President Chen Shui-bian (陳水扁) sent an official letter of application for UN membership using the name "Taiwan" to UN Secretary-General Ban Ki-moon on July 19. However, Ban ignored realities and UN procedure and had the UN legal department return the letter.
The Chinese government fiercely opposes Taiwan's UN application on the grounds that Taiwan is not a country but only a part of China. Whether or not Taiwan is a state or a country will become a central topic for international political forces.
Taiwan is a sovereign, independent nation, not a part of the People's Republic of China (PRC). It's status is therefore not an internal issue of China.
According to international law, there are four conditions for statehood: A state must have a population, effective control over a territory, a government and the capacity to interact with other countries. A national title is not a requirement for statehood.
By this standard, Taiwan is a sovereign and independent country regardless of how many or how few other countries recognize it. Taiwan is a country completely independent from the PRC. It has never been ruled by the PRC for even a single day. Neither Taiwan nor China fall under the jurisdiction of the other, and this is the current political status quo.
When examining the issue of territorial jurisdiction using the principles of contemporary international law, one must grasp the following three principles:
First, the intertemporal principle. When studying whether or not the 1895 Shimonoseki Treaty in which China ceded Taiwan to Japan is valid, one must use 1895 international law as the standard. However, if the dispute over the territory had continued from 1895 to the present day, then one would have to use contemporary international law to resolve it, not international law from more than 100 years ago.
Two, the peaceful resolution of international territorial disputes. The principal of using peaceful methods to resolve disputes is the single most important prescription in the UN Charter.
Three, the principle of self-determination of the people. Determining the ownership of a territory is not a business transaction involving land or property. It involves the basic human rights, survival and well-being of all residents in an entire territory. All questions of the status of a territory and its residents should be decided based on the will of the residents of that territory.
From the viewpoint of international law, Taiwan has not been a part of China since 1895. Taiwan has evolved into a country by way of a continuous, ongoing process. There are four important steps in this evolution:
First, from 1895 to 1945, Taiwan was a Japanese colony. In 1895, the Qing dynasty and Japan signed the Treaty of Shimonoseki, in which China ceded sovereignty over Taiwan to Japan in perpetuity. According to international law at that time, this was a legal transfer of territory and Taiwan become part of Japanese territory.
Second, from 1945 to 1952, Taiwan was a Japanese territory occupied by the allied forces following the end of World War II. The allied military occupation was ordered and authorized by US General Douglas MacArthur, commander in chief of the Allied forces in the Far East, and delegated to the army of the Republic of China (ROC) led by Chiang Kai-shek (
In October 1949, the PRC was established on the Chinese mainland and Chiang fled to Taiwan, where he unlawfully declared a period of martial law that lasted for 38 years, from 1949 to 1987. Legally speaking, Taiwan was still Japanese territory in 1949, and according to international law, Chiang's government was only a regime-in-exile, lacking legal basis.
The San Francisco Treaty was signed in 1951 and came into effect in 1952. The treaty stated clearly that Japan "renounced all right, title and claim" to Taiwan and Penghu, but it didn't specify which country Tokyo renounced it to. According to the treaty, Taiwan was not returned to the ROC, nor to the PRC. Thus, Taiwan's status was unclear and this is the origin of the idea that Taiwan's status is undetermined. At the time of the signing of the treaty, the consensus among the signatory states was that the status would be determined at an appropriate time and in accordance with the principles of the UN Charter, especially the principles of non-aggression and self-determination.
In the disposition of Japan's territory after the war, the San Francisco treaty overrode both the Cairo and the Potsdam declarations which did not include the participation of Japan, the owner of the territory.
The San Francisco Treaty, on the other hand, was signed after the war by the victorious allied states as well as by the defeated Japan, thus obtaining a clear commitment by the territorial owner -- Japan -- that it ceded Taiwan.
Third, between 1952 and 1987, after Japan's renunciation, Taiwan remained under martial law and authoritarian rule during the illegal military occupation by Chiang and his Chinese Nationalist Party (KMT) regime which did not have the consent of the Taiwanese people, and was an illegal and illegitimate military occupation.
At the time, the international community had high hopes that it would be possible to solve both the issue of China's representation in the UN and the issue of Taiwan's international legal status, but this simply did not happen.
In 1971, the UN General Assembly adopted Resolution 2758, which merely determined that the PRC, not the ROC, is the only lawful representative of China to the UN, and expelled "the representatives of Chiang Kai-shek" from their seat in the UN, without deciding the international legal status of Taiwan. Resolution 2758 does not state that Taiwan is a part of the PRC, and neither does it authorize the PRC to represent Taiwan and the Taiwanese people in the UN. This means that the Chinese government's position that Resolution 2758 supports its claim to Taiwan is completely incorrect.
Fourth, from 1988 to present, Taiwan's development brought effective self-determination. In 1987, martial law was lifted and the KMT's long illegal military occupation was gradually transformed. When Lee Teng-hui (李登輝) became president in 1988, he started the democratization and localization of Taiwan and the ROC gradually became Taiwanese.
In the second direct presidential election in 2000, Chen, the Democratic Progressive Party's candidate, was elected, and a peaceful transfer of power ended the KMT's 55-year rule. In the 2004 presidential election, the Taiwan-centered government maintained its hold on power. During this period, Taiwan not only managed to create an economic miracle and develop a unique sociocultural system, it also succeeded in transforming authoritarian rule into a democratic system and way of life.
Studying the status of Taiwan according to international law, we must grasp changing political realities and the nature and basic principles of international law. The law is not just a set of static, inflexible international rules, it is a dynamic, ongoing decision-making process to realize the common interest of all humankind -- keeping international peace and security and furthering international cooperation.
To sum up, Taiwan fulfills all the conditions for being a state or country: It has a population, effective control over a territory, a government and sovereignty. The past undetermined status of Taiwan according to international law has now been determined and Taiwan has evolved into a sovereign and independent country.
Chen Lung-chu is chairman of the Taiwan New Century Foundation and president of the Taiwanese Society of International Law.
Translated by Jason Cox and Anna Stiggelbout
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