Editor’s note:
One of the most complicated issues in contemporary international relations is the status of the self-governing island of Taiwan and its government in Taipei, formally called the government of the Republic of China. Is Taiwan a sovereign state? What is the legal relationship between the Republic of China (ROC) and the People’s Republic of China (PRC)? How much of US support for Taiwan is grounded in law and how much in policy? Does international law recognize Taiwan’s right of self-defense or the right of its friends to come to its aid?
During the 2024-2025 academic year, the U.S.-Asia Law Institute (USALI) hosted a series of speakers to address these and related questions from different perspectives. In this April 3, 2025 talk, Yu-Jie Chen, an assistant research professor at the Institutum Iurisprudentiae of Academia Sinica, explains how Taiwan defines itself in its own constitution, and argues that its “constitutional order” has evolved beyond the text of the constitution due to democratization and Taiwanization. She asks: “Shouldn't Taiwan's perspective be part of the conversation when discussing Taiwan?”
The following excerpts from that talk have been edited lightly for clarity and brevity. A full recording of the program can be found here. The discussion was moderated by Professor Emeritus Jerome A. Cohen, founding director of the US-Asia Law Institute.
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By Yu-Jie Chen
In today's presentation, I want to make three points:
Republic of China (ROC) law is not static and it has been transformed.
The ROC Constitution has been tailored to meet the circumstances of Taiwan and Taiwan only in a process of Taiwanization.
There is a substantial discontinuity between the old ROC Constitution and the current ROC Constitution, to the point that the current ROC constitutional order justifies Taiwan's status as a state.
What was the old ROC constitutional order? The ROC Constitution was adopted in 1946 in Nanjing by the ROC National Assembly, and came into effect in 1947. It was a constitutional order for ruling mainland China. … The ROC government anticipated that Taiwan would be returned from Japan to China in the years to come. [Taiwan had been annexed by Japan in 1895.] The ROC government also applied this constitutional order to Taiwan, which it occupied after World War II ended. However, contrary to what the ROC had hoped, Taiwan's title was not transferred [by treaty] to the Chinese state. For more about this, I recommend that people watch Professor Peter Dutton's video talk in this Taiwan Legal series, in which he discusses the post-war legal arrangements that intentionally left Taiwan's status unsettled.
The 1947 Constitution was short-lived in mainland China because in 1949 the People’s Republic of China was established and the ROC government retreated to Taiwan. However, it was a constitution impossible to practice in Taiwan. The state structure provided for in the 1947 ROC Constitution was for the whole of China. For example, after 1949 it was impossible for the ROC government to hold elections in mainland China for its National Assembly's representatives in accordance with the ROC Constitution.
Nevertheless, [then-President] Chiang Kai-shek wanted to maintain the illusion that his government still ruled mainland China. Therefore, the ROC government suspended all the elections in Taiwan to allow those representatives elected in the mainland in 1947 to continue their term in Taiwan for the next four decades. This was intended to maintain the false appearance that the ROC government still represented mainland China. As these National Assembly delegates served from 1947 to 1991, they were in Taiwan called the “10,000-year delegates.”
Fast forward to 1991. By the time of Taiwan's democratization, Taiwanese society had long realized that the 1947 ROC Constitution was unrealistic and unsustainable for Taiwan. It needed to be changed to suit the reality of Taiwan, and democratization enabled these necessary changes to happen. This is what prompted the first constitutional amendment in 1991. ... It removed the 10,000-year parliament that I just described. … Elections began to be held in Taiwan, and they were limited to Taiwan's population.
The second achievement was that the constitutional amendment – we refer to it as the “additional articles” –authorized a special law to deal with cross-strait relations. This is the 1992 Cross-Strait Relations Act. The law separates Taiwan from what it calls the “mainland area,” which the government recognized as being out of the ROC's jurisdiction.
Essentially, PRC citizens … are regarded as foreigners in every sense except by name in Taiwan’s legal system. … The mainland area is regarded as a foreign land in practice.
Under this law, PRC citizens are labeled as people of the mainland area. They’re not foreigners per se, but they're also not ROC citizens and therefore they are excluded from Taiwan's political community. They cannot vote, and they cannot claim the political rights enjoyed by Taiwanese as a political community. Essentially, PRC citizens ... are regarded as foreigners in every sense except by name in Taiwan's legal system.
Another thing is territory. The 1991 constitutional amendment and the Cross-Strait Relations Act both label the “mainland area” as the territory of the ROC. But despite this label, the mainland area is regarded as a foreign land in practice.
Third, the 1991 constitutional amendment allows the PRC government to be branded no longer as a rebellious group, but as an equal political entity. ... that essentially is considered to be legitimately ruling mainland China, from Taiwan's perspective.
This brings me to my second point, that the current ROC constitutional order is a product of Taiwanization. The historical ROC claims sovereign powers over mainland China. But the current ROC claims sovereign power only over Taiwan. Specifically, [the islands of] Taiwan, Penghu, Jinmen, and Mazu. It doesn't extend its sovereign claim to the mainland area.
The political community also is very different between these two constitutional orders. ... The current ROC Constitution regards its political community as Taiwanese and Taiwanese only.
The current ROC Constitution regards its political community as Taiwanese and Taiwanese only.
[A third difference] is international identity. ... The historical ROC claimed to represent mainland Chinese as the government of the Chinese state. In contrast, according to the current ROC Constitutional order since the 1990s, Taiwan's government has consistently claimed in its foreign relationships to represent the Taiwanese and Taiwanese only, not including mainland Chinese, and not seeking to represent the state of China.
What is the implication of this Taiwanization process for cross-strait relations? ... [President] Lee Teng-hui famously used the term “special state-to-state relations” to refer to the relations across the Taiwan Strait. The idea was that the ROC on Taiwan is already a sovereign state, despite its special relations with mainland China. According to Lee Teng-hui, ... “there's really no need for Taiwan to declare independence again.”
Chen Shui-bian, the first Democratic Progressive Party (DPP) president, used the formulation of “one country on each side.” A similar idea has been expressed by later DPP presidents, including Tsai Ing-wen and the incumbent Lai Ching-te, with both asserting that the ROC and the PRC are not subordinate to each other. These formulas reflect the Taiwanization process of the ROC. These leaders often combine Taiwan with the ROC to refer to our country. They use phrases such as “ROC on Taiwan,” “ROC in Taiwan,” “ROC (Taiwan), or simply “ROC Taiwan.”
The exception to this Taiwanization was former President Ma Ying-jeou. Ma stands closely aligned with the historical ROC's position that Taiwan is part of China, but he asserted that China refers to the Republic of China, not the People's Republic of China. This viewpoint is known as the “one China, respective interpretations” formula. This pro-unification position is a minority position in Taiwan. As of 2024, only 1.1 percent of Taiwanese favor unification as soon as possible, and the support for maintaining the status quo while moving towards unification only reached 5.8 percent. The majority of Taiwanese prefer either to maintain the status quo or to advocate for independence.
Now we reach the third point, discontinuity. ... When international scholars examine Taiwan’s status, they often overlook the transformation and Taiwanization process we discussed. The late James Crawford of the International Court of Justice concluded that Taiwan is not a state because the government in Taiwan continues to characterize itself as the Republic of China. It is still the case, Crawford concluded, that Taiwan has not unequivocally declared its independence from China. ...
Many international scholars agree that Taiwan meets the statehood requirements, including a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. But they argue, based on Crawford's influential scholarship, that the problem is that Taiwan continues to identify itself as the ROC. This suggests continuity with the Chinese state, and consequently blurs Taiwan's claim to independence.
Many international scholars agree that Taiwan meets the statehood requirements …. But they argue that the problem is Taiwan continues to identify itself as the ROC.
I believe this perspective oversimplifies the issue by placing too much emphasis on formalities while overlooking the substance, that is, the real political and legal changes in Taiwan. As I have discussed, Taiwan's constitutional amendments as well as Taiwan's constitutional practice since 1991 point to a discontinuity between the historical ROC and the current ROC in Taiwan. ... Today's Taiwan no longer seeks to represent China.
Let me close by emphasizing that Taiwan’s status is not just an academic issue. It has real-world consequences. Just in the past few days China launched yet another large-scale military exercise encircling Taiwan, the sixth one since 2022. In reporting China's exercise, the international media continued to use phrases like “Taiwan is considered a breakaway province from China's point of view.”
How about Taiwan's point of view? Shouldn't Taiwan's perspective be part of the conversation when discussing Taiwan? If we only limit the discussion to China's unilateral claim that Taiwan is part of China ... how can we talk meaningfully about keeping Taiwan safe?
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Cohen: What do third countries say about the status of Taiwan? Are they of the view that Taiwan is independent?
Chen: Not all countries agree with Beijing's “one China principle.” Beijing's one China principle consists of three parts: there is only one China; the PRC government is the legitimate government of China; and Taiwan is part of China. Some countries do not agree with the last position, that Taiwan is part of China. ... . In the [1972] Shanghai Communiqué, famously, the US government tried to navigate this issue by saying that it acknowledged the PRC position, it did not challenge it, but it never said that it agreed with the PRC’s sovereign claim over China.
Cohen: What do you advise the Taiwan government to do?
Chen: It's very challenging. The question is not that Taiwanese people do not know what they want. The question really is: what would the PRC do if Taiwanese people decide to carry out what they want? If we look at the public opinion polls, year after year, you see a clear trend of a rising Taiwanese identity, and more support for maintaining the status quo. ... Status quo is a code word for keeping Taiwan the way it is. ... Why do we need to use this secret word to indicate our intention? That is because if Taiwan says we want to declare independence tomorrow, there will be missiles firing across the Taiwan Strait.
Cohen: What do you think is going to happen? Are things just likely to move on the way they are?
Chen: I worry about these very dangerous military exercises and gray zone activities that China has been doing around the Taiwan Strait. It definitely sends a signal about China's intention. There are all kinds of estimates in terms of when China will invade Taiwan – a prospect I don’t think we can easily dismiss. But there are also other coercive measures that China can resort to other than a full-on invasion, such as blockade, cutting cables, or sending disinformation through cyber attack.
Cohen: What about the public international law argument that has been previously discussed, that Taiwan was part of Japan taken by a treaty, then Japan lost the war and returned Taiwan to China? Isn't it obvious that under public international law, Taiwan would be considered part of China?
Chen: This is the argument of the PRC. ... It’s not the only point of view. There are many scholars who have their own arguments about Taiwan. One is by Professor Chen Long-zhi, who raised the “effective self-determination theory.” That is to say, Taiwan has effectively exercised self-determination throughout its democratization process, and therefore has asserted itself to be a state.
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Audience question: As you say, international law arguably sees the question of Taiwan's legal status as unsettled since 1947. How do we reconcile this view with the ROC Constitution, which does see Taiwan as part of the ROC? Would you say that the 1991 amendments declare that Taiwan is part of a smaller ROC that consists only of Taiwan, the island, and the handful of islands?
Chen: Yes, that's indeed my claim. ... You can say that the ROC has changed to a smaller ROC, but I would say the changes are so significant along the criteria of statehood that this is a new state since 1991.
I would say the changes are so significant along the criteria of statehood that this is a new state since 1991.
Having said that, there is the baggage of the historical ROC still there in the current ROC Constitution. ... If you look at the text of the constitution, yes, it says that the territory hasn't been changed. It hasn't been changed in the text but in practice has it been changed? ... I cannot find anything in Taiwan's constitutional practice that suggests that the Taiwan government thinks it still owns the territory of the mainland area.
Q: Why hasn’t Taiwan used a referendum to address its relationship with China in order to declare independence?
Chen: There are many reasons why a referendum is not happening. First, of course, is China's threat of force. ... Second, it requires three-fourths of the legislative representatives to be present when approving the recommendation for referendum. Three-fourths is super high for Taiwan's partisan environment. ... No political party in Taiwan would be able to reach that threshold. And then, if it does get the approval from the Legislative Yuan, the proposal has to be approved by the population, and that also requires a very high threshold, half of the eligible voters. Not just those casting votes. Those are two levels of mission impossible. That's why we have a constitution that has not been amended since 2007. It’s unlikely that there will be any amendments in the near future.
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Yu-Jie Chen is an assistant research professor at the Institutum Iurisprudentiae of Academia Sinica and a non-resident affiliated scholar at the U.S.-Asia Law Institute.
Suggested citation:
Yu-Jie Chen, “What Does ROC Law Say About Taiwan?” USALI Talking Points, June 6, 2025, https://usali.org/publications/what-does-roc-law-say-about-taiwan.
The views expressed are those of the speaker, and do not represent those of USALI or NYU.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.