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Thread: ICJ: Kosovo Independence is Legal

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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Laila View Post
    It means we should theoretically be able to declare ourselves Independent and it should be recognised.
    Recognition is a political act, not a legal one. I thought Somaliland already declared independence from Somalia. Just because a declaration of independence is legal doesn't obligate a state to recognize the independence of that state.
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    Re: ICJ: Kosovo Independence is Legal

    I do find it interesting that of the four judges that voted against the majority decision, two are from countries with an indirect vested interest in the outcome of the advisory opinion.

    Mohamed Bennouna is from Morocco, and of course parallels to Western Sahara, to which Morocco claims sovereignty, has already been brought up in this thread.

    Leonid Skotnikov is from Russia and everyone knows from day one that Russia was Serbia's strongest supporter on this issue.

    The other two are from Slovakia and Sierra Leone.
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    Re: ICJ: Kosovo Independence is Legal

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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by ludahai View Post
    The ROC military occupied Taiwan in 1946 ON BEHALF of the allies. There was no transfer of sovereignty.
    It wasn't on anyone's behalf and that's just an absurd notion altogether. Had anyone considered Taiwan to be anything but a territory of China they would not have consented to the ROC having control of Taiwan.

    However, these are not treaties -- they are statements. Under international law, the only way territory can be transferred from one state to another state is through a signed, ratified, and executed treaty between the states involved. There is no such treaty in which Japan ceded control of Taiwan to another state.
    The Japanese Instrument of Surrender was a written agreement signed by a competent representative of the Japanese government. It was not called a treaty, but it was by all means a treaty under international law.

    Some cite the Treaty of Taipei, but that occurred AFTER Japan surrendered soveriegnty without assigning it to another state in the Peace Treaty of San Francisco.
    Those treaties did not say anything about sovereignty at all. Japan just renounced any claim to those territories because under the surrender they were already considered to have been transferred to China.

    Hardly, given that Taiwan has its own functioning government that represents the people, has its own armed forces, its own currency
    None of these have any meaning in terms of the legal case.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Demon of Light View Post
    Taiwan definitely does not have a stronger case. That Taiwan is a part of China is undisputed in the world as well as supported by every relevant part of international law.
    The Taiwanese certainly dispute it, and while Red China has state sovereignty Taiwan has the only state sovereignty which matters IE popular sovereignty which Red China certainly lacks, on that basis Taiwan is more of a legitimate state than Red China, if I am to accept the sovereignty of states at all it can only be those states which govern with the consent of the governed, but of course I don't accept the sovereignty of states but rather uphold the concept that sovereignty should be invested within the individual if not then we are all nothing more than the property of the state but at least under popular sovereignty the slaves get a vote.
    Last edited by Agent Ferris; 07-30-10 at 01:37 AM.

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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Demon of Light View Post
    It wasn't on anyone's behalf and that's just an absurd notion altogether. Had anyone considered Taiwan to be anything but a territory of China they would not have consented to the ROC having control of Taiwan.
    Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?

    The Japanese Instrument of Surrender was a written agreement signed by a competent representative of the Japanese government. It was not called a treaty, but it was by all means a treaty under international law.
    Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.

    Those treaties did not say anything about sovereignty at all. Japan just renounced any claim to those territories because under the surrender they were already considered to have been transferred to China.
    They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.

    None of these have any meaning in terms of the legal case.
    Actually, if you look at ICJ decisions over the past 20-30 years, they have been using a doctrine known as effective control. In this case, effective control over Taiwan is held by its people and has been for fourteen years. So, even IF China had a legal claim to Taiwan (and it doesn't), the Taiwanese people and NOT China have effective control over the island.

    Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by ludahai View Post
    Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?



    Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.



    They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.



    Actually, if you look at ICJ decisions over the past 20-30 years, they have been using a doctrine known as effective control. In this case, effective control over Taiwan is held by its people and has been for fourteen years. So, even IF China had a legal claim to Taiwan (and it doesn't), the Taiwanese people and NOT China have effective control over the island.

    Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.
    Nothing legally to stop it, it might not be recognized by many states, which does not really matter in the case of Taiwan as it would still do a lot of trade with plenty of countries. What would and does stop Taiwan from declaring independance is the the very realistic threat of China taking military action should it do so
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Lord Tammerlain View Post
    Nothing legally to stop it, it might not be recognized by many states, which does not really matter in the case of Taiwan as it would still do a lot of trade with plenty of countries. What would and does stop Taiwan from declaring independance is the the very realistic threat of China taking military action should it do so
    Actually, it is more like the pro-KMT gerrymandered legislative system that has made it impossible for Taiwan to declare independence...
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by ludahai View Post
    Wrong. ROC forces occupied Taiwan in belligerant occupation in accordance with General Order 1. In the absense of a treaty, there is no transfer of sovereignty. Under this theory, why isn't northern Vietnam part of China and why isn't Manchuria part of Russia?
    The Soviets had already agreed to the declaration which called for returning Manchuria to China. None of the other territories were previously territories of China.

    Not so. It was not ratified by any government and only representatives of the Japanese, American and several other MILITARIES signed the document. At that time, no ratification no treaty. It was not signed by civilian government officials.
    For heaven's sake, look into the definition of a treaty and look into the instrument of surrender itself. It was signed by the Japanese Foreign Minister and there is no requirement that civilian officials be involved only that those who sign it are representatives of the parties signing. That these representatives were acting on the explicit authority of their respective governments is all that matters. Ratification only requires that the representatives had such authority to accept the agreement and did so.

    They were not transferred to China under international law. The reason it was not transferred to China was primarily due to differences in relations. Some signatories had relations with the PRC while most had relations with the ROC.
    Actually no, it was transferred to China upon the Japanese surrender, which is why you find no mention of sovereignty in subsequent treaties as all territories were ceded to their previous sovereigns, save for some Pacific territories placed under U.S. authority, in that agreement.

    Furthermore, looking at this ICJ decision, there is nothing to stop Taiwan from making a legal declaration of independence.
    True, but no one is prohibited from such a declaration.
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    Re: ICJ: Kosovo Independence is Legal

    Quote Originally Posted by Demon of Light View Post
    The Soviets had already agreed to the declaration which called for returning Manchuria to China. None of the other territories were previously territories of China.
    Actually, northern Viet Nam WAS previously a territory of China. Regardless, it is irrelevant as at the time, Taiwan was Japanese territory, NOT Chinese.

    For heaven's sake, look into the definition of a treaty and look into the instrument of surrender itself. It was signed by the Japanese Foreign Minister and there is no requirement that civilian officials be involved only that those who sign it are representatives of the parties signing. That these representatives were acting on the explicit authority of their respective governments is all that matters. Ratification only requires that the representatives had such authority to accept the agreement and did so.
    You are probably looking at the post-1969 definition. Furthermore, treaties need to be ratified. In most countries, including the United States that was a party to the Instrument of Surrender, the legislature (or part of the legislature) is required to ratify the treaty. This did not happen with the U.S. nor with any of the other Allied signatories of the treaty. None of the Allied powers regard the Instrument of Surrender as being a treaty.


    Actually no, it was transferred to China upon the Japanese surrender, which is why you find no mention of sovereignty in subsequent treaties as all territories were ceded to their previous sovereigns, save for some Pacific territories placed under U.S. authority, in that agreement.
    Actually, no it wasn't because a treaty is required to transfer territory from one state to another state. Post-war territorial possession is NOT sufficient for transfer of soveriegnty. There is plenty of precedent for this position. After World War I, the French army occupied territory that was part of Germany but had been part of France prior to the Franco-Prussian war five decades earlier. Despite this, the treaty ending WWI specifically included a provision to transfer sovereignty from Germany to France.

    Question -- do you know why following the Spanish-American War why Puerto Rico and the Philippines came under American soveriegnty while Cuba did not?

    True, but no one is prohibited from such a declaration.
    According to the recent ICJ advisory opinion, that would seem to be the case. However, Kosovo was a part of Serbia as confirmed by by the Treaty of London. There is no such treaty that confirmed Taiwan as being part of China.
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