International Recognition of Taiwan's "Unsettled" Status

 Taiwan's "Unsettled" International Status

By John J. Tkacik, Jr.
National Taiwan Chengchi University
September 6, 2008

“Unsettled” sovereignty status is a rare but significant thorn in the body of current international law. But it does have its advantages. In Israel's case, the lack of a de jure sovereignty in the West Bank and Gaza has provided color of legitimacy to 40 years of administration of those territories. In the case of Taiwan, it provides a legal framework for treating Taiwan as juridically separate from China – and enables the United States to provide political and military support for Taiwan's vibrant democracy.

"Unsettled Status"

Occasionally in world affairs, as Israeli statesman Shimon Peres is said to have observed, "If a problem has no solution, it may not be a problem, but a fact -- not to be solved, but to be coped with over time." In the Israel-Palestine and the China-Taiwan cases, the way the international community has coped has been to declare the matter "unsettled."

The territorial status of the West Bank and Gaza Strip, for example, has remained “unsettled” for 60 years. It is a footnote that escapes the attention of most commentators, but it is at the core of the Israel-Palestine conflict. Likewise, the territorial status of Taiwan remained “unsettled” at the end of the Second World War. And 63 years after the War’s end the sovereign status of Taiwan remains a point of muted contention between the United States and China, and rather more vocal debate between Taiwan and China. Israel and Taiwan would be perfectly happy to be left alone with the status quo, but in both cases, their adversaries seem intent on resolving the matter with violence. Given the alternatives, continuing to leave such problems "unsettled" may be the best way to preserve a stable status quo.

As the State or Israel celebrates its sixtieth birthday the parallels in international law with Taiwan’s situation are striking – but in almost diametrically opposite situations. In 1923, the new revolutionary government of Turkey "renounced all right and title" (renoncer a tous droits et titres) to the territories beyond the boundaries of the new Turkish state – including Palestine -- and the League of Nations confirmed Great Britain's administration. In 1948, the United Nations accepted the creation of Israel out of territory of the “Palestine Mandate” abandoned by Great Britain, but sovereignty over the West Bank and Gaza was left unresolved. Jordan occupied the West Bank, and Egypt occupied Gaza, but neither country claimed sovereignty in those lands, hoping that eventually the Palestinian Arabs would eliminate the Israeli state and establish a Palestinian state sovereign throughout the territory of the former Mandate. Sixty years later Israel still controls and to a certain extent administers the West Bank and Gaza territories, but claims no sovereignty, while the prevailing view among Palestinians – and most Arab states – is that the Palestinian people are de jure sovereign over the entire former “Mandate” territory.

Taiwan's position is the legal mirror image. With Japan’s defeat in 1945, Japan “renounced all right, title, and claim to Formosa [Taiwan] and the Pescadores,” but (like the non-Israeli territories of the Palestinian Mandate) de jure state “sovereignty” over Taiwan remained – purposefully – unassigned after the war. In Taiwan's case, it has ceased to claim sovereignty over mainland China, while China insists it has sovereignty over Taiwan despite the lack of China's occupying military, governance, economic or civil presence on the Island.

For over 60 years, U.S. policy has sought to nurture and strengthen Taiwan's autonomy from the People's Republic of China while denying China any pretext for increasing military tensions. Humoring China's claims of sovereignty over Taiwan -- while at the same time eschewing formal recognition of them -- has preserved Taiwan as one of Asia's most vibrant democracies, one of the United States' top global trading partners, as an important link in America's Western Pacific security architecture. Moreover, the United Kingdom, Australia, Canada and Japan hold congruent views on the Taiwan sovereignty issue. (Until the early 1990s, France declined to accept China's claims of sovereignty over Taiwan and indeed had been able to establish relations with Beijing in 1964 without withdrawing recognition from the Taipei government. The French ambassador to the United States, Herve Alphand, told Secretary of State Dean Rusk in January 1964 that, in France's extension of diplomatic recognition to the People's Republic of China, "There is no requirement to break relations with Taiwan and nothing is said about the United Nations." France formally "recognized . . . Taiwan as an integral part of Chinese territory" only on January 12, 1994, in a "France-PRC Joint Communique" after China had curtailed French trade and closed the French trade mission in Guangzhou. )

Beijing rebels against this view that Taiwan's status is "unsettled." It has, over the past decade, ratcheted up its military threats against Taiwan in a thus-far successful campaign to weaken the Bush Administration's enthusiasm for the island. Under the weight of Beijing's new economic, political and military clout, Washington has pressured on Taiwan to bite its collective tongue about its separate identity from China.

But that tactic has overshot the mark as Taiwan's people and their political leaders become convinced (with some justification) that the U.S. now seeks the island's "unification" with China. Getting a bare minimum of either legitimation or moral support from the United States for their continued separation from communist China, democratic Taiwan's people and their political leadership are led to believe they have little choice but to accommodate China.

Unfortunately, the Secretary General of the United Nations appears intent on settling the matter of Taiwan's sovereignty on his own. On March 28, 2007, without consulting with the United States (or any other Security Council members except, presumably, China) United Nations Secretary General Ban Ki Moon issued a letter asserting under the terms of U.N. General Assembly Resolution 2758, "the United Nations consider Taiwan for all purposes to be an integral part of the People's Republic of China." This statement is significant not only for Taiwan's continued status in the international community, but for U.S. bilateral relations with Taiwan within the context of the U.N. specialized agencies.

U.S. resurrects Taiwan's "unsettled" status

In an effort to counter United Nations Secretary General Ban Ki Moon's ukase, some State Department offices have begun to resurrect (after 25 years) the "long-standing" agnostic "undetermined" formula on Taiwan's international status. In June 2007, the State Department included the following phrase in standard letters to citizens concerned about Taiwan: the United States has "not formally recognized Chinese sovereignty over Taiwan and [has] not made any determination as to Taiwan’s political status."

In July, 2007, the United States reportedly presented a nine-point demarche in the form of a "non-paper" to the United Nations Undersecretary General for Political Affairs which read:
1. The United States reiterates its One China policy which is based on the three US-China Communiqués and the Taiwan Relations Act, to the effect that the United States acknowledges China's view that Taiwan is a part of China. We take no position on the status of Taiwan. We neither accept nor reject the claim that Taiwan is a part of China.
2. The United States has long urged that Taiwan's status be resolved peacefully to the satisfaction of people on both sides of the Taiwan Strait. Beyond that, we do not define Taiwan in political terms.
3. The United States noted that the PRC has become more active in international organizations and has called on the UN Secretariat and member states to accept its claim of sovereignty over Taiwan. In some cases, as a condition for the PRC's own participation in international organizations, Beijing has insisted the organization and its member states use nomenclature for Taiwan that suggests endorsement of China's sovereignty over the island.
4. The United States is concerned that some UN organizations have recently asserted that UN precedent required that Taiwan be treated as a part of the PRC and be referred to by names in keeping with such status.
5. The United States has become aware that the UN has promulgated documents asserting that the United Nations considers "Taiwan for all purposes to be an integral part of the PRC." While this assertion is consistent with the Chinese position, it is not universally held by UN member states, including the United States.
6. The United States noted that the UN General Assembly resolution 2758 adopted on 25 October 1971 does not in fact establish that Taiwan is a province of the PRC. The resolution merely recognized the representation of the government of the PRC as the only lawful representation of China to the UN, and expelled the representative of Chiang Kai-shek from the seats they occupied at the UN and all related organizations. There is no mention in Resolution 2758 of China's claim of sovereignty over Taiwan.
7. While the United States does not support Taiwan's membership in organizations such as the UN, for which statehood is a prerequisite, we do support meaningful participation any Taiwan's experts as appropriate in such organizations. We support membership as appropriate in organizations for which such statehood is not required.
8. The United States urged the UN Secretariat to review its policy on the status of Taiwan and to avoid taking sides in a sensitive matter on which UN members have agreed to disagree for over 35 years.
9. If the UN Secretariat insists on describing Taiwan as a part of the PRC, or on using nomenclature for Taiwan that implies such status, the United States will be obliged to disassociate itself on a national basis from such position.

Is the Administration rethinking Taiwan's "Undetermined" Status?

Under most accepted definitions of "state" in international law, Taiwan's "Republic of China" government does qualify, and indeed, 23 other members of the United Nations maintain full diplomatic relations with Taiwan. Even U.S. law that treats Taiwan precisely as it treats all "foreign countries, nations, states, governments, or similar entities." So, to state flatly that Taiwan is not a "state" is both gratuitous and edges U.S. policy a bit closer to tacit acceptance that communist China has sovereignty over democratic Taiwan.

I believe that the United States State Department has indeed reconfirmed – at least intramurally and confidentially -- its existing definition of Taiwan's "undetermined" status that permits the U.S. to treat Taiwan as an independent nation for domestic and international law purposes.

Of course, the United States cannot – without giving China an excuse to start a war in the Western Pacific – recognize an independent Taiwan. But the U.S. can restate in public its "long-standing" position on the Taiwan sovereignty issue as an unspoken declaration that America cannot, and does not, recognize that China has the sovereign right to use force, military or otherwise, against the island. Formal recognition of China’s territorial claim to Taiwan, as a matter of international law, requires acquiescence to China’s sovereign right to use force to recover territory in rebellion. This is a position that is well understood in Beijing where scholars continue to comment upon the fact that the United States may "not support Taiwan independence" but neither does it "oppose it."

The problem today is not that the United States has given tacit recognition to China's claimed sovereignty over Taiwan, but the Taiwan's own political leaders seem to. They must resist the temptation. In fact, under the 1933 Montevideo Convention (which the United States ratified June 29, 1934), Taiwan possesses all four attributes of a state. That is, it possesses a defined territory, functioning government, fixed population and maintains the capacity to conduct relations with other states. This last quality is important, especially now that Taiwan's government seems intent on a "diplomatic truce" (waijiao xiubing) which seems to mean that Taiwan's diplomatic partners, such as Paraguay, Panama and Haiti, for example, will break relations with Taiwan fairly soon, but that Taiwan will make no effort to steal away other partners from China – as it did in the case of Kiribati in 2004. If Taiwan allows its "capacity to conduct relations with other states" to atrophy, it risks losing its sovereign legitimacy under international law.

For the time being, several major countries still hold to legal positions that do not recognize Chinese sovereignty over Taiwan, but do recognize the People's Republic of China as the "sole legal government of China": In addition to the United States, Canada, Japan, Australia are examples.

Taiwan must not give any of these countries grounds for changing that stance. It is to Taiwan's benefit that its territorial status be "undetermined" in the same way as the West Bank's and Gaza's sovereignties were left "undetermined" following Israel's independence in 1948. This at least preserves Taiwan's options for the future. And to let these countries lapse from that position forecloses those options forever.

While Taiwan may not have diplomatic relations with major countries – particularly those which maintain significant "non-official" representation in Taipei – it can encourage those countries to view Taiwan as a "de facto entity with international personality." Whatever else Taiwan may or may not be to any of those countries, they certainly can conduct relations with Taiwan as a "de facto entity with an international personality".

Conclusion

If Taiwan seeks to maintain its independence from Chinese sovereignty, Taiwan's elected political leaders must preserve Taiwan's international legal status as "unsettled" in the sense that China's claims to sovereignty over the island must not be unchallenged. In an international context, this is as important as maintaining a strong defense and cultivating strong international economic ties. But if Taipei's political leaders insist on competing with Beijing's for the title of the "sole legitimate government of all China," Taiwan has already lost that battle and China's right to impose its will on Taiwan will be confirmed in the world community.

Preserving Taiwan's international personality is not the only imperative for Taiwan's continued existence, but it is one which Taiwan cannot survive without.

Notes

1. The British Mandate took effect under the League of Nations with the Treaty of Lausanne on September 29, 1923, when the new revolutionary government of Turkey "renounced all right and title" (renoncer a tous droits et titres) to the territories beyond the boundaries of the new Turkish state. "Sovereignty" over Palestine, however, was not assigned to Britain. In February 1947, Britain referred the question of Palestine to the United Nations and announced it would withdraw its administration by August 1, 1948. UN General Assembly Resolution 181(II) calling for the partition of Palestine among Jewish and Arab jurisdictions and the internationalization of Jerusalem and for the termination of the British Mandate no later than August 1, 1948, was passed 33-13. The Jewish 'Provisional State Council' declared the independence of Israel on May 14, 1948, and the Soviet Union and United States immediately recognized the new state. The UN terminated the British Mandate effective May 15. That same day, the surrounding Arab states invaded Palestine and the new Jewish state. The Arab armies were repulsed, and after Israel reached armistice agreements with the various belligerents in 1949, Israel was admitted as a member of the United Nations. The areas of Palestine that thereafter remained in Arab control were the West Bank (and East Jerusalem) occupied by Jordan, and the Gaza Strip occupied by Egypt. For a review of the legal history, see James Crawford, The Creation of States in International Law, Second Edition, Oxford University Press, 2006, pp. 421-448. For a readable (but admittedly one-sided) discussion of the sovereignty issue see “DISPUTED TERRITORIES: Forgotten Facts About the West Bank and Gaza Strip,” Ministry of Foreign Affairs, Jerusalem, February 2003, at http://www.mfa.gov.il/MFA/MFAArchive/2000_2009/2003/2/DISPUTED+TERRITORI....
2. See Article 2, Treaty of Peace with Japan, September 8, 1951, at U.S. TIAS 2490; 3 UST 3169, 3172; 136 UNTS 45, 48, 50.
3. Secretary of State John Foster Dulles asserted in 1954 that “…, by virtue of the fact that technical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese Peace Treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese Peace Treaty nor is it determined by the Peace Treaty which was concluded between the Republic of China and Japan.” See Department of State Bulletin, Vol. XXXI No. 896 (1954)
4. Few of these countries articulate this position publicly, but the author has been informed by several diplomatic authorities that these countries continue to maintain their San Francisco Treaty understanding of Taiwan's international status. See also Crawford, p. 208, fn 54. See also Steve Tsang, The Cold War's Odd Couple, The Unintended Partnership between the Republic of China and the UK, 1950-1958, London, I.B. Tauris, 2006, pp. 65-66. See also Robert Boardman, Britain and the People's Republic of China 1949-1976, London, Macmillan, 1976, pp.149-150. See also Y. Frank Ching, "One-China Policy and Taiwan," Fordham International Law Journal, Vol. 28, Number 1, December 2004, pp. 38-39.
5. Australia, Canada and Ireland all expressed the view that technical sovereignty over Taiwan "has never been settled." See Lung-chu Chen, Harold D. Lasswell, Formosa, China and the United Nations, New York, St. Martin's Press, 1967, p. 377, fn 13.
Foreign Relations of the United States, 1964-68, Volume XXX, China (Washington: U.S. Government Printing Office, 1998), p. 6.
In a letter to the Nauru delegate, the Secretary General's letter (Ref: LARTR_TV/_8/2007/1), referred to United Nations General Assembly Resolution 2758 XXVI of 25 October 1971. "In that resolution, the General Assembly decided 'to recognize the representatives of the People's Republic of China as the only legitimate representatives of China to the United Nations.' In accordance with that resolution, the United Nations considers Taiwan for all purposes to be an integral part of the People's Republic of China. In the light of the above, any 'instrument of accession' emanating from persons purporting to represent the 'Republic of China (Taiwan)' could not be received by the Secretary General in his capacity as depository of the said convention." Emphasis added.
Letter from Susan Bremner, Deputy Taiwan Coordination Advisor, U.S. Department of States, to Dr. Margaret S. Lu, MD, dated June 26, 2007.
See John J. Tkacik, Jr., "Dealing with Taiwan's Referendum on the United Nations," Heritage Foundation WebMemo #1606, September 10, 2007, at http://www.heritage.org/Research/AsiaandthePacific/wm1606.cfm. The entire text of this non-paper was made available to the author on condition that its source remain anonymous.
Section 4(b)(1), TRA.
See Lassa Oppenheim, Oppenheim's International Law: Peace 452 (H. Lauterpacht ed., 8th ed. 1955) cited in Y. Frank Ching, “One China Policy and Taiwan,” Fordham International Law Journal, Volume 28, Number 1, December 2004, pp. 6-8.
As recently as August 2004, Chinese scholars continued to insist that “When meeting Chinese leaders, Bush has on many occasions used the expression ‘opposed to Taiwan independence’”, while nevertheless adding parenthetically “but the expression ‘no support for Taiwan independence’ is still used in official US statements”. Wang Jisi, "Meiguo Zhanlue Tiaozheng Dui Zhong Mei Guanxide Yingxiang" [Impact of US Strategic Adjustment on Sino-US Relations], Beijing Xuexi Shibao [Study Times], internet version, August 16, 2004, at http://www.china.org.cn/chinese/zhuanti/xxsb/636512.htm.
That is, it possesses a defined territory, functioning government, fixed population and maintains the capacity to conduct relations with other states. See Article 1 of the "Convention on Rights and Duties of States (inter-American); December 26, 1933" at Montevideo December 26, 1933, a text of which is transcribed by The Avalon Project at Yale Law School at http://www.yale.edu/lawweb/avalon/intdip/interam/intam03.htm. Recent U.S. foreign relations law does, admittedly, posit one additional requirement of sovereignty – one added to the Montevideo test specifically to define Taiwan: "Claiming statehood". While this fifth condition of statehood may describe U.S. diplomatic practice, it is inconsistent with Montevideo. It also suggests that the United States may recognize Taiwan as a state if it were only to declare itself a state. See Restatement of the Law, The Foreign Relations Law of the United States, St. Paul, The American Law Institute publishers, 1987. Volume 1, Section 201, pp. 72-74.