Australian Year Book of International Law
Australia’s relations with the Republic of China (Taiwan) are considerable, notwithstanding Australia’s determination to act always within the legal and political constraints of its One-China policy. Taiwan is the world’s fourteenth largest exporting economy. It is Australia’s seventh largest customer for exports and its tenth largest source of imports, the balance of trade lying by a substantial margin in favour of Australia. The total value of trade between the two countries is approximately $A7 billion. The island of Taiwan has a population of 22 million. It has virtually no inflation and, with a current growth of real gross domestic product (GDP) at more than six per cent, it appears to be largely insulated against the economic ills besetting the other ‘Asian Tigers’.
The present paper does not pretend to be a comprehensive survey of current Australian foreign and trade policies as they impact upon Taiwan>. It will examine only those aspects of Canberra-Taipei relations that engage the operation of rules or mechanisms of domestic and international law. Special attention will be given to the legislative and judicial spheres in Australia as they impact upon the legal status of the Republic of China (Taiwan) in the Australian legal order. The broader context of Australia’s current foreign and trade policies is to be found in the White Paper, issued in August 1997 (the first such document ever issued by an Australian government), and its companion document Australia’s Strategic Policy, issued in December 1997.
China is an original member of the United Nations (UN), having participated in the San Francisco Conference and having signed and ratified the UN Charter in 1945. It is also a permanent member of the Security Council. A civil war in China, following the defeat of Japan in 1945, resulted in the Communist forces, led by Mao Tse-tung, completing its conquest of mainland China and establishing their capital in Peking (Beijing) in October 1949. They proclaimed the foundation of the People’s Republic of China. The Nationalist forces, led by Generalissimo Chiang Kai-shek, retreated to the island of Formosa (Taiwan), from where they continued to assert the survival of the Republic of China, founded by Sun Yat-Sen in 1912. The centre of that government was established in the city of Taipei.
From 1949 to 1971, China was represented in the UN and its various agencies by officials accredited by the authorities of the Republic of China in Taipei. It became a party to a number of multilateral treaties and conventions sponsored by the UN and other bodies through instruments executed by the Taipei authorities. A number of governments objected that China as a whole could not be bound by the acts of a government that was not representative of all the people of China. The Union of Soviet Socialist Republics (USSR) and countries of the Eastern European bloc made declarations that the purported adhesion of the Republic of China to multilateral international conventions was a nullity.[5 ]They also continued to urge that the seat of China at the UN be transferred to the control of the authorities of the People’s Republic of China in Beijing.
The China question before the UN between 1949 and 1971 was seen as a contest between two rival authorities, each claiming to represent the one China. It was never a question of ‘two Chinas’. In the most formal sense, this was a matter for the Credentials Committee of the General Assembly, which examines and reports on the credentials of all national representatives at the commencement of each annual session of the General Assembly. The Assembly itself has the power of decision, where political factors may also be taken into account. It was in this manner that, on 25 October 1971, the vote in the General Assembly swung in favour of accepting the credentials of the representatives of the People’s Republic of China and of rejecting those of the Republic of China.
The resolution of the General Assembly read as follows:
The General Assembly,
Recalling the principles of the Charter of the United Nations,
Considering that the restoration of the lawful rights of the People’s Republic of China is essential both for the protection of the Charter of the United Nations and for the cause that the United Nations must serve under the Charter,
Recognizing that the representatives of the Government of the People’s Republic of China are the only lawful representatives of China to the United Nations and that the People’s Republic of China is one of the five permanent members of the Security Council,
Decides to restore all its rights to the People’s Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations and in all the organizations related to it.
Notwithstanding this resolution, applicable only within the UN and not necessarily to relations at the bilateral level between member states of the UN and Taiwan, the Republic of China (Taiwan) currently maintains diplomatic relations with some 29 countries, mainly in Africa and Latin America. The People’s Republic of China and the Republic of China refuse to accept diplomatic relations between third countries and both Chinas, since each claims to represent the whole of China.
One of the stated effects of General Assembly Resolution 2758 (XXVI) was to exclude the Republic of China from participation in the Specialised Agencies of the UN, such as the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO), and the World Health Organization (WHO). The Republic of China remained a member, however, of certain intergovernmental organisations not related to the UN, such as the International Cotton Advisory Committee, the Asian Productivity Organization, and the Afro-Asian Rural Reconstruction Organization. The Republic of China also participates in a large number of non-governmental organisations.
The Asia-Pacific Economic Cooperation Forum (APEC) has special significance for pointing the way to participation by the Republic of China in international institutions. APEC was founded as an Australian initiative in 1989. Its membership provisions mark a departure from other models of international organisations. The membership, instead of being confined to states or governments of states, is comprised of ‘Member Economies’. Thus it is the economic and not the political unit that constitutes the membership. This feature was clearly devised with Hong Kong and the Republic of China in mind. On 12 to 14 November 1991 three separate Chinese ‘economies’ joined the group: the People’s Republic of China, ‘Chinese Taipei’, and ‘Hong Kong, China’. The names were chosen after much consultation. A precedent had been set earlier when, in 1986, the People’s Republic of China applied to join the Asian Development Bank, which is a UN-related body. The People’s Republic of China was admitted; so was the Republic of China as well, but under the name ‘Taipei, China’. This was the first-known example (other than the non-political Olympic Games) of the different Chinas participating together in the same international forum on a basis to which each could assent (even though the Republic of China is said to have misgivings as to the name ‘Taipei, China’).
Negotiations for admission to the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) of both the People’s Republic of China and the Republic of China are presently in progress on the basis that the Republic of China will be regarded as the ‘Customs Territory of Taiwan, Penghu, Kinmen and Matsu’, although the People’s Republic of China argues that the name ‘Chinese Taipei’ should be used. Australia has strongly supported Taiwan’s accession to the GATT/WTO.
In his statement to the UN in 1972 regarding multilateral treaties, the Minister of Foreign Affairs of the People’s Republic of China drew a distinction between those treaties entered into in the name of China by the authorities of the Republic of China before and after the creation of the People’s Republic in 1949. The former would be examined and might be recognised, but the latter were altogether rejected:
1. With regard to multilateral treaties signed, ratified or acceded to by the defunct Chinese government before the establishment of the Government of the People’s Republic of China, my Government will examine their contents before making a decision in the light of the circumstances as to whether or not they should be recognized. 2. As from October 1, 1949, the day of the founding of the People’s Republic of China, the Chiang Kai-shek clique has no right at all to represent China. Its signature and ratification of, or accession to, any multilateral treaties by usurping the name of ‘China’ are all illegal and null and void. My Government will study these multilateral treaties before making a decision in the light of the circumstances as to whether or not they should be acceded to.
Thus automatic succession to both pre- and post-1949 multilateral treaties was rejected. It is hardly surprising that post-1949 treaties were rejected since the People’s Republic of China clearly rejected the claim of the authorities on Taiwan to represent the whole of China. However, the claim to reserve the right not to recognise pre-1949 treaties cannot be accepted as being in accord with the distinction between governmental succession and state succession.
There was clearly no change of statehood in 1949: there were merely two rival claimants to the government of the state of China. The fact that a change of government is revolutionary and radical in nature does not change the nature of the succession. This was indirectly recognised by the International Court of Justice (ICJ) in the United States Diplomatic and Consular Staff in Tehran Case, where the jurisdiction of the Court was founded on the mutual acceptance of the Optional Protocol to the Vienna Convention on Diplomatic Relations, 1961, ratified by the Government of Iran under the Shah. This remained binding on the Islamic Republic of Iran, founded in 1979, notwithstanding the radical change in its government.
The rejection of post-1949 treaties is more readily justifiable on the basis of lack of capacity to contract on behalf of the whole state. Three bilateral treaties were concluded between Australia and the Republic of China between 1949 and 1972. Against the entry for each of these treaties in the Australian Treaty List there is the annotation: ‘Lapsed 22 December 1972 on establishment of diplomatic relations between Australia and the People’s Republic of China.’
The situation in the United States of America is different. Whereas Australia no longer recognises the continuing force of treaties concluded between itself and the Republic of China between 1949 and 1972, in the United States, which recognised the People’s Republic of China as the sole lawful government of the whole of China in 1979, a statute was passed that effectively preserved those treaties in force. Paragraph 3303(c) of the Taiwan Relations Act 1979, 22 USC 3301 et seq, provides for the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan prior to 1 January 1979.
A question untested in Australia is whether pre-1949 treaties concluded by the Republic of China and accepted by the People’s Republic of China might still apply in relation to Taiwan as a province of China. An important example is the Warsaw Convention on Air Carriage 1929. In the United States it has been held that this Convention continues to apply in relations between Taiwan and the United States because the People’s Republic of China acceded to it and Taiwan is a province of China.
The fact that the People’s Republic of China chose to accede de novo to the Warsaw Convention rather than declare succession to China’s ratification of the Convention prior to 1949 in accordance with the statement made to the UN in 1972 (set out above) raises another question untested in Australia. Do the post-1949 treaties, both bilateral and multilateral, to which both Australia and China are parties, and which were entered into by the People’s Republic of China purporting to apply to the whole of China (or at least those which do not purport to apply only to certain parts of China) bind Australia in its present relations with Taiwan? The case of Atlantic Mutual Insurance Co v Northwest Airlines gave an affirmative answer so far as the United States is concerned. It must, however, be remembered that applicability of a treaty is dependent upon authorities being authorised to act on it and carry out its provisions. The absence of direct intergovernmental relations between the Australian and Taiwanese authorities would make this difficult to achieve. In the United States, by contrast, a presidential directive following the enactment of the Taiwan Relations Act, authorises all departments and agencies to act on treaties and agreements applicable to Taiwan.
An aspect of the non-recognition of the Republic of China (Taiwan) by Australia and the majority of the states of the world as either China itself or as a state separate from China, and of the Republic of China’s exclusion from the UN, is the status of the Republic of China as a member of the international community having rights and obligations under international law. These rights and obligations arise not merely from international conventions and treaties (from which the Republic of China finds itself mostly excluded on the formal grounds explained above), but more fundamentally from those principles and rules that are identified as customary international law binding on all states. Customary international law is formed on the basis of uniform, or nearly uniform, state practice, accompanied by a consensus that such practice is, or at least ought to be, legally binding. This latter element is called by international lawyers the opinio juris sive necessitatis.
Both elements are increasingly satisfied in practice through the actions of multilateral fora in drafting international conventions setting down standards and rules to follow (such as the law of the sea, and the protection of the natural environment), through the participating states voting for their adoption, through subsequent signature and ratification satisfying the element of opinio juris, and by thereafter conforming their behaviour to the conventions. Is the Republic of China to be regarded as excluded from the benefits, and as unaffected by the obligations, deriving from long-settled customary international law, and from the newer rules of international law deriving from conventions in the processes of the creation of which it has played no part?
This is not the place to explore in detail the highly complex question of the legal status of the Republic of China (Taiwan). Whether it is on the basis of any of the three most commonly advanced theses (that the Republic of China is China, with its mainland territory presently lost to its effective control, that the Republic of China is a de facto government in a civil war situation, or that the Republic of China (Taiwan) is an island state with its own separate statehood), the question arises whether those states that do not recognise it on any formal basis must accord to it the rights and obligations flowing to states, and to the citizens of states, deriving from customary international law.
This in turn raises the much-debated question whether recognition of states in international law is constitutive or declaratory in character. If, as is held by some theorists, recognition of statehood is constitutive in character, then an entity having the characteristics distinctive of statehood (namely territory, a settled population, a government, and a capacity to enter into international relations) is not a state and thus is not a member of the international community until it is ‘constituted’ as such through the actions of other members of the international community recognising it as a state. The rival view is the declaratory theory. This theory holds that an entity, once it exhibits the minimum characteristics of statehood, is automatically a state. Recognition can only mark the willingness of other states to have relations with it; absence of recognition does not of itself deny statehood.
The issue was a lively one in the 1940s and 1950s. Professor (later Judge of the ICJ) Sir Hersch Lauterpacht took the constitutive position, albeit qualifying it with a moral or political duty on the part of other states to accord recognition so that a candidate for statehood should not be unjustly deprived of that status. Representing the opposite view was, among others, the famous Chinese scholar and diplomat T C Chen. Chen argued that statehood arose as soon as the conditions of statehood were fulfilled. Statehood was not dependent upon recognition by other states, although the effective exercise of the powers of statehood might be impeded through non-recognition, and thus unwillingness, on the part of some or all other states, to have relations with it.
The declaratory theory of recognition, favoured by Chen, Brownlie, O’Connell and other writers, clearly has advantages, in both theoretical coherence and practicality, over the constitutive theory. It makes sense of the situation where some states recognise a certain entity as a state but others do not. Most importantly, the theory allows for the situation where, for political or other reasons, recognition is withheld, yet the entity is bound to abide by certain norms of international behaviour (and to benefit in turn from the observance of those norms in relation to itself), such as the prohibition against aggression, the prohibition of the commission of crimes against humanity, the right of self-defence, the observance of principles of international environmental law, and the principle of responsible fishing.
All these and other principles constitute binding customary international law, some of them with the additional character of jus cogens (that is, law which admits of no derogation even by consent).
So long as the Republic of China (Taiwan) claims to be all of China, the question of its status, so far as states recognising only the People’s Republic of China are concerned, remains problematic. Political considerations aside, there is no doubt, however, that the island of Taiwan, over which the Republic of China exercises complete and effective de facto control, exhibits all the characteristics of statehood. Consistent with the implicit assumption of the declaratory theory of recognition it is, in its own right, an emerged state and a proper candidate for recognition. It must therefore, for the purposes of customary international law, be regarded as capable of bearing duties and asserting certain rights under customary international law.
When deriving from a convention source, it is not necessarily every detailed rule that enters, with time, into a parallel status as customary law, but the basic principles and rules, so long as they have a normative character, do so. In this way, for example, the Republic of China has the right to establish an exclusive economic zone (EEZ) to 200 nautical miles from its territorial sea baselines and the corresponding duty to respect the claims to EEZs made by other states, provided these claims are consistent with the principles and normative rules of the UN Convention on the Law of the Sea. That Convention, in these and many other respects, is regarded as having crystallised customary international law.
The Republic of China legislated to claim a territorial sea of 12 nautical miles and an EEZ in January 1998. Advance notification, however, is required, under the legislation, for the passage of foreign warships through the territorial sea. This interpretation of the Convention is opposed by Australia, the United States, and most developed western states, but is shared by the People’s Republic of China (whose legislation of 1992 requires advance permission for the passage of foreign warships) and by some developing states.
In December 1972, the Australian government, under the Prime Ministership of Mr. Edward Gough Whitlam, recognised the government of the People’s Republic of China as the ‘sole legal government of China’, ‘acknowledged the position of the Chinese government that Taiwan is a province of the People’s Republic of China’, and agreed to remove its official representation from the island of Taiwan. The wording of this announcement was similar to that employed in declarations between the People’s Republic of China and Canada, Italy, and other states at about the same time.
The terms of this exchange are regarded as precluding a ‘two-Chinas’ policy’ on the part of Australia. Nevertheless, relations between Australia and Taiwan are considerable in their extent, and in substance, if not in form, there are dealings between the two governments conducted on a non-official basis or between non-governmental intermediaries. The forms of these contacts studiously avoid language that could be held to conflict with the position agreed between Australia and the People’s Republic of China in 1972. For example, Taipei maintains ‘Economic and Cultural’ Offices in Canberra, Melbourne, and Sydney. There is a counterpart Australian Commerce and Industry Office in Taipei. Australia has actively encouraged Australia/Taiwan trade and investment through the establishment of the Taiwan Market Service in Australia, complementing the Australian Commerce and Industry Office (ACIO) operated under the auspices of the Australian Chamber of Commerce and Industry, a non-governmental organisation. The ACIO in Taipei operates a visa facilitation service which enables residents of Taiwan to visit Australia without difficulty.
On the Australian side, the difficulty of according appropriate immunities and privileges to the representative offices of Taipei in Australia, in the absence of formal diplomatic relations conducted on the basis of the Vienna Convention on Diplomatic Relations 1961  and on Consular Relations 1963, has been solved through the passage of legislation: the Overseas Missions (Privileges and Immunities) Act 1995 (Cth). Under this Act, rights similar to diplomatic immunity may be accorded in Australia to representatives of entities not officially recognised by Australia as states. The Act requires application by regulation in particular cases: it was applied to the Taipei Economic and Cultural Office in October 1998. It was earlier applied to the Hong Kong Economic and Trade Office in Australia.
Formal agreements are required from time to time under which relations are conducted on such matters as aviation services, commercial arrangements, and access to Australia’s EEZ by foreign fishing vessels. In order not to compromise Australia’s One-China policy, such agreements are concluded between non-governmental or quasi-governmental entities on both sides. These might be described as ‘façade agreements’. Another technique used is the ‘memorandum of understanding’. In Australian practice, a memorandum of understanding is not necessarily an agreement governed by international law to which the Vienna Convention on the Law of Treaties 1969 applies. It is strictly speaking an agreement binding on the political and moral, but not on the legal, plane. This form may be used where formal agreements are not regarded as appropriate, such as in the case of most development assistance or aid agreements concluded by Australia. They are not published in the official Australian Treaty List. But in relations between Australia and entities not treated as sovereign, memoranda of understanding are effectively treated as legally binding. Some eleven ‘façade’ agreements or memoranda of understanding have been concluded between Australia and Taiwan between 1992 and 1998. Agreements on access by Taiwanese fishing vessels to Australia’s EEZ were concluded in 1979 and 1986 between non-governmental entities, but appear now to be no longer in force. Instead, under the Fisheries Management Act 1991 (Cth), direct application may be made by individuals or groups to the Australian Fisheries Management Authority (AFMA) for a foreign fishing licence, without the necessity of an intergovernmental agreement between Australia and the state of which the applicants are nationals.
Some, but not all, of the problems encountered by the courts in the past in giving effect to the acts of foreign governments resulted from the practice of the executive government of Australia, following the practice of the United Kingdom, of issuing formal statements of recognition of states, and of governments of states. This had meant that, when the government of a state changed through revolution or other irregular means, even though the state itself continued to be in existence, the new government had to await formal recognition before the courts could give effect to its acts and laws. The difficulty was compounded by the distinction between recognition of foreign governments de facto and recognition de jure. This unsatisfactory situation was largely remedied through the adoption of a new recognition policy by the Australian government in January 1988, whereby the Australian government ceased to issue statements of recognition of governments. It deals with new governments, or does not deal with them, as it determines to be appropriate.[52 ]The courts are left free to draw their own conclusions so far as legal effects in the domestic sphere are concerned. Changes in actual statehood, or territorial changes, continue to require a positive statement of recognition by the government. This position is similar to that of the United Kingdom, which changed its recognition policy in 1980.
Although it remains an untested proposition, it may be that the new policy makes it potentially easier for the Australian courts to give effect to the acts and legislation of the Republic of China (Taiwan), since no specific executive act of recognition of the government of the Republic of China is required as a precondition. It is agreed by all sides that there is one state of China, and that Taiwan is a province of that state. This should be borne in mind in relation to the specific legal provisions to be discussed later in this paper.
It will be seen that Australia’s legislation designed to enable commercial relations to be carried on between the two countries without undue difficulty is piecemeal rather than comprehensive. As yet there is no Australian legislation similar to the Taiwan Relations Act 1979 of the United States, which has the effect of treating Taiwan as though it was a separate sovereign state for most purposes.
A recurrent problem in the courts of states of the common law tradition has been to give the right of standing to a party to litigation, or recognition of the laws governing the relations between the parties, where the legal identity of a party is a creature of the laws of a foreign entity, or the laws themselves are passed by a legislature of a foreign entity, which is not recognised by the executive government of the forum country as a sovereign state. An example of the former case is Carl Zeiss Stiftung v Rayner and Keeler (No 2) before the House of Lords. The applicant corporation, seeking to enforce its patent rights over optical equipment that it made and exported, owed its corporate form, that is, its juridical personality, and thus its legal capacity to sue and be sued, to legislation enacted by the German Democratic Republic. At the time the action was brought, the United Kingdom government did not recognise the German Democratic Republic, established in the Soviet Occupation Zone of Germany in 1949. It was therefore argued that the Carl Zeiss entity was a ‘non-person’ so far as capacities in English law were concerned and that it lacked standing to protect its interests through the courts.
Essentially the same point arose in a later case before the English courts. In GUR Corporation v Trust Bank of Africa it was sought to join, as a party to litigation between a bank and a building contractor for the return of a security deposit, the government of Ciskei, for which the building works had been carried out. It was essential that the Ciskei government be a party to the litigation since the dispute was essentially about whether the building works had been carried out in accordance with the contract. If they had been, the contractor was entitled to the return of the security deposit lodged with the bank. If they had not, then the bank should hand the security deposit to the Ciskei government. The difficulty was that Ciskei was not recognised as a state by the British government. It was an entity created by the South African government and parliament as part of the implementation of ‘separate development’, or apartheid, policies that created separate states within South Africa for particular black population groups. The creation of these ‘bantustans’ had been condemned by the UN, and Security Council resolutions had called upon all member states not to recognise them. If Ciskei thus lacked competence to appear as a party in the English courts, in the absence of any resolution of the contractual dispute, the bank would have no alternative but to hand the security deposit back to the contractor. But in that event the bank would be exposed to the danger that it might be sued in the South African courts, where Ciskei was recognised as a legal entity, and required to pay the amount of the security deposit to it. It thus faced the prospect of double recovery against itself.
In both cases, the English courts were able to avoid the inconvenience, indeed the injustice, posed by the doctrine that the courts were bound by the policies of the executive branch of government to refuse recognition of the relevant state-like entity, by resorting to an artificial construction of the situation. In the Carl Zeiss Case, the House of Lords reasoned that, since the United Kingdom still recognised the right of the Soviet Union to exercise control over its occupation zone in eastern Germany, the organs of the German Democratic Republic must be assumed to be subordinate bodies acting in the name of the Soviet Union. Thus their acts were entitled to recognition by the courts as Soviet, not East German, acts. Similarly, in the GUR Case, the identity and acts of Ciskei were assumed to be those of South Africa itself.  These conclusions, impelled by practical considerations, are nevertheless strained and artificial, and fly in the face of the reality of the independence of the German Democratic Republic and of the Republic of Ciskei. It would be even more strained and artificial were it attempted to apply the same solution to the case of Taiwan. At least in the cases of Ciskei and the German Democratic Republic, these entities were created on the initiative, and with the consent, of the larger recognised states. The situation of the Republic of China (Taiwan) is historically and legally quite different.
In the Carl Zeiss Case, Lord Wilberforce expressed a radically alternative view that the courts might give effect to the laws and legal acts of unrecognised states or governments ‘in the interests of justice and common sense, where no consideration of public policy to the contrary has to prevail’. This view is to be much preferred.
These cases are relevant to a consideration of the possible attitude of the Australian courts because of the traditional tendency of Australian courts to have regard to decisions of the English courts, even since the abolition of rights of appeal from the Australian courts to the Privy Council in London (the effective alter ego of the House of Lords). In fact, however, no such case appears to have arisen before an Australian court. Moreover, the GUR Case seems to have stimulated a legislative response in Australia designed to avoid the difficulty in the future, at least in large part. The Foreign Corporations (Application of Laws) Act 1989 (Cth), provides that when an Australian court is called upon to apply a foreign law relating to a foreign corporation, it should apply ‘the law applied by the people in the place of incorporation regardless of whether the Australian government recognises the government in the place in question’. Thus, the right to sue or be sued of a corporation owing its juridical personality to the laws applying in the island of Taiwan, is conferred, and to that extent Taiwanese investment in Australia is made more secure.
Legislative techniques in other instances too have facilitated Canberra-Taipei relations, or have the potential to do so. Were the Republic of China (Taiwan) to be a party to litigation in its own right in an Australian court, could it plead, if it wished, sovereign immunity? Sovereign immunity, prior to 1985, was a question governed by the common law, and depended upon diplomatic recognition by the executive government. The common law has now been replaced in Australia by the Foreign States Immunities Act 1985 (Cth). While there is possibly room to argue that the Act applies only to states that are recognised as such by the executive, the Act itself is silent on the point. Moreover, the language of the Act is open to the interpretation that it may apply without any reference to the executive for a certificate or other evidence of recognition. (The different United States judicial practice of deferring to an ‘executive suggestion’ is unknown in Australia or the United Kingdom.) Section 3 of the Act defines ‘foreign state’ as meaning ‘a country the territory of which is outside Australia, being a country that is: (a) an independent sovereign state; or (b) a separate territory (whether or not it is self-governing) that is part of an independent sovereign state’. It is further provided that ‘a reference in this Act to a foreign state includes a reference to … a province, state, self-governing territory or other political subdivision (by whatever name known) of a foreign state …’. Since both Chinas regard the island of Taiwan as part of China, and since the Australian government has officially acknowledged, since 1972, that ‘Taiwan is a province of the People’s Republic of China’, it may well be that a court would uphold a claim to immunity by the government of the Republic of China on the basis of Taiwan’s ‘status, alternatively, as a “separate territory” or as a “province”’.
It will have been noted that the rather imprecise word ‘country’ is used in the Foreign States Immunities Act 1985 (Cth). It is used in other legislation as well. The word is in regular use by British and Australian writers and courts in the field of private international law (conflict of laws). As a leading Australian textbook on the subject states:
The subject known as conflict of laws is concerned with the resolution of conflicts between legal systems. Traditionally a legal system has been associated with a particular territory. Thus we speak of the law of England, of New Zealand, and of New South Wales. Each of them constitutes a separate law area or ‘country’.
Thus, although the term ‘country’ includes a sovereign independent state, it is not limited to that but embraces any distinct law district or law area. Such a district or area may be part of a foreign state or it may be a separate territory. The question of sovereignty over it or responsibility for its international relations is not, at least directly, raised by the term. This understanding appears to have been embraced by the definition of ‘foreign country’ in the Acts Interpretation Act 1901 (Cth), an Act that applies in the interpretation of all Australian federal legislation unless a special meaning to the contrary is contained in a particular Act:
‘Foreign country’ means any country (whether or not an independent sovereign state) outside Australia and the External Territories [of Australia].
The Mutual Assistance in Business Regulation Act 1992 (Cth) is an example of an Act of potential significance in Canberra-Taipei commercial relations. The object of the Act is to enable Australian business regulatory officials to render assistance to foreign regulators in their administration and enforcement of foreign business laws by obtaining from persons relevant information, documents and evidence and transmitting such material to foreign regulators. The Act applies to any ‘foreign country’. Unlike the Overseas Missions (Privileges and Immunities) Act 1995 (Cth), referred to above, and the Extradition Act 1988 (Cth), to be referred to below, there is no requirement that the Act be applied by regulation on a country-by-country basis. The Act states that, for the purposes of the Act, ‘a colony, territory or protectorate of a foreign country is taken to be part of that foreign country’. It is arguable that this internal statutory definition is additional to, and does not limit, the wider definition of ‘foreign country’ contained in the generally applicable Acts Interpretation Act. The Act may thus apply to Taiwan.
International commercial arbitration is another important subject. The International Arbitration Act 1974 (Cth) gives effect in Australia to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. It is not necessary for the purposes of the Act that the law applicable under an arbitration agreement be that of a convention country, nor that a foreign award, to be enforceable in Australia, has been made in a convention country. However, in such cases, an agreement and an award may only be enforced in Australia by a person who is domiciled or regularly resident in Australia. These provisions serve to preserve the situation of Taiwan in Australia, notwithstanding that the Republic of China is no longer recognised as a party to the Convention of 1958.
With respect to the enforcement of foreign court judgments, there is an interesting concurrent set of laws operating in Australia with implications for Canberra-Taipei relations. At common law, foreign judgments (that is, judgments of courts in a separate ‘law area’ or ‘country’, as explained above) can be enforced by the Australian courts on four conditions: (a) the foreign court must have exercised a jurisdiction that the Australian courts will recognise; (b) the foreign judgment must be final and conclusive; (c) there must be an identity of parties in the foreign and Australian proceedings; and (d) if based on a judgment in personam, the judgment must be for a fixed sum. A parallel system of statutory recognition of more extensive forms of enforcement of foreign judgments was established by the Australian state parliaments following the British model of 1933. These Acts have now been replaced by an Australia-wide statutory system under the federal Foreign Judgments Act 1991 (Cth). That Act requires specific application to particular countries, or parts of countries, by regulation. The Act has been applied to ‘Taiwan, China’ since 1996.
There are some other examples of statutory references to ‘country’. Some are relatively technical and have little practical relevance to Canberra-Taipei relations. Others have followed the pattern of requiring a specific application on a country-by-country basis, such as the Mutual Assistance in Criminal Matters Act 1987 (Cth), the Extradition Act 1988 (Cth) and the International Transfer of Prisoners Act 1997 (Cth). No doubt the application of these Acts could be of considerable importance in Canberra-Taipei relations, but would be subject to political considerations, above all Canberra-Beijing relations, before such an executive application would be made. All these Acts, moreover, require the existence of an international agreement for reciprocal cooperation in mutual assistance in criminal matters, extradition, or the repatriation of convicted offenders, although exceptionally extradition may take place from Australia on the basis of regulations in the absence of an agreement.
A case with potential consequences for Canberra-Taipei relations but dealing with the status of the Special Administrative Region of Hong Kong (‘the Hong Kong SAR’) was decided in 1997 by the High Court of Australia. In that case, argument centred on the meaning of the word ‘territory’ as it appears in the Extradition Act 1988 (Cth). The Extradition Act allows for application in relation to a declared ‘extradition country’. An extradition country is defined in section 5 of the Act as meaning:
(a) any country (other than New Zealand) that is declared by the regulations to be an extradition country; (b) any of the following that is declared by the regulations to be an extradition country:
(i) a colony, territory or protectorate of a country;
(ii) a territory for the international relations of which a country is responsible.
In Attorney-General for the Commonwealth v Tse Chu-fai it was argued by a businessman, who was an Australian citizen charged with certain fraud offences in Hong Kong, that the Hong Kong SAR did not fit any of the above categories and thus that the regulations applying the Act to Hong Kong were invalid as ultra vires. Clearly, the Hong Kong SAR was not a colony or protectorate of China, in the technical sense of those words, nor was it a ‘territory’ of China if that word were interpreted ejusdem generis with colony and protectorate, that is, as a non-metropolitan territory entitled to self-determination and independence under UN resolutions relating to decolonisation.[73 ]The Court decided that the Hong Kong SAR satisfied the description in (b)(ii), that is, that it was a territory for the international relations of which China was responsible. Notwithstanding the very wide-ranging delegation to Hong Kong of the power to conclude agreements and enter into relations with other countries and institutions, nevertheless the People’s Republic of China remained ultimately responsible for the foreign affairs of Hong Kong pursuant to article 13 of the Basic Law of the Hong Kong SAR. It might be objected that this view is at variance with the fact that the phrase ‘territory for the international relations of which [a state] is responsible’ is a term of art in UN parlance that would have been present to the minds of the drafters of the 1988 Act. That phrase means a territory, other than a colony or protectorate, whose international relations are conducted by a state, such as a trust territory, or a self-governing entity that has delegated its foreign affairs and defence to another country (for example, the Cook Islands, and Niue). Such territories too are entitled to the right of self-determination under UN resolutions and are subject to the scrutiny of the UN Decolonisation Committee (‘the Committee of 24’). That Committee had, at the insistence of the People’s Republic of China, removed Hong Kong from its agenda as far back as 1972. Thus it might have been argued that Hong Kong should be regarded by the Court as part of metropolitan China, as much a metropolitan territory as Tasmania is of Australia, and not as a territory under either (b)(i) or (ii).
The opportunity was missed by the Court to have held that the Hong Kong SAR might simply have been regarded as a ‘country’ under section 5(a). As explained above, the word ‘country’ is not confined to meaning a sovereign independent state but may also embrace territorial entities that constitute distinct law areas. If that had been the decision, it would also have opened the way for Taiwan to be declared an extradition country for the purposes of the Act. Indeed, that way is not necessarily foreclosed for the future, since there was no holding by the Court to the positive effect that section 5(a) could not apply. Since argument centred on (b)(ii) the Court considered only that ground of application; that ground clearly could not describe the position of the Republic of China (Taiwan). Nevertheless, Australian extradition law requires reciprocity in order for it to be applied to a foreign country, secured either by treaty, or by the existence of laws enabling extradition to be granted in the absence of a treaty. It is understood that the present laws of the Republic of China require the existence of a treaty as a condition of extradition. That requirement might be satisfied on the Taiwan side by a façade agreement or a memorandum of understanding.
Canberra-Taipei relations have been remarkably successful, notwithstanding the legal and political obstacles strewn in their path by virtue of Australia’s commitment to maintaining and improving relations with Beijing. As confidence grows, especially in the latter relationship, bolder steps might be taken by Australia to bring its links with Taipei more out of the shadows. It may be that Canberra lacks the political will born of economic and military power that has enabled the United States to take a more forthright attitude to relations with Taiwan, as evidenced by the Taiwan Relations Act 1979 and its defence commitment to the island. Much will depend also on the future course of relations between Taiwan and the Chinese mainland, termed ‘cross-strait relations’ by both the People’s Republic of China and the Republic of China. In the meantime a number of small, cautious, but significant further steps might be taken by Australia as discussed in this paper.
[∗] Challis Professor of International Law, University of Sydney.
 Commonwealth of Australia, Department of Foreign Affairs and Trade, Fact Sheet: Chinese Taipei <http://www .dfat.gov.au/geo/fs/taiw.pdf> .
 Commonwealth of Australia, Department of Foreign Affairs and Trade, In the National Interest Australia’s Foreign and Trade Policy White Paper (1997) <http://www.dfat.gov.au/ini/whitepaper.pdf> .
 Commonwealth of Australia, Department of Defence, Australia’s Strategic Policy (1997) <http://www.minister.defence.gov.au//sr97/SR97.pdf> .
 A Doak Barnett, China on the Eve of Communist Takeover (1963).
[5 ] For examples of these declarations, see the annual volumes of the publication Status of Multilateral Conventions of which the United Nations Secretary-General is Depositary.
 See generally J Dugard, Recognition and the United Nations (1987).
 GA Res 2758 (XXVI) (1971).
 For details see the website of the Government Information Office of the Republic of China: <http://www.gio.gov.tw> . See also H Chiu, ‘The International Status of the Republic of China’ (rev ed) (1992) 5 Occasional Papers/Reprints Series in Contemporary Asian Studies, School of Law, University of Maryland, 24.
 On Taiwan’s continuing efforts to achieve membership of international organisations see M S Zaid, ‘Taiwan: it Looks Like it, it Acts Like it, but is it a State? The Ability to Achieve a Dream through Membership of International Organizations’ (1998) 32 New England Law Review 805.
 Commonwealth, Parliamentary Debates, Senate, 27 March 1995, 2205 (Senator McMullan, Australian Trade Minister).
 Communication of the Minister of Foreign Affairs of the People’s Republic of China to the Secretary-General of the United Nations, received on 29 September 1972, ‘1. Charter of the United Nations’ Status of Multilateral Conventions of which the United Nations Secretary-General is Depositary (1997) ch 1, fn 3.
 D P O’Connell, International Law (2nd ed, 1970) vol 1, 394. An argued precedent for eliding the distinction, driven by ideological attitudes, is the rejection by the Soviets of the pre-1917 treaties of Imperial Russia.
  ICJ Rep 3. The Treaty of Amity (1955) between the United States and Iran has also been recognised as continuing to be applicable in relations between the United States and the Islamic Republic of Iran in decisions of the US-Iran Claims Tribunal.
 Agreement on Exchange of Postal Parcels, 22 March 1955; Exchange of Notes on Reciprocal Protection of Inventions and Trade Marks, 29 July 1955; and the Trade Agreement, 22 April 1968.
 The Australian Treaty List (to 31 December 1989) ATS No 38.
 For an application of this Act in relation to the preservation of the copyright provisions of the United States/Republic of China Treaty of Friendship Commerce and Navigation, 1946, see New York Chinese TV Programs Inc v U E Enterprises  USCA2 100; 954 F 2d 847 (2d Cir 1992). On the Taiwan Relations Act generally, see L F Damrosch, ‘The Taiwan Relations Act after Ten Years’ (1989) 3 The Journal of Asian Law 157.
 Atlantic Mutual Insurance Co v Northwest Airlines 796 F Supp 1188 (E D Wis 1992). On this case see D C K Chow, ‘Recognizing the Environmental Costs of the Recognition Problem: The Advantages of Taiwan’s Direct Participation in International Environmental Law Treaties’ (1995) 14 Stanford Environmental Law Journal 256, 277. Chow is surely wrong, however, in seeing a conflict between this decision and the decision in New York Chinese TV Programs Case, above n 17, since the latter case was decided on the basis of the Taiwan Relations Act, and not, as Chow asserts, on the basis that the court considered Taiwan ‘to be a nation-state under international law’.
 Ibid, affirmed on other grounds USCA7 557; , 24 F 3d 958 (7th Cir 1994).
 ‘President’s Memorandum for All Departments and Agencies: Relations with the People of Taiwan, 1979’ US Code Congressional & Administrative News 36, 75, cited by Chow, above n 18.
 The ICJ has recognised and elaborated upon the processes of creation of customary international law in a number of cases, notably the North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands)  ICJ Rep 3, and the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits)  ICJ Rep 14.
 See generally Chiu, above n 8.
 J Crawford, The Creation of States in International Law (1979) 146-152.
 I Brownlie, Principles of Public International Law (5th ed, 1998) 86-89.
 H Lauterpacht, Recognition in International Law (1947) 6.
 T C Chen, The International Law of Recognition with Special Reference to Practice in Great Britain and the United States (1951) 77-78. Although, for the view that the role of the United Nations in assessing the qualifications for membership of that organisation of near universal participation has tended to reassert some claims of the constitutive theory, see J Dugard, above n 6.
 See review of writers in O’Connell, above n 13, 128-130.
 UN Charter (1945) arts 1(1), 2(4), 39.
 The Nuremberg Charter (1946), the Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948), 78 UNTS 277,  ATS No 2, and customary international law.
 UN Charter (1945) art 51; and customary international law. The United States regarded the Republic of Vietnam (South Vietnam) as entitled, in the period 1955 to 1975, to invoke the right of individual and collective self-defence, and the Democratic Republic of Vietnam (North Vietnam) as also subject to international law, including the laws of armed conflict, notwithstanding the scant recognition of the former by the international community, and non-recognition of the latter by the United States and others (including Australia): The Legality of United States Participation in the Defense of Vietnam, Memorandum of L C Meeker, Legal Adviser of the Department of State, 4 March (1966) 54 Department of State Bulletin 474. The Meeker Memorandum is reprinted in (1966) 60 American Journal of International Law 565-585, and in R A Falk (ed), The Vietnam War and International Law (1968) vol 1, 583-603.
 These include those principles recognised in the Declaration of the United Nations Conference on the Human Environment, Stockholm 1972; the Rio Declaration on Environment and Development, Rio de Janeiro 1992, and associated conventions (on climate change, biological diversity, and forests); and the United Nations Convention on the Law of the Sea (10 December 1982) reprinted in (1982) 21 ILM 126.
 Convention on the Law of the Sea, ibid arts 116-120; the Declaration of Cancun on Responsible Fishing 1992, Declaration is reproduced in FAO, Technical Papers presented at the Technical Consultation on High Seas Fishing, Rome 7-15 September 1992 Fisheries Report No 484, Supp, 70; the Agreement for the Implementation of the Provisions of United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1982, (1995) 34 ILM 1542.
 North Sea Continental Shelf Cases, above n 21 -.
 UN Convention on the Law of the Sea 1982, above n 32.
 (1997-1998) 16 Chinese Yearbook of International Law and Affairs 124-137.
 J A Roach and R W Smith, United States Responses to Excessive Maritime Claims (2nd ed, 1996) 260-261.
 People’s Republic of China, The Law on the Territorial Sea and the Contiguous Zone, 25 February 1992 art 6; United Nations (August 1992) 21 Law of the Sea Bulletin 25.
 Australia-People’s Republic of China, Joint Communiqué, signed at Paris, 22 December 1972: (1970-73) 5 Aust YBIL 149.
 This was agreed between Australia and Taiwan in 1991, with the Australian Foreign Minister stating Australia’s ‘strong support for the development of a mutually beneficial, unofficial, commercial relationship with Taiwan’: (1992) 13 Aust YBIL 375. This is consistent with a pattern followed by other states. For a list of those states not recognising the Republic of China diplomatically but maintaining relations on a similar basis see Chiu, above n 8, appendices II and IV; and the Republic of China government foreign ministry website <http://www.mofa.gov.tw> .
 This terminology is similar to that used by Japan and other states. When Japan recognised the Republic of China as the sole government of China in 1972 it established a private entity, the ‘Interchange Association’, with offices in Tokyo and Taipei through which to continue Japan’s extensive trade and other relations with Taiwan. The counterpart organisation in Taipei is the ‘Association of East Asian Relations’. The American Institute in Taiwan is the entity that represents the United States in Taiwan. It is staffed by foreign service officers on leave of absence from the State Department. See H Chiu, ‘The International Legal Status of the Republic of China’ (1989) 9 Chinese Yearbook of International Law and Affairs 1, 15.
 Vienna Convention on Diplomatic Relations and Optional Protocols (18 April 1961), 500 UNTS 93.
 Vienna Convention on Consular Relations and Optional Protocols (24 April 1963), 596 UNTS 262.
 Taipei Economic and Cultural Office (Privileges and Immunities) Regulations, 1998, SR 1998 No 300.
 Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations, 1996, SR 1996 No 334. The other entities referred to in the Minister’s second reading speech in Parliament on the Bill that became the Act, as examples of possible subjects for its application, were New Caledonia and the Cook Islands. Taiwan was not mentioned: (1996) 16 Aust YBIL 543.
 Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331; 8 ILM 679.
 Australia, Department of Foreign Affairs and Trade, The Conclusion of Treaties and other International Arrangements (1987).
 Scientific Co-operation Agreement between the Australian Academy of Science, the Australian Academy of Technological Sciences and Engineering, and the National Foundation for Science and Technology, National Science Council of Taiwan, 24-25 March 1992; Memorandum of Understanding between the Australian Commerce and Industry Office and the National Bureau of Standards in Taipei on the Protection of Industrial Property, Taipei, 17 August 1993; Memorandum of Understanding between the Australian Commerce and Industry Office and the Industrial Development and Investment Center in Taipei on the Promotion of Investment and Technology Transfer, Taipei, 17 August 1993; Memorandum of Understanding between the Australian Commerce and Industry Office and the Food and Agriculture Department of the Council of Agriculture in Taipei on Quarantine Conditions for Export of Fresh Australian Apples where Coddling Moth exists, and Airfreight of Produce from Australia, Taipei, 24 March 1995; Memorandum of Understanding for the Exchange of International Airmail between the Australian Postal Corporation in Melbourne and the Directorate General of Posts in Taipei, Melbourne-Taipei, 5-12 July 1995; Exchange of Letters between the Australian Securities Commission and the Securities and Exchange Commission of Taiwan relating to the Regulation and Supervision of the Futures Market, 2 November 1995; Memorandum of Understanding between the Australian Commerce and Industry Office and the Board of Foreign Trade in Taipei on the VECCI/CETRA Carnet for the Temporary Admission of Goods, Taipei, 21 November 1995; Agreement between the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office concerning the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, and Annex, Canberra, 29 May 1996; Cooperation and Coordination Arrangement between the Australian Commerce and Industry Office, Taipei, and the Taipei Economic and Cultural Office regarding the Application of the Competition and Fair Trading Laws, Taipei, 13 September 1996; Exchange of Letters constituting an Arrangement concerning Cooperation and Coordination between the Australian Competition and Consumer Commission and the Fair Trade Commission of Taiwan, Canberra-Taipei, 13 September 1996; Memorandum of Understanding between the Australian Commerce and Industry Office in Taipei and the Taipei Economic and Cultural Office, Australia, regarding Regulatory Cooperation in the Development of Mass Media, Taipei, 12 March 1997; Relationship Agreement between the Commonwealth Scientific and Industrial Research Organisation of Australia and the Industrial Technology Research Institute of Taiwan, 6 April 1999.
 Fisheries Management Act 1991 (Cth) s 34.
 Luther v James Sagor & Co  3 KB 532 (English Court of Appeal).
 Bank of Ethiopia v National Bank of Egypt and Liquori  LR Ch 513 (English High Court); The Arantzazu Mendi  AC 256 (House of Lords).
 The text of this announcement is reprinted in  AUYrBkIntLaw 17; (1992) 12 Aust YBIL 357. For an analysis, see H Charlesworth, ‘The New Australian Recognition Policy in Comparative Perspective’  MelbULawRw 1; (1991) 18 Melbourne University Law Review 1; A Greig, ‘The Effects in Municipal Law of Australia’s New Recognition Policy’  AUYrBkIntLaw 2; (1991) 11 Aust YBIL 33.
 22 United States Code 3310.
  1 AC 853.
  QB 599 (Court of Appeal).
 Above n 54.
 Above n 55.
 Above n 54, 954. See also the similar views of Lord Denning MR in the English Court of Appeal in a case involving the unrecognised Turkish Republic of Northern Cyprus: Hesperides Hotels Ltd v Aegean Holidays Ltd  QB 205.
 The case of Chang v Registrar of Titles  HCA 1; (1976) 137 CLR 177 concerned the sale of a house property in a suburb of Melbourne by the Republic of China on 21 December 1972, that is, on the day before the withdrawal of recognition by Australia of the Republic of China as the government of China. The purchasers sought a vesting order from the Registrar of Titles. They avoided suing the Republic of China in view of the complications that would have arisen thereby. The People’s Republic of China did not intervene in the proceedings. The High Court of Australia held that in the absence of the vendor as a party to the proceedings the matter could not be decided. Jacobs J declared that ‘the Republic of China, which can now only be represented by its government recognized by Australia, must necessarily be heard on the question whether it should be divested of its title before it has actually received the purchase money’.
 Sections 7, 9.
 See eg, the decision of the House of Lords in The Arantzazu Mendi, above n 51. The famous case disputing the lawful ownership of aircraft taken by the Republic of China government to Hong Kong in 1949 and sold there to an American buyer just before the United Kingdom recognised the People’s Republic of China in 1950 would have raised the question of sovereign immunity had that issue not been set aside, most unusually, by the making of a special Order-in-Council: Civil Air Transport Inc v Central Air Transport Corp  AC 70.
 See text accompanying above n 39.
 P E Nygh, Conflict of Laws in Australia (6th ed, 1995) 6.
 Section 22.
 Section 3(2).
 (10 June 1958), 330 UNTS 38 (commonly known as the New York Convention).
 International Arbitration Act 1974 (Cth) ss 7, 8.
 Nygh, above n 63, chs 9, 10.
 Foreign Judgments Regulations, SR 1996 No 145. The Act is applied by the Regulations to the Supreme Court and High Court of Taiwan, and Part 2 of the Act is extended to each District Court of Taiwan. See also the Foreign Judgments Act 1991 (Cth) s 3: definition of ‘country’. The Act was also applied to the Hong Kong Special Administrative Region (SAR) of China by SR 1997 No 205.
 Eg, the Domicile Act 1982 (Cth) s 4.
 Extradition Act 1988 (Cth) s 11.
 (1998) 153 ALR 128.
[73 ] GA Res 1514 (XV) and 1541 (XV) (1960).
 (1998) 153 ALR 128, 141.
 Cook Islands and Niue, in the South Pacific, are self-governing in free association with New Zealand. They are fully responsible for internal affairs and New Zealand retains responsibility for external affairs, in consultation with the Cook Islands and Niue.
 For a recent survey see J I Charney and J R V Prescott, ‘Resolving Cross-Strait Relations between China and Taiwan’ (2000) 94 American Journal of International Law 453.