Until 1732, families were not allowed to emigrate to Taiwan from the mainland. Instead, single men could go there to work, but they were required to travel on government vessels and were only allowed to return to the mainland if their behavior had been good. See id. After the prohibition on family migration was lifted in 1732, it was alternately reimposed and abandoned in 1740, 1746, 1748, 1750, and 1761. See id. at 143 tbl. 6.2.

28 See id. at 107, 140 tbl. 6.1, 164.

29 A policy of limiting colonization and sheltering the aborigines helped suppress the spread of Taiwanese settlement to areas within state control. See id. at 7, 107.

30 See id. at 302 tbl. 9.1.

31 See id. at 192 map 7.2.

32 See id. at 196 map 7.3.

33 See id. at 19, 186–91, 273.

34 Id. at 3.

35 Id.

36 Id.

37 See id.; Prescott, J. R. V., Political Frontiers and Boundaries 36–51 (1987)Google Scholar; Prescott, J. R. V., Harold John Collier, & Dorothy Francis Prescott, Frontiers of Asia and Southeast Asia 6–7 (1977)Google Scholar; Friters, Gerard M., Outer Mongolia and Its International Position 183–93 (1949)Google Scholar; 2 Lamb, Alastair, The Mcmahon Line: A Study in the Relations Between India, China and Tibet, 1904–1914, at 436–56 (1966)Google Scholar.

38 See Yen, supra note 2, at 22–28.

39 See id. at 47.

40 See id. at 48.

41 Similarly, in the early 1850s some well-connected Americans favored a trusteeship or protectorate over Taiwan. The U.S. government was unenthusiastic, and after the election of President James Buchanan in 1857, these ideas were abandoned. Though Chinese control over Taiwan appeared weak, the opening of Taiwanese ports to foreign trade was accomplished by treaty and not by force. See id. at 53–71; text at note 42 infra.

42 See Treaty of Peace, Amity, Commerce and Navigation, June 1(13), 1858, China-Russ., 119 Consol. TS 113; Treaty of Peace, Amity and Commerce, June 18, 1858, China-U.S., 119 Consol. TS 123; Treaty of Peace, Friendship and Commerce, June 26, 1858, China-Gr. Brit., 119 Consol. TS 163; Treaty of Amity, Commerce and Navigation, June 27, 1858, China-Fr., 119 Consol. TS 189.

43 See Yen, supra note 2, at 156–58.

44 See id. at 156–81; Engagement Respecting Formosa, Oct. 31, 1874, China-Japan, 148 Consol. TS 223.

45 Engagement Respecting Formosa, supra note 44, at 224; sec Yen, supra note 2, at 158, 165, 288.

46 Treaty of Peace, Apr. 17, 1895, China-Japan, 181 Consol. TS 217; see Wakeman, supra note 2, at 191–92.

47 Treaty of Peace, supra note 46, at 218.

48 Final Text of the Communiqué, Dec. 1, 1943, 3 Bevans 858, 1943 Foreign Relations of The United States, The Conferences At Cairo and Tehran 448 [hereinafter Cairo Declaration].

49 Proclamation by the Heads of Governments, United States, China and United Kingdom, July 26, 1945, para. 8, 3 Bevans 1204, 1945 Foreign Relations of the United States, 2 The Conference of Berlin (The Potsdam Conference) 1474 [hereinafter Potsdam Proclamation].

50 Treaty of Peace with Japan, Sept. 8, 1951, Art. 2, 3 UST 3169, 136 UNTS 45.

51 Treaty of Peace, Apr. 28, 1952, ROG-Japan, Art. II, 138 UNTS 3.

52 Id., Art. IV.

53 Treaty of Peace with Japan, supra note 50, Art. 2(b).

54 See Eritrea v. Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute, paras. 106, 239, 451–52 (Perm. Ct. Arb. Oct. 9, 1998), obtainable from <http://www.pca-cpa.org [hereinafter Eritrea v. Yemen, Phase I]; Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53, at 27–28, 45–46; Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829, 838–39 (Perm. Ct. Arb. 1928).

55 Cairo Declaration, supra note 48.

56 Potsdam Proclamation, supra note 49.

57 Treaty of Peace with Japan, supra note 50.

58 Hans Kuijper wrote the following:

Kuijper, supra note 2, at 13 (footnote omitted).

59 Treaty of Peace, supra note 51. It does make clear, however, that this renunciation covers the Spratly and Paracel Islands, in addition to other claimed parts of Taiwan, including the Pescadores.

60 Eritrea v. Yemen, Phase I, supra note 54, para. 125.

61 Id., paras. 370, 443. See generally id., paras. 362–88, 441–50.

62 Treaty of Lausanne, July 24, 1923, 28 LNTS 12, reprinted in 18 AJIL 4 (Supp. 1924). Article 16 of the Treaty of Lausanne provided:

See also Eritrea v. Yemen, Phase I, supra note 54, paras. 121–25. Prior articles of the Treaty expressly disposed of specific territories and described boundaries.

63 Treaty of Lausanne, supra note 62, Art. 1; see Eritrea v. Yemen, Phase I, supra note 54, para. 158.

64 Eritrea v. Yemen, Phase I, supra note 54, paras. 441–526.

65 See discussion infra at notes 92–132.

66 As mentioned in note 58 supra, neither the ROC nor the PRC participated in the 1951 multilateral peace conference. See Shen, Jianming, International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands 21 Hastings Int’L & Comp. L. Rev. 1, 50 (1997)Google Scholar. Professor Hungdah Chiu has given the following explanation for the absence of Chinese participation:

Chiu, Hungdah, The International Legal Status of Taiwan, in International Status of Taiwan, supra note 2, at 3, 4–5 Google Scholar (footnotes omitted).

67 Purpose of Treaty with Republic of China, 31 Dep’t St. Bull. 896 (1954)Google Scholar, reprinted in Formosa, Korea, Sakhalin, and Kuriles, 3 Whiteman Digest §23, at 564.

68 See Chang, Parris & Kok-Ui, Lim, Taiwan’s Case for United Nations Membership, 1 Ucla J. Int’l L. & Foreign Aff. 393, 410 n.65 (1997)Google Scholar.

69 United States Policy Toward Formosa, 22 Dep’t St. Bull. 79 (1950)Google Scholar.

70 U.S. Air and Sea Forces Ordered into Supporting Action, 23 Dep’t St. Bull. 5 (1950)Google Scholar.

71 GA Res. 2758 (XXVI), UN GAOR, 26th Sess., Supp. No. 29, at 358, UN Doc. A/8429 (1971).

72 As of January 1998, the PRC reported having established diplomatic relations with 161 states. People’s Republic of China, Foreign Policy: Countries with Which China Has Established Diplomatic Relations and the Date When Established (Jan. 1998) <http://www.china.org.cn/English/China/Policy.html. The government on Taiwan reports that it has 31 embassies abroad. ROC Ministry of Foreign Affairs, Republic of China’s Embassies Abroad (Feb. 2000) <http://www.mofa.gov.tw/emofa/eframe18_1.htm Google Scholar; see also 15 Chinese Y.B. Int’l L. & Aff. 576–82 (Hungdah Chiu ed., 1996–97) (identifying 27 states); ROC Information Office, Statistical Data on the Republic of China (reporting 29 states with diplomatic ties) <http://www.gio.gov.tw/info/98html/stat-e.htm (visited May 30, 2000)Google Scholar; Information Division, Taipei Economic & Cultural Office in New York, The Current State of ROC Diplomacy: An Abridgment of the Report by Foreign Minister Jason C. Hu to the Foreign and Overseas Chinese Affairs Committee, Legislative Yuan, March 31, 1999, pt. II (reporting 28 states with diplomatic ties) <http://www.taipei.org/info/98html/c-diplom.htm.

73 See Lee, Teng-Hui, Understanding Taiwan, Foreign Aff., Nov./Dec, 1999, at 9, 11 Google Scholar.

74 The United States movement toward Taiwan accelerated after the PRC initiated shelling of Taiwanese-held islands in September 1954, resulting in the 1954 United States-Taiwan Mutual Defense Treaty. Mutual Defense Treaty, Dec. 2, 1954, U.S.-ROC, 6 UST 433, 248 UNTS 213. See Lung-chu, Chen & Reisman, W. M., Who Owns Taiwan: A Search for International Title, 81 Yale L.J. 599, 616 (1972)Google Scholar. The U.S. Senate also passed the “Formosan Resolution” authorizing the use of U.S. armed forces by the President “as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack.” H.J. Res. 159, 69 Stat. 7 (1955); see Chen & Reisman, supra, at 616–17. In 1972 the United States and the PRC formally began the process toward normalization of relations. Text of Joint Communique Issued at Shanghai, February 27, 66 Dep’t St. Bull. 435, 437–38 (1972), reprinted in 11 ILM 443 (1972) [hereinafter Shanghai Communiqué]; see Jerome Alan, Cohen, Recognizing China, 50 Foreign Aff. 30 (1971)Google Scholar. When the United States abrogated the Mutual Defense Treaty upon the establishment of diplomatic relations with the PRC in 1979, it was replaced by the Taiwan Relations Act of 1979, 22 U.S.C. §3301 (1994). See Christopher, Warren, Agreements with Taiwan, Dep’t St. Bull., Jan. 1980, at 10 Google Scholar; Joint Communique on the Establishment of Diplomatic Relations Between the United States of America and the People’s Republic of China, January 1, 1979, Dep’t St. Bull., Jan. 1979, at 25 Google Scholar, reprinted in 18 ILM 274 (1979). The U.S. defense policy toward Taiwan was continued despite representations to Beijing in the Shanghai Communiqué that it would be changed. Shanghai Communiqué, supra, at 437–38; see Tyler, Patrick, A Great Wall 14, 141–42, 167 (1999)Google Scholar; Chen & Reisman, supra, at 619; Ravenal, Earl C., Approaching China, Defending Taiwan, 50 Foreign Aff. 45 (1971)Google Scholar. This U.S. policy has made it virtually impossible for the PRC to gain control over Taiwan through military force to this day. See Tyler, supra, at 9, 14, 21–39.

Some maintain that the PRC is an illegally formed entity that cannot hold legal rights over the territory of China, much less Taiwan. Part of this argument is grounded on the PRC’s failure to abide by important human rights obligations. See Robbyn, Reichman-Coad, Human Rights Violations in China: A United States Response, 15 N.Y.L. Sch.J. Int’l & Comp. L. 163, 164–70 (1994)Google Scholar. The Chinese Communist Party has been accused of killing many millions of its own subjects. See Jean-Louis, Margolin, China: The Long March into Night, in The Black Book of Communism 463 (Stéphane, Courtois et al. eds., Murphy, Jonathan et al. trans., 1999)Google Scholar; Rummel, R. J., Death By Government 98, 105 (1994)Google Scholar. An argument based on human rights violations can also be made against the ROC, which had a questionable record in that regard during the 1949–1987 period of martial law. In contrast, comprehensive protections of human rights are now provided by the government on Taiwan. See Hsiao, Winston, The Development of Human Rights in the Republic of China on Taiwan, 5 PAC. Rim L. & Pol’y J. 161, 178, 180–83 (1995)Google Scholar. Some limited progress by the PRC in that area has also been reported. See Lampton, David M. & May, Gregory C., Managingu.S.-China Relations in the Twenty-First Century 40–42 (1999)Google Scholar. But the PRC’s human rights record remains in doubt. See Eckholm, Erik, High U.N. Official Sees Loss of Rights in China, N.Y. Times, Mar. 3, 2000, at A11 Google Scholar. While support for the proposition can be found, most doubt that the denial of human rights alone would dislodge a government’s legal authority over a state. See 1 Dahm, Georg et al., Völkerrecht 125, 133 (2d rev. ed. 1989)Google Scholar; Grant, Thomas D., Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J. Transnat’l L. 403, 442 n.150, 442–44 (1999)Google Scholar; Iorns, Catherine J., Indigenous Peoples and Self Determination: Challenging State Sovereignty, 24 Case W. Res.J. Int’l L. 199, 273–74 (1992)Google Scholar.

75 Directive by the Office of the Supreme Commander of the Allied Powers to the Japanese Imperial General Headquarters (Sept. 1945), para, (a), 3 Whiteman Digest, supra note 67, at 487, 488; see Chen & Reisman, supra note 74, at 611.

76 Temple of Preah Vihear (Cambodia v. Thail.), 1962 ICJ Rep. 6, 45 (June 15) (sep. op. Alfaro, J.) (quoting Reply of Mr. Fitzmaurice (Fr. v. U.K.), 1953 ICJ Pleadings (Minquiers and Ecrehos) 367 (Oct. 6, 1953)); see MacGibbon, I. C, Estoppel in International Law, 7 Int’l & Comp. L.Q. 468, 509 (1958)Google Scholar.

77 Brierly, J. L., The Law of Nations 170–71 (Waldock, Humphrey ed., 6th ed. 1963)Google Scholar.

78 “Despite its ouster from control of the mainland, the KMT [Chinese Nationalist Party] refused to acknowledge defeat by the Communists, and continued to declare itself as the legitimate government of all China. Chiang gathered his remaining forces in Taiwan and established a supposed ‘interim’ capital of China in Taipei.” Chen, Angeline G., Taiwan’s International Personality, 20 Loy. L.A. Int’l & Comp. L.J. 223, 231 (1998)Google Scholar.

78 “Despite its ouster from control of the mainland, the KMT [Chinese Nationalist Party] refused to acknowledge defeat by the Communists, and continued to declare itself as the legitimate government of all China. Chiang gathered his remaining forces in Taiwan and established a supposed ‘interim’ capital of China in Taipei.” Chen, Angeline G., Taiwan’s International Personality, 20 Loy. L.A. Int’l & Comp. L.J. 223, 231 (1998)Google Scholar.

79 Lee Teng-hui, supra note 73, at 11; see also Faison, Seth, Taiwan President Implies His Island Is Sovereign State, N.Y. Times, July 13, 1999, at A1 Google Scholar; Brauchli, Marcus W., Taiwan Breaks Ranks on “One China” Policy, Wall St.J., July 13, 1999, at A14 Google Scholar. Within Taiwan this issue remains a matter of serious debate. See Lampton & May, supra note 74, at 45–48. Whether Taiwan’s president has the authority unilaterally to claim Taiwanese statehood separate from China is a question for Taiwanese legal authorities. During the presidential elections in the spring of 2000, the main opposition candidate and ultimate victor in the election, Chen Shui-bian, while making clear that he did not favor any specific changes, stated, “Taiwan is already a sovereign and independent state.” Eckholm, Erik, Opposition Candidate in Taiwan Won’t Push China on Independence Issue, N.Y. Times, Jan. 31, 2000, at A8 Google Scholar. After his inauguration, he appeared to moderate his position in order to facilitate dialogue with China. See Eckholm, Erik, Taiwan’s New Leader Ends Decades of Nationalist Rule, N.Y. Times, May 20, 2000, at A3 Google Scholar; Eckholm, Erik, Change of Power in Taiwan Is Meeting a Moderate Response from Beijing, N.Y. Times, May 21, 2000, at A12 Google Scholar.

80 See Lee Teng-hui, supra note 73, at 10–11.

81 Thus, over time it dropped the fiction that non-Taiwanese constituencies were represented in the government on Taiwan. See Tozzi, Piero, Constitutional Reform on Taiwan: Fulfilling a Chinese Notion of Democratic Sovereignty? 64 Fordham L. Rev. 1193, 1243–45 (1995)Google Scholar.

82 Mainland Affairs Council, Executive Yuan, ROC, Relations Across the Taiwan Straits, pt. III (July 1994)Google Scholar, in International Status of Taiwan, supra note 2, App. 4, The Taiwanese White Paper on Cross-Strait Relations 278, 283, 285.

83 See Tzu-wen, Lee, The International Legal Status of the Republic of China on Taiwan, 1 UCLA J. Int’l L. & Foreign Aff. 351, 373–74 (1997)Google Scholar; Tozzi, supra note 81, at 1243–45.

84 See Tozzi, supra note 81, at 1243–45.

85 The Restatement (Third) of the Foreign Relations Law of the United States §201 cmt. f (1987) requires that an entity must claim to be a state to achieve statehood. See id., reporters’ note 8 (Taiwan). However, given China’s threat that it will not hesitate to use force to enforce its sovereignty claims over Taiwan and U.S. pressure on Taiwan not to proclaim independent statehood, the international community arguably should not require such an express claim in this instance. See Chen, supra note 78, at 243–44. In view of this fear of a military reaction by China and U.S. pressure, Taiwan may have already established separate statehood through other, more subtle means. See Lee, supra note 83, at 381–82. See generally Attix, Cheri, Between the Devil and the Deep Blue Sea: Are Taiwan’s Trading Partners Implying Recognition of Taiwanese Statehood? 25 Cal. W. Int’l L.J. 357 (1995)Google Scholar. See also supra note 79.

86 See Attix, supra note 85, at 367–68.

87 See Lee Teng-hui, supra note 73, at 11.

88 The following have established official diplomatic and consular ties with the government on Taiwan: Belize, Burkina Faso, Chad, Costa Rica, Dominica, the Dominican Republic, El Salvador, Gambia, Grenada, Guatemala, Haiti, the Holy See, Honduras, Liberia, Macedonia, Malawi, the Marshall Islands, Nauru, Nicaragua, Panama, Paraguay, Saint Christopher and Nevis, Saint Vincent and the Grenadines, Săo Tomé and Principe, Senegal, the Solomon Islands, Swaziland, and Tuvalu. See ROC Ministry of Foreign Affairs, supra note 72.

89 The following have permitted Taiwan to establish consulates or representative offices in their territories: Angola, Argentina, Australia, Austria, Bahrain, Belarus, Belgium, Bolivia, Brazil, Brunei, Canada, Chile, Colombia, the Czech Republic, Denmark, Dubai, Ecuador, Fiji, Finland, France, Germany, Greece, Hong Kong (China), Hungary, India, Indonesia, Ireland, Israel, Italy, Japan, Jordan, Kuwait, Latvia, Luxembourg, Macau (China), Madagascar, Malaysia, Mauritius, Mexico, the Netherlands, New Zealand, Nigeria, Norway, Oman, Papua New Guinea, Peru, the Philippines, Poland, Portugal, the Republic of Korea, Russia, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, Thailand, Turkey, the United Kingdom, the United States, Uruguay, Venezuela, and Vietnam. See ROC Ministry of Foreign Affairs, Republic of China’s Consulates & Representative Offices Abroad (Feb. 2000) <http://www.mofa.gov.tw/emofa/eframe18_2.htm.

90 States such as these “neither recognize the PRC as the sole legitimate government of China nor mention the Taiwan sovereignty issue. The communiqués between the PRC and these countries only state[] that diplomatic relations would be established on a particular date.” Lee, supra note 83, at 359.

91 The government on Taiwan participates in various ways in numerous intergovernmental organizations, including the Organization for Economic Co-operation and Development, the Asia-Pacific Economic Cooperation forum, the Asian Development Bank, the International Cotton Advisory Committee, the Asian Productivity Organization, the Afro-Asian Rural Reconstruction Organization, and the Central American Bank for Economic Integration. It is an observer member of the World Trade Organization (WTO), the Inter-American Development Bank, and the International Bank for Reconstruction and Development. Linked with WTO negotiations with China on its entry into the organization is the entry of Taiwan as the China-Taipei Customs Territory. See Ying-Jeou, Ma, The ROC (Taiwan)’s Entry into the WTO: Progress, Problems and Prospects, 15 Chinese Y.B. Int’l L. & Aff. 32, 46 (Chiu, Hungdah ed., 1996–97)Google Scholar; Eckholm, Erik, W.T.O. Head Hopeful on China Entry, N.Y. Times, Feb. 19, 2000, at A4 Google Scholar; see also Web site of the ROC Ministry of Foreign Affairs <http://www.mofa.gov.tw/emofa/eindex.html (visited Mar. 6, 2000). The ROC seeks to expand and deepen those relationships.

92 See Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).

93 See generally Franck, Thomas M., Community Based on Autonomy, in Politics, Values, and Functions: International Law in the 21st Century: Essays in Honor of Professor Louis Henkin 43 (Charney, Jonathan I., Anton, Donald K., & Mary, Ellen O’Connell eds., 1997)Google Scholar, and 36 Colum. J. Transnat’l L. 41 (1997); Grossman, Claudio, Are We Being Propelled Towards a People-Centered Transnational Legal Order? 9 Am. U.J. Int’l L. & Pol’y 1 (1993)Google Scholar.

94 See Franck, Thomas M., The Power of Legitimacy Among Nations 166 (1990)Google Scholar; Nanda, Ved P., Self Determination Under International Law: Validity of Claims to Secede, 13 Case W. Res. J. Int’l L. 257, 275–77 (1981)Google Scholar; Anne Hsiu-An, Hsiao, Is China’s Policy to Use Force Against Taiwan a Violation of the Principle of Non-Use of Force Under International Law? 32 New Eng. L. Rev. 715, 732 n.98 (1998)Google Scholar.

95 See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 27, 999 UNTS 171.

96 SC Res. 1244, para. 7 (June 10, 1999), 38 ILM 1451 (1999).

97 See Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, Dec. 14, 1995, 35 ILM 75 (1996) (Dayton Accords and related documents); Report of the Secretary-General on the Transition from UNPROFOR to IFOR and Addendum on Cost Estimates, UN Docs. S/1995/1031, S/1995/1031/Add.1, reprinted in 35 ILM 235 (1996); SC Res. 1031 (Dec. 15, 1995), reprinted in 35 ILM at 251; SC Res. 1035 (Dec. 21, 1995), reprinted in 35 ILM at 256.

98 See generally Ivezaj, George, Oslo Breakdown: The Failing Israeli and Palestinian Peace Process, 7 J. Int’l L. & Prac. 275 (1998)Google Scholar; Israel-Palestine Liberation Organization, Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993, 32 ILM 1525 (1993)Google Scholar; Israel-Palestine Liberation Organization, Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, 36 ILM 551 (1997)Google Scholar; Israel-Palestine Liberation Organization, Protocol Concerning the Redeployment in Hebron, Jan. 17, 1997, 36 ILM at 650 Google Scholar.

99 See SC Res. 688 (Apr. 5, 1991), reprinted in 30 ILM 858 (1991).

100 See Usborne, David & Richard, Lloyd Parry, Habibie to Accept a UN Force But Killings Go on, Independent, Sept. 13, 1999, at 1 Google Scholar; see also SC Res. 1236 (May 7, 1999), reprinted in 38 ILM 1457 (1999); SC Res. 1246 (June 11, 1999), reprinted in 38 ILM at 1459.

101 See SC Res. 1272 (Oct. 25, 1999), reprinted in 39 ILM 240 (2000); Wren, Christopher S., U.N. Creates an Authority to Start Governing East Timor, N.Y. Times, Oct. 26, 1999, at A8 Google Scholar.

102 see Tomuschat, Christian, Self-Determination in a Post-Colonial World, in Modern Law of Self-Determination 1, 8 (Tomuschat, Christian ed., 1993).Google Scholar

103 See Murswiek, Dietrich, The Issue of a Right of Secession—Reconsidered, in Modern Law of Self-Determination, supra note 102, at 21, 22–23 Google Scholar. The declaration on decolonization, while expressly promoting self-determination and independence, also noted that actions threatening the national unity or territorial integrity of a country are “incompatible with the purposes and principles of the Charter of the United Nations.” Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), paras. 2, 6, UN GAOR, 15th Sess., Supp. No. 16, at 66, UN Doc. A/4684 (1960). In the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), annex, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970) [hereinafter Declaration on Friendly Relations], the General Assembly supported the right of self-determination, provided that such a right would not

Id. Even where self-determination was declared to be a right that existed generally (outside the context of decolonization), reservations to this right were included to proscribe actions violating the territorial integrity of each of the participating states. See Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975, Principle VIII, 73 Dep’t St. Bull. 323 (1975)Google Scholar, reprinted in 14 ILM 1292, 1295 (1975); see Murswiek, supra, at 23–24. Additionally, U Thant, Secretary-General of the United Nations in 1970, stated: “As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its Member State.” Secretary-General’s Press Conferences, UN Monthly Chron., Feb. 1970, at 34, 36, quoted in Murswiek, supra, at 24.

104 Franck, Thomas M., Postmodern Tribalism and the Right to Secession, in Peoples and Minorities in International Law 3, 10 (Catherine, Brölman et al. eds., 1993)Google Scholar.

105 See, e.g., Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12 (Oct. 16)Google Scholar.

106 See Tomuschat, supra note 102, at 9.

107 Id.

108 Declaration on Friendly Relations, supra note 103; see Murswiek, supra note 103, at 24.

109 Cristescu, A., The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments, UN Doc. E/CN.4/Sub.2/404/Rev.1, para. 173 (1981)Google Scholar, reprinted in Murswiek, supra note 103, at 25.

110 Reference re Secession of Quebec, [1998] 2 S.C.R. 217.

111 Id., paras. 134, 138, 154.

112 Murswiek, supra note 103, at 38–39. However, prior to the reference on the secession of Quebec, some argued that there was no express right to secession, only lack of a prohibition on secession. See Franck, supra note 104, at 11–12; R. Higgins, Comment on id. at 29, 33 (“The perceived need of secession is understandable when minorities are denied their rights as minorities But I am less sure than Professor Franck that even this entails a legal right to secession, in contra-distinction to a compelling political imperative.”). Higgins raises the prospect of global balkanization as an argument against the right of secession. Higgins, supra, at 35. U.S. President Clinton took a similar position on the subject, arguing in favor of federalism and against the breakup of states along ethnic and religious lines. He made an exception for extreme cases of human rights abuses, oppression, lack of minority rights, failure to respect different heritages, denial of long-term economic and security interests, and ability to cooperate. Clinton, William J., Remarks on the Forum of Federations Conference in Mont-Tremblant, Canada, Oct. 8, 1999, 35 Weekly Comp. Pres. Doc. 1991, 1995–96 (Oct. 18, 1999)Google Scholar.

113 See UN Charter Arts. 1, 55; International Covenant on Civil and Political Rights, supra note 95, Art. 1; International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, Art. 1, 993 UNTS 3; Declaration on Friendly Relations, supra note 103.

114 The Declaration on Friendly Relations, supra note 103, allows the right of self-determination to be implemented by the “establishment of a sovereign and independent State,” implying a right to unilateral secession.

115 The Declaration on Friendly Relations, id., also asserts that the right of self-determination should not be construed as authorizing or encouraging any action that would diminish the sovereignty of a state acting in compliance with the principles of equal rights, self-determination, and representative government.

116 “The United Nations’ support of the right of all people to freely determine their political status and its failure to recognize a right of secession in general has been interpreted to mean that the U.N. supports self-determination only in the decolonization process.” Carsten, Thomas Ebenroth & Matthew, James Kemner, The Enduring Political Nature of Questions of State Succession and Secession and the Quest for Objective Standards, 17 U. PA.J. Int’l Econ. L. 753, 805 (1996)Google Scholar; see also Buchheit, Lee C., Secession: The Legitimacy of Self-Determination 87 (1978)Google Scholar.

117 The breakups of the former Yugoslavia and the former USSR are good examples. Additionally, as Higgins points out, there is early evidence that the right of external self-determination was not limited to situations of decolonization:

Higgins, supra note 112, at 31 (footnote omitted).

118 Even though the Court addressed questions of international law, it made clear that its purpose was to understand its implications for Canadian law. Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 19–23. Furthermore, as an arm of the central government of Canada, it may not be viewed by all as strictly neutral as regards the secession of one province of the confederation.

119 See generally Charney, Jonathan I., Is International Law Threatened by Multiple International Tribunals? 271 Recueil Des Cours 101 (1998)CrossRefGoogle Scholar.

120 [1998] 2 S.C.R. 217, paras. 134, 138, 154.

121 Id., para. 155.

122 Id,

123 See id. This conclusion in regard to the use of force by the mother country was not expressly stated, although it appears to be a necessary element of the Court’s conclusion. While not uncontroversial, it finds significant support in international law and in the international community. If de facto secession creates an international dispute, the limitation on the use of force in Article 2(4) of the UN Charter becomes applicable. Article 33(1) of the Charter requires the settlement of disputes by peaceful means if they might “endanger the maintenance of international peace and security.” Article 39 of Chapter VII grants the Security Council authority over a “threat to the peace, breach of the peace, or act of aggression.” Historically, the application of these rules to internal conflicts might be traced to the UN involvement in the Korean War and the intervention in the Congo. Recently, these obligations have been found applicable to conflicts in Haiti, Somalia, Rwanda, and the former Yugoslavia (including Kosovo). Each of those situations involved domestic conflicts deemed to have potential international effects. Two General Assembly resolutions are directly on point. The Declaration on Friendly Relations, supra note 103, states: “Every State has the duty to refrain from any forcible action which deprives peoples . . . of their right to self-determination and freedom and independence.” In the Definition of Aggression, the preamble “ [r]eaffirm[s] the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence.” GA Res. 3314 (XXIX), UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974).

124 [1998] 2 S.C.R. 217, para. 155; see Franck, supra note 104, at 19–20 (summarizing the positions of the European Community, the Conference on Security and Co-operation in Europe, and the United Nations); Higgins, supra note 112, at 33 (“ [E]ven if international law does not authorize secession, it will eventually recognise the reality once it has occurred and been made effective.”). In contrast, if the conflict in Chechnya satisfies the alleged requirements for secession on self-determination grounds, it would stand for the opposite proposition since, other than pleas to protect the human rights of the civilian population, the international community has not condemned the forceful Russian resistance. See the joint statement of High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe (OSCE) Max van der Stoel, Secretary- General of the Council of Europe Walter Schwimmer, and United Nations High Commissioner for Human Rights Robinson, Mary, Concern Expressed over Civilian Situation in Chechnya, Press Release by the OSCE High Commissioner on National Minorities, Dec. 8, 1999, obtainable from <http://www.osce.org/indexe-se.htm Google Scholar; OSCE Secretariat, Conflict Prevention Centre, Survey of Long-Term Missions and Other OSCE Field Activities 39 (Jan. 17, 2000), obtainable from <http://www.osce.org/indexe-se.htm. On Chechnya’s right to secession, see Grant, Thomas D., A Panel of Experts for Chechnya: Purposes and Prospects in Light of International Law, 40 Va.J. Int’l L. 115 (1999)Google Scholar.

125 See Conference on Yugoslavia, Arbitration Commission, Opinion Nos. 1–7 (Jan. 11, 1992), 8–10 (July 4, 1992) (so-called Badinter Commission reports), reprinted in 31 ILM 1488 (1992); SC Res. 757, UN SCOR, 47th Sess., Res. & Dec, at 13, UN Doc. S/INF/48 (1992), reprinted in id. at 1453; European Community Ministerial Meeting, Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union” (Dec. 16, 1991), reprinted in id. at 1485.

126 Franck, supra note 104, at 22 (referring to a reported statement by British Foreign Minister Douglas Hurd, who after having “watch[ed] the crisis escalate—and particularly after seeing the use of force— . . . . was obliged significantly to qualify an earlier statement supporting the ‘integrity of Yugoslavia’ by adding that this should not include the use of force.” Wise, Michael & Helm, Sarah, Yugoslavia: First Test for New Europe, Independent, June 28, 1991, at 13 Google Scholar, available in LEXIS, News Library, Arcnws File); see Weller, Marc, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AJIL 569, 572 (1992)Google Scholar.

127 CSCE Committee of Senior Officials, Urgent Appeal for a Cease-Fire (Prague, July 3, 1991), quoted in Weller, supra note 126, at 573.

128 Franck, supra note 104, at 23 (quoting SC Res. 713, UN SCOR, 46th Sess., Res. & Dec, at 42, UN Doc. S/INF/47 (1991), reprinted in 31 ILM 1431 (1992)).

129 See Crawford, James R., State Practice and International Law in Relation to Unilateral Secession (Feb. 19, 1997), obtainable from <http://canada.justice.gc.ca Google Scholar (this paper is located on the Web site of the Canadian Department of Justice and appears to have been written in connection with the Canadian position taken in Reference re Secession of Quebec).

130 It is unclear, however, whether preconditions necessary to support a right to secession under international law are present in the Chechnya situation. See supra note 124. On the historical failures to secede, see Crawford, supra note 129, paras. 49–59.

131 See Crawford, supra note 129, para. 67, and previous supporting arguments.

132 See generally Charney, Jonathan I., Universal International Law, 87 AJIL 529 (1993)CrossRefGoogle Scholar.

133 Current reports are not hopeful. See Eckholm, supra note 74. Nor has the human rights record of the past been positive. See Margolin, supra note 74; Rummel, supra note 74.

134 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paras. 91, 103, 106, 152, 154, 155.

135 The duty to settle disputes peacefully is a core principle of the UN Charter and applies to states’ efforts to resist the exercise of the right of self-determination. See supra note 123. For a discussion of the duty in various areas of international law, see Kirgis, Frederic L. Jr., Prior Consultation in International Law: A Study of State Practice (1983)Google Scholar.

136 Gabčíkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7 (Sept. 25)Google Scholar.

137 North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ Rep. 3, 47, para. 85 (Feb. 20), quoted in id. at 78, para. 141.

138 1997 ICJ Rep. at 79, para. 143.

139 Id. at 82, para. 155(2) (B).

140 Reference re Secession of Quebec, [1998] S.C.R. 217, para. 125.

141 In 1981 Nanda wrote:

Nanda, supra note 94, at 276 (footnote omitted).

142 See Bullard, Monte R., The Soldier and the Citizen 37 (1997)Google Scholar.

143 See id.

144 See Zaid, Mark S., Taiwan: It Looks like It, It Acts like It, But Is It a State? 32 New Eng. L. Rev. 805 (1998)Google Scholar.

145 The threats and pressure placed on the Taiwanese population by the PRC to deter the voters from electing Chen Shui-bian as president because of his past advocacy of independence led to his overwhelming election. See Rosenthal, Elisabeth, China Warning to Taiwan Voters, N.Y. Times, Mar. 16, 2000, at A8 Google Scholar; Eckholm, Erik, Taiwan Nationalists Ousted After Half-Century Reign, N.Y. Times, Mar. 19, 2000, at A1 Google Scholar; Rosenthal, Elisabeth, Deep Feeling That China Owns Taiwan Is Put to Test, N.Y. Times, Mar. 20, 2000, at A8 Google Scholar.

146 At the same time that recent military threats were made by the PRC, it also expressed the wish to maintain and enhance economic relations. See Qjan Qichen Warns Taiwan Against ‘Independence,’ Foreign Broadcast Information Service [FBIS] Doc.FBIS-CHI-2000–0128 (Jan. 28, 2000) (Beijing Xinhua in English). It is reported that indirect exportation from Taiwan to China during the period 1990-Jan. 2000 amounted to U.S. $147.3 billion. Indirect importation to Taiwan from China during the same period was U.S. $24.2 billion. Approved indirect investment by Taiwan in China during that period was U.S.$14.8 billion. See Straits Exchange Foundation, ROC, Cross-Straits Economic Statistics (Apr. 24, 2000) <http://www.sef.org.tw/www/html/economic/eco100/steco.htm Google Scholar. Similar economic information for somewhat different periods is available from other sources. See, e.g., Mainland Affairs Council, Executive Yuan, ROC, Taiwan’s Approved Outward Investment (Mar. 2000) <http://www.mac.gov.tw/english/CSExchan/invest.gif Google Scholar; Mainland Affairs Council, Executive Yuan, ROC, Preliminary Statistics of Cross-Strait Economic Relations: February 2000 (Apr. 2000), obtainable from <http://www.mac.gov.tw/english/CSExchan/ Google Scholar; 1 China State Statistical Bureau and Euromonitor/Soken, China Marketing Data and Statistics (2d ed. 1999)Google Scholar; International Monetary Fund, Direction of Trade Statistics Year Book 159 (1998)Google Scholar; Economist Intelligence Unit, Country Profile: Taiwan 1997–98, at 52 (1997)Google Scholar.

Even the above statistics on cross-strait trade and investment are believed to be substantially lower than the actual figures. Trade and investment through unapproved routes and various financial arrangements, including those through third countries, may provide an explanation. See Indirect Trade Between Taiwan and Mainland China, Estimation of Indirect Trade Between Taiwan and Mainland China, Taiwan Indirect Investment in Mainland China, tables 5, 6, 10, Cross-Strait Econ. Stat. Monthly, Nov. 1999 (prepared by Chinese Management Association, Mainland Affairs Council, Executive Yuan, ROC) <http://china.management.org.tw/T&C-Eco-Month/087–1999-11/menu.htm; Ministry of Economic Affairs, ROC, Kao, Charng, Research of Chinese Economic Studies (July 7, 1997) <http://www.moea.gov.tw/~ecobook/season/ss203.htm Google Scholar; Yun-wing, Sung, Hong Kong and the Economic Integration of the China Circle, in The China Circle 41, 60–66 (Naughton, Barry ed., 1997)Google Scholar.

147 See Lee Teng-hui, supra note 73, at 11–12. While the political discussions have not been productive, economic relations have blossomed, creating pressures on the political side. See Hung-Mao, Tien, Taiwan’s Perspective on Cross- Strait Relations and U.S. Policy, Am. Foreign Pol’y Interests, Dec. 1999, at 13 Google Scholar; Clough, Ralph N., Cooperation or Conflict in The Taiwan Strait? 93–95, 97–100 (1999)Google Scholar Pomfret, John, Taiwanese Negotiator, Jiang Meet in Beijing; Contact Is Highest Since China’s Civil War, Wash. Post, Oct. 19, 1998, at A15 Google Scholar

148 Significantly, it appears that de facto entities would be protected from force used to deny them the right of self-determination. General Assembly Resolution 2160 (XXI) states that” [a]ny forcible action, direct or indirect, which deprives peoples under foreign domination of their right to self-determination and freedom and independence and of their right to determine freely their political status and pursue their economic, social and cultural development constitutes a violation of the Charter of the United Nations.” GA Res. 2160 (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 4, UN Doc. A/6316 (1966).

149 The UN Charter, to which virtually all states today are parties, obligates states to respect certain human rights. Additionally, some human rights are characterized as jus cogens (peremptory norms) from which no derogation is permitted. See Restatement, supra note 85, §702 cmt. n & reporters’ note 11; Friedman, Lawrence, On Human Rights, the United States and the People’s Republic of China at Century’s End, 4 J. Int’l Legal Stud. 241, 245–47 (1998)Google Scholar.

150 Sec Taiwan Affairs Office and Information Office, State Council, Beijing, China, The Taiwan Question and Reunification of China, pt. III (1993), reprinted in International Status of Taiwan, supra note 2, at 267, 272, App. 3, The Chinese White Paper on Cross-Strait Relations; Copper, John F., Words Across The Taiwan Strait: A Critique of Beijing’s “White Paper” on China’s Reunification 73 (1995)Google Scholar. This PRC statement on the Taiwan question is often referred to as the “PRC White Paper on Cross-Strait Relations.” The paper advocates the application of the one country, two systems approach for Taiwan, as used in Hong Kong. Over the years, several solutions of this type have been floated. See Tyler, supra note 74, at 310, 314.

151 See Edwards, George E., Applicability of the “One Country, Two Systems” Hong Kong Model to Taiwan: Will Hong Kong’s Post-Reversion Autonomy, Accountability, and Human Rights Record Discourage Taiwan’s Reunification with the People’s Republic of China? 32 New Eng. L. Rev. 751 (1998)Google Scholar; Landler, Mark, Hong Kong Radio-TV Chief Shifted to Japan, N.Y. Times, Oct. 20, 1999, at A12 Google Scholar; Landler, Mark, After 2 Years, Hong Kong Looks More like China, N.Y. Times, July 1, 1999, at A3 Google Scholar; Ng Ka Ling v. Director of Immigration, [1999] 2 Hong Kong Ct. Final App. Rep. 4 (Jan. 29 & Feb. 26, 1999), reprinted in 38 ILM 551, 579 (1999), summarized in 94 AJIL 167 (2000).

152 See Qian Qichen Warns Taiwan Against ‘Independence,’ supra note 146.

153 This is the principal thesis put forward by Tyler, supra note 74. See also Clough, supra note 147, at 88. For reports on recent public exchanges and threats, see Erik Eckholm with Steven Meyers, Lee, Taiwan Asks U.S. to Let It Obtain Top-Flight Arms, N.Y. Times, Mar. 1, 2000, at A1 Google Scholar; Perlez, Jane, Warning by China to Taiwan Poses Challenge to U.S., N.Y. Times, Feb. 27, 2000, at A1 Google Scholar; Schmitt, Eric, U.S. Rejects China’s Taiwan Views, N.Y. Times, Feb. 23, 2000, at A10 Google Scholar; Eckholm, Erik, China Says Taiwan Cannot Continue Delaying Reunion, N.Y. Times, Feb. 22, 2000, at A1 Google Scholar; China’s Statement: ‘The Right to Resort to Any Necessary Means,’ N.Y. Times, Feb. 22, 2000, at A10 Google Scholar; Smith, Craig S., New Chinese Guided-Missile Ship Heightens Tension, N.Y. Times, Feb. 9, 2000, at A1 Google Scholar; Qian Comments Seen as PRC’s Stance on Cross- Strait Issue, Doc. FBIS-CHI-2000–0205 (Jan. 29) (dispatch of Taiwan Central News Agency WWW); Qian Qichen Warns Taiwan Against ‘Independence,’ supra note 146. These exchanges may have been primarily connected to the March 2000 presidential elections in Taiwan. The PRC has sought to portray its statements as not diverging from prior policies. See Rosenthal, Elisabeth, China Dismisses Furor over Its Taiwan Policy, N.Y. Times, Mar. 1, 2000, at A12 Google Scholar

154 For the recent election reports, see supra note 145. For reports on the resulting violent protests arising from the defeat of Taiwan’s Nationalist Party, see Landler, Mark, Violent Protests in Taiwan Follow Election Defeat, N.Y. Times, Mar. 20, 2000, at A1 Google Scholar. It will take some time for the new president, Chen Shui-bian, and his insurgent Democratic Progressive Party to gain effective governmental control and establish its policies regarding relations with China.