Since the opening of trade routes between peoples across the globe, international negotiation has become an integral part of shared prosperity. Negotiation is not simply drawing “X’s and O’s” on a clipboard and expecting the plan to be flawlessly executed. Rather, the evolution between time and space shifts the clipboard and the actors’ playing field presents a level of nuance that the original plan could not predict. The unpredictability then influences the way the negotiators plan and react in a fluid situation. Thus, successful negotiation, i.e., when parties reach an agreement or make a deal, must take into account intangibles such as competing interests, personalities, historical conduct, and self-preservation. International law is a function of international negotiation, and because the law does not possess one unique set of methodological assumptions by its nature, process-oriented jurists must seek for methodological paradigms elsewhere.
Solving international disputes, such as the China-Taiwan debate cannot be boiled down to solely deductive or inductive reasoning when reaching conclusions since it involves both. Professor James Crawford grappled with the question of what international law entails and argued that international lawyers must take an interdisciplinary approach to define and apply law to the conduct of sovereigns, nations, and people. Further, international law is an evolving practice with roots in natural and positive law. Hence, coordinating state interests in a multipolar world will require a blend of international agreements and natural law principles to bridge cross-cultural divides and employ legal instruments to work towards peace and prosperity.
The Historical Law of Nations
It should not be forgotten that law has an intellectual as well as a social history.
Shaped by his experience as a British subject at birth who became the first Secretary of State of the United States, Thomas Jefferson explained that “The law of nations … is composed of three branches. (1) The moral law of our nature. (2) The usages of nations. (3) Their special conventions.”
According to Wiltse, “The special conventions of nations are more or less arbitrary, are made to deal with conditions as they arise, and can change. The usages of nations are rules which develop over time and are similar to what international law refers to as customary law. Customary law points to rules which over time, gradually accumulate to express a utilitarian value. In other words, customary law is likened to ‘enumerative’ rather than deductive reasoning. M.H. Hoeflich describes this as how customs generally enumerate fact patterns and then state a rule to govern such situations, which leaves little possibility of abstraction or inherent method of legal reasoning. Hoeflich uses farm animals to provides an example, e.g., a medieval custom may state that it is an offense if a one’s pig damages a neighbor’s vegetable patch. If such damage were inflicted, then the pig’s owner would be liable for damage, and little discussion would accompany the rule.
In contrast, Hoeflich points out that the Roman legal system would have had such rules, but were not satisfied with a statement of facts and a bare rule of resolution – hence legal rhetoric. In contrast to inductive reasoning, deductive reasoning is described as inference of a rule from an existing and generally accepted principle, i.e., the process moves from general to specific. Building on this, Roman juristic arguments could make generalization possible and utilize specific cases as a basis for extended argument. Some argue that the affinity to identify clever and elegant arguments gained jurists prestige, and a systematic method of deduction came to be the inspiration for the geometric paradigm in law. The development of the geometric paradigm in law is closely related to natural law because natural lawyers believed that positive law, imposed on society by its governors derived from preexisting principles known as natural law.
Jefferson describes the moral law of our nature as that “‘to which man has been subjected by his creator, and of which his feelings or conscience, as it is sometimes called, are the evidence with which his creator has furnished him.’” The moral law of our nature resembles what is also referred to as natural law which presupposed that that were existing “eternal” principles of law discoverable by men and women. This branch of law attempted to begin with first principles of truth from which a system of law could be deduced with the precision of geometry. The rules were followed of necessity from the very construction of the universe. Natural law is ridiculed because some suggest that the classical theorists were grabbing ideas from the ether and that it is simple to emulate “ ‘…their naturalistic and self-assured deductions.’” However, the natural law theorists helped usher in the view that law should “…be understood as a principled deductive science on the model of classical geometry and that legal reasoning must follow the deductive, demonstrative model used in geometric proofs.” Hence, the move to craft deductive arguments using reason is influenced by natural law’s aspiration to discover preexisting principles from which to base arguments.
Moral Law, Customary Law, and the Special Conventions Nations
Considering the international challenges today, e.g., China threatening to invade a sovereign, de facto independent Taiwan, having a viewpoint shaped by each of Jefferson’s branches of international law, (1) “the moral law of our nature, (2) the usages of nations, and (3) their special conventions”, can inform international negotiation tactics and should be used to persuade international actors to maintain peace and commerce. The idiomatic expression, “Don’t throw the baby out with the bathwater”, is used when one should not commit an avoidable error in which something good is eliminated when trying to get rid of the something bad. Here, international lawyers should not dispel notions to appeal to the moral law of nature simply because international law has transformed and Taiwan is not recognized as a “state”. Without an appeal to natural law principles of self-defense and abuses of power, Taiwan stands helpless as a chess piece in someone else’s game.
After World War II, the Chinese Civil war entered its second phase which came to a halt after the Nationalists sailed east to Taiwan and the Communists controlled the mainland. Both governments have claimed to be the “true” Chinese government, but the reality is, Taiwan (Republic of China) has, in effect, governed itself with China (People’s Republic of China) doing the same. Chiang Kai-Shek, the leader of the Nationalists on Taiwan, signed the Charter of the United Nations and Statute of the International Court of Justice for “China” in his capacity as the leader of the Republic of China. Dr. T. T. Soong, the Minister for Foreign Affairs of the Republic of China represented the Republic of China’s Delegation at the 1945 United Nations Conference on International Organization. Representatives of Taiwan maintained a presence at the United Nations until 1971 when the United Nations (UN) passed Resolution 2758 which expelled the “representatives of Chiang Kai-shek from the place which they unlawfully occupy at the United Nations…” However, Chapter II, Article III of the UN Charter stated that “The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco…”. Since Taiwan’s representatives participated in the UN Conference on International Organization at San Francisco, and because the UN Charter thereby deems them an original Member of the United Nations, these facts fly in the face of the UN Resolution 2758 which states, they (Chiang Kai-shek’s representatives) unlawfully occupy a place at the United Nations. The international community should recognize the legal status which Taiwan has earned as a legitimate international actor and encourage a resolution of the dispute with China through diplomatic means.
Taiwan has satisfied the Montevideo Convention on the Rights and Duties of States with a permanent population of 23 million people, a defined island-territory, government, and the capacity to enter into relations with other states. The Montevideo Convention definition of statehood clashes with Professor Crawford’s definition because Taiwan cannot claim independence without China claiming the territory, and China would argue that it would be illegal for Taiwan to declare independence. However, as UN documents evidence, Taiwan and its representatives engaged with the United Nations and have contributed towards the idea of collective security. In 1961, Taiwan’s representatives signed the Vienna Convention of Diplomatic Relations which represented an international treaty to maintain friendly international relations and facilitate peace. However, the People’s Republic of China would prefer the world to erase the history of Taiwan’s role in international diplomacy and thereby eradicate its status as an international player to whom duties and obligations are owed.
To effectively negotiate international arrangements and laws including with China-Taiwan relations, international lawyers should devise arguments using natural law, deductive, and inductive reasoning. One reason that both sides of the China-Taiwan debate talk past each other is because of parochial reasoning methods. In August 2022, the United States Speaker of the House, an elected representative from the U.S. House of Representatives, i.e., “The People’s House”, visited the island of Taiwan to reaffirm the United States’ support of Taiwan and promote shared interests including a free and open Indo-Pacific region. China responded in a recalcitrant tone vowing military exercises and stating that the speaker’s visit “…seriously infringes upon China’s sovereignty and territorial integrity.” From a deductive reasoning stand point, the Chinese idea is that China’s sovereignty shall not be infringed. Taiwanese representatives meeting with other foreign dignitaries infringes on that sovereignty, and because sovereignty shall not be infringed, China can alter the current state of nature to enforce its “sovereignty”.
The first issue with China’s position is that China does not exercise sovereignty or territorial control over Taiwan. While there is much debate over the topic of sovereignty, sovereignty represents the power which is bestowed on a person or thing to exercise control over a people through the passage of laws. Article II of the Constitution of the Republic of China states that, “The sovereignty of the Republic of China shall reside in the whole body of citizens.” Taiwanese citizens are markedly different from citizens of the People’s Republic of China signified by separate passports which are issued by the Ministry of Foreign Affairs of the Republic of China in Taipei. Taiwanese citizens vote in democratic elections and their government is divided into five branches: the Executive Yuan, the Legislative Yuan, the Judicial Yuan, the Control Yuan, and the Examination Yuan. Taiwan’s people exercise democratic rights and believe their sovereignty lies within its body of citizens, not an external government.
The second issue with China’s position is that China does not exercise territorial control over Taiwan, and therefore China’s territorial integrity is not infringed when US representatives travel to Taiwan. Territory comes from the Latin word “terra” for land, and Taiwan has a defined island territory distinct from mainland China. Taiwanese authorities enforce the borders and control the movement of people and goods within the airspace and through the waterways and ports. Using inductive reasoning, Taiwan has governed itself since 1946 with a permanent population, a defined territory, government, and capacity to enter relations with other states including armed conflict; thus, Taiwan is an independent state. However, China asserts that there is only “one China” and the People’s Republic of China is the only legitimate government of China. Hence, while the reality on the ground is that each state entity governs its own affairs, China maintains a view that neither inductive and deductive reasoning can entirely square.
Appealing to natural law, however, could allow international negotiators to take into account the historical past and present condition to help broker a deal that represents justice, i.e., fairness for all parties involved. Many concepts of international law contain elements of natural law such as the Universal Declaration of Human Rights and the concept of self-determination which is an essential principle of international law according to the International Court of Justice. Given Taiwan’s actions and conduct since the signing of the UN Charter, including its self-governance , the international community should recognize the jus cogens or peremptory norms which are stake with China’s aggressive actions to threaten a weaker state. Rather than concede to China’s demands to demote Taiwan as something beneath a legitimate state actor, international lawyers should recognize the best solution is a recognition of reality which is that Taiwan is a self-administered state, independent from Beijing, and its people have a right to self-determination and security.
In attempts to persuade Andrew Carnegie to fund the Peace Palace, which now houses the principal judicial body of the United Nations, Andrew Dickson White suggested that:
“A temple of peace where the doors are open, in contrast to the Janus-temple, in times of peace and closed in cases of war […] as a worthy testimony of the people that, after many long centuries finally a court that has thrown open its doors for the peaceful settlement of differences between peoples”.
International law has made great strides in establishing forums and methods to settle disputes in less destructive ways than war, and in the long run more effective. Rather than ignoring the elephant in the room, i.e., the view that Taiwan is a part of China, the international community should recognize and respect the fact that Taiwan and China are two self-administered states that have created unique political models of economic and social growth.
The lessons from Thomas Jefferson’s negotiations with other countries provide a framework for dealing with international issues today, i.e., (1) the moral law of our nature, (2) the usages of nations (3) and their special conventions. Negotiating agreements in a multi-polar world will require a combination of deductive reasoning emanating from first principles and inductive reasoning based on observations to identify general principles. As Hoeflich describes the evolution of law, he states, “Law…became the application of logic and reason to first principles, and so long as the reasoning was sound, proper results would always follow.” Thus, taking into account the China-Taiwan debate, international lawyers should understand that focusing on one method of reasoning is insufficient. The situation requires an appeal to moral law and justice, inductive methods to account for the independent stature and history of the two states involved, and deductive analysis to reason that invasion of a peaceful territory is wrong. As Jefferson described, “Friendly nations always negotiate little differences in private. Never appeal to the world but when they appeal to the sword.” If the China-Taiwan debate is not solved through international forums, and China resorts to force to subjugate Taiwan, every international state will have an erga omnes obligation to respond against the breach of international peace and invoke China’s responsibility through judicial channels.
 M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdell, 30 Am. J. of Legal Hist. 95, 95-121 (Apr. 1986), quoting T.S. Kuhn, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1982); see also I.B. COHEN, REVOLUTION IN SCIENCE (1985).
 James Crawford, International Law as a Discipline and Profession, 106 Am. Soc’y of Int’l Law 471-486 (2012).
 JH Baker, English Law and the Renaissance, 44 Cambridge L.J. 46, 47 (1985).
 Charles M. Wiltse, Thomas Jefferson on the Law of Nations, 29 Am. J. of Int’l Law 66, 66-81 (Jan. 1935), citing First Inaugural Address, Jefferson’s Writings, 20 Memorial Edition (1903).
 M.H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdel, 30 Am. of Legal Hist. 95, 97 (Apr. 1986).
 Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction, and Assertion, 26 European J. of Int’l Law 417, 420. See also e.g., All men are mortal. Socrates is a man. Therefore, Socrates is mortal.
 Hoeflich, supra note 1, at 98.
 Id. at 107.
 Wiltse, supra note 4 at 67.
 Hoeflich, supra note 1 at 104.
 Wiltse, supra note 4 at 66.
 Stefan Talmon, Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction, and Assertion, 26 European J. of Int’l Law 417, 417-433, citing D’Amato, The Inductive Approach Revisited, 6 Indian J. of Int’l Law 509, 512 (1966).
 Hoeflich, supra note 1 at 100.
 U.N. Charter art. 92 (1945), https://treaties.un.org/doc/publication/ctc/uncharter.pdf
 U.N Conference on International Organization, Documents, U.N. Doc. (Vol. 1), (1945),
 U.N. GA, 26th Sess., 1967th plen. mtg., U.N. Doc. A/PV.1976 (1971), https://digitallibrary.un.org/record/192054?ln=en.
 U.N. Charter art. 92 (1945), https://treaties.un.org/doc/publication/ctc/uncharter.pdf. “…or having previously signed the Declaration by the United Nations of January 1, 1942, sign the present Charter and ratify it in accordance with Article II0.” Id.
 U.N. GAOR, 26th Sess., 1967th plen. mtg., U.N. Doc. A/PV.1976
 Montevideo Convention on the Rights and Duties of States, Seventh International Conference of American States, Dec. 26, 1933, https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml
 James R. Crawford, The Creation of States in International Law 15 (Oxford University Press, 2d ed. 2007).
 Privileges and Immunities, Diplomatic and Consular Relations, etc., Vienna Convention on Diplomatic Relations, Apr. 18 1961. 500 U.N.T.S. 261, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3
Jeremy Herb & Eric Cheung, US House Speaker Nancy Pelosi Lands in Taiwan Amid Threats of Chinese Retaliation, CNN (Aug. 2022), https://edition.cnn.com/2022/08/02/politics/nancy-pelosi-visit-taipei-taiwan-trip/index.html
 Xianfa art. 2 (1982) (China), https://web.archive.org/web/20201023000233/https://english.president.gov.tw/Page/94
 Ministry of Foreign Affairs Republic of China (Taiwan), https://en.mofa.gov.tw/cl.aspx?n=1280
 Government Portal of the Republic of China, taiwan.gov.tw
 Ministry of Foreign Affairs Republic of China (Taiwan), https://en.mofa.gov.tw/cl.aspx?n=1280
 Eleanor Albert, Why China-Taiwan Relations Are So Tense, Council on Foreign Relations (2022), https://www.cfr.org/backgrounder/china-taiwan-relations-tension-us-policy-biden#chapter-title-0-2
 Matthew Saul, The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?, Human Rights Law Rev. 11:4.
 Opening the Peace Palace on the Eve of War, Almost History (2022), https://www.vaguelyinteresting.co.uk/opening-the-peace-palace-on-the-eve-of-war/
 Hoeflich, supra note 1 at 102.
 Wiltse, supra note 4 at 79.