By David B. Kopel
Originally published on The Volokh Conspiracy. Sept. 12, 2006. Español. More by Kopel on Taiwan.
Today the United Nations General Assembly convenes in its 61st session. Unfortunately, the legitimacy of the General Assembly, and of the United Nations itself, is undermined by the exclusion of the free, democratic, and independent nation of Taiwan from membership--in contravention of the UN Charter.
It might seem futile even to raise the issue of Taiwan's exclusion, since China is adamant that Taiwan will never be admitted to the United Nations. But even though a great power may persist for decades in trying to block the admission of an independent state to the UN, diplomatic circumstances and priorities can change, over time — as was demonstrated, for example, by the awarding of the China seat to the Mao regime in 1971 (following decades of U.S. opposition). In any case, it is important for the public and the diplomatic community to recognize the illegitimacy of Taiwan being denied its rightful place in the United Nations.
The UN Charter, article 4, states that "Membership in the United Nations is open to all other [non-founding] peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations." Taiwan is indisputably a "peace-loving" state — in marked contrast to China, which not only makes threats against Taiwan, but supplies arms and financial support to warlords, dictators, and genocidaires around the world, including in Sudan.
Since Taiwan is "peace-loving," it is necessarily entitled to UN membership, according to the UN Charter, as long as Taiwan is a "state" that is capable of carrying out various UN obligations. Plainly Taiwan is such a state.
Taiwan is self-governing. Indeed, Taiwan exercises far more complete self-government than has been exercised by some UN member states — such as Lebanon during its period of colonization by Syria, or the Warsaw Pact nations during the period of Soviet hegemony.
Taiwan encompasses a well-defined territory, consisting of the island of Taiwan itself, plus dozens of smaller islands in the Taiwan Strait, the most important of which are the Pescadores. In contrast, some UN member states (such as India and Pakistan) have disputed or unresolved borders.
Taiwan's government is sovereign over its entire territory. Again, some UN member states do not exercise full sovereignty over their nominal territories; for example, Pakistan has only limited control over the northwest frontier province and the federally administered tribal areas. Likewise, Lebanon's government is far from fully sovereign in southern Lebanon.
In addition, Taiwan's population of over 23 million is larger than most UN member states. Taiwan has developed a republican form of government, and achieved a very good record on human rights — putting Taiwan far ahead of scores of UN member states, and much closer to full compliance with the founding ideals of the United Nations, as well as the many UN human rights treaties and declarations.
As the Declaration of Independence explains, self-government is the foundation of legitimate sovereignty; accordingly, Taiwan's current democratically-elected government exercises a legitimate sovereignty which is not possessed by the dictatorship in China nor by the dozens of other dictatorships which have UN delegations.
Taiwan clearly fulfills the four criteria of de facto statehood, as articulated in Article 1 of the 1933 Montevideo Convention: "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." Notably, even if China succeeded in convincing every country in the world to terminate formal diplomatic recognition of Taiwan, Taiwan would still, legally, be an independent state; as Montevideo's article 4 declares: "The political existence of the state is independent of recognition by the other states."
In 1971, the United Nations gave the China seat at the UN to the Mao Zedong dynasty, the seat having formerly been held by the Chiang Kai-shek dictatorship. The UN's decision was reasonable: the Chiang regime had lost the Chinese civil war in 1949, and, although the regime still made a nominal but ridiculous claim to rule China, it was clear in 1971 that for the last 22 years, the sovereign in China had been Mao, not Chiang, and there was no prospect of that situation changing. Resolution 2758 addressed solely the question of which regime was entitled to hold the "China" seat, and did not purport to resolve anything regarding Taiwan's independence.
The Mao dynasty in China has, since 1949, claimed sovereignty over Taiwan, but never has actually exercised a shred of sovereignty. Fifty-seven years of actual independence is more than sufficient for the Taiwan to deserve recognition as an independent state.
In terms of the right to admission to the United Nations, all that matters is Taiwan's status now as an independent, peace-loving state. Even if Taiwan had been part of China for 3,500 years, the most recent 57 years of independence entitle Taiwan to UN membership. However, it should be noted that the historical and international law record is more supportive of Taiwan's independence than of China's claim to sovereignty over Taiwan.
The history of Chinese government is very old, dating back to the Shang dynasty in the middle of the second millennium BC. Many Chinese dynasties rose and fell in the following centuries — but not until three thousand years later did any government on the continent of Asia claim to rule even a portion of the island of Taiwan. (However, the Quemoy Islands, which are very close to the Chinese coast, and which are currently ruled by the Taipei government, were historically part of China.) In 1683, China's government did establish some control over western Taiwan, and this control lasted for two centuries. For almost all of this period, the Chinese explicitly denied that they were sovereign over eastern Taiwan. One purpose of the denial was to avoid taking responsibility for the pirates who operated from eastern ports; and the Chinese's government's inability to suppress the pirates is one indication that China was correct in claiming not to exercise sovereignty in the east.
Only for 17 years (some other historians say 8 years) in the late 19th century did China actually declare sovereignty over all of Taiwan. This is trivially short period in the scope of Taiwanese and Chinese history.
Significantly, China renounced any claim to sovereignty over Taiwan, in the 1895 Treaty of Shimonoseki, and Taiwan was ceded to Japan. Japan ruled the entire island of Taiwan from 1895 to 1945 — that is, three times as long a China ruled the entire island. Ever since the sixteenth century, Japan had claimed sovereignty over eastern Taiwan. Thus, Japan's claim of sovereignty over one side of the island is actually two centuries longer and more senior than China's claim of sovereignty over the other side. Today, we would hardly claim that Japan's historical record of sovereignty over Taiwan entitles Japan to rule Taiwan against its will; a fortiori, the weaker record of Chinese sovereignty cannot give China a right to rule Taiwan against its will.
In the 1951 San Francisco Peace Treaty, which formally ended World War II, and the 1952 Treaty of Taipei (between Japan and Taiwan), Japan renounced all claims to Taiwan. Significantly, neither treaty stated that Taiwan was now part of China.
In the unsigned 1943 Cairo Declaration, Roosevelt, Churchill, and Chiang stated that "Manchuria, Formosa [Taiwan's Japanese name], and the Pescadores, shall be restored to the Republic of China." Although it is doubtful that Cairo created binding international law, the literal effect of the language is consistent with Taiwan's current, independent existence as the "Republic of China," and inconsistent with Taiwan being subsumed into the "People's Republic of China"; certainly the Communist tyranny which Mao hoped to establish was not an intended beneficiary of the Cairo Declaration. To the contrary, the intent of the parties of the Cairo Declaration would be to construe each and every word against a Mao regime and its successors. The Cairo Declaration is also referenced in the Potsdam Declaration.
The fact that China persists in a claim of sovereignty of Taiwan, and sometimes makes military threats, cannot be considered a proper reason for denying UN membership to Taiwan. After all, North Korea and South Korea were each admitted to the UN, even though the North Korean tyranny claims sovereignty over South Korea, and legally remains in a state of war with South Korea. (The Korean War was ended by an armistice, which was executed in the expectation that a peace treaty would be negogiated later, but there has been no such treaty.)
During a 1998 visit to China, President Clinton said that he opposed admitting Taiwan to the United Nations. The U.S. House of Representatives promptly rebuked him, voting 390-1 for a Resolution (H. Con. Res. 301) by which Congress "affirms its strong support, in accordance with the spirit of the Taiwan Relations Act, of appropriate membership for Taiwan in international financial institutions and other international organizations."
Rather than kowtowing to the Chinese dictatorship, all freedom-loving nations and peoples should stand in support of Taiwan's right to self-determination and to membership in the United Nations.
Further reading: Parris Chang & Kok-ui Lim, "Taiwan's Case for United Nations Membership," UCLA Journal of International Law and Foreign Affairs(1997).