Publication Type

Journal Article

Version

publishedVersion

Publication Date

2007

Abstract

In the 1970s, Taiwan lost its United Nations seat, and most nations switched diplomatic recognition from Taiwan to the People's Republic of China (PRC). The loss of Taiwan's diplomatic recognition became a fundamental issue in judicial proceedings. Contrary to the PRC's claim, the article argues that, from the viewpoint of international law, Taiwan has never been succeeded by the PRC. The article explores the Taiwan question faced by foreign courts and finds that, albeit the lack of diplomatic recognition, the courts around the world have almost uniformly accorded Taiwan the status of state and this judicial recognition has risen to the level of customary international law. As for the standing of Taiwan before the international courts, the article analyzes whether Taiwan, as a non-UN member, may be granted standing before the International Court of Justice. The article also argues that Taiwan, as a fishing entity, has the right to access the International Tribunal for the Law of the Sea. Furthermore, Taiwan's status as a separate customs territory in the World Trade Organization enables the nation to utilize the dispute settlement mechanism. The article concludes that, to avoid the judicial black hole in terms of global justice, it is both necessary and pragmatic to deem Taiwan a state in all judicial proceedings.

Keywords

China, Taiwan, Recognition, State Immunity, UN, ICJ, ITLOS, WTO

Discipline

Asian Studies | Law and Economics | Law and Politics | Transnational Law

Publication

Michigan Journal of International Law

Volume

28

Issue

4

First Page

765

Last Page

814

ISSN

1052-2867

Publisher

University of Michigan Law School

Additional URL

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003263

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