The history of Taiwan question is one of the most contested issues of the modern world’s geopolitical problems. Taiwan has been at the receiving end of great power politics for quite some time now. The island, formerly known as Formosa, has always found itself at the centre of global power play which has resulted into its uncertain future, as is the case today. Aptly described, Taiwan is a nation that dares not speak its name. Taiwan has existed as a de facto independent state that has never declared its formal independence. Not that it doesn’t want to, but because it risks an existential threat by doing so, curtsy its larger neighbour, the People’s Republic of China (PRC) which considers Taiwan as a ‘renegade province’. As things stand today, Taiwan possesses one of the world’s most vibrant economies, a leading democracy, and a skilled population contributing to its growth and development.
This article aims to put forth the arguments that can be used to make the case for Taiwan’s legal right to establish itself as an independent sovereign entity in the international arena. The idea is to use an alternative approach which is based on international law that can act as a prohibitive measure against any forceful use of power by the PRC to achieve its goals of ‘reunification’. First, we look at PRC’s claims of the island and the faulty assumptions of such claims that fail to provide any actual substance to the argument except for usual rhetoric. Secondly, we look at the generally recognized statehood criteria as defined by the Montevideo Convention which is used across the board to declare a political entity as a ‘state’. The Montevideo Convention coupled with the modern law of self-determination provides a strong case for Taiwan’s de jure independence. Finally, we also look at the discourse within Taiwan regarding its international status which becomes ever more important given the fact that in the past, decisions about the island have never been made in consultation with its inhabitants.
PRC’s claim of Taiwan
PRC (referred to as China, henceforth) is the biggest obstacle to Taiwan’s aspirations of a de jure independence since it claims that the island is a breakaway province of the mainland China and must be reunified at any cost. China has also issued very credible threats of using force, if necessary, should there be a declaration of independence by the island. Such threats have proven to deter the Taiwanese from taking any concrete steps toward an official declaration even though there is a strong desire within the populace to do so. Claiming Taiwan as a part of China provides them with the justification to use force since any declaration of independence, should it come to pass, would then be considered as a ‘secession’. Since no rule of international law forbids use of force to quell secessionist activities, China would not have to face any problems in that case. The problem with this rationale is the faulty premise that Taiwan is part of the PRC and loses credence in the face of broader historical and political forces that have rendered Taiwan a separate and distinct entity. Chinese white papers on Taiwan, notably the 1993 paper, as well as almost every mention of Taiwan is accompanied by an incessant rhetoric that Taiwan has been an inalienable part of China since ancient times. It must be noted that Taiwan was not a legal part of China until 1886. Any claims based on other cultural and economic relations between people on the island and mainland before this has no legal credibility. Even after 1886, Chinese rule over Taiwan was nothing more than a brief stint that too against the wishes of the island’s inhabitants. Under the treaty of Shimonoseki of 1895, the Qing government ceded Taiwan to the Japanese – in perpetuity. An important aspect to be noted here is that even the resistance against the new Japanese colonial government was not aimed at unifying with the Chinese mainland but to establish an independent Taiwanese republic. Thus, any Chinese claim based on an inaccurate interpretation of history holds no water in real sense.
The other most cited arguments from the Chinese come based on Cairo and Potsdam declarations of 1943 and 1945 respectively. On the face of it, the claims appear stronger in this case, but this too suffers from faulty assertions. Firstly, these declarations were merely statements of intent during wartime and not legally binding and thus, having no place in international law. Second, none of the parties of these declarations at the time (US, UK, Soviet Union, and China) were in effective control of the island, hence its legal status could only be changed by Japan which it did later on under the San Francisco Peace Treaty of 1952. Finally, even if the aforementioned two declarations are considered, it should be made clear that the island was transferred to Chiang Kai-shek’s ROC government and not to the PRC that didn’t even exist at the time. It is not clear that the PRC could succeed to the ROC’s claim in this regard since the ROC government is still in existence.
Therefore, it is amply clear that Taiwan has not always been a historic part of Chinese territory. Also, China can not prove that the two wartime declarations are sufficient to prove its sovereignty over Taiwan.
The statehood criteria and the concept of self determination
There have been many debates about Taiwan’s eligibility as a state under international law. Since the democratization process started in 1987, Taiwan has emerged as one of the best democracies around the world. The international legal criteria to determine whether an entity qualifies for statehood were set out authoritatively in the 1933 Montevideo Convention on the Rights and Duties of States. The convention acts as customary international law when it comes to determining the status of a political entity as a state. As per the Article 1 of the Convention, a state should possess (a) a permanent population; (b) a defined territory; (c) a government; and (d) capacity to enter into relations with the other States. Let us look at these criteria one by one in the context of Taiwan. First, Taiwan possesses a permanent population of around 24 million which is more than the populations of around seventy five percent of UN member states. Second, Taiwan does have a well-defined territory given its island status and it exercises complete and practically unchallenged sovereignty over that geography. Hence, Taiwan meets the requirements of effectiveness for the purpose of the Montevideo convention. The third criteria are also met rather easily since the ROC government has the capability to frame, execute, and enforce laws under a constitution and it does so for all practical purposes. The final criteria of being capable of conducting foreign relations is also easily and very effectively met. Taiwan conducts economic and cultural relations with almost all the major countries around the world even if at an unofficial level for the obvious reason of PRCs ‘One China Principle’. In the past, it has conducted full-fledged foreign relations and as stated above continues to do so except for an official stamp on it. As is evident, Taiwan meets all the criteria for eligibility as a state under international law.
On the question of self-determination, one might argue that there are no clear-cut rules to decide which entity has the right to self-determine. The concept, however, was introduced in the wake of ending colonialism after second world war and Taiwan as the then Japanese colony qualifies for the application of self-determination concept. The U.N. General Assembly has defined self-determination as the right of “all peoples freely to determine, without external interference, their political status.” Some might argue that Taiwan already exists as a de facto, undeclared state. This being the case, Taiwan cannot, by definition, secede from the PRC when it already enjoys a separate and distinct international legal and political identity. Once the secession facade is deconstructed, Taiwan manifestly has a right to self-determination. Irrespective of the ethnic and linguistic identity that the island shares with the mainland, Taiwan is a mix of western and Chinese traditions having different economic and political culture from the mainland. It is a democratic polity with respect for human rights, political and economic freedoms, social orders, and a unique Taiwanese identity that is strikingly different from its neighbour. Finally, and perhaps most importantly, the will of the Taiwanese people demands that Taiwan remain, at least for the time being, a separate entity from the PRC. With all these points in its favour, Taiwan clearly qualifies for self-determination.
Discourse within Taiwan
Considering all the above arguments about Taiwan’s eligibility for a de jure independence, one might think that the staunch opposition from China is ‘the’ only factor stopping the island from its deserved status. However, that might not be the case. Even within Taiwan, a sizable group of Taiwanese are not in favour of this stance, some because of the Chinese threat while others who genuinely believe that Taiwan should not be separate country and an acceptable solution should be found. This might have to do with Chiang Kai-shek and KMT’s legacy that believed in retaking the mainland from the communists. But this is a minority opinion limited to older generation. Most Taiwanese prefer the status quo since that ensures peace on the island but some argue that it is precisely this status quo that might lead to conflict because of miscalculation or brinkmanship.
One can find two prevailing theories within Taiwan with regards to the question of a formal declaration of independence. The popular sovereignty theory supported by the green coalition led by DPP, suggests that Taiwan could make fundamental constitutional changes and choose a new national title by means of a popular referendum. On the other hand, the legal theory, supported by the blue coalition led by KMT, argues that any fundamental constitutional changes would require that the amendment procedure of the ROC constitution be followed. The criteria for a constitutional amendment, however, requires a huge political consensus and needs a quorum of at least three-quarters of all members of the Legislature. After passing the legislature, the amendments need ratification from at least fifty percent of all eligible voters of the ROC, irrespective of voter turnout. Such harsh conditions make it difficult to amend the constitution specially when there is a lack of political consensus. And a big reason for this lack of consensus is the impending Chinese threat that is repeated every now and then by the mainland authorities of an imminent invasion should there be an attempt of a formal declaration of independence by Taiwan.
Conclusion
There is absolutely no denial that Taiwan meets all the criteria of an independent state under international law. However, Taiwan has not been accorded formal recognition by and large for two reasons. First, Taiwan has never overtly declared its independence. It is a general axiom of law that obligations will not be thrust upon any entity without its consent and thus no nation can recognize Taiwanese independence until Taiwan asserts it. And second, despite its eligibility, Taiwan remains at the mercy of geopolitical calculations of the other nations since such determinations are usually done on a political basis by individual states. Different IR theories can make sound case for Taiwan’s de jure independence but for most part the global geopolitics is dominated by a realist understanding where balance of power is a deciding factor. Notwithstanding its de facto status as a state, Taiwan continues to be a unique case of a political entity whose international status remains undetermined, at least for now.
