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Scant goodwill in health memo

China and the Secretariat of the World Health Organization (WHO) have signed a Memorandum of Understanding (MOU) that includes the following text.

First, "the WHO Secretariat can invite Taiwan's medical and public health experts to participate in its technical activities in private capacities. If necessary, Taiwan's experts can say they come from `Taiwan, China.'"

Second, "the WHO Secretariat can send its staff and experts to Taiwan to investigate the public health and contagious disease situation, as well as discuss relevant issues with Taiwan's medical and public health experts, and provide medical and public health technical assistance."

Third, "if Taiwan faces a serious outbreak, the WHO Secretariat will, if necessary, send experts to Taiwan as soon as possible and give technical assistance, or invite Taiwan's medical and public health experts to participate in technical activities initiated by the Secretariat."

Placing the kind of participation suggested by China in a practical WHO context, we see that it leaves no room at all for Taiwan's distinctive participation.

According to Articles 3 to 6 in the Constitution of the World Health Organization, the following can all be members of the WHO: "States" (Article 3), "Members of the United Nations" (Article 4) and "States whose governments have been invited to send observers to the International Health Conference held in New York, 1946" (Article 5). The first part of Article 8 in the same document provides regulations concerning associate members, defining them as: "Territories or groups of territories which are not responsible for the conduct of their international relations may be admitted as associate members by the Health Assembly upon application made on behalf of such territory or group of territories by the member or other authority having responsibility for their international relations. ... The nature and extent of the rights and obligations of associate members shall be determined by the Health Assembly."

Non-member states can participate if invited. There are two kinds of invitations. Item "H" of Article 18 provides that the Health Assembly may "invite any organization, international or national, governmental or non-governmental, which has responsibilities related to those of the organization, to appoint representatives to participate, without right of vote, in its meetings or in those of the committees and conferences convened under its authority, on conditions prescribed by the Health Assembly; but in the case of national organizations, invitations shall be issued only with the consent of the government concerned."

The other kind of invitation follows the second clause of Rule 3 of the Rules of Procedure of the WHA: "The director-general may invite states having made application for membership, territories on whose behalf application for associate membership has been made, and states which have signed but not accepted the constitution to send observers to sessions of the Health Assembly."

In addition, under the WHA's "List of Delegates and Other Participants" members participate in activities by sending "delegations" under their national name. Further, three kinds of non-state organizations -- the UN and its agencies, other international organizations and non-governmental organizations that have an official relationship with the WHO -- can send "representatives." Finally, three kinds of "observers are permitted:" Observers from a non-member state, observers, and observers invited in accordance with WHA rules.

In other words, in current practice, "international subjects" that can send observers are states (the Holy See), unique or sui generis entities (the Order of Malta), international organizations (the International Red Cross, the International Federation of Red Cross and Red Crescent Societies, the World Parliamentary Union), and national liberation movements (Palestinians).

This is why Taiwan in recent years has downgraded itself to the status of a "health entity" to avoid a quarrel over sovereignty and in the hope of being invited to send observers to participate in WHA meetings and activities.

But even this humble request has been relentlessly denied.

Further, some people in Taiwan are concerned that applying for the right to send observers to the WHA as a public health entity is tantamount to surrendering to China.

Despite this, China has not shown any goodwill or self restraint. Instead, the participation it offers Taiwan is invitations to individual specialists who are restricted to participating in technical activities, not WHA meetings. This participation is also subject to China's approval.

In the eyes of international law, the nomenclature under which Taiwan would be forced to participate is "Taiwan, China," requiring Taiwan to accept that it is part of China, accepts the "one China" principle, affirm China as Taiwan's suzerain and let it, as the "motherland," decide all actions. This is not just asking Taiwan to give up its dignity, but forcing it to wait for a final judgment as decided by China.

The content of the MOU between China and the WHO Secretariat is against the practices of the WHO and rules of international law. There is not a shred of goodwill in such behavior.

Chiang Huang-chih is an associate professor of law at National Taiwan University.

Translated by Perry Svensson
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