The Unredeemable Republic of China: Why Professor Lung-Chu Chen’s Theory of Effective Self-Determination May Be Harmful to Taiwan’s Statehood Claim

[Dr Ming-Sung Kuo is an associate professor of law at University of Warwick (UK) where he has taught international law, constitutional and administrative law, and legal theory. He earned his JSD and LLM from Yale University and his LLB and another master degree from National Taiwan University.]

In Professor Lung-Chu Chen’s recent post on Opinio Juris, he reiterates his justification of Taiwan’s statehood, which I first heard when I was still a senior law student at National Taiwan University.  In this brief note, I aim to point out why Professor Chen’s theory of effective self-determination calls Taiwan’s statehood claim into question when the Taiwanese people continue to claim statehood in the guise of the Republic of China (RoC).

Professor Chen’s argument can be reformulated as follows.  First, the Taiwanese people had the right to self-determination in international law in the wake of World War II (WWII) and the 1951 San Francisco Peace Treaty.  Specifically, the Taiwanese people would be entitled to a sovereign state of their own through the exercise of their right to self-determination in a legitimate plebiscite if they wish to.  Second, the Taiwanese people have already exercised their legal right to self-determination through successive democratic elections, which jointly amount to what Professor Chen calls effective self-determination in the place of the abovementioned legitimate plebiscite.

Following these two points that concern the legality of Taiwan’s claim to statehood in international law, Professor Chen addresses the next question of whether Taiwan has actually achieved the legal status of statehood.  On this second question, his justification also consists of two parts.  Taking the Montevideo Convention of 1933 as the reference point, Professor Chen first argues that Taiwan has already acquired all the four Montevideo elements: a defined territory, a permanent population, government, and the capacity to enter into relations with other states.  In addition to these objective elements of statehood, he further points to ‘President Chen’s 2007 application for UN membership in the name of Taiwan’ as the evidence of the subjective element of Taiwan’s statehood in response to Professor James Crawford’s challenge.  Taken as a whole, Professor Chen urges that the international society recognize Taiwan as an independent, sovereign state.

Professor Chen’s four-pronged argument raises several interesting questions in international law.  For example, when did Taiwan achieve a full statehood in its evolutionary process of independence according to his theory?  How much weight should be given to what Professor Chen’s suggests as an implicit declaration of independence as expressed in Taiwan’s bidding for UN membership in 2007?  Did the subsequent KMT Administration’s shift in policy towards the UN suggest the withdrawal of the implicit declaration of independence?  What is the scope of the right to self-determination in article I of the ICCPR and ICESCR respectively?  Is it restricted to internal self-determination?  Are the Taiwanese people entitled to the right to external self-determination?

I restrict my note to the last question.  In the ICJ’s Advisory Opinion on Kosovo’s unilateral declaration of independence, it is noted that a right to independence (ie external self-determination) exists with ‘the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’ (2010 ICJ Report 404, 436, para 79), although declarations of independence have been made outside these two contexts.  As regards the Taiwanese people, to claim the right to self-determination must be based on the fact that Taiwanese people were subject to Chinese subjugation, domination, and exploitation after Taiwan was placed under the RoC administration, which exercised the power of belligerent occupation on the Allies’ behalf at the end of WWII given that Taiwan was never listed as a non-self-governing territory under the UN.  Thus, Taiwan’s claimed statehood must have resulted from the exercise of this right to independence through which the Taiwanese people rid themselves of the Chinese yoke.  In other words, achieving independence through this exercise of self-determination (whether it takes the form of serial effective referendums or a single plebiscite) must have amounted to the repudiation of the legitimacy of the RoC’s rule over Taiwan from 25 October, 1945 on.

Here is the catch.  Although the subjugated, dominated, and exploited people have the right to independence and to rid themselves of alien occupation forces through plebiscites or other forms of self-determination, they are perfectly free to choose to become the subjects of the occupation government.  And this is the problem with the case of Taiwan.  In light of the RoC’s unequivocal claim to reunite with Chinese mainland after the 1949 division, the Taiwanese people appear to have chosen to embrace the RoC (or rather to legalize the RoC’s rule over Taiwan since 1945) through their right to self-determination by insisting on the continuity of the post-1991 RoC on Taiwan and the pre-1991 RoC regime, not to mention the continued adoption of the title of the Republic of China.  In this light, claiming independent statehood for Taiwan would have to be based on the controversial right to secession rather than self-determination, which would only jeopardize the legality of Taiwan’s claimed statehood and which the Taiwanese people have persistently denied.

Professor Chen is right that without a plebiscite under the auspices of the UN, the Taiwanese people have already exercised their right to self-determination through successive democratic elections.  Yet independence is not the only possible result of self-determination, which Professor Chen seems to presume in the case of Taiwan.  Considering the two (or more) choices in any plebiscitary procedures as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States (http://www.un-documents.net/a25r2625.htm) suggests, I take issue with Professor Chen’s contention that the Taiwanese people have already given themselves an independent state through the exercise of the legal right to self-determination.  Failing to rid themselves of the RoC straightjacket, the Taiwanese people may instead get themselves into the one China trap by their self-determination in action.