The WHO’s invitation to Minister of Health and Welfare Chiang Been-huang (蔣丙煌) said: “Dear Dr Chiang: Recalling the UN General Assembly Resolution 2758 and WHA [World Health Assembly] Resolution 25.1, and in line with the one China principle as reflected therein, I wish to invite you to head a delegation from the Ministry of Health and Welfare, Chinese Taipei, to attend the 69th World Health Assembly as an observer.”
Despite these formulations, the incoming government decided to attend the annual assembly, saying that the “one China” principle based on UN Resolution 2758 mentioned in the WHO secretariat’s invitation was irrelevant to Taiwan’s participation in the event. There might be room for maneuvering if Taiwan interprets the UN resolution this way and in isolation.
However, if it interprets it in the context of the event, there would be a great risk.
It was President Ma Ying-jeou’s (馬英九) administration that handed China the power to decide whether Taiwan would participate in the WHO event, thus chaining the “one China” problem to Taiwan. Undoubtedly, despite the transfer of power in Taiwan, the participation model has been set by China, which can unilaterally decide whether Taiwan can attend the assembly. China did all it could to humiliate Taiwan by announcing to the whole world that Taiwan is on China’s leash.
If Taiwan insists on attending the WHA on these conditions, it would expose itself to dangers of the spillover effect of international law, which could hurt the nation’s participation in other international organizations or conventions.
The participation model with the inclusion of a UN resolution originated during the Cold War. To handle the issue of whether multiple international conventions should be open to specific political entities, the UN General Assembly issued a “general understanding” regarding the “Vienna formula” in 1973.
The general understanding said: “The secretary-general, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the assembly in implementing such a clause and, whenever advisable, will request the opinion of the assembly before receiving a signature or an instrument of ratification or accession.”
Originally, the general understanding referred to the advice about parties to a convention and it was irrelevant to an observer. Today, as the general understanding is applied to an observer like Taiwan, China’s calculations on the issue is self-evident.
An even greater legal risk is that both UN Resolution 2758 and WHA Resolution 25.1 recognize the People’s Republic of China (PRC) as the only legitimate representative of China to the UN, restoring to the PRC all its rights and deciding to “expel forthwith the representatives of Chiang Kai-shek [蔣介石] from the place which they unlawfully occupy at the UN and in all the organizations related to it.” Therefore, it could be said that the resolutions did not touch on the Taiwan issue, leaving some room for interpretation of Taiwan’s participation in UN activities.
In response to Taiwan’s 2007 UN membership application, UN Secretary-General Ban Ki-moon said that Taiwan had no right to participate in UN activities since UN Resolution 2758 declared that it was a part of China.
However, Australia, New Zealand and other nations expressed their concern, while the US and Japan issued a formal diplomatic note verbale to Ban, saying that the resolution had no such legal effect and that Ban’s remarks violated the principle of neutrality. Washington also said that no UN agency had the right to unilaterally determine Taiwan’s status when the WHO listed the nation as a Chinese province in its internal documents.
However, it must not be forgotten that while others might not have the right to decide Taiwan’s standing, Taiwan itself does. Based on the “one China” premise for Taiwan’s WHA participation over the past seven years, as well as the content of the latest invitation, if the incoming government accepts such an arrangement, it would be admitting to the international community that UN Resolution 2758 confirms that Taiwan is a part of China.
If Taiwan chooses to accept this, it would leave no room for other nations to support Taiwan. Not even the Ma administration would be dare to recklessly accept that UN resolution 2758 confirms that Taiwan is a part of China.
As the saying goes: “A small leak can sink a great ship.”
Hopefully, the incoming government would think this over. It must not disappoint its supporters for the sake of convenience, while leading Taiwan’s international space and development toward a more pessimistic future.
Chiang Huang-chih is a professor of law at National Taiwan University
Translated by Eddy Chang
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