A. The "Republic of China" Government on Taiwan
In October 1971, the Kuomintang government1 was compelled to remove its delegation from the UN General Assembly as the communist regime founded in 1949 finally succeeded in replacing the KMT authority as the legal government of China in the General Assembly and Security Council.2 In the late 1960s and early 1970s, many member states, including the United States, Canada, Italy, and Saudi Arabia, sought a compromise that would have allowed Taiwan and the PRC to be represented in the UN under a two-China formula. Both the PRC and the KMT government, based in Taipei, rejected the notion of divided representation, forcing the UN to decide which government represented China. Due to the Cold War and other factors, the KMT government was permitted to represent China in the UN for twenty-two years, despite the fact that it had lost the Chinese civil war and ruled only Taiwan. In effect, the KMT regime was calling Taiwan "China" with the acquiescence of the UN.B. Credentials for Chinese Representation
When the People's Republic of China was founded in 1949, the communist government in Beijing discovered that recognition was not forthcoming from most major western nations. Forty-three UN members, including the United States and France, still recognized the KMT regime as China's legitimate government, while the PRC was supported by only fifteen members, most of them communist states. Beijing's intervention in the Korean War in 1950 on the side of North Korea and against UN forces was an additional obstacle to its UN bid. The PRC did not try to enter the UN as a new member; instead, it sought to evict the KMT government from China's seat. The United States was able to protect its Nationalist ally by keeping the issue of Chinese representation off the agenda of the General Assembly until 1961, when Third World states increased in large numbers in the UN and China gained a greater number of sympathizers. Subsequently Washington continued to block China's admission to the UN by having the issue classified as an "important question," thus requiring a two-thirds majority vote in the General Assembly to place it on the UN agenda for discussion.3 Washington's use of this parliamentary maneuver blocked Beijing's entry to the UN for more than two decades. In mid-1971, however, U.S. President Richard Nixon's rapprochement with Beijing quickly undermined Taiwan's precarious position.4 On October 25, 1971, with seventy-six countries in favor, seventeen abstentions and thirty-five against, the People's Republic of China was seated in the UN.5 It should be emphatically noted that Resolution 2758 (XXVI) only determined China's legitimate government, not whether this representation included Taiwan. In other words, the actual representation of Taiwan and its people was not addressed and remains in legal limbo to this day.A. Background
In 1945, United States President Harry Truman hosted an unprecedented international gathering of nations to inaugurate the United Nations and address the decolonization of territories, especially those belonging to the defeated Axis powers.6 Although customary international law addressing decolonization and statehood for territories was a new area of law,7 subsequent resolutions of territorial disputes contributed to its development. "Custom," in legal theory, has generally been accepted to mean a "usage felt by those who follow it to be an obligatory one."8 State practice at the time showed that "major colonial powers confirm that they regard the principle of self-determination for colonial peoples as binding."9 Since 1945, the application of international law to unrecognized states has flourished. At the same time, the UN's contribution as a non-state actor in balancing the universal right of self-determination with the principle of sovereign domain is recognized as an important one.10 The UN's early decision to adopt the Universal Declaration of Human Rights in December 1948 furthered the cause of individual rights.11 And even though the 1948 Declaration does not expressly mention self-determination, subsequent resolutions passed by the UN indirectly rely on the Declaration in affirming the right of self-determination.12B. Principles of Law
International law and its pronouncements on self-determination and statehood are a body of compelling "principles, customs, and rules . . ." imposing obligations on sovereign states and non-state or international organizations in their mutual relationships.13 Sources of international law are set forth in Article 38 of the Statute of the International Court of Justice, a body which serves as an integral component of the UN Charter. The sources are: treaties, custom, general principles of law, judicial and arbitral decisions of previous cases involving international law, writings by scholars in journals, and reviews of international law by similar authoritative sources.14 Nevertheless, compliance with international law is contingent on a voluntary willingness of states to abide by international legal decisions or previous determinations on similar legal disputes.15C. Requirements for Statehood
1. Traditional Requirements
The Montevideo Convention of 1933 lays out the four requirements for de facto status as a state under principles of customary international law.16 These requirements are: (1) the existence of a stable population; (2) a defined territory;17 (3) a functioning government; and (4) a government that engages in foreign relations on behalf of the territory.182. Democracy as an Additional Standing Requirement
Democracy has emerged in both practice and academia as a non-traditional fifth requirement.19 An unrecognized state strengthens its claim for statehood if there exists a constitutional democracy with political office determined by open elections. The UN's 1960 Resolution on the Granting of Independence to Colonial Peoples and Countries appears to validate a state that, seeking recognition, adheres to democratic elections.20 Professor Chen Lung-chu observes that free elections are "the very essence of 'popular sovereignty' of people: authority comes from people and rests upon the people as a whole, not a handful of purported rulers. Such popular will can be best expressed in free and genuine elections."21 Professor Chen cites the Universal Declaration of Human Rights as "declar[ing] that '[t]he will of the people' forms the bedrock of a government's legitimacy."22 Of course, the additional requirement of democracy is controversial due to the subjectivity involved in determining whether a particular government is representative.23 For example, China has a totalitarian government which nonetheless enjoys full international legal recognition. Czechoslovakia is another striking example. In 1948, Czech communists overthrew the legitimate government of Czechoslovakia at the instigation of the Soviet Union. Czech ambassador Jan Papanek had his credentials revoked and had to appear before the Security Council in a personal capacity despite the obviously illegitimate foreign interference in his nation's change of regime.24 Nevertheless, the new criterion of democracy is a persuasive factor in the determination of statehood.D. Self-Determination and Limitations
Following the end of World War I, U.S. President Woodrow Wilson and the League of Nations believed that self-determination was the moral foundation for a global peace. Self-determination was premised on the right of a people to declare and establish its own sovereign state freely. The definition of a "people" could be based on several criteria: a common history, language, culture, ideology, and/or ethnic and geographic considerations. However, self-determination for a people need not have statehood as its ultimate goal.25 For example, political or religious autonomy might be a common goal in lieu of political independence from an existing state. Some states oppose the right of self-determination, fearing that their own minority ethnic groups would be encouraged to seek political independence. This is a legitimate concern based on public policy considerations.26 For example, peace and stability are legitimate arguments for maintaining the integrity of states. But this implies an equally valid corollary: where peace and stability would be enhanced by the recognition of a state, recognition must be extended. In other words, where a central government is no longer capable of substantially upholding law and order on behalf of all of its nationals, then the subcomponents of that failed state should do what is necessary to secure law and order, superseding the central government's desire to maintain integration.27 Alternatively, where a state has lost control of its component "provinces," it has no enforceable right over that disputed territory in international law since it ipso facto does not control or administer the territory.There must be basic recognition of the interest which the whole international society has in the observance of its law. . . Sovereignty, in its meaning of an absolute, uncontrolled state . . . is the quicksand upon which the foundations of traditional international law are built. Until the world achieves some form of international government in which a collective will takes precedence over the individual will of the sovereign state, the ultimate function of law, which is the elimination of force [war] for the solution of human conflicts, will not be fulfilled.28To this end of balancing states' rights and international concerns that transcend such rights, the UN has recognized the limits of its authority vis-à-vis the domestic jurisdiction of states.29 But state sovereignty has its limits as well. Judge Kotaro Tanaka of the International Court of Justice wrote that the UN Charter "recognizes the existence of human rights and therefore the concomitant duty to protect and guarantee these rights."30 And, as recently as 1992, UN Secretary-General Boutros Boutros-Ghali reminded the world community that the UN has a central role in preventive diplomacy, peacemaking and peace-keeping that overlaps with state sovereignty.31
A. Colonies and the Trusteeship Council
The United Nations moved quickly in its early years to end all colonies, whether under trusteeship or other mandates. The first major step taken by the UN was its adoption of the Universal Declaration of Human Rights in December 1948.32 The 1948 Declaration attempted to regulate international behavior and establish obligatory legal norms with regard to the rights of the individual.33 Notable among the UN's sincere attempts to end colonialism is Chapter XI of the UN Charter, which in relevant part reads:Members of the UN which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost...the well-being of the inhabitants of these territories . . . to this end . . . to develop self-government . . . according to the particular circumstances of each territory and its peoples. . . .34In addition, Chapters XII and XIII of the UN Charter specifically address the decolonization of territories. They encourage the promotion and development of a people's livelihood in the goal of "progressive development towards self-government or independence...."35 Any lingering doubt about the gravity with which the UN viewed colonialism was put to rest by its adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960.36 It was precisely because of the failure of many reluctant colonial powers to respect the rights of the colonized peoples adequately that the UN adopted the 1960 Declaration.37 Article 2 of the Declaration specifically states that a people have the right to freely determine their political status, among other indivisible rights of self-determination. More recently, a broader interpretation of self-determination based on the 1960 Declaration addresses racial and other forms of discrimination. For example, in the 1977 UN General Assembly Resolution 32/42, racial discrimination and apartheid were condemned as unacceptable behavior impeding the goals of self-determination laid out in the 1960 Declaration.38 In essence, the UN was declaring that racist minority governments were colonial in nature, demonstrating strong international support for multilateral action against authoritarian governments that repress their own people.39
B. UN Membership
Article 1, paragraph 2 of the UN Charter lists the following among the UN's purposes: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. . . ."40 To date, the UN has accumulated a respectable record in its long campaign to address the injustices of colonization and welcome new member states into its fold. The UN's goal of maintaining international peace and security through mutual understanding and peaceful resolution of conflict is one of its key attributes. As for the admission of new member states, the procedure is straightforward: UN membership is open to any "peaceloving" state that "accepts the obligations of the Charter, and is able and willing to carry out those obligations."41 However, approval by the General Body is contingent on the recommendation of the Security Council.42 In effect, this means that any sitting member of the Security Council can exercise a veto over new membership for any reason. In the past, the rivalry between the United States and the former Soviet Union often carried over to the UN, where each sought to block the other's allies from entry.43 Since 1971, China's objections have precluded Taiwan's membership.A. Colonial Period
Taiwan's history since the 17th century has been one of continuous colonial rule by the Portugese, Dutch, and Japanese. For brief periods, Taiwan was also occupied by Chinese forces. There are competing interpretations about how long and in what capacity China has held jurisdiction over Taiwan. But one fact is clear: Taiwan did not become a formal Chinese province until 1887. Before that, the island was regarded by Chinese rulers as nothing more than an insignificant backwater.47 Taiwan's status as a province was short-lived. After suffering defeat in the Sino-Japanese War, the Ch'ing Dynasty surrendered Taiwan "in perpetuity" to Japan under the 1895 Treaty of Shimonoseki.48 Japan gave the Taiwanese a two-year period during which they were free to return to China if they wished. The overwhelming majority of Taiwanese--who numbered three million at the time--chose to stay and live as "resident aliens" in the Japanese empire.49 Taiwan remained under Japanese control for half a century. Japan attempted to assimilate the Taiwanese by promoting Japanese customs, demanding the exclusive use of the Japanese language, and duplicating its educational and legal systems in Taiwan. During this period, the Taiwanese had no contact whatsoever with China. In essence, an entire generation of Taiwanese grew up knowing only Japanese rule.B. Taiwan's Unsettled Status
As discussed below, there is compelling evidence that the World War II Allied Powers intended to authorize the KMT government only as temporary trustees of Taiwan until a final determination on the island's status could be reached. The KMT's claim to have "liberated" Taiwan from Japan in 1945 was also at odds with the colonial treatment that followed under KMT rule.50 In fact, the "Republic of China on Taiwan" was a minority government, both politically and ethnically, for most of its history on Taiwan. Chiang Kai-shek's claim to legitimacy was made all the more ridiculous by his attempt forcibly to recreate an artificial China on Taiwan. Worse yet, the KMT breached its limited mandate on Taiwan by flouting international norms of human rights. The KMT government's systematic engagement in ethnic discrimination based on ethnolinguistic background and place of origin suggests that its rule was incompatible with the United Nations Charter, the 1948 Universal Declaration of Human Rights and the 1960 Declaration of the Granting of Independence.511. KMT Custodianship
In anticipation of Japan's defeat in World War II, the Allied Powers together affirmed, in the 1943 Cairo Declaration52 and later again in the Potsdam Declaration, 53 their intent to return Taiwan to China. Although important, these documents have no basis as binding law.54 The declarations have no legal authority to dispose of territory of a sovereign country, in part because the Allied Powers did not have the capacity to carry out such a transfer.55 At best, they serve as footnotes in the discourse over Taiwan's international personality. Moreover, as wartime declarations, their status is suspect.56 Consequently, neither document substantiates Chinese claims of sovereignty over Taiwan. Yale Law School Professor W. Michael Reisman summarized the view that the KMT was awarded temporary guardianship over Taiwan:General MacArthur authorized the Nationalist Chinese authorities to undertake temporarily military occupation of the island as a trustee on behalf of the Allied Powers. Four years later, Chiang and the remnants of the Nationalist Chinese government fled to Taiwan and purported to establish a "free China." But despite Chiang's grandiloquent claims, the United States did not recognize any Chinese sovereignty over Taiwan, when it was U.S. policy to support Chiang as a fictitious China. . . . Secretary of State Dulles, a champion of Chiang and a respected international lawyer, stated that "technical sovereignty over Formosa and the Pescadores has never been settled."57Even though the KMT government took control of Taiwan in 1945, Japan did not formally surrender sovereignty over Taiwan until six years later in the Treaty of Peace with Japan, concluded in San Francisco between the Allied Powers and the defeated Japan on September 8, 1951.58 The treaty clearly dictated the terms of surrender of Japan. In particular, Article 2(b) of the treaty failed to assign sovereignty over Taiwan.59 The notable absence of representatives from either the KMT government or the PRC at the treaty signing aptly demonstrates that this was no accident on the part of the treaty's framers. In fact, contemporaneous statements by the Allied Powers involved in Japan's 1945 surrender suggest that Taiwan's status was to be decided in accordance with the United Nations Charter on self-determination. For example, Great Britain took the position that the Cairo Declaration was nothing more than an expression of intent, and that Taiwan's international status was still unresolved.60 Similarly, the 1952 peace treaty signed between Japan and the KMT as acting government of China includes no specific provision for or acknowledgment of the transfer of Taiwan to the ROC government.61 Nor did the U.S. government intend to uphold the ROC government indefinitely, let alone support its claim as China's sole legitimate government.62 However, Cold War politics made it difficult for some states in the west to abandon Generalissimo Chiang and the KMT.63 At the signing of the Mutual Defense Treaty between the United States and Taiwan, acting U.S. Secretary of State, John Foster Dulles, expressly stated that despite Washington's commitment to protect Taiwan from Chinese aggression, it regarded Taiwan's international status as unsettled:
[T]echnical sovereignty over Formosa and the Pescadores has never been settled. That is because the Japanese peace treaty merely involves a renunciation by Japan of its right and title to these islands. But the future title is not determined by the Japanese peace treaty; nor is it determined by the peace treaty which was concluded between the Republic of China and Japan. Therefore, the juridical status of these islands, Formosa and the Pescadores, is different from the juridical status of the offshore islands [Quemoy and Matsu] which have always been Chinese territory.64
Well after the Chinese Nationalists established their exile government in Taipei, both Britain and France reiterated their official position that the KMT was a temporary guardian over Taiwan.65
2. Colonial Behavior
Chiang Kai-shek's army took control of Taiwan in 1945, following Japan's defeat in World War II. The Chinese Nationalist government behaved not as liberators but as conquerors and colonial masters, causing severe resentment among the Taiwanese.66 According to one U.S. State Department official's report:Our experience in Formosa is most enlightening. Many were forced to feel that conditions under autocratic rule [Japanese rule] were preferable [to KMT rule]. . . . The [Taiwanese] people anticipated sincerely and enthusiastically deliverance from the Japanese yoke. . . However, [the KMT] ruthlessly, corruptly and avariciously imposed their regime upon a happy and amenable population. . . . There were indications that Formosans would be receptive toward United States guardianship and United Nations trusteeship.67
The Nationalist government's treatment of the Taiwanese people and its institution of a one-party dictatorship was witnessed by American officials, some of whom lost confidence in the KMT.68 All government positions were the exclusive domain of ethnic Chinese mainlanders.69 Individuals elected to the National Assembly, the Legislative Yuan, and the Control Yuan in 1947 and 1948 elections in China faced no reelection in Taiwan. The sinologist Thomas Gold observed, "Economically, politically, and culturally [Taiwan] was suddenly yanked out of the Japanese orbit and appended to China in another colonial relationship."70
The KMT government moved swiftly to consolidate its power. For instance, the National Assembly promulgated the "Temporary Provisions in Effect During the Period of Communist Rebellion," on May 10, 1948, giving the executive, Chiang Kai-shek, unlimited powers in accordance with the Assembly's constitutional amendment powers under Article 174(1) of the constitution. This was illegal, however, since the Temporary Provisions gave Chiang powers by bypassing constitutional requirements for declaring martial law and then issuing him emergency decree powers.71a. Human Rights Abuses
In denying democratic rule, the KMT government intentionally insulated itself from popular proponents of democracy and Taiwanese independence.72 Indeed, the majority of human rights violations occurred during the martial law era and were political in nature.73 Violations included the jailing of political opponents, torture, executions, arbitrary censorship, and unlawful surveillance of political dissidents. In fact, acting U.S. Vice-Consul in Taiwan George H. Kerr called the travesty of administration on Taiwan an "economic rape."74 In the brutal pogrom carried out by occupying KMT soldiers on February 28, 1947, more than 28,000 native Taiwanese were killed.75 In the ensuing months, systematic looting, raping, and indiscriminate murder continued. According to one U.S. Central Intelligence Agency officer's "white paper":The economic deterioration of the island and the administration of the mainland [KMT] officials became so bad that on February 28, 1947, popular resentment erupted into a major rebellion. In the ensuing days the Government put down the revolt in a series of military actions which cost thousands of lives. Order was restored but the hatred of the mainland Chinese was increased.76Unfortunately, the early indiscriminate human rights violations in Taiwan were not isolated events. Abuses continued throughout the 1950s and 1960s under Chiang Kai-shek and his son and eventual successor, Chiang Ching-kuo.77 Government persecution of political dissidents was aimed primarily at native Taiwanese, the people who were most resentful of KMT rule.78
b. Ethnic Discrimination
The KMT government actively reinforced ethnic divisions, discriminating against the majority Taiwanese based on factors including language and place of origin.79 In Taiwan's case, subethnic distinctions are most visible in language or dialect: the ruling mainlanders spoke Mandarin while the native Taiwanese majority spoke either Hoklo (often called "Taiwanese") or Hakka.80 The debate over whether Hoklo and Hakka are separate languages or dialects of Chinese is to some degree based on political, economic and social considerations;81 but from a purely linguistic point of view, Hoklo, Hakka, and Mandarin are distinct languages.82 Under international law, a systematic state policy of ethnolinguistic discrimination against a specific group of people is a violation of human rights.83 For example, South Africa for a long time faced UN censure because of its state policy of discrimination against the black majority population.84 One manifestation of apartheid was discrimination based on language, 85 in violation of a fundamental freedom affirmed by the UN Charter.86 In Taiwan's case, the KMT government introduced and propagated a Mandarin language policy on Taiwan despite the fact that the majority of Taiwanese did not speak Mandarin.87 The policy was intended to suppress sentiment for independence, and eradicate any sense of Taiwanese identity.88 The government's methods included humiliating Taiwanese-speaking students in school, banning the Taiwanese languages from educational institutions, degrading Taiwanese-language speakers in the media through stereotyping, and even suggesting one was a communist for not speaking Mandarin.89 Charges of apartheid and racial discrimination in any context are serious matters under international law. Because the KMT government relied upon ethnic factors such as language and place of origin in actively discriminating against the native Taiwanese over a period of more than forty years, its actions can be construed as a form of apartheid even under a narrow definition.90 Even assuming that the KMT regime could meet its burden of legitimacy on Taiwan, fundamental issues of human rights, like self-determination, are ipso facto and ipso jure "removed from the exclusive preserve of domestic jurisdiction."91 Human rights abuses of any sort are offenses subject to universal jurisdiction to proscribe and adjudicate.92
The PRC government has claimed sovereign domain over Taiwan, arguing that Taiwan is within its "domestic jurisdiction" and that the issue is not adjudicable under international law. 93 However, Beijing's attempt to unilaterally assert jurisdiction over Taiwan runs counter to international norms and principles addressing a people's right to self-determination. Furthermore, resolution of Taiwan's international status and its right to join the UN raises many issues under international law that cannot be ignored simply because of Chinese objection.
A. Legal Title
Chinese legal authorities commonly assert that as the legitimate successor government of China, the PRC inherits all territorial boundaries of the previous government.94 While true, the argument makes broad assumptions about Taiwan's status in 1949. Beijing's legal title over Taiwan is contingent upon the KMT government's legitimacy in Taiwan. If the Beijing government is indeed the successor to the KMT and its actions, then it is also bound by the 1951 Treaty of Peace with Japan which does not pass legal title of Taiwan to China. As discussed earlier, there is substantial evidence to show that the KMT's mandate on Taiwan was to act merely as temporary custodian. The fact that the KMT abused its mandate only further weakens the argument for Chinese sovereignty over Taiwan. The PRC government is also obligated to uphold existing covenants that its predecessors have entered into on behalf of China, including the Treaty of Shimonoseki in which the Ch'ing Dynasty gave Taiwan to Japan. In international legal theory, a new regime inherits all the rights and obligations of its predecessors when a succession in national or governmental regimes occurs.95 For example, the PRC government cannot in good faith seek to have Hong Kong returned to it under the terms of the ninety-nine-year lease signed between China and Great Britain on the one hand, and disregard China's surrender of Taiwan to Japan under the 1895 Shimonoseki Treaty on the other.96 Alternatively, China can try to assert sovereignty over Taiwan by a claim of prescriptive title, meaning effective and clear control in which others accede.97 Such a claim would have little historical basis, however, Beijing's control over Taiwan was tenuous before the island's official annexation as a province in 1887. Japan claimed the eastern half of the island as early as the 15th century.98 Portuguese and Dutch colonizers controlled parts of Taiwan throughout the 17th century, 99 although the Chinese admiral Koxinga established a regime on the island in 1662 that lasted for some twenty years.100 Even after Koxinga's rule, the Ch'ing Dynasty only nominally controlled the western half of Taiwan,101 with Japan still claiming the eastern half. In 1874, the Ch'ing Dynasty declared Taiwan to be outside of Chinese jurisdiction, in response to a legal claim brought by the Japanese.102 Japan's fifty-year occupation of Taiwan this century further refutes China's titular claim. Finally, established jurisprudence is unequivocal on the matter of self-determination: "A situation involving the international legal principle of self-determination cannot be excluded from the jurisdiction of the United Nations by a claim of domestic jurisdiction. International customary law is binding on all states regardless of consent; and in any event, states have bound themselves under the Charter to respect the principle."103B. Domestic Jurisdiction
China alternatively claims that Taiwan's status is purely a matter for the "Chinese" to decide. Granted, pronouncements in existing case law do put limitations on self-determination, and there is an equal and important right of sovereign jurisdiction under international law.104 But a committee of jurists appointed by the Council of the League of Nations tempered state domestic jurisdiction in what is known as the Aaland Islands case. The jurists, recognizing Finland's assertion of domestic jurisdiction, affirmed Finland's right to deny islanders the opportunity to join their parcel of Finnish territory with neighboring Sweden. They limited this right, however, stating that a "[t]ransition from a de facto situation to a normal situation de jure cannot be considered as one confined entirely within the domestic jurisdiction of a State."105 In other words, in the absence of actual possession or control over a territory, state domestic jurisdiction cannot be invoked. Such case law is consistent with developments in customary international law that bear directly on self-determination.106 The Beijing government has not exercised control over Taiwan for a single day since the PRC's founding in 1949. Therefore, it cannot assert jurisdiction over Taiwan. Neither can Chinese jurisdiction be concluded from international recognition that Taiwan is a part of China, since, according to international law, countries not directly involved in a territorial dispute have no right to determine ownership.107 For example, Chinese recognition of Bangladesh as a part of India would be irrelevant. It is crucial to note that conflicts of territory are inevitably matters of international concern.108A. Taiwan Meets the Requirements for Statehood
The legal criteria for statehood are (1) a permanent population, (2) a defined territory, and (3) a functioning government, (4) that engages in international relations on behalf of the territory.109 Taiwan has a stable population of 21 million people within an area of roughly 14,000 square miles, defined by Taiwan and its outlying islands of the Pescadores, Kinmen and Matsu. In addition, Taiwan has had its own independent government since 1945. Despite the fact that many states do not recognize Taiwan, the Taipei government alone represents Taiwan in bilateral and multilateral settings.110 Nor does non-recognition prevent governments from treating the Taiwanese government as the actual government of Taiwan.111 After all, international law is constructed on state practice.112 For practical reasons, some countries treat Taiwan as a de facto state for purposes of enforcing Taiwan's rights and duties under international law.113 For example, over ten nations have entered into commercial treaties with the Taiwanese government despite an absence of diplomatic relations, when concluding landing rights and airspace agreements affecting Taiwan.114 In addition, Taiwan has reaffirmed its commitment to obligate itself to international laws as much as recognized states are bound to uphold it.115 If Beijing's claim of sovereignty were true, then China would be responsible for the negotiations and adjudication of matters occurring in Taiwan.116B. A Democratic Taiwan
Finally, Taiwan satisfies the non-traditional fifth requirement for statehood, democracy. It was only in 1986 that Taiwanese opposition to one-party rule succeeded in forming the island's first opposition political party, the Democratic Progressive Party (DPP). In the years before this, popular demand for political reforms increased, accelerating the end of one-party rule. For example, President Lee Teng-hui responded to the rapid social changes and public expectations by convening a forum to address political reforms in the 1990 National Affairs Conference.117 Institutional changes were also visible, as when the Judiciary began to assert its own independence118 in reaction to the changing political climate. For example, the Judicial Yuan's Council of Grand Justices issued the 1991 Interpretation No. 261, which forcibly retired the National Assembly and the Legislative Yuan members elected in 1947 and 1948. The same year, President Lee Teng-hui terminated the long-standing "Period of Communist Rebellion."119 Lee's action coincided with the National Assembly's repeal of the Temporary Provisions and the adoption of ten additional articles to the Constitution. Full elections to all the national government organs began in 1991.120 On July 28, 1994, the National Assembly voted to amend the constitution, clearing the way for presidential elections in March of this year.121 The absence of international recognition and lack of diplomatic relations should not be a bar to Taiwan's UN membership. Taiwan has fulfilled the prerequisites for statehood, adhering to the rights and duties associated with states under international law. The added fact that Taiwan has fully implemented democratic reforms puts to rest any argument that it is not a full-fledged state.122A. Overview
It was the pro-independence DPP that first argued for Taiwan's pursuit of de jure independence, if not an end to the KMT's own "One China" policy, to counter Beijing's alarming diplomatic isolation tactics against the island.123 As recently as 1988, Taiwan held official membership in only eight international organizations.124 In 1989, only 5% of its trade was with countries that had diplomatic relations with Taiwan.125 Today, Taiwan maintains diplomatic relations with fewer than thirty small countries. It was only after the KMT government acquiesced to an unprecedented 1992 televised debate on UN membership that it realized public opinion was on the side of the DPP.126 On April 21, 1993, Foreign Minister Frederick Chien announced that Taiwan would formally apply to rejoin the UN. However, the government ignored DPP calls for Taiwan's application under the name "Taiwan," despite the fact that even some American observers believed UN membership potential would be enhanced--including U.S. support--if the "ROC" label was not used in the pursuit.127 Instead, the government made pronouncements on a new "One China--two governments" policy to accommodate its bid to enter the UN under a divided China proposition.128 At the same time, Taiwan's Mainland Affairs Council issued a July 1994 white paper, Relations Across the Taiwan Straits, in which it announced a formal change in government policy to the effect that Taipei would no longer compete with Beijing for the "right to represent China."129 Unfortunately, President Lee reaffirmed the KMT government's long-standing commitment to political unification with China despite the unlikelihood that such unification would take place on Taipei's terms.130 In effect, the KMT permitted Beijing to set the tone of the debate, foreclosing Taiwan's right to enter the UN as a sovereign state.B. UN Precedents on "Divided Nation" Membership
The KMT government proposes that Taiwan might join the UN under parallel representation alongside the PRC. It argues that China is currently divided and ruled by two separate and equal political entities: the PRC on mainland China, and the "ROC" on Taiwan.131 This will not succeed.132 Any attempt by Taiwan to enter the United Nations as a "divided country" modeled after the two Koreas or the former two Germanys will fail. Indeed, UN Resolution 2758 has already determined that there is only one China and that its legal government is situated in Beijing. In addition, admission to the UN as a divided country is contingent on (1) the competing governments' qualifications being relatively equal and (2) the rival governments' mutual acquiescence. The great discrepancy in physical size between Taiwan and what the KMT calls the "mainland" (in fact China proper) surely preempts any serious consideration of "parallel representation." Past efforts to seat North and South Vietnam simultaneously failed because the rival governments sought reunification on their own terms.133 In Korea's case, dual admission for Seoul and Pyongyang occurred simultaneously in July 1991, only after the rival governments did not object to each other's entry.134 Finally, UN admission for a divided German state occurred only after a détente was reached between the two rivals in 1973.135 It should instead be argued that the examples of Korea and Germany reflect the UN's pragmatism. Taiwan, like Korea and Germany, has an important role to play in the international arena irrespective of its differences with other nations.C. Taiwan's Argument for UN Membership
1. "Status Quo?"
The "status quo" argument put forth by many observers to dissuade Taiwan from more actively pursuing international recognition as a sovereign state wrongly assumes parity between Taiwan and China.136 China is actively pursuing long-range ballistic missile technology and modernizing its military, and hopes to create a blue-water navy by early in the next century. The country is even now asserting itself as the preeminent political, if not soon to be economic, power in the region.2. Historic Ties
Historic ties should not be a consideration in Taiwan's right to UN membership either. It is the people, not the territory, that must determine Taiwan's destiny. Such sentiments were echoed by Great Britain's Lord Avebury, Chairman of the House of Lords Parliamentary Human Rights Group:The fact that Taiwan had been declared a province of China nearly fifty years ago does not mean that it cannot be a sovereign state today, as the examples of Eritrea and Bangladesh show. In the case of Taiwan, because it has been de facto independent since 1949, there would be no grounds in logic for refusing it the same treatment....If the people of Taiwan decide that they want the international community to recognize their existence as an independent state, and they formally apply for UN membership, I hope that the People's Republic of China will gracefully acquiesce, even if they continue to feel emotionally that Taiwan is part of their state.137Indeed, there are many examples of successful peace-loving countries with populations that either speak the same language or are of the same race as their former colonial overlords.138 UN principles are unequivocal in affirming a people's right to self-determination; even military and strategic considerations are secondary to this right.139
3. Taiwan Belongs in the UN
Issues such as trade, security, nuclear nonproliferation, human rights, poverty, and environmental protection will require close multilateral cooperation among all nations. Therefore, the United Nations cannot afford to ignore the reality that Taiwan is an independent sovereign country. In addition, UN membership for Taiwan is long overdue for the following reasons: (1) Taiwan has a right to join the United Nations as a new state under the name "Taiwan," because it has met the qualifications for statehood as a de facto state for fifty years. Taiwan is a full-fledged democracy and its people wish to decide their country's future.140 They certainly do not need the Chinese communist regime to dictate their destiny to them. The resurgence of Taiwanese culture and identity since the end of martial law in 1987 has fueled the Taiwanese desire for recognition.141 The expression of sentiment for independence has become commonplace in Taiwan today,142 while UN membership enjoys the support of most, if not all, of Taiwan's citizenry. Regrettably, the international community is largely uninformed about Taiwan's democratic changes and the UN membership aspirations of its 21 million people, a population greater in number than those of three-fourths of current UN members.143 (2) The UN principles of self-determination and universal respect for human rights remain unfulfilled so long as Taiwan is denied a seat in the General Assembly. The Taiwanese people deserve international status commensurate with their political and economic achievements. It is imperative for Taiwan to be represented at forums such as the United Nations. If Taiwan is denied UN membership, Beijing's paranoia that Taiwan could become hostile and align with other anti-China nations might well prove self-fulfilling. Not only would Taiwan have to fight for its survival, it would have no choice but to seek all available assistance from the international community. Taiwan belongs to the Taiwanese people, and that alone should be determinative for UN membership. (3) Finally, Taiwan's exclusion from the United Nations hurts the community of nations. Taiwan is willing to share its economic success with the world community and to contribute to international development. The country is the world's thirteenth largest trading nation, ranks twentieth in gross national product, is a major investor nation, and has used its foreign exchange reserves, among the largest in the world, to assist developing nations in emergency relief, technical training, and development projects.144 The UN can benefit from Taiwan's burden-sharing in the international arena.D. Coexistence and Cooperation with China
It should also be emphatically stated that Taiwan seeks peaceful coexistence and cooperation with China, not conflict or confrontation. Any objective observer will have noted that Taiwan has pursued a policy of constructive engagement toward China since 1987. One of the consequences of this has been that Taiwanese business people have invested more than US$50 billion in China, which has helped to fuel China's economic growth, and more than eight million Taiwanese have visited China in the past decade. In his inauguration speech on May 20, 1996, Taiwanese President Lee Teng-hui reiterated that Taiwan wants reconciliation and cooperation with China. As an additional gesture of goodwill, President Lee has proposed that he visit China to meet with top Chinese leaders in a journey of peace and reconciliation. The Democratic Progressive Party has also called for signing accords of non-aggression, respect for sovereign and territorial integrity, peaceful settlement of disputes, and security and economic cooperation between Taiwan and China.145 These accords would yield huge dividends for both countries, and Taiwan would be willing and able to provide economic and technical aid to assist China's modernization.