Democracy and the (Non)Statehood of Taiwan

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Introduction

Much ink has been spilled on Taiwan’s legal status since the Formosa Question first arose in the 1950s. Yet, after Taiwan gradually emerged as a free democracy through a series of constitutional reforms following the martial-law rule’s end in 1987, the question of Taiwan’s status in international law has been lent a new lease of life in the brinkmanship between China and the West: should Taiwan be recognized as a State in terms of international law?

In making the case for Taiwan’s Statehood, it is argued that Taiwan has already satisfied all the four objective criteria for Statehood under the Montevideo Convention and achieved the requirement of independence. As Taiwan looks like a State, acts like a State, and speaks like a State, it must be a State and should be recognized as such. This duck test for Taiwan’s putative Statehood is complemented by a theory of democratic Statehood: through continuous democratic elections since its transition from autocracy to democracy in the 1990s, Taiwan has evolved from a territory governed by the Republic of China (ROC) into a separate State—officially titled ROC but self-styled as ROC (Taiwan) or simply Taiwan—vis-à-vis the People’s Republic of China (PRC), the official name of the Chinese State. On this view, such continuous democratic elections jointly constitute ‘effective self-determination’ and Taiwan has therefore become a new State via self-determination. Yet, does Taiwanese citizens’ effective self-determination really give themselves their own State?

Instead of trying to resolve issues concerning Taiwan’s legal status and answering the question as to whether Taiwan is a State, this contribution takes a hard look at the question of the Taiwan Statehood on its own terms. Engaging with the theory of democratic Statehood above, it will show why Taiwan asserts its Statehood on the basis of democratic elections as effective self-determination may lend an inadvertent hand to the PRC’s territorial claim to Taiwan.

Administration vis-à-vis Ownership     

To speak of Taiwan’s Statehood first presumes that there is a State holding the territorial title to Taiwan (and its adjacent islands)—for present purposes I leave out the islands just off the coast of mainland China and those in South China Sea under Taiwan’s control—and its government effectively rules Taiwan. This is the core of the argument for Taiwan’s sovereignty and thus Statehood under the Montevideo Convention. Yet, another presumption has gone little noticed: the government of this title-holding State that rules Taiwan—regardless of its official name as determined in domestic law—must not be a Chinese one; otherwise the title-holding State represented by that government would be the Chinese State as understood in international law.

Notably, the first presumption speaks to what lay at the core of the once-fashionable Formosa Question: Taiwan’s status from 1949 on, when the defeated belligerent in the Chinese Civil War (the Nationalists) regrouped itself as the Chinese State’s government-in-exile in Taiwan and continued to govern Taiwan as Chinese territory in the name of the ROC. It bears emphasis that Japan, the colonial power of Taiwan from 1895 on, still held de jure sovereignty of Taiwan when it surrendered to the Allies on 15 August 1945. Japan then ceded the administering power over Taiwan to the Nationalist-led government of the Chinese State (the aforementioned ROC), which acted as the occupying forces/ authorities on the Allies’ behalf. The legal status of Taiwan remained unchanged by Japan’s unconditional surrender to the Allies, despite the Chinese occupying forces immediately governing Taiwan as a Chinese province. Thus, Taiwan legally remained a Japanese territory when the Nationalists lost the Chinese Civil War to the Communists and moved the seat of the Chinese State’s government to Taipei under the name ROC in December 1949. Japan’s de jure sovereignty over Taiwan only ended when the San Francisco Peace Treaty—under which Japan renounced its title to Taiwan among other territories—went into force on 28 April 1952. This is the date when the now defunct Treaty of Taipei (the 1952 Sino-Japanese Treaty) was signed between the ROC and Japan to dovetail with its parent San Francisco Peace Treaty’s entry into force. In a further complication, the Sino-Japanese Treaty was voided by Japan in 1972 when it recognized the Communist government seated in Beijing—established on 1 October 1949 with the Chinese State’s name changed from the ROC to the PRC—as the lawful representative of the Chinese State. Thus, the debate over Taiwan’s territorial title-holding State centres on its legal status after the 1952 Sino-Japanese Treaty. 

Whether the 1952 Sino-Japanese Treaty settled the territorial title to Taiwan conclusively before Japan’s unilateral nullification of it in 1972 has continued to be contentious (see articles 2 and 10). Yet, one thing about the 1952 Sino-Japanese Treaty is clear: it formally concluded the state of war between Japan and the Chinese State that was declared on 9 December 1941 (see articles 1, 4, and 5). Thus, the State the authorities holding the administering power over Taiwan in 1952 claimed to represent must be China. In other words, Taiwan’s governing authorities that assumed the name ROC and represented the Chinese State in signing the 1952 Sino-Japanese Treaty acted as the Chinese State’s lawful government in international law in 1952. As long as such authorities were then recognized as the Chinese State’s lawful government in the eye of international law, the position taken by Taiwan’s administering power in 1952 also represented that of the Chinese State. It follows that the Chinese State under the name ROC has effectively ruled Taiwan since 1945, with the period of belligerent occupation (1945-52) included. The next question becomes whether Chinese effective rule of Taiwan would lead to the Chinese State’s ownership of it under international law, regardless of the Chinese State’s changed name (see here).

Succession vis-à-vis Continuity

Fast-forward to the present-day wrangling over Taiwan’s legal status. The current democratically elected government of Taiwan claims that Taiwan is an independent State under the assumed name ROC. Though recognized by just over a dozen countries in the world, the ROC (Taiwan) has satisfied all the criteria under the Montevideo Convention and acquired Statehood through continuous democratic elections as the functional equivalent to self-determination. Thus, the ROC (Taiwan) is entitled to the protection of international law in the face of the PRC’s sovereign claim over Taiwan, including article 2 (4) of the UN Charter. Conversely, the PRC claims that the territorial title to Taiwan has been returned to China since the end of World War II (WWII). On this view, Taiwan’s claim to its own Statehood amounts to attempted secession from China and the PRC has right to protect its territorial integrity by all necessary means. To make its case for Statehood without implicitly conceding to the PRC’s charge that it is seeking secession from China, the ROC (Taiwan) must prove the Chinese title to Taiwan to be legally groundless—ie, Taiwan has never become a Chinese territory following Japan’s renunciation of the territorial title to Taiwan at WWII’s end, despite the 1952 Sino-Japanese Treaty. Does it succeed in fulfilling this burden of proof?

To answer this question, let us first take a closer look at the state of the ROC (Taiwan) through the legal lenses. Start with international law. Despite changes in name and government form, the Chinese State has been in continuous existence and currently assumes the name PRC—the government of which has long been recognized as the Chinese State’s lawful representative. Compared to the Russian Federation being considered the continuing State of the USSR and assuming all the latter’s rights and obligations under the UN Charter and international law in general, the PRC government replaced the ROC government as the lawful representative of the Chinese State under the UN General Assembly Resolution No 2758 (1971). Seen in this light, the regime change that took place in China in 1949 was not so much about State succession as about a case of continuity in international law. And, the rights and claims that the Chinese State had acquired under the ROC would remain unchanged even if the Chinese State had changed its name. Thus, if it is accepted that the governing authorities of Taiwan—the ROC—as the then government of the Chinese State had acquired the territorial title to Taiwan and its sovereignty as such authorities claimed, the claimed title and sovereignty vis-à-vis Taiwan will remain with the Chinese State (PRC) under its legitimate government today (see here).  

As suggested above, the legal status of Taiwan remains a contentious issue in international law, to say the least. For present purposes, let us now turn to the legal order of the ROC (Taiwan) to see how it sees the claimed Chinese title to Taiwan first asserted by its governing authorities started in 1945. First of all, the 1947 ROC Constitution continues to be Taiwan’s fundamental law. A series of amendments notwithstanding, it still assumes ultimate unification with China, while the ROC’s legal territory includes both Taiwan and mainland China under Taiwan’s fundamental law. Notably, even though Taiwan is engaged in constitutional reform again—subject to approval by a referendum in November—it has decided to leave the constitutional goal of ‘national unification’ (see the preamble) and other provisions indicative of Taiwan as part of the Chinese State untouched. Against the continuing rise of a Taiwanese identity as indicated in polls and politicians’ talks about Taiwan’s (de facto) independence from the PRC, the recent deliberate constitutional choice above suggests the failure to translate political consciousness into the law as required by de jure independence, rather than the displacement of the documentary Chinese Constitution by some perceived unwritten Taiwanese proto-constitution as has been contended.  

Even more so, Taiwan’s recent legislation aimed at addressing injustices (see articles 5 and 8) and atrocities (see articles 3 and 7) committed by its governing authorities before martial law was completely lifted in 1992 has assumed the current government’s legal continuity with the government of the Chinese State that first undertook administering power vis-à-vis Taiwan in 1945. Taken together, the Taiwanese legal order attests to the ROC (Taiwan) today as the successor to the ROC that assumed administering power in Taiwan in 1945 and was recognized as the lawful representative of the Chinese State under international law until the General Assembly resolution in 1971. Hence the ROC’s legal position remains owned by the democratically elected government of the ROC (Taiwan): the Chinese State via its governing authorities in Taiwan has acquired the title to Taiwan and its sovereignty upon the 1952 Sino-Japanese Treaty’s entry into force—if not earlier. Here enters the theory of democratic Statehood.

Taiwan’s Statehood by Democracy?  

As noted above, Taiwan’s Statehood claim has pivoted on its transition from autocracy to democracy apart from the satisfaction of the duck test of Statehood. On this view, democracy is lauded as the way a Taiwanese State has emerged vis-à-vis the Chinese State. Specifically, Taiwanese citizens had been subjugated to the occupying Chinese forces since WWII’s end until they obtained political freedom through democratization. In the absence of a plebiscitary vote on independence as has taken place in instances of decolonization (here and here), Taiwanese citizens have instead effectively exercised their right to self-determination through continuous democratic elections and thereby given themselves their own State.  

 Leaving aside the question as to whether external self-determination applied to Taiwan at the end of Japan’s colonial rule for present purposes, the concept of democratic Statehood on which Taiwan rests its Statehood claim contains a leap of logic. Even if we accept that democratic elections function as an effective alternative to self-determination, not every exercise of self-determination leads to the creation of a new State. Before concluding that a Taiwanese State has emerged from Taiwanese citizens’ effective self-determination through democratic elections, we need to know what has been decided in such elections. After all, students of international law all know full well that external self-determination only provides for the opportunity for a non-self-governing territory and the like where appropriate to decide on their political status via the democratic process. It leaves the result of such processes open to be decided by the self-determining people: they can choose, inter alia, to stay as an integrated self-governing entity under the same administering State, or to become a sovereign and independent State vis-à-vis the old administering power. Not all exercises of external self-determination result in a new State. 

The problem with the concept of democratic Statehood in the case of Taiwan lies in its assumption that Taiwanese citizens’ exercise of self-determination through democratic elections in and of itself has led to Taiwan becoming a State in its own right. Yet, as the ROC (Taiwan) is a continuation of the ROC—that once represented China—constitutionally, the democratic elections whereby Taiwanese citizens have exercised self-determination only suggest that they have time and again upheld the continuing identity of the legal order underpinned by the 1947 ROC Constitution. As a result, Taiwanese citizens have not so much proven the Chinese State’s sovereignty claim concerning Taiwan to be legally groundless, as implicitly espoused the ROC’s position on Taiwan’s legal status as reflected in the Constitution. Even with the ROC government’s rule prior to late 1992 being statutorily dubbed an ‘authoritarian’ one (see article 3 (1)), the legal continuity between the ROC and the ROC (Taiwan) remains unaffected from the constitutional perspective. Instead of becoming a new State, Taiwan seems to have chosen to stay as a self-governing entity under the State its old administering power represented—the Chinese State—only to find that the identity of the Chinese State now lies with the PRC. In sum, in making its case for Statehood by democracy informed by the ambiguous status quo, Taiwan also lends an inadvertent hand to the Chinese claim to the territorial title to Taiwan, exposing itself to the PRC’s charge that it is seeking secession from China.

Conclusion

I should make clear what I have argued and what I have not. I have not argued against Taiwan’s Statehood. Nor have I suggested that the theory of democratic Statehood as discussed above has no merit. What I have argued is that resting its Statehood claim on democratic elections as effective self-determination under its assumed Chinese constitutional order, Taiwan not only falls short of achieving independence de jure but also finds itself trapped in a legal and political dilemma. Continuing to operate under its current constitutional order, Taiwan under the name ROC (Taiwan) opens itself to the Chinese legal claim that ‘Taiwan is an inalienable part of China’s territory’ (emphasis added). To establish itself as Taiwan’s title-holding State vis-à-vis the Chinese State de jure, the ROC (Taiwan) is effectively seeking secession from China, to which the PRC can be expected to respond without reservation in the name of protecting territorial integrity under international law. Whether to replace its assumed Chinese constitutional order with a new Taiwanese Constitution or otherwise in Taiwan’s cautious quest for Statehood in international law is undoubtedly a political choice for Taiwanese citizens —what such a choice would mean to the world and Taiwan is another matter.

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Comments

Sze Hong Lam says

November 3, 2022

A very timely and important contribution! In the absence of widespread recognition of Taiwan's statehood, one could still argue that the people of Taiwan (of course the PRC would deny any of such 'peoplehood') is protected from the use of force (as Crawford argued) and is arguably entitled to seek foreign support and assistance in case of armed attack per UNGA Res.2625(XXV). As you correctly pointed out, the 'peoplehood' argument should at least apply to Taiwan and Penghu, where Japan relinquished its sovereignty without stating in whose favour. The problem is mainly about Kinmen and Matsu, territories which were never ceded to Japan and have been administered by the ROC as part of Fujian Province. The 'Chinese civil war' rhetoric fits the best in the two offshore islands. Of course, there is a theory that Mao intentionally let the ROC keep these two islands to ensure any cross-strait conflict remains "non-international".

Ming-Sung Kuo says

November 4, 2022

Sze Hong, thank you for your informative comment. You are correct to point out the separate question concerning the territorial title to Kinmen and Matsu—and Itu Aba and the Pratas for that matter—which I deliberately left out.

Evoking the two Berlins before the German Unification and the final settlement of WWII issues concerning Germany in 1990, (Islands of) Matsu (and the adjacent islets) administratively constitutes the Lienchiang County (連江縣) under the ROC (Taiwan), while there is another mainland Lienchiang County under the PRC. Both the island and the mainland parts used to jointly constitute the Lienchiang County of China’s Province of Fujianuntil 1949. (Of course the division of the Lienchiang County in 1949 was totally different from how Berlin was divided at WWII’s end.)

Notably, under the ROC (Taiwan), the Kinmen County and the Lienchiang County jointly constitute a nominal rump Province of Fujian. The other nominal province under the ROC (Taiwan) is the Province of Taiwan.