In search of a name and identity to ease Taiwan's participation in international organizations (Part 1)
台灣參與國際組織之身分及名稱 (Part 1)2004-02-17 / Taiwan News, Staff Reporter /
INTRO. In recent years, participation in international organizations has become a topic of major attention for Taiwan's government and the general public. In 2003, the Republic of China government on Taiwan for the eleventh time knocked on the door of one of the most important international organizations, the United Nations, using the name Republic of China, but unfortunately was blocked out. What precious lessons can we learn from our numerous failures to be admitted? On January 1, 2002, Taiwan joined the World Trade Organization under the name "the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu." This was a seminal success. Are there parts of the accession process that deserve to be continued or should be reconsidered? The organizers of this forum, the Taiwanese Society of International Law, have especially invited experts and scholars to discuss feasible approaches for the future based on the past experiences of Taiwan and other countries around the globe in applying for admission to international organizations. INTRO.
Hu Ching-shan (assistant professor, Graduate Institute of Japanese Studies, College of International Studies, Tamkang University): The political system currently in place in Taiwan is the "Constitution of the Republic of China" (government) which has been amended six times. Incumbent President Chen Shui-bian and Vice President Annette Lu serving as "Republic of China (government)'s tenth-term president and vice president." So what is the connection between the "Republic of China (government)" used here and the topic that I want to examine today "The identity and name Taiwan can use in gaining accession to international organizations"? Regarding this problem, I would like to suggest several focal points for discussion: first, other governments' position toward the Republic of China government on Taiwan; second, which positions in international organizations did the Republic of China government on Taiwan lose; third, what are new approaches for the Republic of China government on Taiwan to join international organizations; fourth, the problems for the Republic of China government on Taiwan regarding accession to the U.N; and finally, I will draw my own conclusion - that is that Taiwan should apply for accession to international organizations, mainly U.N. organizations, under the "Republic of Taiwan" moniker.
Other governments' position toward the Republic of China government on
The Republic of China was founded in 1911. After the Second World War, Japan chose to make the Republic of China government its negotiation partner in 1951, and a year later, signed the Sino-Japanese Peace Treaty. In 1949, the then Soviet Union was the first to recognize the People's Republic China government. In 1950, democratic Britain followed suit.
While the United States normalized bilateral ties with (the People's Republic of) China only in 1978 with the "Sino-U.S. Joint Communique," (on the Establishment of Diplomatic Relations between the People's Republic of China and the United States of America) it had already begun since 1972 to gradually relax restrictions toward Communist China such as easing controls on trade, tourism, air and sea transport. But we must also pay attention to the fact that the second paragraph of the "Sino-U.S. Joint Communique" also mentions that the United States will continue to maintain cultural, commercial and other unofficial ties with the Republic of China government. On the other hand, with regard to applying related U.S. domestic law, it clearly states that Taiwan (the R.O.C. government) is to be treated as a quasi foreign country. At the same time, the United States went even further, establishing domestic legislation to provide Taiwan (the R.O.C. government) with arms and military technology necessary for its self-defense. Overall, the United States broadly recognizes the de facto existence of Taiwan (R.O.C. government).
The position in international organizations that the Republic of China
The link between U.N. accession and recognition of a country or government is an important question frequently discussed in international law. In theory, U.N. accession means that the status of the state or the government of the joining country has been internationally recognized. What also deserves attention is the fact that accession to the U.N.'s specialized agencies does not necessarily encompass the kind of recognition mentioned above.
In 1971, the U.N.'s 26th General Assembly decided in Resolution No. 2758 to restore all its rights to the PRC government in Beijing and "to recognize the representatives of its government as the only legitimate representatives of China to the United Nations," while also deciding "to expel forthwith the representatives of Chiang Kai-shek (Republic of China government) from the place which they unlawfully occupy at the United Nations and in all the organizations related to it." (U.N. General Assembly Resolution No. 2758 (XXVI). The Republic of China government on Taiwan thus lost its legal status in many other international organizations.
1971年，聯合國第二十六屆大會的第二七五八號決議，決定恢復中華人民共和國北京政府在聯合國的所有權利，同時並「承認（中華人民共和國）政府在聯合國乃是代表中國唯一的合法政府」，以及決定即時將台灣的「中華民國政府的代表自聯合國與其附屬聯合國所有組織中追放出去」（聯合國大會決議）2578 (XXVI) 。在台灣的中華民國政府至此喪失其在許多國際組織的法地位。
In theory, problems regarding the right of representation in international organizations pertain to a succession of established treaties. Decisions on the right of representation or a change of the representing government also depend on succession of existing treaties. Consequently, in the past the PRC government said that the various treaties established by international organizations that it inherited (from the ROC government) inevitably resulted from the change in government rather than due to a request by the Beijing government. After the establishment of the PRC, its government incessantly demanded that it be admitted to international organizations including the U.N. as the only legitimate representative of China. But such unilateral action is insufficient when it comes to successfully carrying over treaties. What's needed is the combination of active lobbying by the succeeding government and a decision made by the international organization regarding to the right of representation of its members. Also, if an accession application is not submitted, the succession (of treaties) cannot be automatically recognized. As a result, the PRC has still not succeeded all the R.O.C. in many international organizations to this day.
The problems for the Republic of China government on Taiwan regarding
accession to international organizations
Taking Taiwan's application for accession to the WTO as example, Taiwan applied for admittance under the name "Customs Territory of Taiwan, Penghu, Kinmen, and Matsu," based mainly on Article 33 of the General Agreement on Tariffs and Trade. This approach implied considerable legal problems. Accession to GATT was not limited to sovereign countries. On June 23, 1986, Hong Kong was admitted as a GATT member as a separate customs territory that was not also an independent country.
With regard to recognition, member status in international organizations outside the U.N. is closely linked to international recognition of the joining country. But even so, in international organizations like GATT, membership amounts to recognition of a member's tangible diplomatic existence. Therefore, it is necessary to gain to some certain extent the understanding of the PRC government, if the PRC and R.O.C. simultaneously join international organizations. The use of the name Republic of China does not mean at all recognition in the strict sense of international law, it does not go beyond toleration in the international sphere.
On April 21, 1993, the Republic of China on Taiwan announced that it would formally apply for entry into the U.N. under the name "Republic of China." For now this meant taking the separated country approach. In the past, West and East Germany as well as North and South Korea had joined as (the two parts of) separated countries, but this approach had one important caveat: the two separated sides needed to be willing to mutually recognize that the other side could join the U.N. If one side was opposed, this model couldn't work.
The Mainland Affairs Council, in its white paper on cross-strait relations announced at that time, clearly stated the position that the R.O.C. government on Taiwan would not seek to seize the right to represent China in the international sphere from the PRC. The major point of this statement was to claim the right of "parallel representation" with regard to China as long as it did not compromise the status of the PRC in the international community. The main reason why this application was destined to fail is because U.N. General Assembly Resolution No. 2758 recognized one China and the PRC government as the central government representing it. At the same time, if separated countries join U.N. organizations, an essential precondition is that the opposing governments recognize each other or at least tacitly acknowledge each other's existence.
Applying for admission to U.N. organizations is still an important step for the R.O.C. government on Taiwan in seeking international status. But there's no doubt that if Taiwan applying for accession to U.N. organizations using the name "Republic of China", the response of the international community to such action will as before stay within the framework of granting recognition to the PRC government. It is just as Alan James (professor emeritus for international politics and the doyen of teaching diplomacy in Britain) once said. The difference between the existence of a sovereign country and the participation of a sovereign country in the international community is that the latter is more actualized. Therefore, since Taiwan insists on using a name that third countries cannot freely use, it is impossible for Taiwan due to its own definition to become a sovereign country that has sovereign country status in the international community. In recent years, an opinion has formed which advocates that from a standpoint of Taiwan independence, Taiwan should not use the name R.O.C., but should instead apply for admission to U.N. organizations under the name Taiwan.
In sum, in a certain sense there is a close correlation in reality between applying for admission to U.N. organizations and moves to pursue independent country status. Looking back at the past, the R.O.C. government on Taiwan has not at all been seeking recognition of its state, but only recognition of its government.
Taiwan should apply for U.N. admission as a new country and under the new
name "Republic of Taiwan
he major reason why the R.O.C. government on Taiwan lost its bid for U.N. representation in 2003 is that it did not clearly state that it wants to establish a "Republic of Taiwan," but maintained on the contrary that the R.O.C. founded in 1912 is already a country. For instance, in a statement protesting the PRC's opposition to the R.O.C.'s (Taiwan) demand for U.N. representation, it still pointed out that "in striving to participate in the U.N., the R.O.C. is attempting neither to take over the PRC's seat at U.N., nor to establish 'two Chinas' or 'one China, one Taiwan'." At the same time it said in even more vague terms that "it is impossible for Taiwan to accept 'one country, two systems.' Taiwan is an independent and self-governing country." Since these two statements are fully contradictory and lack clarity, the failure of Taiwan's 11th attempt to apply for U.N. "representation" was foreseeable.
NEWS edited by Tina Lee/Translated by Susanne Ganz