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Taiwan: a derogation of international law?

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Anti-China demonstrators shout during a protest against Sha Hailin, a member of Shanghai’s Communist Party standing committee, arrives in Taiwan for a forum, at Songshan Airport in Taipei 22 August 2016. (Photo: Reuters/Tyrone Siu).

In Brief

If you only follow the good news out of Taiwan, you may be forgiven for thinking that things have been rosy of late — the first female president in the country’s history and the recognition of same-sex marriage have provided for some positive press. But some troubling signs are emerging. Recent events have brought to light questions regarding Taiwan’s status in international law and have highlighted the failing aims and enforceability of such law.

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What does international law do if it does not protect peaceful, democratic countries committed to human rights? The demand for this kind of protection was the reason that the United Nations and the Council of Europe were originally formed. Friendly relations among nations, self-determination of peoples, and universal peace are bedrock principles of the UN, which pledges to be ‘a centre for harmonizing the actions of nations in the attainment of these common ends’. But these laudable aims now seem adrift. Nowhere is this more evident than when considering Taiwan.

After almost 30 years of democracy in Taiwan it is now time to ask a difficult question: why does the country remain so vulnerable, and unprotected by the international legal community?

As Taiwan becomes increasingly democratic, allies are deserting them. The most recent to do so was Panama, a long-standing ally that was ‘seduced’ by China through a number of mouth-watering loans and infrastructure projects. Panama’s president rationalised the switch by suggesting that President Tsai’s election to office ended the ‘cross-Strait truce’. This incident will not be the last — China is pressuring more Taiwanese allies abroad to change the way they deal with Taiwan. And it seems Taiwan has few options to protect itself.

If international law must not be judged on the Herculean task of protecting states, it is also designed to protect vulnerable individuals. Here, too, it is struggling. Recently, China charged Taiwanese human rights activist Lee Ming-cheh with ‘subverting state power’. This is the first time a Taiwanese national has been charged in this way. Lee has virtually no avenues for international protection — even though China was a signatory to the International Covenant on Civil and Political Rights in 1998, they have still not ratified it. Many fear that Lee will not receive a fair trial in China and is likely to be convicted, similar to the Chinese human rights lawyers involved in a 2015 crackdown by the Chinese government.

And what can be said for the institutions of international law? Their support for Taiwan is also lacking. Most recently, the World Health Organisation (WHO) failed to invite Taiwan to this year’s World Health Assembly (WHA), at which Taiwan has acted as an observer every year since 2009. In September 2016, the International Civil Aviation Organisation did the same thing.

For the time being, Taiwan can forget about formal recognition from the UN —it is even shut out of UN ancillary organisations. But it seems clear that Taiwan does not seek membership to such organisations as a crutch for promoting their sovereignty; the country genuinely believes that they have something to offer international discussions on public health, aviation safety, and other issues.

Some may respond to these developments by contending that if China’s ability to deal with its own sovereignty disputes is not protected, then the Taiwan Strait — and East Asia more generally — will become more volatile. A worldwide non-interventionist strategy has been readily accepted in response to China’s increasingly hostile actions towards Taiwan.

But what comes of international non-intervention? The tension in East Asia — and especially across the Taiwan Strait — arises not because Taiwan is attempting to continually assert its sovereignty under a new government, but because China is allowed to run amok. Recall that it is Taiwan, not China, that has pledged for a peaceful resolution to the cross-Strait situation.

And yet, Taiwan could go some way to helping itself by tweaking its own ‘One China’ policy. Currently the Taiwanese government still claims that the Republic of China (ROC) represents all of China. Thus countries like Panama increasingly have little choice but to recognise China’s version of a more coherent ‘One China’ policy, as Taiwan’s sovereignty claim is regarded as increasingly irrelevant in the geopolitical sphere. Taiwan could either acknowledge that its ‘ROC’ title is meant as a representation of Taiwanese sovereignty, or drop the ‘ROC’ portion of the title completely — the latter, from China’s perspective, may amount to an act of succession or a declaration of war. At any rate, it would be better if Taiwan focused on Taiwanese sovereignty, and stopped referring to themselves as the ‘free China’.

If the international legal community has no way to sanction economically powerful countries that do not abide by international law principles, and conversely has no way to protect countries or individuals that do abide by those principles, then it is time to reform the mechanisms of international law.

Brian Christopher Jones is a Lecturer in Law at the University of Dundee.

10 responses to “Taiwan: a derogation of international law?”

  1. At the end of China’s civil war in 1949 the Kuomintang government fled the mainland but set itself up in the last remaining territory it did control – the island of Taiwan, where it continued to assert it was still the legitimate government of all of China. On the mainland of course the People’s Republic also asserted it was the legitimate government of all of China.
    The US militarily assisted the Kuomintang to ensure that the PRC would not complete its takeover of all of China by force. The resulting situation repeats earlier historical episodes where dynasties losing power in China have survived in Taiwan for a few generations after losing the mainland, with the island eventually being reabsorbed into the mainland regime.
    This presumably is the process the PRC believes is going on.
    Granting this history, I cant see how international law can be seen as being on the side of Taiwanese secession and I cant see that articles like this which suggest that the global community should encourage the secession of Taiwan are likely to promote stability in the region.
    It may well be the case that the PRC’s record on human rights is not what we would like, but it seems to me that nobody’s human rights are helped by starting the shooting war which would result from a serious attempt at Taiwanese secession.

    • This is an incomplete, and therefore inaccurate, view of what happened between 1945 and 1949.

      First of all, the KMT’s control of Taiwan was never actually ratified by international law. The Cairo agreements were non-binding, Potsdam only reaffirmed Cairo, but if Cairo was non-binding than neither was Potsdam, and the two treaties afterwards sought to officially end Japanese sovereignty over Taiwan but did not, in fact, settle the question of who did legally control those territories. Taiwan was, as a result, released by Japan but never *officially* released *to* the ROC. The ROC controlled it in a de facto sense but certainly not in a de jure one. It’s also worth noting that the two treaties that did formalize Japan’s ceding of Taiwan were not signed and did not go into effect until 1951-1952. When the KMT fled to Taiwan, it was still for all legal intents and purposes Japanese. Even the foreign minister of the ROC at the time (George Yeh) acknowledged this, noting that the KMT were little more than “squatters” in Taiwan, and were only able to be there because the international community found it easier to let them do so than to hammer out a better long-term solution for Taiwan.

      Furthermore, there is little indication before 1943 (the year Chiang met Allied leaders in Cairo) that the ROC had any desire to ‘take’ Taiwan or even considered Taiwan a part of China or their territory, beyond the words of Chiang himself. For most of the ROC’s existence in China, it had no interest whatsoever in Taiwan, which was a Japanese territory and accepted as such.

      During those tumultuous years in the late 1940s, it is further worth mentioning that the Allies and the UN were not particularly keen on letting the ROC continue to stay on Taiwan. They were not only tepid supporters of Chiang at best (at one point Chiang resigned the presidency as he was losing China, in part because the ROC’s Western allies were not keen on him nor on his failing military strategy), and were all fairly certain that the PRC would eventually take Taiwan – and were OK with this. The discussions at that time were not how to bolster the ROC’s presence in Taiwan, but whether to let Taiwan fall to the PRC, make Taiwan a territory under the trusteeship of the UN until a better solution could be worked out, or even to support advocates of home rule. It was not at all settled then that the ROC had a legitimate claim to Taiwan, despite plenty of ROC (and, these days, PRC) propaganda to the contrary. The only thing that changed the minds of the allies was the outbreak of the Korean War. Otherwise, they were more interested in Chiang holding Hainan than Taiwan.

      Finally, although this tends not to sway the minds of those who view Taiwan’s current independent status as “secession” (a term that makes little sense – what did Taiwan secede from? Not the PRC, certainly. It was never a part of the PRC. And not the ROC as it is still technically the ROC although plenty of Taiwanese wish it weren’t. So – secede from what?), it’s important to remember that the ROC was never invited to Taiwan by the Taiwanese. The ROC soldiers were welcomed in a sense, but the government was not: it felt to many Taiwanese as though a bunch of refugees they’d been so kind as to offer home and safety to were turning around and claiming the island as their own rather than accepting that they were refugees, not masters. They went on to set up a government so brutal and ineffective that within a few years it sparked mass protests that, in turn, caused the government to turn around and massacre the Taiwanese (and, soon after, turn on some of its own people, too). This is not how one builds a legitimate government: in the rest of the world, when a foreign government comes in and says “this is mine now” without the consent of the local population, we call it colonialism. There is no reason why it should be any different in Taiwan.

      This is not the reason international law interprets Taiwan’s status as either “undetermined” or “sovereign state” (depending on the interpreters) and never as “a part of China” – that has to do with how the various treaties and agreements shook out. However, it is important not to forget.

      A full knowledge of history is important when discussing these issues, not just the elements of history that are cherry-picked to support a particular viewpoint.

      In fact, I’ll go a bit further: you claim that in previous eras, dynasties have ”escaped” from China, and controlled Taiwan before being “reabsorbed” into the “mainland” regime (also this word “mainland” is very politically charged. How about just “China”?). I assume you mean Koxinga’s foray into Taiwan. I’m not sure which other ones you might mean, as that’s the only real example. In fact, Koxinga’s invasion and his grandchildren’s subsequent loss of Taiwan was a lot more complicated than that. Yes, the Ming were falling, but Koxinga saw himself as capturing Taiwan for the Ming just as much as he was “fleeing” the Qing. Koxinga, furthermore, did not control all of Taiwan – he controlled essentially only what the Dutch controlled if not less, and the Dutch mostly focused on Tainan. They kicked out the Spanish in the north, but they had little true authority over the rest of the west coast and none over the rest of the country. After Koxinga ousted them and his descendants were ousted in turn by the Qing, the Qing, for most of their time holding Taiwan, only controlled – and only claimed to control – the west coast, not the entire island. That didn’t change until the after math of the Mudan Incident in the late 19th century, soon before Taiwan became Japanese.

      Even then, the Qing viewed Taiwan not as an integral part of their territory but as a colony, outpost or “hedgerow” protecting the core Qing empire (source: Emma Teng’s “Taiwan’s Imagined Geography”). It wasn’t seen as a worthwhile part of the realm (“a ball of mud beyond the pale of civilization”, “off the map”) until foreign powers started showing an interest in it. Can you really say, then, that Taiwan was “reabsorbed” into a “mainland” regime, even then?

      Every other invasion and cession of Taiwan has been to a foreign power, not a new power in China. Every single one. Remember, to the Japanese colonial citizens of Taiwan, the ROC was a ‘foreign power’ too.

      So, what’s your endgame here? You can’t possibly think that the ROC should hold all of China in addition to Taiwan – that’s simply not possible. Do you think the PRC has a legitimate claim to Taiwan? If so, do you believe in basic democracy? If you do, those two beliefs are at such odds that they cannot co-exist. Taiwan is a democratic society whose people do not want to be a part of the People’s Republic. Unless you think that you deserve democracy and freedom whereas other people don’t, and therefore you do not believe in democracy at all, that is not a possible belief without a strong dose of hypocrisy.

      • 1 “but if Cairo was non-binding than neither was Potsdam”.

        This is simply not true because the Japanese Govt made the 1945 Potsdam Declaration binding, in writing, as follows:

        a) by including the Potsdam Declaration in the Surrender Instrument on Sept 2, 1945, which stated, inter alia, that “We hereby undertake for the Emperor, the Japanese Government, and their successors to carry out the provisions of the Potsdam Declaration in good faith” and,

        b) when China and Japan signed the Joint Statement for the Normalization of Relations between Japan and the PRC on Sept 29, 1972. Article 3 stated that “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam Declaration”?

        What did Article 8 of the 1945 Potsdam Declaration state? That “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.’

        What did the 1943 Cairo Declaration state in part? “The Three Great Allies (US, China and UK) are fighting this war to restrain and punish the aggression of Japan. They covet no gain for themselves and have no thought of territorial expansion. It is their purpose that Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.” Brackets mine.

        2 “and the two treaties afterwards sought to officially end Japanese sovereignty over Taiwan but did not, in fact, settle the question of who did legally control those territories. Taiwan was, as a result, released by Japan but never *officially* released *to* the ROC.”

        This is also not true because on October 25, 1945, exactly 53 days after Japan signed the Surrender Instrument “to carry out the provisions of the Potsdam Declaration in good faith”, General Rikichi Andō, the Governor-General of Formosa and Commander-in-Chief of all Japanese forces on the island, signed an Instrument of Surrender and *officially* handed Formosa, the Pescadores and appertaining islands (Taiwan) over to General Chen Yi of the ROC to complete the official return of Taiwan to China, at the Taipei City Hall. Gen Chen Yi was escorted by Assistant US Naval Attaché George Kerr, under Gen MacArthur’s General Order No1. Since Japan annexed and placed the Spratly and Paracel Islands under the administration of Japan’s Formosa, the Spratly and Paracel Islands were also deemed returned to China on that date.

        3 “When the KMT fled to Taiwan, “it was still for all legal intents and purposes Japanese”.

        This is not true as it contradicts Jenna Cody’s statement that Taiwan “was never a part of China.” If it is true that ‘Taiwan was never a part of China’ then how could Qing China possibly cede Formosa, the Pescadores and appertaining islands (Taiwan) in perpetuity *legally* to Japan under the sham 1895 Treaty of Shimonosecki to make Taiwan “for all legal intents and purposes Japanese”?

        You cannot have it both ways. One statement has to be false. In my view the statement that Taiwan “was never a part of China” has no merit and is false.

        4 “For most of the ROC’s existence in China, it had no interest whatsoever in Taiwan, which was a Japanese territory and accepted as such.”

        That was because China honoured the 1895 Treaty of Shimonosecki, which ceded Taiwan to Japan in perpetuity but history shows that sham treaties have a nasty habit of being abrogated after a war.

        5 “It was not at all settled then that the ROC had a legitimate claim to Taiwan, despite plenty of ROC (and, these days, PRC) propaganda to the contrary.”

        Please read the 1943 Cairo Declaration again and you will see clearly that “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China.”

        6 “It’s also worth noting that the two treaties that did formalize Japan’s ceding of Taiwan…did not go into effect until 1951-1952.”

        In case the nuance escaped anyone, Taiwan was already *officially* returned to China on October 25, 1945 by General Rikichi Andō. The Peace Treaty signed by Japan and Taiwan on 28 April 1952 was just a formality but it was abrogated by Japan when Japan signed the Joint Statement for the Normalization of Relations between Japan and the PRC on Sept 29, 1972, confirming the one-China policy, stating that “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam Declaration”.

        7 And on August 17, 1982 in the Joint Communique on the Establishment of Diplomatic Relations on January 1, 1979, issued by the Government of the United States of America and the Government of the People’s Republic of China, it stated that “the United States of America recognized the Government of the People’s Republic of China as the sole legal Government of China, and it acknowledged the Chinese position that there is but one China and Taiwan is part of China…”, confirming the one-China policy.

        • If Taiwan was “formally ceded” to Japan in 1945 there would have been no need for the “formalities” of the early 1950s.

          I think you know perfectly well that the Japanese surrendered in 1945, and the ROC accepted that surrender on behalf of the Allies (on, if I remember correctly, a ship borrowed from the US Navy), but did not “formally cede” anything to the ROC. Even the KMT at the time acknowledged this, and it’s time you did too.

          Could the Qing cede Taiwan to Japan legally? In terms of the government that was in place at that time, I guess so, because they did. But they treated Taiwan like a colony, not like an integral piece of their territory. In 1895 colonialism was still acceptable. Now, it’s not. Taiwan was as much a part of China as India used to be “a part of the UK”. India was *a colony* of the UK, but not a part of it. Maps of the UK did not include it (maps of the British Empire, I am sure, did). Taiwan was likewise *a colony* of the Qing, but it was not “a part of China”. (There is an argument to be made that in the last decade or so of Qing colonial rule, that after making Taiwan a discrete province rather than a colonial outpost ruled from Fujian, that you could consider Taiwan to have been a part of China for about ten years. This is such a minor point as to not merit any sort of claims of China’s on Taiwan now).

          In any case, in that time China is best described as a conquered territory of the Manchus. Taiwan, like China, was a conquered territory (well, mostly. For the vast majority of Qing rule in Taiwan, they only controlled the Western plains and a bit of Yilan. They admitted themselves after the Mudan Incident that they did not control the entire island).

          That China and today’s China are simply not related other than that they control similar territory.

          Besides, the Qing, which held Taiwan as a colonial territory, were no longer the government of China in 1945, and the China that the ROC held was quite a different entity indeed. The Qing Empire – not “China” – lost Taiwan in 1895, and Japan surrendered to the ROC (then the government of China, but no longer) in 1945. It wasn’t “returned” to the ROC because the ROC never held it in the first place.

          So, I disagree that this claim “has no merit”.

          As for the “One China Policy”, you are interpreting the US position incorrectly. The US *acknowledges* China’s position. That does not mean they “confirm” it, or necessarily agree with it. You know that.

          As for Potsdam, you are again wrong. From here: http://thediplomat.com/2017/07/the-chinese-cult-of-cairo-and-the-status-of-taiwan/

          “Thus, Charlotte Gao’s recent claim here in The Diplomat that the Cairo Declaration, the Potsdam Proclamation, and the Japanese Instrument of Surrender are “legally binding” is completely false: none of those documents are legally binding with respect to the status of Taiwan. Under international law and practice, only an international treaty can settle the status of specific territories. Cairo and Potsdam are subject to change as conditions change, and the instrument of Japanese surrender merely dictates terms of surrender to Japan (which surrendered unconditionally) and places no binding conditions on the victorious allies.”

          Japan can’t just have decided Potsdam was binding, and Cairo was never binding, therefore neither of these two declarations hold up in international law regarding Taiwan.

  2. Thank you for making this forum available online. I almost always find the articles written by your contributors insightful and easy to read.

    It seems to me that Mr Christopher Jones’ concerns about the limits of international law has equal (if not more) relevance to the State of Palestine, which continues to languish under military occupation by Israel, a state that was created by Europeans, without the consent of the indigenous population, to solve a moral failure within Europe (anti-Semitism). Europeans such as Christopher Jones ought to first reflect on what responsibilities Europeans owe to the Palestinian people, who today suffer from considerable restrictions on their freedoms and sovereignty.

    It seems to me, at a minimum, that the European Union ought to immediately recognise Palestine as a sovereign state. The EU should also invite the Palestinian state to join the European Union (if they so wish). The freedom afforded to Palestinians to trade with Europe and travel to Europe, would to a considerable extent improve the well-being of the Palestinian people, and help right past wrongs done by Europeans to the peoples of the Middle East.

    Kien

  3. Worth noting – perhaps the government still uses the term “free China”, but I can assure you the idea and the words have fallen into total or near-total disuse among Taiwanese citizens. Truly, no Taiwanese refers to their country as “Free China” any longer.

  4. From Lee Teng-hui era, Taiwan has initiated a “pragmatic diplomacy” as its international policy, in order to promote its participation in international organizations, and non-diplomatic relations with the development of real relations. In the fight for recognition, Taiwan no longer adheres to the principle of Chiang Kai-shek, and has initiated the “double recognition” policy, which means it would not ask the state to give up recognition of PRC to recognize itself. In other words, at least in terms of Taiwan, the dispute over China’s representation has become a history. Today, it is PRC who is trying to completely block Taiwan’s international space, demanding the two sides must persist under the “one China” framework.

  5. I would hope that Taiwan sees that its long-term future is best secured through an accommodation with Beijing. Democracy grows in proportion to mass education and economic well-being. As China’s people become increasingly educated and wealthy, democracy in China will undoubtedly grow. China’s relations with Taiwan will change over time.

    It should be possible for the people of Taiwan to both (a) assert their Taiwanese identity, while (b) hold on to their Chinese identity. We have multiple identities, and they don’t necessarily have to be mutually exclusive. The challenge is for Taiwan and China to work together to foster peaceful relations and freedoms for people in both Taiwan and mainland China.

    There are more important issues that need the urgent attention of the international community. They include:
    – climate change;
    – the refugee crisis, not just in the Middle East, but elsewhere; and
    – ensuring sustainable and inclusive growth for the whole world, especially in Africa and Central Asia, but also not forgetting the risk of long-term secular stagnation faced by Western economies (including Japan).

    Again, I would strongly urge Western Europeans to reflect on their responsibilities to the people of Palestine, whose land has been appropriated unjustly without their consent, by European Jews (fleeing anti-Semitism in Europe). Europe’s failure to protect its Jewish minorities has had far reaching consequences. I find it inexplicable that Europe has done so little to protect the well-being and freedoms of the Palestinian people.

    Kien

  6. Taiwan did not care for international law when trying to control and apply its own laws to overseas Chinese particularly in the Chinatown areas of the USA and harassing political dissents in the USA and even murdering people like Henry Liu not to mention being actively involved in helping its own organized crime syndicate distribute heroin around the world while not tolerating in its own place.

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