An Unrecognized State in Foreign and International Courts: The Case of the Republic of China on Taiwan

This Article provides a comparative analysis of the status of the Republic of China on Taiwan in foreign and international settings. Most existing literature written from the traditional public international law perspective focuses on Taiwan’s separate statehood from China. This Article addresses an important pragmatic issue that international courts and courts in foreign countries frequently face: whether Taiwan is a “foreign State” for particular salutatory purposes in judicial proceedings. Part I of this Article provides an overview of China-Taiwan relations and the status of Taiwan under international law. I argue that the ROC on Taiwan has been a sovereign State since its creation in 1912 and was never “succeeded” by the PRC, which was established in 1949. By my analysis, both the ROC and the PRC are equal entities in the “divided China”; neither side belongs to the other. Part II examines the decisions of domestic courts that have addressed the status of Taiwan in the United States, Canada, the United Kingdom, and Japan. In these countries (which do not recognize Taiwan as an autonomous entity, but nonetheless maintain substantial “non-official” ties with it), domestic courts have employed various devices to ensure the State-like status of Taiwan, thus safeguarding the country’s interests and allowing continued economic and diplomatic relations with the ROC. Consequently, judicial recognition of Taiwan’s existence as a State has risen to the level of customary international law. Part III explores the possibility of Taiwan bringing suit as a “State” before the International Court of Justice, as a “fishing entity” before the International Tribunal for the Law of the Sea, and as a “separate customs territory” in the dispute resolution mechanism of the World Trade Organization. This Article concludes that to avoid creating a global judicial “black hole,” it is both necessary and pragmatic to officially deem Taiwan a State in judicial proceedings of any kind.