The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).]

On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law.

As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China.

Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community.

Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind.

I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law.

It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation.

In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement, Congress passed the Taiwan Relations Act (TRA) to establish unofficial relations with the people of Taiwan and to make defensive arms sales to Taiwan a permanent feature of U.S. policy, declaring that the peace and security of the Asia Pacific was a matter of U.S. national interest. The TRA also established the American Institute in Taiwan (AIT) to serve as the de facto U.S. embassy in Taiwan. The TRA became an important bulwark in sustaining Taiwan’s independent status and continues to enjoy broad support in Congress. In April 2016, the U.S. House Foreign Affairs Committee unanimously approved a resolution reaffirming the TRA and the “Six Assurances” issued to Taiwan by President Ronald Reagan in 1982 as the cornerstone for U.S. policy toward Taiwan. The overriding mandate of the TRA is that the future of Taiwan must be decided peacefully.

In 1987, the KMT government lifted martial law, and a gradual process of transformation began. In 1988, after the death of Chiang Kai-shek’s son, Chiang Ching-kuo, Vice President Lee Teng-hui acceded to the presidency. Lee, a native-born Taiwanese, was popularly known as “Mr. Democracy” and oversaw great strides in democratization. In 1996, Lee became the first president of Taiwan to be democratically elected by the people. In 2000, power was peacefully transferred to Chen Shui-bian of the DPP after his election as president. For the first time in more than half a century, the KMT did not control Taiwan. The KMT returned to power in 2008 with the election of Ma Ying-jeou. From 2008 to 2016, President Ma, in fostering economic dependence on China and cross-strait appeasement, failed to satisfy the Taiwanese people’s aspirations for sovereignty and self-determination. His failings gave birth to the Sunflower Movement in the spring of 2014. The DPP dealt the KMT a crushing defeat in the important elections of November 2015 and January 2016.

In The U.S.-Taiwan-China Relationship in International Law and Policy I suggest that our thinking about international legal problems—even the most intractable ones—must be balanced with a regard for common interests and fundamental principles. Chief among these is the right to self-determination. Unlike in bygone eras, international law no longer conceives of territories as mere pieces of property to be traded or conquered. Today, human beings are properly held to be at the center of international law. The self-determination of peoples is embraced in Article 1(2) of the UN Charter, which proclaims that a major purpose of the United Nations is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights afford a prominent place to the principle of self-determination in their first articles. The Universal Declaration of Human Rights stresses in Article 21(3) that the “will of the people shall be the basis of the authority of government.”

In the absence of formal diplomatic recognition from most states and without a seat in the United Nations, Taiwan and its 23 million people are isolated in the international community. The solution to this injustice cannot be based only in pure theory or pure politics. The two need to be conjoined in a workable reality. To this end, an internationally supervised plebiscite would provide an ideal means of resolving the dispute over Taiwan’s status peacefully, as mandated in the TRA. But even in the absence of a plebiscite or declaration of independence, the inhabitants of a disputed territory can, in the words of the International Covenants, freely determine their political status and freely pursue their economic, social, and cultural development through collective effort. This is effective self-determination—self-determination in action.