Academia Historica President Chen Yi-shen (陳儀深) has talked about the historical basis for a shared destiny of Taiwan proper, Penghu, Matsu and Kinmen. This is a historical interpretation seen from a Taiwanese perspective. International law has a different interpretation.
Since the Republic of China (ROC) was divested of its UN seat in 1971 by UN General Assembly Resolution 2758, Taiwan has been reduced to using the name “Chinese Taipei” at international events. The WTO uses the name “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.”
The WTO is the only international organization to combine Taiwan and Penghu with Kinmen and Matsu, which, after all, have differing statuses under international law. Taiwan and Penghu are firmly within the territory of the ROC, while Kinmen and Matsu were handed to the ROC as a caretaker government by the Allies after World War II.
They are all under the control of a single government, whether that government is called “the ROC,” as in the ROC Constitution, or the “governing authorities on Taiwan,” as it says in the US’ Taiwan Relations Act (TRA).
The islands in question constitute two sets of territories of differing legal status under the jurisdiction of a single government.
Under international law, a fairly simple comparison of this would be pre-handover Hong Kong. Before 1997, the New Territories belonged to China and the Kowloon Peninsula and Hong Kong Island belonged to the British, but all were governed under the jurisdiction of the British, as a British Dependent Territory of the UK. Hong Kong has continued to have a seat in the WTO.
The protests over the proposed extradition law continue in Hong Kong and there are now calls for independence. According to independence advocates, had Beijing not asked the UN to remove Hong Kong from its list of Non-Self-Governing Territories in 1972, the year after China regained its seat at the UN, the people of the Hong Kong colony might have had the right to a referendum in the 1960s, while still under British rule. Apparently, the New Territories’ territorial status had a significant impact on Hong Kong’s future.
For Taiwan, the scope of the Sino-American Mutual Defense Treaty, effective from 1955 to 1979, was limited to Taiwan and Penghu, to avoid any accusations of US military interference in Chinese territory. However, on January 1955, the US Congress also passed the Formosa Resolution, giving the US president the power to safeguard “territories in the West Pacific under the jurisdiction of the Republic of China.”
The US government subsequently announced its resolve to protect Taiwan from attack by the communists, even though the territories to be protected were not explicitly stated. Had this resolution not been passed, the “shared destiny” of Taiwan, Penghu, Kinmen and Matsu might not be under discussion.
This resolution also allowed the US to circumvent the issue of interfering with Chinese domestic affairs through the concept of territories being occupied by a government commissioned to do so by the Allies. The area designated as Taiwan, Penghu, Kinmen and Matsu was not under the jurisdiction of the People’s Republic of China, and the ROC on Taiwan was not the same as pre-1949 China.
Today, the US is implementing the spirit of that resolution through the TRA and four other pieces of legislation.
Both Hong Kong and Taiwan have gone through times of prosperity and stability, and of being buffeted by the winds of history. Now, one is striving to achieve democracy, while the other is trying to defend it. To what extent does destiny play a part in this?
Ou Wei-chun is a company chief legal officer.
Translated by Paul Cooper
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