Sovereignty

    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 altered.
    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 sufficient consideration.
    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 same.
    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 not applicable.
    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.

    PRESCRIPTION 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 interruption)
    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 awkward.

    SELF-DETERMINATION 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 subject.
    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.