I. Introduction

The Taiwan issue remains the major concern of the Chinese government even though cross-strait tension has been significantly eased. Since Ma Ying-jeou took office in May 2008, great achievements have been made in economic cooperation: flights, ships and postal deliveries may now travel directly from one side to the other without detouring through a third territory; about one thousand mainland tourists are allowed to visit the island each day, up from a trickle in the past; one hundred sectors have been opened up to mainland investors; a memorandum of understanding on financial cooperation has been signed, and a free-trade agreement is being negotiated and is anticipated to be concluded within 2010. Nevertheless, both sides admitted that these are relatively easy steps among the many problems to be tackled. When it comes to the difficult part, such as Taiwan’s international status and removal by mainland China of missiles currently aimed at Taiwan, the Chinese government finds itself in a dilemma. Ma Ying-jeou has repeatedly called on mainland China to withdraw missiles targeting the island. To build mutual trust, removal of the missiles might be the wisest course. However, China has good reason to worry about what could happen in the event that the Democratic Progressive Party (DPP) returns to power after China removes the missiles. With regard to Taiwan’s international space, China faces the same concern that if greater space is granted to Taiwan, the DPP, once it resumes power, might abuse Taiwan’s international presence to pursue Taiwan’s secession from China.

At the heart of China’s concern is nothing but Taiwan’s possible secession from China. To prevent such possible secession, in 2005 China enacted the Anti-Secession Law, providing for some circumstances under which non-peaceful means would be employed to prevent Taiwan’s secession. These circumstances include: (1) where “Taiwan independence” secessionist forces effectuate Taiwan’s secession from China, no matter under what name or by what means, (2) where a major incident occurs which will lead to Taiwan’s secession from China, or (3) where the opportunity for peaceful reunification is exhausted. Under any one of these three circumstances, the Anti-Secession Law authorizes the central government and central military committee to employ non-peaceful means and other necessary measures to protect China’s sovereignty and territorial integrity.

This provision makes it clear that China’s use of force will largely depend on the fact or likelihood that Taiwan will secede from China. However, what constitutes Taiwan’s secession? By what criteria may China claim that Taiwan has seceded or is likely to secede?

To answer these questions, we must bear in mind an important assumption underlying the Anti-Secession Law: at present, Taiwan is still within China and has not seceded. Secession is a possible future state of affairs which needs to be prevented. All provisions of this legislation will appear to be nonsense without this assumption.

Whether Taiwan has already seceded from China depends on whether Taiwan has acquired independent statehood. According to a declaratory theory of statehood, Taiwan clearly has fulfilled all the requirements for statehood. According to a constitutive theory of statehood, diplomatic recognition by other states confers independent statehood, and Taiwan maintains formal diplomatic ties with over twenty countries, although these countries are all small states with little military or economic power. Under prevailing international law theory of statehood, it seems the assumption underlying the Anti-Secession Law, as well as China’s general policy towards Taiwan is untenable.

Therefore, it is extremely important for China to find a legal ground to justify the above-mentioned assumption. This article attempts to take on this challenging job.

Part II of this article outlines contemporary international law theories on statehood. Emphasis will be placed on the declaratory theory of statehood and its application to Taiwan. Part III begins with a discussion of some cases running afoul of contemporary theories of statehood and suggests that the creation of the United Nations (UN) had a profound impact on international practices concerning recognition of statehood. The criteria stated in Montevideo Convention are not conclusive for statehood anymore. Instead, collective recognition through the mechanism of the UN dictates whether an entity is a state or not. This theory is titled as the “new constitutive theory” in this article. Part IV concludes by arguing that by applying the new constitutive theory to the issue of Taiwan’s statehood, Taiwan’s secession from China is impossible as long as China maintains its powerful position in the international community. Deploying missiles against Taiwan is not necessary. The battlefield for fighting against secession is in the political ground of the international arena alone. Peaceful development strategy is the most efficient way to prevent Taiwan’s secession.