People’s right to self-determination in contemporary international law: Taiwan case

ABSTRACT

In recent years, activities aiming to depart from China become more and more rampant within Taiwan. To make Taiwan independence legal in international law, the Democratic Progressive Party (DPP), as governing party in Taiwan, brought forward political slogan “self-determination of Taiwan inhabitants”. Obviously, this so-called inhabitants’ right to self-determination is deduced from the fundamental principle of people’s rights to self-determination. Various Taiwan factions have either unilaterally attempted to declare Taiwan's independence from China or have asserted that Taiwan people has a right to secede, while People’s Republic of China (PRC) denies that the Taiwan people have a right to self-determination that may be exercised via secession under international law. This paper argues that although Taiwan people have a right to some degree of autonomy within the China (i.e., internal self-determination), they do not yet have a legal right to secede.

Part I will browse the legal background and examine the legal status of Taiwan.

Part II will discuss the legal effectiveness of self-determination especially the legal binding to china. Firstly, I will describe the development of self-determination as a principle in international law. This phase developed from a political slogan to a UN law and then was established as a jus cogens. At the end I will discuss its legal binding to China at two levels: legal and practical.
Part III discusses two broad approaches to conceptualizing self-determination, and rejects the plebiscite approach in favor of the remedial approach. What’s more, in this part, a new and fashionable approach will be provided which classifies self-determination into two different areas: external rights and internal rights.
Part IV discusses the relations between self-determination and other international law principles in three areas: relation with State sovereignty; relation with unlawful secession; and relation with the use of force in international law.
Part V, as the last part, will get a conclusion, providing an overview and some suggestions for future action.
Taiwan people own the right to self-determination. This right is not external right, but internal right, which denies the possibility of referendum for independence. The solution to reconcile the conflicts between State sovereignty and the right to self-determination is to limit the external right to self-determination and enlarge the internal right to self-determination. The better way is to keep status quo and enhance economic contact between Taiwan and Mainland, to make economic integrity lead to political integrity. The final target is to realize the maximum regional autonomy in Taiwan. The UN may exert positive effect in settling the Taiwan Strait issues by mediation.

I. Legal background
1. Historical development
Taiwan has belonged to China since antiquity according to the development of administrative management. Prior to the Qing Dynasty, Taiwan had been administrated by China government since there was documentary record[1]. In 1642, Dutch invaded Taiwan and took up it as a colony. In 1662 Dutch were defeated by Cheng Cheng-kung (Koxinga), a loyal general of the Ming Dynasty, so Taiwan came back under administration of China government. 22 years later, Qing Dynasty replaced the Ming Dynasty and the officials of Ming on Taiwan surrendered to Qing. From 1683, the Qing Dynasty ruled Taiwan as a prefecture and in 1875 divided the island into two prefectures, north and south. In 1885 the island was made into a separate province of Qing.

Since 16 century, Japan had coveted Taiwan and tried to invade and colonize Taiwan for many times, however it was defeated back by Chinese troop and people every time until Sino-Japan war broke out in 1894. Japan invaded and occupied Taiwan in 1895. In the same year, Japan defeated Qing government and forced it signing an unequal treaty[2]: the Treaty of Shimonoseki, according to which, Japan unlawfully took possession of Taiwan.

The Chinese Qing dynasty was subsequently overthrown and replaced by the Republic of China (ROC). Upon the outbreak of Japanese Invasion War, the ROC declared the Treaty of Shimonoseki void in its declaration of war on Japan. The war soon merged with World War II, and Japan was subsequently defeated in 1945.
At the Cairo Conference, the U.S., United Kingdom, and the ROC agreed that Taiwan was to be returned to the ROC after the war[3], and the Potsdam Declaration outlined the terms of surrender[4].
When Japan unconditionally surrendered, it accepted in its Instrument of Surrender the terms of the Potsdam Declaration. Japanese troops in Taiwan were directed to surrender to the ROC. The Chief Executive Chen Yi soon proclaimed “Taiwan Retrocession Day” on October 25, 1945. From that day, China government resumed to exercise sovereignty to Taiwan.
Shortly after, China civil war broke out in 1946. In 1949, Kuomintang government was defeated by Communist Party and retreated to Taiwan. On October 1, 1949, a new government was founded in Beijing that is People’s Republic of China (PRC).
Since foundation, the PRC has been recognized by almost all sovereign countries in the world till now. According to the principle of government succession[5] of international law, as the successor government of the ROC, the PRC should take over all the rights and obligations from the ROC in international community. However, upon the support of the US out of its selfish interests, the ROC government took up the seat of China in the United Nations illegally until 1971.
On October 25, 1971, Resolution 2758 was passed by the General Assembly, withdrawing recognition of the ROC as the legitimate government of China, and recognizing the PRC as the sole legitimate government of China. China received support from two-thirds of all United Nations' members and the complete unanimous approval by the Security Council excluding the ROC. Accordingly, the PRC replaced the ROC to exercise sovereignty of China formally in international community.
After that, both the governments in Beijing and Taipei sought ways to unification. The National Unification Council, established in 1990, was a governmental body in the Republic of China on Taiwan whose aim was to promote unification with Mainland China. The National Unification Council drafted the Guidelines for National Unification, which was adopted by the Executive Yuan Council on February 23, 1991. The guidelines have a three step process for the gradual unification of mainland China and Taiwan, which are: Short term -- A phase of exchanges and reciprocity; Medium Term -- A phase of mutual trust and cooperation; and Long term -- A phase of consultation and unification[6].
In November 1992, a meeting was made in Hong Kong between the mainland-based Association for Relations Across the Taiwan Strait (ARATS) and the Taiwan-based Straits Exchange Foundation (SEF). These semi-official bodies were authorized by their respective governments to negotiate solutions to practical problems. The conclusion they reached was intended as a means of side-stepping the conflict over the political status of Taiwan. After the meeting, they concluded an alleged agreement that both Mainland China and Taiwan belong to one China. Which is subsequently called “Consensus of 1992” or “92 Consensus”.
From 2000, however, after Chen Shui-bian was elected the “president” of the ROC, activities to deny the history and seek to independence in Taiwan became more and more frequently.
On 3 August 2002, Chen Shui-bian proclaimed that “Taiwan and the nation on the other side of the Taiwan Strait, China, are two nations” and called for a referendum to determine the island’s future[7].

On 27 November 2003, DPP government passed a referendum law. Xu Shiquan, vice-chairman of the National Society of Taiwan Studies, said passing such a bill is bad news for cross-Straits relations. “By legally paving the way for a future independence referendum, the bill may create more uncertainties and even crises in bilateral ties. It has led the die-hard separatist forces a step forward on the road of creeping independence and will impose a negative impact on the development of relations between Taiwan and the mainland.”[8]
Besides Chen Shui-bian’s government has tried time and time again seeking to join in inter-governmental organizations in the world but never be successful. For example, on 25 March 2007, Chen Shui-bian issued a call for full membership in the WHO and a week after Chen sent a letter to WHO director-general Margaret Chan seeking membership under the name “Taiwan.” On 21 April 2007, the US State Department says that Washington is not in favor of the World Health Assembly (WHA) taking a vote on granting Taiwan observer status in the organization when the assembly meets in Geneva next month[9].

2. Taiwan’s legal status
Taiwan is part of China’s territory, whenever and no matter which government represents China: the ROC or the PRC.
Undoubtedly, Taiwan was a territory of Qing Dynasty, which legally represented China at that time, before it was taken possession by Japan in 1895.
The waging of aggressive war by Japan against China in 1937 and beyond violates the peace that was brokered in the Treaty of Shimonoseki, and with the declaration of war against Japan, that treaty is void. Japan took possession of Taiwan illegitimately. Therefore, without valid transfer of sovereignty taking place, the sovereignty of Taiwan naturally belongs to China.
The Cairo Declaration of December 1, 1943 and Potsdam Proclamation of July 26, 1945 were accepted by Japan in its Instrument of Surrender. Those documents clearly state that Taiwan was to be returned to Chinese sovereignty at the end of World War II. The legal binding of these documents is undoubtedly according to customary international law.
Some scholar argued that The Cairo Declaration was merely an unsigned press communiqué which does not carry a legal status, while the Potsdam Proclamation and Instrument of Surrender are simply modus Vivendi and armistice which function as temporary records and do not bear legally binding power to transfer sovereignty. Good faith of interpretation only takes place at the level of treaties[10].
However, according to the famous scholar from the UK, Hersh Lauterpacht,
“in special condition, an explanation of the objective of war has legal binding…the formal declaration in form of conference report should have legal binding if it is signed by heads of governments and its contents are some special measures of behavior[11].”

To explain this point, he raised two examples of the conference reports singed by heads of the UK, the US and the SU in Krim and Potsdam[12].
What’s more, the UK government admitted legal binding of the Cairo Declaration. The temporal foreign minister Anthony Edon said on 14 December 1943 that London thinks to have accepted restriction of this declaration[13]. Churchill emphasized on 1 February 1955 that the Cairo Declaration guaranteed to return territory or sovereignty to China.
The US president Truman illustrated in the Parliament Bulletin on 5 January 1950 that: the president of the US, the prime-minister of the UK and the president of China indicated their objectives which are to return the territories stolen by Japan, in the Cairo Declaration of 26 November 1943[14];… even the declaration is not so clear, without pointing out the special obligations, the US still thinks the obligations derived whereby have meaning of legal behaviors[15].
Accordingly, the Cairo Declaration is a real treaty signed by heads of the US, the UK and China, and subsequently, other countries fighting to Japan joined this Declaration, so it is surely to possess legal binding.
The exclusion of Chinese governments in the negotiation process of the San Francisco Peace Treaty (SFPT) nullified any legal binding power of SFPT on China. In addition, the fact that neither ROC nor PRC government ever ratified SFPT terms, prescribes that SFPT is irrelevant to any discussion of Chinese sovereignty over Taiwan.
No state in the world recognizes Taiwan as an independent state. Regardless of which government PRC or ROC is recognized, the recognition is of the only legitimate government of China. The United Nations regards Taiwan as a “province of China”[16].
The Treaty of Taipei formalized the peace between Japan and the ROC. In it, Japan reaffirmed Cairo Declaration and Potsdam Declaration and voided all treaties conducted between China and Japan (including the Treaty of Shimonoseki).
Article 4 of the ROC Constitution clearly states that “The territory of the Republic of China” is defined “according to its existing national boundaries . . .”[17] Taiwan was historically part of China and is therefore naturally included therein.
Post WWII, no country ever contested ROC's sovereignty over Taiwan till now, except old civil war rival PRC. The absence of contest from non-Chinese entities validates ROC's sovereignty claim over Taiwan.
According to the UN GA resolution 2758, the PRC became the successor government to the ROC in representing China, and as such the PRC unquestionably holds the sovereignty of Taiwan.
The Preamble to the PRC Constitution clearly states that “Taiwan is part of the sacred territory of the People's Republic of China. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland. In building socialism it is imperative to rely on the workers, peasants and intellectuals and unite with all the forces that can be united.[18]”
After substituting the place of the ROC in the UN, the PRC became the legitimate government of China, and subsequently, the ROC government descended to be a regional government. The PRC is the representative government of China.
As to historic reasons, the PRC has not exercise governing within Taiwan de facto, but the PRC owns this right de jure.
II. Legal effectiveness of the principle of Self-determination
As mentioned before, some leaders and scholars stated that Taiwan people should have the rights to self-determination, and decide the political status of Taiwan by referendum[19]. What is self-determination and what’s the legal effectiveness of it?
1. From a political slogan to UN law, and then to jus cogens
In the twentieth century, Woodrow Wilson firstly used the term “self-determination” in 1918[20].The phrase self-determination has been broadly accepted in international community; however, till now, its definition is still in dispute. Generally, self-determination grants certain groups of people some level of autonomy.
Prior to the adoption of the United Nations Charter, the catch phrase “self-determination” was often used as a political devil for encouraging the cession of territory from one state to another, but was not considered to be a rule of customary international law[21]. With the adoption of the UN Charter in 1945, however, many have argued that it became a rule of international1aw[22].

Article 1, paragraph 2 of the United Nations Charter states that one of the purposes of the UN is: “to develop friendly relations among nations based on respect for the principle of equal rights and the self-determination of peoples.” In the 1960s and 1970s, this provision became the cornerstone of the UN General Assembly's decolonization policy.

Starting in 1960 with Resolution 1514, the Declaration on the Granting of Independence to Colonial Territories and Peoples, the General Assembly asserted that “all peoples have the right to self-determination” and it demanded that:

“Immediate steps . . . be taken, in trust and non-self-governing territories or all other territories which have not yet attained independence, to transfer all power to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or color, in order to enable them to enjoy complete independence and freedom[23].



In 1963, the General Assembly set up a committee (sometimes known as the “Decolonization Committee” or “Committee of Twenty-Four”) to assist in the implementation of Resolution 1514. In 1970, the General Assembly supplemented Resolution 1514 with a “Program of Action for the Full Implementation of the Declaration” and a "Declaration on Principles of International Law."

In 1971, the General Assembly asked the International Court of Justice to hand out an advisory opinion that related to South Africa's refusal to let the peoples of Namibia exercise their right of self-determination. The Court answered that at the time the League of Nations granted South Africa a mandate to govern Namibia, there had been no principle of self-determination applicable to any state, but . . . the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them[24].

In 1975, the General Assembly asked the ICJ for another advisory opinion, this time in connection with the exercise of the right of self-determination by the peoples of Western Sahara. Referring to its earlier opinion, the Court concluded that the principle of self-determination was a right of all peoples[25]. In a separate opinion, Judge Dillard stated: “The pronouncements of the Court . . . indicate, in my view that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations.” He went on to define self-determination in the following way: It is for the people to determine the destiny of the territory and not the territory the destiny of the people[26].

The existence of the right of a people to self-determination was so widely recognized in international conventions that the principle has acquired a status beyond “convention” and is considered a general principle of international law.[27]

Contemporarily, the right to self-determination is indisputably a norm of jus cogens. Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes. The term erga omnes means “flowing to all.”
Accordingly, ergas omnes obligations of a State are owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.
Attempting to apply the right of self-determination to a real-world situation requires further analysis. In the East Timor decision, the ICJ asserted that: “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character[28].”


2. Legal effectiveness and binding to China
Erga omnes obligations have two characteristic features: (1) universality (i.e., they are “binding on all states without exception”); and (2) solidarity (i.e., “every state is deemed to have a legal interest in their protection”)[29]. Universality subverts the notion that international law is based on voluntary reciprocal relations among states[30]. Another feature is that erga omnes obligations “must be fulfilled regardless of the behavior of other states in the same field[31]”.
While erga omnes obligations as such were first articulated in the Barcelona Traction case in 1970[32], the basic idea underlying the concept has a long history in international law. In 1625, Grotius wrote that states “have a right to exact punishment not only for injuries affecting immediately themselves or their own subjects, but for gross violations of the law of nature and of nations, done to other states and subjects[33].”
Under contemporary international law, the formulation is similar. In Barcelona Traction, the ICJ suggested in dicta that a distinction should be made between “obligations of a State towards the international community as a whole, and those arising vis-À-vis another State…In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes[34].” The Court then went on to suggest a non-exhaustive list of obligations erga omnes: the prohibition of acts of aggression and genocide, and the provision of “basic rights of the human person including protection from slavery and racial discrimination[35].”
As a member of the UN, China is surely liable to obey the purposes of the UN, any resolution made by the UN SC and the UN GA, and the treaties it joined.
Actually, at legal level, China has signed the two main International Covenants of Human Rights, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR)[36], which means that China promised to take the responsibility to protect human rights containing self-determination rights of people in China.
At practice level, China has adopted a high-classed regional autonomy policy. As the Constitution states:“Regional autonomy is practiced in areas where people of minority nationalities live in concentrated communities; in these areas organs of self-government are established to exercise the power of autonomy.[37]” According to the above provision, five Self-governing Regions and numerous sub-administrative areas were established. As well as, following the principle of “One China, Two systems”, China has established two Special Administrative Regions of Hong Kong and Macao, which practice higher level self-government.
So to say, China has never denied the liability of protecting people’s right to self-determination and on the contrary made a good example to other states in the world.
On the other side, Taiwan, as a self-governmental region and part of China, while enjoying rights conferred on by international law, should be responsible for not abusing rights and making chaos for the international community.
III. Scope of application to self-determination
However, as hinted before, the interpretation and application of rights to self-determination is not as certain in practice as in legal provisions. There have been controversies about who is “self” and what to determine since 1980s when the phase was applied beyond the area of colonial issues.
1. Subjects of rights to self-determination
Whom is the “right to self-determination” conferred on? The answer, given in identical terms in the Declaration on Colonialism and in Article I of the International Covenants on Human Rights[38], is as simple in formulation as it is chimerical in fact. “All peoples,” it is proclaimed, “have the right to self-determination.”
Accordingly, access to the right requires the threshold step of characterizing as a people the group seeking self-determination. However, as the right to self-determination has developed by virtue of a combination of international agreements and conventions, coupled with state practice, with little formal elaboration of the definition of peoples, the result has been that the precise meaning of the term “people” remains somewhat uncertain.

It is clear that “a people” may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to “nation” and “state”. The juxtaposition of these terms is indicative that the reference to “people” does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose[39].

The majority of Taiwanese are descended from migrants who moved there from mainland China over the past several hundred years. The total population of Aborigines on Taiwan is around 458,000 as of January 2006, which is approximately 2% of Taiwan's population[40]. Though the PRC government has not really administered Taiwan since 1949, Taiwanese and Chinese cultures are kept extremely similar. So to say, Taiwan population is not a separate people, but just part of Chinese. It is not necessary to determine whether a Taiwan people exist within the definition of public international law or whether such a people encompass the entirety of the provincial population or just a portion thereof. Nor is it necessary to examine the position of the aboriginal population within Taiwan. As the following discussion of the scope of the rights to self-determination will make clear, whatever be the correct application of the definition of people(s) in this context, their right to self-determination cannot in the present circumstances be said to grant a right to unilateral referendum for independence.

2. Scope of rights to self-determination
What is to be determined or what rights do a people enjoy?
To make this question clear, we should firstly look back through to see what people have exercised the rights to self-determination according to international law.
A. A historical browsing
Within the UN legal system related to the right to self-determination, the total context in which the universal goal is declared demonstrates an intention to confine the right to the following peoples: those who are still “dependent” (because they inhabit trust territories, non-self-governing territories, or “all other territories which have not yet attained independence”) and those subjected to “alien subjugation, domination and exploitation.”[41] The “alien subjugation, etc.” formula reappears as the modifier of the “all peoples” statement in many subsequent resolutions, including the Declaration on Friendly Relations[42]. Elsewhere, the bearers of the “right to self-determination” are defined, inter alia, as “colonial peoples,”[43] “peoples under colonial and alien domination,”[44] and “peoples subject to colonial exploitation.”[45]
As the Gros Espiell Report stated:
“The United Nations has established the right of self-determination as a right of peoples under colonial and alien domination. The right does not apply to peoples already organized in the form of a State which are not under colonial and alien domination, since resolution 1514 (XV) and other United Nations instruments condemn any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country.[46]”

However, practice in Eastern Europe and the former Soviet Union at the end of 1980s and head of 1990s (notably the declarations of sovereignty by the Soviet republics and the creation of the Commonwealth of Independent States; the independence of Estonia, Latvia, and Lithuania; the declarations of sovereignty by the Yugoslav republics; the decision by plebiscite to terminate the federal republic of the Czech and the Slovak peoples) seems to suggest that the world community has come to recognize that the right of self-determination applies to minority as well as colonial peoples[47].
On the other hand, there are many other cases where the rights of minorities are overlooked, such as the Scots and Welsh in Great Britain; the Quebecois in Canada; the Kurds in Iraq, Iran, and Turkey; the Nagas in India; the Somalis in Kenya[48].
A controversy rises up whether non-colonial and non-alien-dominated people have the right to self-determination?
B. Plebiscite approach and remedy approach
There are two contradictory approaches settling this question. The plebiscite approach attempts to define these questions broadly. In contrast, the remedial approach restricts the application of self-determination to certain groups in particular circumstances[49].
Plebiscite Approach
Under the plebiscite approach[50], all people are entitled to self-determination as a matter of right, regardless of their current political status. As articulated by Judge Dillard, “[I]t is for the people to determine the destiny of the territory and not the territory the destiny of the people.[51]” The underlying notion is that people have a right to indicate their preferred political status by means of a plebiscite or similar approach, even if that preference is outright independence.
This understanding flows from the broad, all-inclusive language pertaining to self-determination found in the Human Rights Covenants “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
As U.N. supervised decolonization winds down, increasing numbers of other groups (including Taiwan) have asserted that they, too, should have the right to declare independence. These groups seek to control territory, exercise autonomy, and ultimately to enjoy all the prerogatives of statehood[52]. The plebiscite approach asserts their right to do so.
Various arguments are advanced in support of this approach. Those advocating for the universality of the right point to the reference in the Covenants to “all peoples” and the fact that it is found in human rights treaties intended to have universal applicability. On a practical level, others argue that “there is no sufficient reason to differentiate between overseas colonies and areas within a state whose inhabitants largely regard them with good reason as under alien domination.[53]”
Finally, some posit this approach as a response to globalization-i.e., a means of reasserting a higher level of democratic controls[54]. Thus, the assertion of local political control is viewed as ameliorating the sense of lost control stemming from the increasing prominence of supranational institutions such as the World Trade Organization, or the proliferation of multinational corporations[55].
While some of the arguments for the plebiscite approach may sound appealing, in the legal context there is little support either textually or from state practice. States are jealous of their territorial boundaries. Even if states would be willing to cede territory to a subgroup, which subgroup(s) should be relevant for the purposes of self-determination? How would people belonging to multiple subgroups be categorized? Since the world is not divided neatly into homogeneous enclaves, what should be done with “settler” populations, or other people living amongst a “people” that has exercised their right to self-determination? No objective criteria have been developed for preferring one claim over another or for delimiting which population belongs to which territory. There is also the question of what to do with a “people” who desire self-determination but who also evidence an intention to discriminate against and deny the right to others within their territory[56]. This is only exacerbated when the people in question in part define themselves by a legacy of historic injustice and violence, which can lead to explosive confrontations. Thus, the lofty goal of allowing all people to determine freely their political destiny has the potential to introduce a high level of instability into the international system and, moreover, has no means of practical application.
It should not come as a surprise that it is precisely those States that benefited from self-determination when they liberated themselves from colonial rule, which are now among the staunchest supporters of a strict interpretation of the principle[57]. It would thus seem that most States have heeded the warning issued as early as 1952 by a leading champion of human rights, Eleanor Roosevelt, who, speaking as a US delegate, stated that: “Just as the concept of individual human liberty carried to its logical extreme would mean anarchy, so the principle of self-determination given unrestricted application could result in chaos[58]”.
Remedial Approach
The remedial approach to self-determination posits that although all peoples may have a right of internal self-determination-i.e., the right to enjoy some level of autonomy within a parent state-only in rare, extreme circumstances will that translate into a right to secede-i.e., a right of external self-determination. Circumstances giving rise to a right of external self-determination may include: continuing control by a colonial power; domination by a foreign power; pervasive discrimination; or perhaps even lack of democracy. Self-determination is therefore not available to any and all groups desiring independence, but rather only to those groups that have suffered from one of a limited category of wrongs. Unlike the plebiscite approach, the remedial approach is supported by legal texts and by state practice, although dispute remains as to which circumstances are sufficient to trigger the right to secede.
The U.N. General Assembly, in order to promote de-colonization, passed the first Resolutions pertaining to self-determination in 1960. Resolution 1514 contained the type of all-inclusive language cited by proponents of the plebiscite approach: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development[59].” However, subsequent language qualified that right in several important respects. Paragraph 6 states: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations[60].” Thus, the document grants the right of self-determination to “all peoples,” but explicitly rejects a territorial manifestation of that right.
Resolution 1541 provided guidelines to help states determine whether they should transmit information on “non-self-governing” territories under article 73(e) of the U.N. Charter[61]."This resolution set forth dual requirements of ethnic and geographic distinctiveness in order for a territory to qualify prima facie as a non-self-governing territory[62].
Ten years later, the General Assembly seemed to expand the definition of self-determination beyond de-colonization with Resolution 2625 ("Declaration on Friendly Relations" or "Declaration")[63]. Instead of the broad limitation on the right to self-determination included in paragraph 6 of Resolution 1514, the Declaration only protects the “territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color[64].” Antonio Cassese argues that, albeit limited expansion of the right of self-determination has not completely risen to the level of customary law. He posits that, given the context, only racial groups persecuted by a central government have a right to internal self-determination under customary law, given the concerns mentioned above with regard to apartheid policies[65].
Thus, even though the Declaration arguably expands the application of self-determination to some groups outside of the non-self-governing territory category, de-colonization was clearly the main concern and the Declaration does not sanction secession outside of that context.
The ICCPR and ICESCR contain the most definitive legally binding statement on the contemporary right of self-determination and, moreover, enjoy widespread ratification. Article 1 of both Covenants is identical and contains all-inclusive language similar to that found in the U.N. Resolutions. However, both the legislative history and inclusion of Article 27 in the ICCPR indicate that the majority of states that supported the inclusion of Article 1 did so with the understanding that the right of self-determination was to be interpreted narrowly[66]. Article 27 affirmatively confers rights on ethnic, religious or linguistic minorities to “enjoy their own culture, to profess and practice their own religion, or to use their own language[67].” If ethnic, religious and linguistic minorities had already been granted the right to secede, Article 27 would have been surplus age. Thus, by its terms, Article 27 does not contemplate political, economic or social autonomy for those groups[68].
The Final Act of the Conference on Security and Co-Operation in Europe ("Helsinki Final Act") provides further evidence of international understanding regarding self-determination.
The language chosen by the Western and Soviet blocs to illustrate the principle of self-determination (Principle VIII) is probably the most expansive to date:
By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development[69].
However, as with the documents discussed above, other provisions contained in the Helsinki Final Act diluted this broad articulation of the right of self-determination. Principle III affirms the inviolability of frontiers[70], and Principle IV affirms the territorial integrity of states[71]-firmly establishing that the drafter's understanding of self-determination did not include the right to secede.
In the strictest interpretation of the remedial approach-i.e., that the right to secede is only valid in the colonial context-the General Assembly set forth three possible methods of exercising the right to self-determination: “(a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State[72].” Notably, even in the colonial context of Resolution 1541, independence was not assumed to be the only option.
Beyond former colonies, however, there is far less consensus as to which “peoples” ultimately may have a right to secede from an independent state. Oscar Schechter articulated several possible conditions for triggering a right to secede, which command varying degrees of support:
(1) The claimant community should have an identity distinct from the rest of the country and inhabit a region that largely supports separation in the given circumstances; (2) The community has been subjected to a pattern of systematic political or economic discrimination; [or] (3) The central regime has rejected reasonable proposals for autonomy and minority rights of the claimant community.
Two other conditions command less support and may be difficult to implement in practice: (1) secession should not be likely to result in armed conflict between the old and new states; and (2) the seceding areas should not have a disproportionate share of the country's wealth. However, even if the international community could agree on which conditions would trigger a right to secede outside of the colonial context; there is as yet no effective mechanism for deciding whether or not the necessary conditions have been met or for adjudicating claims related to the exercise of the right.
C. A comprehensive approach: classify External and Internal rights
It is widely accepted that the de-colonization era has almost ended since the latest case East Timor was determined. In the so-called post-colonization phase, how to appraise the value of the self-determination principle in international law and how to make it exerting the maximum benefit to the international community, a new approach has been brought out since 1990s, which is classifying self-determination into external and internal phase, limiting the external self-determination and emphasizing the importance of internal self-determination.
Internal self-determination envisions the exercise of the right to self-determination through democratic mechanisms within a sovereign state. These democratic mechanisms both enhance the rights of minorities and serve as incentives for a province or a people to support the territorial integrity of the state.
Many states have guaranteed internal self-determination through the allocation of seats for minorities in the legislature; representation at the executive level; limited participation of provinces in international affairs; or the promotion and preservation of a separate culture or identity. In this context, internal self-determination is consistent with the territorial integrity of the state.[73]
In an agenda proposed by the Commission on Human rights to the UNGA, the Chairperson of the Working Group on Indigenous Populations stated that:
“In theory, at least, it is possible to distinguish between “external” self-determination, which means the act by which a people determines its future international status and liberates itself from “alien” rules; and “internal” self-determination, which refers chiefly to the selection of the desired system of government and administration, and the substantive nature of the regime selected[74].”

As to the worthiness of international self-determination, he stated that:
“The right to internal self-determination is best viewed as entitling a people to choose its political allegiance, to influence the political order in which it lives, and to preserve its cultural, ethnic, historical or territorial identity.[75]”
In 2001, the U.S. National Security Council released a report named Position on Indigenous Peoples[76], in which, it stated that “[I]n an effort to harmonize US domestic and foreign policy … we have considered the views that …2) self-determination includes both an external and internal aspect and the latter would apply to groups within existing states…”. It also suggested that “The US delegation should support use of the term ‘internal self-determination’ in both the UN and OAS declarations …defined as… a right of internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. Indigenous peoples, in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.”
Antonio Cassese accepted this classification, as he said “Any racial group denied full access to government in a sovereign State is entitled to either external self-determination (that is, to achieve independence, integration into an existing State, etc.) or even internal self-determination (that is, in the words of the Supreme Court of Canada in Reference re Secession of Quebec (1998), the ‘pursuit of its political, economic, social and cultural development within the framework of an existing State’) .[77]”
This approach draws out a well-meaningful guideline to settle disputes related with self-determination principle. Internal self-determination as a new resolution has succeeded and developed the traditional theory of self-determination and taken great effect in the contemporarily legal practice in many countries. As concluded by the Public International Law & Policy Group in its report of “Peace Agreements: Territorial Integrity” in December 2006: Modern constitutions and peace agreements typically incorporate the principles of territorial integrity and self-determination, either internal or external. Internal self-determination most commonly take the form of political mechanisms that enhance minority representation in government and include devolution of power; representation in the central government; and participation in international affairs[78].
IV. Conflicts and reconciliation
Since the principle of self-determination was brought forward and applied, controversies rooted from it has never been stopped till now. Hereunder will discuss the conflicts between this principle and other fundamental principles in international law and try best to find out available solutions to reconcile the contradictions existing presently.
1. Self-determination VS State Sovereignty
Self-determination meant that peoples and nations were to have a say in international dealings: sovereign powers could no longer freely dispose of them. Peoples were also to have a say in the conduct of domestic and foreign business; self-determination was thus advocated as a democratic principle calling for the consent of the governed in any sovereign State[79].
This set of principles was directed toward undermining the very core of the traditional principles State sovereignty. State sovereignty meant that every international subject was to pay full respect to any other power wielding authority over a territory and the population living there; regardless both of how it had acquired its territorial title and in particular of the aspirations of the populations concerned[80].
Thanks to this conflict, there happened numerous tragedies in the world. Since 1984, over 65,000 people have been killed as a result of the Government of Sri Lanka’s attempt to preserve its territorial integrity and secure its sovereign interests against the competing efforts of the Tamil rebels to exercise their right of self-determination and establish a self-governing region within Sri Lanka. In Sudan, nearly two million people have been killed during the war of secession. In Bosnia, 250,000 civilians were killed and over one million displaced in a campaign of genocide carried out by Serbia in response to Bosnia’s declaration of independence from the former Yugoslavia. In the period between 1956 and 2002, there were seventy-five instances of states involved in some form of self-determination or sovereignty-based conflict. By 2002, only twelve of these conflicts had been resolved through uncontested agreements. Another twelve had been resolved through military victory. The remainder was ongoing (twenty-two), or was merely “contained” (twenty-nine), usually as a result of the deployment of international peacekeepers. The average duration of these continuing conflicts is nearly thirty years[81].
How to reconcile the conflict between self-determination and sovereignty?
Traditional approaches to resolving sovereignty-based conflicts may be characterized as falling within the spectrum of the “sovereignty first” approach, based primarily upon the principles of sovereignty, territorial integrity, and political independence, or the “self-determination first” approach, based upon the legal principles relating to self-determination and the protection of human rights[82].
The predominant “sovereignty first” approach is generally relied upon by states wishing to preserve their territorial integrity, or by third-party states that fear that the creation of too many new states may undermine international stability or set a precedent that may be used by secessionist movements within their state. In this approach, sovereignty is regarded as the essential element of the political existence of a state, and forms the basis for international relations[83]. A core attribute of sovereignty is the exclusive jurisdiction of a state to exercise political power and authority within its own borders and to exercise all rights necessary to preserve its territorial integrity from external and internal threats[84]. Mediators adopting the “sovereignty first” approach often find themselves in a position of accommodating, and in some instances appeasing, aggressor regimes[85].
The “self-determination first” approach is frequently relied upon by secessionist movements, and has been sympathetically received by small states without significant minority populations. This approach, which evolved within the context of decolonization, is based upon the principle that dependent peoples are entitled to exercise self-government. Under this approach, all self-identified groups with a coherent identity and connection to a defined territory are entitled to collectively determine their political destiny in a democratic fashion and to be free from systematic persecution. Self-government is generally attained through the creation of an autonomous province within the parent state, although it may in some limited circumstances be attained through secession[86].
Increasingly, these two approaches fail to offer satisfactory options for structuring the peaceful resolution of sovereignty-based conflicts, as they frequently result in political gridlock and continued violence. The “sovereignty first” approach is relied upon by the parent state, and frequently the international community, to argue for the retention of the sub-state entity within the parent state and to justify the use of force to accomplish that objective. For instance, the mantra of sovereignty has been used by states to shield themselves from international action resulting from human rights abuses committed as part of their attempts to stifle self-determination movements. Examples of this include the Iraqi Anfal campaigns against the Kurds, the violation of Kurdish human rights in Turkey, the Russian campaign in Chechnya, the targeting of Christians in southern Sudan, and Indonesia’s brutal occupation of East Timor[87], as well as its recent campaign in Aceh[88].
The “self-determination first” approach is relied upon by the sub-state entity to support a claim for heightened autonomy or secession, and to justify the use of force to defend its people against the national army or police force.
For instance, the mantra of self-determination has been used to justify the use of armed force, and frequently terrorism, by groups such as the Tamil Tigers, the Free Aceh Movement, the Moro Islamic Liberation Front, and the Jammu Kashmir Liberation Front in their efforts to achieve greater autonomy within or independence from the parent state.
Given the rather exclusive nature of the two primary approaches, their utility has been reduced to little more than legal and political shields behind which states and sub-state entities justify their actions.
Professor Paul R. Williams[89] and Francesca Jannotti Pecci[90] provided a new approach: the approach of earned sovereignty, which is an attempt to bridge the impasse between the two approaches of “sovereignty first” and “self-determination first,” and to create an opportunity to resolve the conflicts and reduce the accompanying human rights violations and spread of terrorism by providing for the managed devolution of sovereign authority and functions from a state to a sub-state entity[91]. In some instances, the sub-state entity may acquire sovereign authority and functions sufficient to enable it to seek international recognition, while in others the sub-state entity may only acquire authority to operate within a stable system of heightened autonomy.
Recent international practice demonstrates that states involved in sovereignty-based conflicts are increasingly adopting the earned sovereignty approach.
Northern Ireland(the N.I.): The Good Friday Agreement[92], designed to end the conflict in Northern Ireland, provides for the creation of Northern Irish institutions and the interim devolution of substantial power to those institutions, so long as certain conditions are fulfilled, including the decommissioning of weapons. The Good Friday Agreement also provides the people of Northern Ireland with the right to decide the issue of unification with the Irish Republic through a referendum to be held in seven years.
However, it’s difficult to say that this approach is a final solution. Even as to the Northern Ireland, the Good Friday Agreement has never been implemented in good way for the political, cultural and religious factors. The provided rights to external self-determination for N.I. people don’t have any feasibility. But from the agreement, we can see another out way to resolve this problem finally, which is internal self-determination. The agreement establishes mechanisms for internal self-determination, which include devolution of power, executive mechanisms, and legislative mechanisms. Territorial integrity of the U.K. must be preserved so that there is stability in adopting new policies to decide the final status of the N.I. Internal self-determination takes the form of political mechanisms that enhance minority representation in government. Mechanisms often include incorporating minority representation into the executive, legislative, and judicial branches of the central government; devolving power to the provinces; and allowing a province limited participation in the international affairs of the state. The maximum internal self-determination will not only solve the disputes between the N.I., but also create a peaceful and stable political and legal environment.
2. Self-determination and unlawful secession: separatism
Secession from the mother state to establish an independent country seemed to be a legitimate result for a colonial people. However, currently, there are still several hundred secessionist movements that are active in the group-conscious communities of the world, almost all of which invariably claim legitimacy for their cause on the basis of the international law principle proclaiming the right to self-determination of peoples. The abusing of self-determination activates a new blast of separatism movement wind.
The right to self-determination does not authorize the secession of sections of a nation from an existing state, on the contrary, it is almost always proclaimed in conjunction with the territorial integrity of states. The right to self-determination furthermore belongs to a people whereas secession attaches to a territorial region. International law does, in exceptional circumstances, sanction the redrafting of national borders. State practice indicates that those exceptional circumstances are exclusively confined to general support of a political society, and secondly, to the redrafting of national frontiers as a condition of peace following an armed conflict.
In Reference Re Secession of Quebec, the Court defined secession as “the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane[93].”Except perhaps for noting that secession would entail more than “the effort” to redraw the boundaries of an existing state, this definition will suffice for purposes of our analysis of the right to secession under international law.
It is important to note that a people’s right to self-determination does not include a right to secession, not even in instances where the powers that be act in breach of a minority’s legitimate expectations. A superficial reading of the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations has led the Court in Reference Re Secession of Quebec to construct, albeit hesitatingly, a right to secession in cases where the state is not “possessed of a Government representing the whole people belonging to the territory without distinction of any kind” because, if that were the case, the proscription in the Declaration of :any action that would dismember or impair, totally or in part, the territorial integrity or political unity of . . . states” would not apply[94]. The truth is that self-determination of peoples discriminated against in the allocation of political rights does not entail secession from the state of their nationality but simply requires the removal of the discriminatory laws and practices. Dismembering or impairing the territorial integrity or political unity of a racist state must not be taken to denote the territorial disintegration of the state but could, in the present context, mean a right to resistance, a legitimate armed struggle, or even foreign intervention to topple the regime.
Even in the case of colonialism, alien domination or foreign occupation, secession is not the appropriate remedy. Here, the colonized country already exists as a distinct territorial entity, and self-determination, therefore, simply denotes the right to independence of that territorial entity from (extra-territorial) foreign domination[95].
The following considerations bear out the proposition that self-determination and secession signify quite different modalities of political action. First, the establishment of a new state by means of secession applies to a particular territory[96], while the right to self-determination belongs to a “people.” Statehood essentially depends on a territorially defined foundation. The right to self-determination also differs from a right to secession in that the former constitutes a collective right, while legitimate secession may be exercised (in the limited circumstances alluded to hereafter) as an institutional group right. A “collective human right” is afforded to individual persons belonging to a certain category, such as children, women, or ethnic, religious and cultural minorities[97]. The right of national minorities to peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion[98] thus belongs to every member of the group and can be exercised separately or jointly with any other member(s) of the group. An institutional group right, on the other hand, vests in a social institutions as such, and can only be exercised by that collective entity through the agency of its authorized representative organs.
The church’s right to internal sphere sovereignty is in that sense, an institutional group right[99]. So, too, is the right to secession of persons territorially united as a nation. Finally, international instruments proclaiming the right to self-determination almost invariably also postulate inviolability of the territorial integrity of existing states[100], and reconciling the two principles in question necessarily means that self-determination must be taken to denote something less than secession. The United Nations' 1993 World Conference on Human Rights said it all when the right of peoples to "freely determine their political status, and freely pursue their economic, social and cultural development" was expressly made conditional upon the following proviso:
[T]his [definition of self-determination] shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples- and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind[101].

Self-determination of peoples is thus a matter of national independence in the case of peoples subject to colonial rule or foreign domination, participation in the political processes of a country in cases where the people concerned have been denied such participation on a discriminatory basis, and sphere sovereignty of peoples that uphold a strong (sectional) group identity within a political community. Not one of these manifestations of self-determination amounts to the disruption of national borders of a territorially defined political community.
International law has been quite adamant in proclaiming the sanctity of post-World War II national borders[102], and in censuring attempts at secession in instances such as Katanga, Biafara and the Turkish Republic of Northern Cyprus[103]. As explained by Vernon van Dyke, the United Nations would be in an extremely difficult position if it were to interpret the right to self-determination in such a way as to invite or justify attacks on the territorial integrity of its own members.
The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992 reiterated that its provisions must not be taken to contradict the principles of the United Nations pertaining to, inter alia, sovereign equality, territorial integrity and political independence of States. The Framework Convention for the Protection of National Minorities, 1995 of the Council of Europe also proclaims that “[n]othing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.[104]”
In terms of the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in accordance with the Charter of the United Nations, secession (or the restructuring of national frontiers) will indeed be lawful, provided the decision to secede is freely determined by a people. It is submitted that the decision rests with a cross-section of the entire population of the state to be divided and not only the inhabitants of the region wishing to secede[105]. On that basis alone, the United Nations could find peace with the reunification of Germany, and the disintegration of the Soviet Union and of Czechoslovakia. On that basis, too, Quebec could lawfully secede from Canada, as Reference Re Secession of Quebec rightly held.
The establishment of a new state through secession will also be recognized in international law if, following armed conflict, distinct territories of an existing state should agree to part ways under the terms of a peace treaty. The secession of Eritrea from Ethiopia exemplifies a recent manifestation of this norm.
Secession is thus sanctioned by international law in only two instances: if a decision to secede is “freely determined by a people;” that is to say, by a cross-section of the entire population of the state to be divided and not only the inhabitants of the region wishing to secede; and secondly if, following armed conflict, national boundaries are redrawn as part of the peace treaty.
3. Self-determination and use of force
Even though prohibiting from threatening or using force has been a principle of international law, the UN Charter did not prohibit the use of force as a whole. While UN Charter prohibits the use of force in Art 2(3) and 2(4), Art 51 allows member States to use force in self-defense when they are attacked. Also under Chapter VII, the collective use of force is possible.
Like the personality issue in international law, authorities who could resort to force were strictly attributed to only States until the end of Second World War.
Thomas Aquinas, who wrote in Summa Theologia in the thirteen century about war, stated the three basic elements for the presence of a just war: These three elements were (1) lawful authority, (2) just cause, (3) right intention[106]. Some attributed the lawful authority to wage war only to an emperor or in some cases to the Pope. Some like William of Rennes widened it so as to include all feudal lords who have no superior inside the feudal hierarchy. Some like Pope Innocent IV also concluded that the right belongs to the authorities who have no superior to them[107].
As a result of the development of these arguments, the world at the end of the 19th century reached the conclusion that States were the only entities which had the exclusive right to wage war[108]. In this understanding, there was a clear distinction between international armed conflicts and non-international armed conflicts[109]. In this case, the conflicts which were between States were considered as international. If the other side of the conflict was not a state, the conflict was not regarded as an international one. This clear-cut division has lost its feature with the development of the concept of international right to self-determination and the popularity of internationalized civil wars.
Self-determination has had a twofold impact[110]. On the one hand, it has extended the general ban on force (previously existing for States in their relations with other States). On the other hand, self-determination has resulted in granting to liberation movements a legal license to use force for the purpose of reacting to the forcible denial of self-determination by a colonial State, an occupying Power, or a State refusing a racial group equal access to government (this license amounts to a derogation from the customary ban on the use of force).

In the past, the use of force by people struggling for the right to self-determination was neither condemned nor condoned. The assistance to these movements even sometimes encouraged by the General Assembly resolutions.
The end of decolonization and the collapse of the Cold War system and the possibility the proliferation of weak Third World States[111] will most likely have a hardening effect on stances of States in similar international documents. The recent decisions of the Security Council on Angola and Abkhazia may be the indications of the new approach. As it is noted earlier, for the first time in its history, the UN sanctions have been directed against a political movement as opposed to a member State.
The acceptance of Eritrea to the UN and condemnation of some of the movements in the Member States show that the confusion and lack of a coherent approach still continue with regard to self-determination and the use of force for the attainment of it.
V. Conclusion
Secession deviating from the basis of self-determination by the whole people of one State in a kind of illegal activity to separate a State. To solve nation problem like Chechen, religion problem like North Ireland, and other problem like Taiwan issue, will bring convulsion to international community, shall never be fitting for the interest of universe and commonly identified by international community.
The principle of self-determination has played an important role in decolonization and will exert more advantage in areas of fighting against aggression, intervening internal affairs and minority autonomy and democratic politics, but will never be theoretic foundation for national separatism.
Taiwan is part of China. The ROC is a regional self-government in Taiwan. The sovereignty of Taiwan belongs to China. Taiwan people own the right to self-determination. This right is not external right but internal right, which denies the possibility of referendum for independence. Neither State sovereignty nor the right to self-determination has the priority, both of which should be abided as general principle. The solution to reconcile the conflicts between them is to limit the external right to self-determination and enlarge the internal right to self-determination.
The PRC government reserves the rights to use force in Taiwan government abuses the rights to self-determination to seek to be independent of foreign interferences. The better way is to keep status quo and enhance economic contact between Taiwan and Mainland, to make economic integrity lead to political integrity. The final target is to realize the maximum regional autonomy in Taiwan. The UN may exert positive effect in settling the Taiwan Strait issues by mediation.



REFERENCES
l Scholarly Treatise

Hugo Grotius, the rights of war and peace, bk. II, ch. XX, pt. XL, at 247 (M.W. Dunne, 1901).

Frederich H. Russel, The Just War in the Middle Ages, (Cambridge: Cambridge Univ. Press, 1975).

Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 INT'L & COMP. L.Q. 102, 109 (1976).

James Crawford, the creation of states in international law 235-36 (Katanga) and 265 (Biafara) (1979).

Lawrence T. Farley, Plebiscites and Sovereignty: The Crisis of Political Illegitimacy, (London: Westview Press, 1986).

Heather A. Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford: Clarendon Press, 1988).

Morton H. Halperin ET AL., Self Determination in the new world order (1992).

Antonio Cassese, Self-determination of peoples: A legal reappraisal (1995).

Ray August, Public international law: text, cases and readings, Prentice hall Inc., 1995.

Paul H. Brietzke, Self-Determination, or Jurisprudential Confusion: Exacerbating Political Conflict, 14 Wis. INT'L L.J. 69 (1995).

Oscar Schachter, Micronationalism and Secession, in Recht Zwischen Umbruch und Bewahrung, Festschrift for Rudolf Bernhardt(1995).

Maurizio Ragazzi, the Concept of International Obligations Erga Omnes, (1997).

Lori. F. Damrosch (etc), International law: cases and materials, West Group ST PAUL MINN, 2001.

Antonio Cassese, International law, England: Oxford University Press, 2005.

l Scholarly Essay

Hersh Lauterpacht, The Contemporary Practice of the United Kingdom in the Field of International Law-Survey and Comment, International and Comparative Law Quarterly, vol.8(1959), pp168,187.

Lawrence Freedman, 'Weak States and the West' ,The Economist, September 11th-17th 1993

Chen, Lung-chu, Taiwan's Current International Legal Status, (1998) 32 New England Law Review 675.

Cherylyn Brandt Ahrens, Chechnya and the right of self-determination, Columbia Journal of transnational law,Col.42, 2003-2004.

Paul R Williams and Francesca Jannotti Pecci, Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination, Journal of International Law. 1 (2004).

l Reports

The report of the International Commission of Jurists in the Aaland Islands Case, League of Nations Journal, Special Supp. No. 3, p. S (1920).

The Legal Consequence for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276. International Court of Justice Reports. vol. 1971. p. 31 (1971).

The Western Sahara Case, International Court of Justice Reports. vol. 1975, p. 12 (1975).

Guidelines for National Unification, Adopted by the National Unification Council of Taiwan at its third meeting on February 23, 1991, and by the Executive Yuan Council of Taiwan at its 2223rd meeting on March 14, 1991.

East Timor (Port. v. Australia.), 1995 ICJ. 90, 102 (June 30).

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Vienna Convention on the Law of Treaties.

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the UN GA Resolution 1514 (XV) of 14 December 1960.

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http://taiwansecurity.org

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http://www.publicinternationallaw.org





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[1] Between 607 and 610, some generals of Sui Dynasty embarked on several military operations on Liuqiu(Taiwan’s former name), described in the Book of Su; Between 1335 and 1340, Wang Dayuan wrote a book Dao Yi Zhi Lue which describes Liuqiu after he had visited it; Between 1403 and 1424, the great fleet of Ming Dynasty's admiral Zheng He possibly visited Taiwan.

[2] Art 51 and 52 of Vienna Convention on the Law of Treaties.

[3] See Cairo Declaration, Signed at Cairo, November 27, 1943

[4] See Potsdam Declaration, Issued, at Potsdam, July 26, 1945

[5] Government succession means changes of rights and obligation resulted from subrogation of regime for revolution or coup.

[6] See Guidelines for National Unification, Adopted by the National Unification Council of Taiwan at its third meeting on February 23, 1991, and by the Executive Yuan Council of Taiwan at its 2223rd meeting on March 14, 1991.

[7] See ‘US will not oppose an independent Taiwan: Lu’, China Post, (28 August 2002), in Lexis/Nexis; and ‘Don’t be intimidated by China, Taiwan President tells compatriots’, Agency France Press, (14 August 2002), in Taiwan Security Research, available at: http://taiwansecurity.org.

[8] See China Daily, 28 November 2003

[9] Charles Snyder, US `not in favor' of WHA vote, Staff reporter in Washington, Saturday, Apr 21, 2007, Page 1 ; also available on Taipei Times website:http://www.taipeitimes.com/News/front/archives/2007/04/21/2003357544

[10] Sim Kiantek, The True Legal Status of Taiwan , http://www.taiwannation.com.tw/english2.htm

[11] Hersh Lauterpacht, The Contemporary Practice of the United Kingdom in the Field of International Law-Survey and Comment, International and Comparative Law Quarterly, vol.8(1959), pp168,187.

[12] ibid.

[13] Hansard, “Parliamentary Papers”, H.C.,1943,line 1427 and 602.

[14] William L Tung, China and the Foreign Powers: The Impact of and Reaction to Unequal Treaties, NewYork1970, pp69-70.

[15] Collection of international treaties (1945-1947), World knowledge Press, 1959.112-114.

[16] See http://www.unece.org/cefact/locode/tw.htm

[17] See Constitution of the Republic of China, concluded on 25 December 1947, entered into force on 25 December 1948.

[18] See Constitution of the People's Republic of China Adopted at the Fifth Session of the Fifth National People's Congress and promulgated for implementation by the Proclamation of the National People's Congress on December 4, 1982.

[19] For example see Chen, Lung-chu, Taiwan's Current International Legal Status, (1998) 32 New England Law Review 675.

[20] Woodrow Wilson, War Aims of Germany and Austria, The Public Papers of Woodrow Wilson: War and Peace 177, 180 (Ray Stannard Baker & William E. Dodd eds.) (reprint 1970) (1927)

[21] See the report of the International Commission of Jurists in the Aaland Islands Case, League of Nations Journal, Special Supp. No. 3, p. S (1920).

[22] Higgins, The Development of international through the Political Organs of the United Nations, p. 103 (1969).

[23] See the UN GA Resolution 1514 (XV) of 14 December 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples.

[24] See The Legal Consequence for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276. International Court of Justice Reports. vol. 1971. p. 31 (1971).

[25] See The Western Sahara Case, International Court of Justice Reports. vol. 1975, p. 12 (1975)

[26] Ibid., p. 122.

[27] See Antonio Cassese, Self-determination of peoples: A legal reappraisal (1995), at pp. 171-72

[28] East Timor (Port. v. Australia.), 1995 ICJ. 90, 102 (June 30).

[29] Maurizio Ragazzi, the Concept of International Obligations Erga Omnes, (1997), p. 17.

[30] Ibid.; see also Prosper Weil, Towards Relative Normativity in International Law?, 77 AM. J. INT'L L. 413 (1983).

[31] Antonio Cassese, Self-determination of peoples: A legal reappraisal (1995), p. 134.

[32] Barcelona Traction, Light and Power Co. (Beig. v. Spain), Second Phase, 1970 I.C.J. 4, 32 (Feb. 5).

[33] Hugo Grotius, the rights of war and peace, bk. II, ch. XX, pt. XL, at 247 (M.W. Dunne, 1901).

[34] Barcelona Traction, 1970 I.C.J. at 32.

[35] ibid.

[36] China signed the ICESCR in October of 1997 and the ICCPR in October of 1998.

[37] See Art 4(3) of the Constitution of the PRC.

[38] Here refers the two Covenants of Human Rights: the ICCPR and the ICESCR.

[39] See Lori. F. Damrosch (etc), International law: cases and materials, West Group ST PAUL MINN, 2001, p276.

[40] Cite from Statistics of Indigenous Population in Taiwan and Fukien Areas, by Council of Indigenous Peoples, Executive Yuan of Taiwan, (2006).

[41] See Paragraph 1, 4 and 5 of the Declaration and Art 1(3) of the Human Rights Covenants.

[42] See the elaboration of “the declaration on principles of international law friendly relations and co-operation among states in accordance with the charter of the united nations”.

[43] E.g., in G.A. Resolutions 2189(XXI), 13 December 1966 and 2621(XXV), 12 October 1970.

[44] E.g., in G.A. Resolutions 2649(XXV), 30 November 1970, 2708(XXV), 14 October 1970 and 2878(XXVI), 20 December 1971.

[45] E.g., in G.A. Resolutions 2787(XXV), 6 December 1971.

[46] 1977 Gros Espiell Report, p.15, Para. 51; 1978 Gros Espiell Report, vol.1, p.28, Para.57.

[47] Ray August, Public international law: text, cases and readings, Prentice hall Inc., 1995, p99

[48] Ibid.

[49] Cherylyn Brandt Ahrens, Chechnya and the right of self-determination, Columbia Journal of transnational law,Col.42, 2003-2004, p576

[50] The phrase "plebiscite approach" was used by Professor Oscar Schachter in his Seminar on Theory and Practice in International Law, taught at Columbia Law School, Fall 2002.

[51] Western Sahara, 1975 I.C.J. 12, 122 (Oct. 16) (Dillard, J., separate opinion).

[52] See Paul H. Brietzke, Self-Determination, or Jurisprudential Confusion: Exacerbating Political Conflict, 14 Wis. INT'L L.J. 69 (1995); IPA Conference Report, Competing Claims: Self-Determination and Security in the United Nations 2 (2000).

[53] Oscar Schachter, Micronationalism and Secession, in Recht Zwischen Umbruch und Bewahrung, Festschrift for Rudolf Bernhardt(1995). p183

[54] ibid. p181.

[55] ibid.

[56] See, e.g., Debra A. Valentine, Note, The Logic of Secession, 89 YALE L.J. 802, 803 (1980) (suggesting that "[in certain circumstances] the right of secession is paramount so long as that exercise of self-determination does not abridge the rights of other groups to self-determination").

[57] Antonio Cassese, International law, England: Oxford University Press, 2005, p63.

[58] E. Roosevelt, “The Universal Validity of Man’s Right to Self-determination”, in 27 US Dept of State Bulletin, 8 December 1952, at 919.

[59] Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, at 66, 67, U.N. Doc. A/4684 (1960).

[60] Ibid.

[61] See U.N. Charter Article 73.

[62] G.A. Res. 1541, U.N. Gaor, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960); see also Morton H. Halperin ET AL., Self Determination in the new world order 22 (1992).

[63] Morton H. Halperin ET AL., Self Determination in the new world order (1992). at 23.

[64] Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR, 25th Sess., Supp. No. 28, at 121, 124, U.N. Doc. A/8028 (1970).

[65] Antonio Cassese, self-determination of peoples: a legal reappraisal(1995), p120.

[66] ibid., p 61.

[67] See ICCPR, art. 27.

[68] Antonio Cassese, self-determination of peoples: a legal reappraisal, p 61.

[69] Conference on Security and Co-Operation in Europe: Final Act, Aug. 1, 1975, 14 I.L.M. 1292, 1295 [hereinafter Helsinki Final Act].

[70] Ibid. at 1294.

[71] Ibid.

[72] G.A. Res. 1541, at 29.

[73] The Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE) have previously referenced the principle of internal self-determination in the Oslo Communiqué of 2002.

[74] Erica-Irene A Daes, Discrimination against indigenous peoples, 19 July 1993, para.17

[75] ibid., para.19

[76] Available on the webpage: http://www1.umn.edu/humanrts/usdocs/indigenousdoc.html

[77] Antonio Cassese, International law, England: Oxford University Press, 2005, p61-62.

[78] Available on the website of www.publicinternationallaw.org

[79] Antonio Cassese, International law, England: Oxford University Press, 2005, p60.

[80] Ibid.

[81] Center for international development and conflict management, peace and conflict 2003: A global survey of armed conflicts, self-determination movements and democracy 26–30 (2003), available at http://www.cidcm.umd.edu/inscr/pc03print.pdf (last visited Mar. 9, 2004).

[82] Paul R Williams and Francesca Jannotti Pecci, Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination, Journal of International Law. 1 (2004), p5-6

[83] See generally Hurst Hannum, Autonomy, Sovereignty and Self-determination: the accommodation of conflicting rights (rev. ed. 1996); Hideaki Shinoda, Reexamining Sovereignty: from classical theory to the global age (2000).

[84] See U.N. CHARTER art. 2, Para. 7. The U.N. Charter expresses the principle of non-interference in relation with the domestic jurisdiction of member states and as a corollary of principle of sovereign equality of all members of the United Nations.

[85] See Jane M. O. Sharp, Appeasement, Intervention and the Future of Europe, in military intervention in European conflicts 49 (Lawrence Freedman ed., 1994).

[86] See Frederic L. Kirgis, Jr., The Degrees Of Self-Determination In The United Nations Era, 88 AM. J. INT’L L. 304, 308 (1994).

[87] For a general background on the conflict, see Human rights watch, Indonesia/East Timor: deteriorating human rights in East Timor (1995).

[88] See generally Human rights watch, Aceh under martial law: inside the secret war (2003), available at http://www.hrw.org/reports/2003/indonesia1203/ (last visited Mar. 16, 2004).

[89] Rebecca Grazier Professor of Law and International Relations, American University. Ph.D., Cambridge University.

[90] Ph.D. candidate, Institute of International Law, University of Rome La Sapienza.

[91] The authority and functions may include the power to collect taxes, control the development of natural resources, conduct local policing operations, maintain a local army or defense force, enter into international treaties on certain matters, maintain representative offices abroad, and participate in some form in international bodies.

[92] Northern Ireland Peace Agreement, Apr. 10, 1998, Ir.-U.K., (last visited Mar. 9, 2004). See also David Mckittrick & David Mcvea, Making sense of the troubles: the story of the conflict in Northern Ireland (2002).

[93] Reference Re Secession of Quebec [1998] 2 S.C.R. 217,263.

[94] Reference Re Secession of Quebec [1998] 2 S.C.R. 217, 280-81; however, the Court reveals its own doubt as to whether this circumstance would indeed create a right to unilateral secession. See ibid. at 286, 295. Karl Doehring is also of the opinion that "[I]t is ... well arguable that discrimination against ethnic minorities could potentially give rise to a right of secession."

[95] It could perhaps be argued that Algerian independence was gained through secession from France, because Algeria was supposedly a “department” of France and not a colony.

[96] See Yoram Dinstein, Collective Human Rights of Peoples and Minorities, 25 INT'L & COMP. L.Q. 102, 109 (1976) (noting that peoples seeking secession must be “located in a well-defined territorial area in which it forms a majority”).

[97] Yoram Dinstein defined “collective human rights” as those “afforded to human beings communally, that is to say, in conjunction with one another or as a group - a people or a minority.”

[98] See Council of Europe: Framework Convention for the Protection of National Minorities, 34 I.L.M. 35 (1995).

[99] See Johan D. van Der Vyver, Constitutional Options for Post-Apartheid South Africa, 40 EMORY L.J. 745,825-28 (1991).

[100] See, e.g., The Helsinki Final Act, , art. IV (territorial integrity) and art. VIII (equal rights and self-determination of peoples).

[101] World Conference on Human Rights, Vienna Declaration and Programme of Action, U.N. Doc. A/Conf. 157/24, art. 1.2 (June 25, 1993), reprinted in 32 I.L.M. 1661, at 1665 (1993)

[102] See Rosalyn Higgins, the development of international law through the political organs of the United Nations 104-05 (1963).

[103] See James Crawford, the creation of states in international law 235-36 (Katanga) and 265 (Biafara) (1979).

[104] See Council of Europe, European Charter for Regional Minority Languages (1992) (creating a charter to protect and promote regional or minority languages as a threatened aspect of Europe's cultural heritage). art. 21.

[105] Jan Heunis lost sight of this truism when arguing that the establishment of the South African (racially defined) homeland states (the TBVC-countries) occurred in conformity with the right to self-determination.

[106] Lawrence T. Farley, Plebiscites and Sovereignty: The Crisis of Political Illegitimacy, (London: Westview Press, 1986), p.141

[107] Frederich H. Russel, The Just War in the Middle Ages, (Cambridge: Cambridge Univ. Press, 1975) pp. 298-9

[108] Heather A. Wilson, International Law and the Use of Force by National Liberation Movements, (Oxford: Clarendon Press, 1988) p. 15

[109] Ibid., p. 16

[110] Antonio Cassese, International law, England: Oxford University Press, 2005, p63.

[111] Lawrence Freedman, 'Weak States and the West' ,The Economist, September 11th-17th 1993, pp. 46-50

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