Conceptually, "sovereignty" is
primary power or independent right without accountability to any other. It is autonomy or
freedom from external control. In international law, it is the union and exercise of all
human power possessed in a state. It is a combination of all power; the power to do
everything in a state without accountability.
Abstractly, sovereignty resides in the body of the nation and belongs
to the people. But these powers are generally exercised by delegation.
The term "sovereign" (adjective) is used on the international
level to identify primary national entities that are without subordination to any other,
having coequal standing. In simplistic terms, sovereign nations may be thought of as
political persons having the capacity to own property and enter into contracts with other
sovereigns on the international level. Individuals and political subdivisions are not
recognized on the international level as coequal in status with sovereigns.
A "sovereign" (noun) is an individual who embodies national
sovereignty. Monarchs, for instance, were once described as the "font from whom all
power and authority flows." Historically, the "sovereign" was similar in
role to the pater familias of a national "family." The status of all other
individuals within the nation was subordinate or "subject" to the sovereign in
his capacity as the "Crown." Commonly, "sovereigns" have ruled by
divine right, by inherited right, and by right of force.
Methods of Acquiring Sovereignty
ACCRETION is the force
of nature acting to change the geographic frontier of a state. For instance, part of the
border between the United States and Mexico is the Rio Grande. If the river changes course
over time, sovereignty over that portion of land affected by the changing river may be
The People's Republic of China has tried to press its claim to Taiwan
by the principle of what may be described as "reverse accretion." Citing the
work of Chinese "geologists," the People's Republic of China asserts that China
and Taiwan were once connected by a land bridge which became submerged due to rising sea
levels. Therefore, the argument goes, Taiwan is an integral part of China.
The argument fails for several reasons. First, there is no evidence for
the geological history alleged by China's "geologists." Second, the People's
Republic of China admits that Taiwan was not under Chinese sovereignty at the time the
putative land bridge was to have existed. Indeed, the entire region of present-day China
was probably uninhabited at the time. And finally, the principle of accretion under
international law recognises changes in sovereignty due to changes in natural geographic
frontiers, and not the reverse; that is, the principle does not operate to alter
established sovereignty by restoring territory to an adjacent state based on former
natural geographic frontiers. Therefore, even if the land bridge had actually existed and
even if China had good title to Taiwan during the period when the land bridge was to have
existed, the principle of accretion would more probably weaken, if not completely
demolish, rather than strengthen, China's claim to the now-detached territory.
ADJUDICATION is a
settlement by law of sovereignty issues over territory through a recognised international
authority such as the International Court of Justice. All parties to the dispute must
agree to be bound by the decision of the authority before adjudication can occur.
This method of determining sovereignty is most suitable for settling
disputes over uninhabited lands. It is not appropriate in the case of Taiwan, where there
is almost unanimous agreement that any settlement regarding Taiwan's
status must take into account the will of the people.
CESSION is the peaceful
transfer of territory between states by treaty. Cession usually occurs as part of the
peace settlement following war. Financial or other consideration may be given for the
territory being ceded, but usually the cessation of military operations is regarded as
The transfer of Formosa and the Pescadores from China to Japan in 1895
was a cession in that the territories were transferred peaceably and then possessed by the
new owners after the transfer. Despite the use by the Republic of China of the term
"retrocession" to describe her possession of Taiwan from 1945, the principle of
cession is not relevant to the current dispute over Taiwan because no formal transfer of
territory ever occurred.
CONQUEST is the
acquisition of sovereignty over territory by force of arms, exercised by an independent
power which reduces the vanquished to the submission of its territory.
It is a general rule that where conquered territories have laws of
their own, these laws remain in force after the conquest, until they are abrogated, unless
they are contrary to the religion of the conquering country, or enact any
malum in se. In
all such cases the laws of the conquering country prevail.
The people of a conquered territory change their allegiance, but by the
modern practice, their relations to each other and their rights of property remain the
Conquest does not, per se, give the conqueror plenum dominium et utile,
but a temporary right of possession and government. Conquest is generally unacceptable as
a means for acquiring sovereignty under current norms of international relations.
The principle of conquest is not relevant to the current dispute over
Taiwan. When the forces of Chiang Kai-shek occupied Taiwan in 1945, they did
so not by prevailing against and expelling the enemy from the island, but rather by
moving into the vacuum left by the departing Japanese army as ordered by
the Supreme Commander for the Allied Powers (SCAP).
DISCOVERY is the act of
finding an unknown country.
The nations of Europe adopted the principle that the discovery of any
territory gave title to the government by whose subjects, or by whose authority, it was
made against all European governments. This title was to be consummated by possession.
Discovery is related to the modern concept of PRIOR OCCUPATION,
whereby territory that is terra nullius ("land without owners") is
occupied and claimed by a state. For territory to be gained through occupation, the
territory must be terra nullius at the time of the initial occupation. The
concepts of prior occupation and terra nullius have recently been highlighted by
two prominent cases, that of the controversy concerning aboriginal land in Australia and
that of the dispute over the Senkaku (Diaoyutai) islets north of Taiwan.
In Australia, the government had declared aboriginal lands terra
nullius to legalise the seizure of those lands by white settlers. Recently,
indigenous peoples have challenged this position in the courts.
With respect to the Senkaku islets, Japan's primary legal argument is
that they were terra nullius when Japan first claimed and possessed them, and
therefore she has sovereignty based on the principle of prior occupation. The argument of
Taiwan and the People's Republic of China is that the islets were not terra nullius
but belonged to China at the time of Japan's possession so the principle of occupation is
This principle is not relevant to the current dispute over Taiwan since
the island was a Japanese colony during the first half of the twentieth century and,
therefore, not terra nullius.
is the manner of acquiring property by a long, honest, and uninterrupted possession or use
during the time required by law. The possession must have been possessio longa, continua,
et pacifica, nec sit ligitima interruptio (long, continued, peaceable, and without lawful
The law presumes a grant before the time of legal memory when the party
claiming by prescription, or those from whom he holds, have had adverse or uninterrupted
possession of the property or rights claimed by prescription. This presumption may be a
mere fiction, the commencement of the user being tortious. No prescription can, however,
be sustained, which is not consistent with such a presumption.
For prescription to apply, the state with title to the territory must
acquiesce to the action of the other state. This has been construed as a state not
protesting the action of another state. So, if a state takes over the territory of another
state and treats it as its own territory, the other state has an obligation to protest. If
it does not, the silence may be considered acquiescence to the prescription. Over time,
sovereignty to the territory is considered transferred. There is no specific time frame
when the change of sovereignty is recognised; but at some point, the transfer of
sovereignty is accepted.
A case can be made that the Republic of China established sovereignty
over Taiwan by prescription. When Chiang Kai-shek's forces occupied
Formosa pursuant to SCAP General Order no. One
in October 1945, Chiang immediately proclaimed that they were doing so
in the name of the Republic of China. Thus, from 1945, the regime known
as the Republic of China has exercised effective
possession of Taiwan, however illegal the initial occupation may have been. Japan, the
legal owner of Taiwan until her renunciation of sovereignty in 1952, did not protest the
Republic of China's occupation, essentially because the occupation, like
the occupation of Okinawa and other Japanese possessions, was in
conformity with the directives of SCAP, and because Japan, being under
occupation herself, was not in a position to protest. In this context,
the occupation of Formosa could only have been viewed by Japan as
provisional like the occupation of her other possessions, with no
acquiescence to permanent possession implied. If acquiescence was
present, it would have been defective due to Japan's own status as an
occupied state. After 1952, there was no legal owner of Taiwan, unless the six and a half years
that transpired between 1945 and 1952 can be presumed to have been a sufficient passage of
time, and presuming acquiescence was present, to grant the Republic of China sovereignty by prescription. If this time was not
sufficient, or acquiescence not present before 1952, the absence of a legal title-holder after 1952 to protest or acquiesce to the
Republic of China's occupation of the island makes the argument for prescription very
is the deciding by the inhabitants of a territory on the form of government they shall
have, without reference to any other authority, especially one to which it has been
Although almost never applied prior to the twentieth century, the
principle of self-determination gradually gained acceptance after the First World War, and
is today by far the most acceptable means of establishing sovereignty. It is enshrined in
the Charter of the United Nations, which has been acceded to by
most of the states of the world, and in other major international agreements.
Perhaps the strongest argument for who has sovereignty over Taiwan is
based on the principle of self-determination. When the Constitution
of the Republic of China was amended and free and fair elections held for both the
legislature and the executive in the 1990s, the government on the island became one truly
representative of the will of the inhabitants of Taiwan. This exercise of
self-determination confirmed the government's exercise of sovereignty over Taiwan
and confirmed it as her legitimate government. Thus the regime with the strongest claim to
Taiwan is the Republic of China on Taiwan (Ts'ai Tai-wan te Chung-hua Min-kuo),
embodying the will of the people of Taiwan. A plebiscite on the status of Taiwan would be
a more decisive means of establishing sovereignty.