On Sept. 13, Taiwan received a measure of good news as Roberto Kobeh Gonzalez, president of the International Civil Aviation Organization (ICAO) Council, sent an invitation to Civil Aeronautics Administration (CAA) Director-General Jean Shen (沈啟) inviting her to lead a delegation to the upcoming session of the ICAO assembly as his guest.
Although Taiwan failed to receive the observer status it sought, the invitation is notable because it marks Taiwan’s return to the assembly since the Republic of China lost its UN seat to the People’s Republic of China in 1971.
This achievement has been applauded by some as a win-win situation for Taiwan, China and the US. For others, this is yet another success of President Ma Ying-jeou’s (馬英九) “viable diplomacy” and an expansion of Taiwan’s international space. However, many serious questions about the “invited guest” model remain unanswered, with three issues being of particular concern.
First, unlike observer status, the status of “invited guest” lies outside the existing legal framework of the ICAO. Therefore, the rights and obligations of guests are undefined. To illustrate, Rule 25 of the agency’s Rules of Procedures states that observers are able to participate in the assembly, its commissions and sub-commissions.
However, it is unclear whether Taiwan, as a guest, will be able to participate in any ICAO organs other than the assembly. Consequently, Taiwan will have to negotiate the specifics of its participation. Does the nation have the diplomatic clout or resources to achieve a favorable outcome in these negotiations?
Second, the sustainability of this invitation is questionable. Since the rules regarding invitations are not codified in the statutes, there is no express or implicit guarantee that Taiwan will be invited to participate at subsequent assemblies. As a result, Taiwan may become dependent on China’s goodwill to secure future participation.
The nation’s observership in the World Health Assembly (WHA) faces a similar problem as the WHA’s Rules of Procedures are also silent on the issue of perpetual invitations. However, Taiwan’s observership in the WHA is considered quasi-permanent because in practice the director-general of the WHO invites all existing observers to attend the WHA each year.
Third, there is a danger that the “invited guest” model will set a limit for participation in other international fora. For instance, will other UN bodies and international organizations, seeing the precedent set by the ICAO, consider it good enough for Taiwan to be physically present in the meeting halls, but otherwise have no rights, obligations or status and use this approach as the modus operandi for the nation’s inclusion in their respective organizations?
Taiwan must preempt this possibility by stating clearly that, while it is grateful for the invitation, it will continue pursuing the right to attend as a formally recognized entity.
These three points highlight the limitations and potential implications of the nation’s invitation to the ICAO assembly. With these uncertainties unresolved, it might be too early to start the party to celebrate victory.
As always, Taiwan faces a treacherous diplomatic road ahead and so it should push — to the greatest extent possible — for meaningful participation in a manner consistent with the existing legal framework.
Jerry I-H Hsiao is a lecturer of law at Liverpool Law School, University of Liverpool. I-Chun Hsiao is a graduate student in public policy at the Kennedy School of Government, Harvard University.