Originally posted at Chinese Community Forum (CCF)
Herb Ho
December 20, 1995
Comment: One of a handful of articles posted at The China Desk not written by me. Too good not to be included.
United Nations Logo
Taiwan now wants to join the United Nations, and the mainland China would like to keep it out. It seems like a replay of the diplomatic tug of war between the two parties from 1949 to 1971, only with their roles reversed. Back then, it was the mainland China that wanted to join the UN, and Taiwan was doing all it could to keep China beyond the pale.
It took the mainland China 22 years to succeed, but succeed it did, at Taiwan's expense. Taiwan's campaign now is apparently much more daunting than the mainland China's then, as the mainland China is now a much more formidable foe to Taiwan than Taiwan was then to the mainland. But Taiwan's appetite is also much smaller. China then wanted not only to join but also to join as a major power, recognized with a permanent seat at the Security Council. In addition, China also insisted that its entry be preceded with the removal of any and all of Taiwan's representation at the UN, no matter under what name. Taiwan now just wants to join, under any name, as an ordinary member so that it does not have to be excluded from the international community.
So, is there any possibility for Taiwan to join the UN by international law?
With 21 million people, Taiwan represents the world's largest self-governing body politic that is denied UN membership. One of the arguments that has often been made in support of Taiwan's UN membership is that its exclusion is itself a violation of the principle of universality as provided for in the Charter of the United Nations. Is it so? Well, not exactly. The Charter does contain a universality principle regarding membership. It is found in Paragraph 1 of Article 4, which reads:
Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgement of the Organization, are able and willing to carry out these obligations.
Now, if you read it carefully, you will find that this universality principle, the way it is phrased, only requires the organization to grant membership for STATES. By and of itself, it does not mandate membership for a group of people or an organization that does not constitute a state, whether or not that group or organization would otherwise be able to enjoy any international representation. So Taiwan's exclusion does not violate the Charter principle of universality unless Taiwan is a state at international law.
Is Taiwan a state? The Charter does not define what a state is, nor does any other UN document. The formula set out in the Montevideo Convention, 1933, to which only the United States and 15 Latin American countries are parties, is now seen as best reflecting the classical conditions under customary international law that a prospective state must satisfy. Article 1 of that convention (the word convention means treaty here, as is usual in international law):
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.
There can be no question that Taiwan has a permanent population and a government. Its territory may not be exactly defined, considering that a dispute over the Penghu (Pescadores) Achipelago, and the Jinmen and Mazu islands would almost certainly erupt between China and Taiwan, should the latter ever become unquestionably a state. But this is not fatal, as precedents exist, such as in the case of Israel, of a state coming into being with territorial disputes with its neighbours. The problem is with the last element.
The capacity to enter into relations with other states is both a prerequisite and a consequence of statehood because, until a body politic is accepted by established states as a state, it is prevented from entering into diplomatic relations even if it is willing and capable to do so. This brings us to the international law of recognition, which is the first and critical step for any prospective state to win an international personality.
Recognition is really two-fold: recognition of the state and recognition of the government, although they are typically done at the same time. Taiwan as a state has never been and is still not recognized by any state. Until it gets such recognition, it is moot to talk about its membership in the United Nations. But the government in Taipei was once recognized by most of the world and is still recognized by close to 30 countries as the government of the Republic of China, which presumably covers all of China, including the mainland. And it was in that capacity that the Taipei government once had a seat in the UN as a member as well as a permanent member of its Security Council. Yet, by UN resolution, the Republic of China has been replaced by the People's Republic of China, and as far as the UN is concerned, the Republic of China that ruled all China has ceased to exist. More on this later.
Now, the Taiwan government of late has been espousing the idea of the Republic of China on Taiwan. It seems to be taking the position that there is now another Republic of China, which covers only Taiwan, and possibly Penghu, Jinmen and Mazu as well. Its efforts to "return" to the UN appears to be premised on that position. But this proposition is fraught with problems of logic and quite untenable at international law. There may be a de facto Republic of China on Taiwan, but, de jure, when and from where did this ROC on Taiwan crop up? How can an undeclared new state be a new state? If it is a new state, how can it "return" to the UN, since it has never been a UN member? And who has recognized such a state? As of yet, there does not seem to be any formal international recognition of an ROC on Taiwan as a separate and independent state, if you say the term in one breath.
At times, the Taiwanese authorities seem to argue that ROC was founded in 1911 to as a successor state to the state of the Qing Dynasty, and that it has continued to exist to the present day, albeit with a much smaller territory now. They contend that the fact that its territory has drastically shrunk should not be used against according it international personality. Moreover, the PRC, they insist, cannot claim to have sovereignty over Taiwan, since it has never ruled Taiwan at all. But PRC can counter by saying that, if the ROC, which did not rule Taiwan during its first 34 years, could regain sovereignty over Taiwan for China, the PRC can do the same as a successor state to the ROC. Such succession has after all been sanctioned by the United Nations through the Resolution 2759 passed by the General Assembly at its 26th session on October 25, 1971. For its premier importance, the Resolution is worth quoting in full:
The General Assembly, Recalling the principles of the Charter of United Nations, Considering that the restoration of the lawful rights of the People's Republic of China is essential both for the protection of the Charter of the United Nations and for the cause that the United Nations must serve under the Charter, Recognizing that the representatives of the Government of the People's Republic of China are the only lawful representatives of China to the United Nations and that the People's Republic of China is one of the five permanent members of Security Council, Decides to restore all its rights to the People's Republic of China and to recognize the representatives of its Government as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-shek from the place they unlawfully occupy at the United Nations and in all the organizations related to it.
The resolution really could not have been framed in clearer terms. The PRC, which had since its inception exhibited a strong interest in joining the United Nations, had always insisted on joining with conditions. That is, it must be recognized as a successor state to ROC and ROC must not be allowed to continue any representation in the UN. In other words, Taiwan had to be rendered illegitimate at international law. It took PRC 22 years to get it, but it did get it. It was a remarkable diplomatic triumph, all the more remarkable because Taiwan then had the full backing of the United States and it itself was still sitting as a permanent member of the Security Council until the day before the decision was made to kick it out.
China's entry into the UN marked one of the few times that a General Assembly resolution carried teeth. For all its representativeness, the General Assembly does not really have much power, its role on substantive issues being confined to making recommendations for the Security Council, where most of the UN power is vested by Chapter V of the Charter. The monumental decision on China's UN representation was in fact made as one on the credentials of the representatives, a procedural matter, relating only to the internal administration of the UN, which is one of the few things that the General Assembly can make clearly binding decisions without authorization from the Security Council. Such being the case, the legal force of the resolution was not subject to a vote at the Security Council, precluding a veto by any of its permanent members. And when Western nations headed by the United States failed to have it classified as "an important question" as described in Article 18 of the Charter, it did not have to meet the two thirds majority hurdle either. It was not even considered an issue of admission of a new member or expulsion of an old member. The whole thing was simply considered the replacement of illegitimate representatives with legitimate ones, from the same country. The representatives of Chiang Kai-shek were expelled, but not as representatives of any state, since the representation of that state was being continued. They were expelled simply because they did not legitimately represent any state. So, even the veto power that they could have brandished a few days earlier did not help them.
In the current replay of the similar, if not same, drama, is it possible to for Taiwan to repeat the scheme? Barring unimaginable changes in China or the UN, no. This is because, if Taiwan wants to join the UN, they will have to join as a new member, under whatever name. Regarding admission of new members, Paragraph 2 of Article 4 of the Charter has this to say:
The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon recommendation of the Security Council.
This is to say that an admission of a new member must be approved by the Security Council first before the General Assembly can make any decision thereupon. Since China will certainly veto any such recommendation, there is really no way Taiwan can join the UN unless and until it sorts out its relations with mainland China. Not even if it succeeds in declaring independence and becomes outright independent. The harsh reality that dreamers of Taiwan independence have to face is that, without UN membership, Taiwan's claim as an independent state will always sound hollow, but unless it becomes an independent state recognized by China, it cannot possibly join the UN.
