During a visit to southern Taiwan last Tuesday, Democratic Progressive Party (DPP) presidential candidate Frank Hsieh (謝長廷) said that he was actually running for president of the "Republic of Taiwan" (ROT). Chinese National-ist Party (KMT) presidential candidate Ma Ying-jeou (馬英九) responded immediately by stressing that he is running for president of the Republic of China (ROC) on Taiwan. A battle between the ROT and the ROC is about to begin. The question of what country the candidates are seeking to lead is something perhaps not seen in any other election in the world.
From Hsieh's support for the quick change of the national title and writing of a new constitution in the "normal country" resolution passed by the DPP's Central Executive Committee on Aug. 30, it is clear that his recent statements are the result of internal party debate, backed by academic discourse. Many young academics in international law lean toward supporting the ROT discourse.
There are two theories in international law dealing with the question of whether a country can become an international legal entity: The "declarative" and "constitutive" theories of statehood. The former believes that diplomatic recognition is simply one country's recognition that another country indeed is a country and is not the basic element for statehood, while the latter believes that such recognition is a basic requirement for statehood.
The question of whether a country is a UN member state has influenced its prospect of gaining diplomatic recognition from other countries. Minister of Education Tu Cheng-sheng (杜正勝) and members of the Academia Sinica have said that based on UN Resolution No. 2758, the ROC no longer exists, a statement that can only be understood from the perspective of the constitutive theory.
When President Chen Shui-bian (
But we must understand that in international law, the constitutive theory is advocated by a few academics only, while most international organizations subscribe to the declarative theory, which means that a state must be a country before it can gain diplomatic recognition or enter international organizations. The Montevideo Convention on Rights and Duties of States signed by the US and 19 Central and Southern American countries in 1933 was the first example of the declarative theory being written into international law.
As Article 1 of the convention states, "The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government and d) capacity to enter into relations with the other states." Diplomatic recognition is not listed as a basic condition for a state. The EU requires each member to be a state, and the definition of a state follows the Montevideo Convention. The UN Charter also specifies that all members have to be peace-loving states that are willing to fulfill the obligations in the charter.
Ever since Lee Teng-hui (
Although ROT supporters have been able to tear down the ROC with the constitutive theory, they have been unable to provide convincing examples from international law that a ROT can be established as a state that satisfies either the declarative or constitutive theory.
On the contrary, according to the Treaty of Peace between the Republic of China and Japan in 1952, the ROC on Taiwan, Penghu, Kinmen and Matsu enjoys independent sovereignty and satisfies the declarative theory.
Article 1 of the UN Charter specifies that its purpose is "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace." Based on the ROC-Japan peace treaty, our country can only implement this article.
Just like Finland after World War II, the ROC on Taiwan, Penghu, Kinmen and Matsu has been formed in the cracks between several great powers. Finland went through a civil war over the question of whether to lean toward Russia or Europe. Damaged by war, its competitiveness lagged far behind neighboring countries before it woke up and devoted itself to national integration. Today, it is one of the most competitive countries in the world.
In Taiwan, the struggles over national status have deeply hurt competitiveness. Now a battle between the ROT and the ROC is about to begin as part of next year's presidential campaign. The seriousness of the consequences are obvious. The ROC-Japan peace treaty ensures the nation's sovereignty in Taiwan, Penghu, Kinmen and Matsu. Unfortunately, we did not teach our citizens about this or try to use it to educate the international community.
Before the election campaign really begins, the KMT should invite the DPP and representatives from industry, government, and academia to negotiate Taiwan's national status, so the election can focus on issues that will move our nation forward. Please don't turn Taiwan into an international joke.
Lin Man-houng is a senior research fellow in the Institute of Modern History at Academia Sinica.
Translated by Eddy Chang
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