The ‘Fifth Criterion’ and Taiwan’s diplomatic future

It is a delightful paradox when you think about it now: before 1979, Taiwan had a permanent population, secure borders, effective government and sovereign foreign relations, the four attributes of a “state as a person in international law.” But, alas, the United States did not recognize Taiwan’s “statehood.” Yet under American law, on January 1, 1979, as America “de-recognized” the “Republic of China,” Taiwan formally became its own “country, nation, state, government, or similar entity.” Thus was it ordered by President Jimmy Carter (on December 30, 1978): all US government “departments and agencies shall construe those terms (country, nation, state, etc.) to include Taiwan.”

“Taiwan,” mind you, not “the entity formerly known as the Republic of China.”

Forty years ago last week, I was at the US Liaison Office on a sunny, wintry Saturday morning in “Peking” (北京) when the announcement came that the United States and China would soon establish diplomatic relations. Beginning January 1, 1979, the United States would recognize the People’s Republic as the “sole legal government of China.” “Within this context,” the US announcement read, “the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan.” The Chinese Communist Party was so ecstatic with the news that its official newspaper, People’s Daily, issued an “extra edition” (號外) printed in vermillion ink, proclaiming the event to 800 million Chinese readers. I still have a framed copy upon my wall.

My first thoughts of December 16, 1978, upon hearing the news of “normalization” were of Taiwan where I had served the year before with the US embassy. The US side’s words “…and other relations” were a comfort. “Other relations” was the term our chief of mission, Ambassador Leonard Woodcock, and Chinese leader Deng Xiaoping (鄧小平) agreed upon to encompass America’s continuing security relations with Taiwan; Chinese Premier Hua Guofeng (華國鋒) had to admit at his December 16 press conference that 1) “the US side mentioned that after normalization it would continue to sell … arms to Taiwan…”; 2) “We … absolutely could not agree to this…”; and 3) “nevertheless, we reached an agreement…”

In fact, Vice Premier Deng unsuccessfully demanded that Washington also nullify all US treaties with the ROC government; yet all were to remain in force, including the mutual defense treaty (which was terminated more than a year later). President Carter’s December 30 Presidential Memorandum declared that “existing international agreements and arrangements in force between the United States and Taiwan shall continue in force.” There’s that word, again: “Taiwan”! not “Republic of China.”

In the 1979 Taiwan Relations Act, the United States Congress ratified President Carter’s order to treat Taiwan as a “state” with which the US maintained treaties and international agreements, engaged in commerce and partnered in defense.

Forty years later, in 2018, Taiwan is still that same country, richer, more populous, with a heavily amended constitution that defines Taiwan’s as the freest and most open democratic system in all Asia. The United States has a brand new embassy in Taipei (although it’s not called an “embassy”) and carries out commercial, cultural, defense, security and consular relations with Taiwan, and a political section that performs all diplomatic functions (except they’re not called “diplomatic”). Scores of other countries have similar offices in Taipei while recognizing that Beijing is the seat of the “sole legal government of China.”

At last count, however, only 17 countries maintain formal “embassies to China” in Taipei.

So, what happens when the last of these countries switches its “China” recognition to Beijing, and the last of Taipei’s “Chinese” embassies around the world closes? How will the government of the “Republic of China” confront this constitutionally?

The “Montevideo Convention,” the definitive source in international law for the attributes of sovereign “statehood,” posits: “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence…” But, while “Taiwan” possesses the four attributes of “statehood”, is it a state?

In 1987 (in the “Third US Restatement of Foreign Relations Law”), the US Department of State endorsed a fifth criterion for statehood: “claiming statehood.” The “Restatement” explains “while the traditional definition does not formally require it, an entity is not a state if it does not claim to be a state. For example, Taiwan might satisfy the elements of the definition in this section, but its [i.e., Taiwan’s] authorities have not claimed it to be a state, but rather part of the state of China.” But this interpretation neglects US domestic law which treats “Taiwan” as a “state” despite not claiming statehood for itself.

The state department’s lawyers may not have been paying attention in 1987, because this “fifth criterion” seems to compel Taiwan to consider claiming “statehood” separate from “China.” Certainly, this becomes the only choice left to Taipei as the last countries break relations with the “Republic of China” in favor of Beijing.

It is also one factor in the US state department’s wild alarm last summer when the Dominican Republic, Burkina Faso and El Salvador all ceased to recognize Taipei as the government of China. With 17 countries left, Taipei’s foreign ministry must now plan for the inevitable: how to claim statehood for Taiwan when the last country no longer recognizes its “China” statehood. Taiwan’s major partners, the United States and Japan, must plan for this as well, as should any country with vital economic, industrial, trade or security stakes in Taiwan (Singapore, Australia, Vietnam, Canada, Britain and the European Union come to mind).

Planning, of course, means laying groundwork for an “independent Taiwan.” Long before Taipei can claim “statehood,” of course, effective military and naval defenses must be in place. National infrastructure should be hardened against Chinese economic, transportation and communications warfare. Taiwan’s people must give their assent. Important foreign partners must be consulted and persuaded — in the context of “this is Taiwan’s only choice if we are to remain within the community of democracies and security partners in the free world.”

Perhaps it could begin with Taiwan’s remaining diplomatic partners. Among them, there must be a few which would be open, even now, to recognizing Taiwan separately from “China” without caring if Beijing objects. Taipei would not necessarily have to agree, but simply not break relations with such countries.

Four decades ago, President Carter’s decision to derecognize the “Republic of China” was coupled with his executive order to treat “Taiwan” as its successor “country, nation, state, government, or similar entity.” A “fifth criterion” of statehood is no longer a useful legal theory. Perhaps a few of Taipei’s remaining 17 “diplomatic partners” can be permitted to recognize “Taiwan” as a state separate from the “Republic of China” under existing international law without the Taipei government’s encouragement or approval and without sparking a crisis. After all, the United States has done so for forty years, it just doesn’t say that it does.

Section 15(2) of the Taiwan Relations Act: “…the term ‘Taiwan’ includes, as the context may require, the islands of Taiwan and the Pescadores, the people on those islands, corporations and other entities and associations created or organized under the laws applied on those islands, and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and any successor governing authorities…”

John J. Tkacik, Jr. is a retired US foreign service officer who has served in Taipei and Beijing and is now director of the Future Asia Project at the International Assessment and Strategy Center.