AIT Was Right, and More Reasons Why Taiwan is a Country

Recently, the American Institute in Taiwan (AIT) pointed out that Taiwan’s status was not determined in the reshuffling of governments and sovereignty that followed World War II, a statement reaffirmed by a US State Department official. This met with some controversy. In other words, China chose to react with anger, further lashing out at the United States.

As usually happens after China foments backlash against any hint that Taiwan is either a sovereign nation or that, at least, its status remains undetermined, the Chinese government reacted with a mix of anger and offense, insisting that Taiwan has always been an integral part of China.

Not only was AIT correct, however, most arguments used to promote unification are fundamentally flawed: there’s a point past which they can not be argued without resorting to nonsense, personal opinion, or logical fallacy.

This isn’t the first time the State Department has called Taiwan’s status “undetermined”; it said the same thing in 1971 just before Chiang Kai-shek paved the way for his government’s expulsion from the United Nations. It noted in the Taiwan Relations Act of 1979 that Taiwan’s status “will be determined”, not that it had already been so. Even the media organs of the Chinese government admit that the US “repeatedly” states that Taiwan’s status is undetermined. It’s not new.

It is, however, worth investigating. Why do these fallacies persist?

The post-war world

One of the main arguments used to tie Taiwan to a Chinese future is the so-called ceding of Taiwan by Japan to the Republic of China (ROC) in 1945. According to this line of thinking, representatives from the ROC met with their Japanese counterparts on the USS Missouri in Tokyo Bay in September 1945 to accept the Japanese surrender and, many believe, the ceding of Taiwan. This was, apparently, due to the earlier Cairo and Potsdam Declarations, the former calling for Taiwan to be returned to China, and the latter creating an ultimatum to Japan based on the Cairo Declaration.

Neither of these declarations were binding, however. They were statements of intention by the Allies, not signed treaties between Allied and Axis nations. The binding treaties – San Francisco in 1951 and Taipei in 1952 – do not address the final status of Taiwan. Certainly, they do not cede Taiwan to the ROC. This is what AIT correctly pointed out. The People’s Republic of China (PRC) frequently uses Cairo and Potsdam as a basis for their “One China Policy”, but these are simply not binding treaties. The PRC’s refusal to recognize the binding treaties does not take away their force, nor does it elevate the declarations to something they are not.

The ROC accepted Japan’s surrender because it was asked to do so on behalf of the Allies, and was allowed to remain in Taiwan out of convenience, not because they had been formally given Taiwan.

ROC officials were aware of this. Yeh Kung-chao (葉公超), Foreign Minister of the ROC from 1949 to 1958, stated:

“Formosa and the Pescadores were formerly Chinese territories. As Japan has renounced her claim to Formosa and the Pescadores, only China has the right to take them over. In fact, we are controlling them now, and undoubtedly they constitute a part of our territories. However, the delicate international situation makes it that they do not belong to us. Under present circumstances, Japan has no right to transfer Formosa and the Pescadores to us; nor can we accept such a transfer from Japan even if she so wishes… In the Sino-Japanese peace treaty, we have made provisions to signify that residents including juristic persons of Formosa and the Pescadores bear Chinese nationality, and this provision may serve to mend any future gaps when Formosa and the Pescadores are restored to us.” [Emphasis mine].

After WWII, the Allies considered many options for Taiwan. Most were unrealistic or unlikely, such as aiding home rule advocates who existed even then, or stewarding Taiwan toward independence as a coalition. Letting the Communists take Taiwan was on the table, as well. The fact remains, however, that these choices existed. This wouldn’t have happened if Taiwan’s status had already been determined.

Convention-based statehood

Treaties are not the only method to determine whether Taiwan is a part of China, or a country in its own right. Many experts prefer the Convention on the Rights and Duties of States, also known as the Montevideo Convention. Signed in 1933, it was originally intended by the Organization of American States (OAS) to provide a post-colonial framework for the Americas in determining nationhood. Its criteria, however, have since been cited in territorial and sovereignty questions well beyond the Americas, and the original draws on broad areas of customary international law.

The criteria are: a permanent population; a defined territory; a government; and the capacity to enter into relations with the other states. Taiwan easily meets all of these criteria. It notes that states are jurisdictionally equal, and other states may not interfere in their internal and external affairs. Taiwan – the ROC if one insists – meets the qualifications for statehood. As much as the PRC claims Taiwan’s affairs are “internal” to the PRC, the PRC is the state breaking international law in its treatment of Taiwan.

Notably, the nation in question is not required to have relations with other states, it merely needs the ability to enter into such relations, which Taiwan does. The ROC has diplomatic recognition by a few nations; Taiwan (under that name) has none. According to the Convention, this does not matter. The name of a country (Taiwan or the ROC) is a domestic matter; countries can and do change their names, e.g the Czech Republic to Czechia, or Swaziland to Eswatini. The ROC has the ability to enter into diplomatic relations with other states, and its territory is essentially that of Taiwan. Conceptually they are different, but they cover the same population and land. The name can (and must) be addressed in the future; it does not affect Taiwan’s fundamental right to self determination. 

The ROC Constitution

The constitution is frequently cited as a basis for “One China”, but this too is false. At no point does it address where the borders of the Republic of China are meant to be, exactly. It references places currently in the PRC, but does so alongside references to the National Assembly, which was abolished in 2005. Now, the Legislative Yuan only elects representatives from current ROC territory, that is, Taiwan and its outlying islands.

The only article of the constitution that mentions ROC boundaries is Article 4. Notably, it does not delineate exactly where those borders are, as they changed more than once between the document’s adoption and significant territorial questions in the 1990s. In 1993, the constitutional court refused to make a determination on national boundaries based on this, calling it a “political question”:

“Instead of enumerating its components, Article 4 of the Constitution provides that the national territory of the Republic of China is determined “according to its existing national boundaries.” Based on political and historical reasons, a special procedure is also required for any change of territory. The delimitation of national territory according to its history is a significant political question, and is thus beyond the reach of judicial review.”

In other words, the constitution does not provide a judicial basis for determining what territory belongs to the ROC:

“First, Article 4 has been ruled ‘non-justiciable’ by the Council of Grand Justices. Asked whether Mongolia was still a part of ROC territory, the council in 1993 issued Interpretation No. 328, which ruled that the legislative intent of the term ‘inherent/existing’ was specifically to avoid setting down precise boundaries, since the areas controlled by the ROC in China at the time were continually shifting with the tides of the Chinese Civil War. The interpretation thus held that the phrase is a political question that cannot be assigned any fixed legal definition. The practical impact of this ruling is that it is legally impossible to ‘violate’ Article 4, since anyone could assert any notion of “inherent/existing national boundaries.”

Second, Article 4 is no longer in effect. It was replaced in 2000 by paragraph 5 of Additional Article 4, which itself was amended in 2005. Although Additional Article 4 contains almost the same phrase, “the territory of the Republic of China, defined by its existing national boundaries,” surely the use of the term “existing” in 2000 or 2005, without qualification, does not mean ‘existing as of 1947.’”

Between 1991 and 2005, several amendments were added to the constitution which clarified the “free area” of the Republic of China. Do these constitute sufficient “special procedure”? Then President Lee Teng-hui seemed to think so, calling the amendments the basis of a “two state theory” and “special state-to-state relations” between the ROC and PRC.

The only remaining competing claims are uninhabited islands that the current and previous administration both sought to ignore as much as possible. They are a problem, but hardly a basis for determining national sovereignty. The tail, in this case, cannot be allowed to wag the dog.

UN Resolution 2758 and International recognition

In 1971, Resolution 2758 expelled the “representatives of Chiang Kai-shek” from the United Nations and switched representation of “China” to the PRC:

“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 the 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 which they unlawfully occupy at the United Nations and in all the organizations related to it.”

This is frequently used to represent the ‘settlement’ of the status of Taiwan as a part of China, because Taiwan lacks a UN seat and the ROC can no longer represent China. It does nothing of the sort. This is a classic appeal to authority: because a UN Secretary General said it, it must be true.

An authority figure making a statement doesn’t make that statement true, nor does it give that authority figure the right to a final decision over any issue, per se. The appeal to UN statements is a clear example.

Nowhere in Resolution 2758 does it state that Taiwan is part of China, only that the PRC represents “China”. The PRC doesn’t govern Taiwan; why should it be assumed to represent Taiwan at the UN? Resolution 2758 doesn’t mention Taiwan by name, only the “representatives of Chiang Kai-shek”. Chiang is dead; he no longer has “representatives”, and past statements that the UN regards Taiwan as “part of China” have no legal basis; they are the result of pressure by China, nothing more.

In fact, before the ROC’s expulsion, the US tried to convince Chiang Kai-shek to accept representation of both the PRC and ROC at the UN. It never happened – Chiang rejected the proposal – but it might have come to pass if Taiwan hadn’t been ruled by a brutal tyrant at the time.

The ROC will almost certainly never be re-admitted to the UN, but there has never been a legal bar to Taiwan representing itself as Taiwan – only pressure from China stops this from happening. It meets all the qualifications of statehood and no longer claims PRC territory (if it ever did, constitutionally speaking). The UN wouldn’t even have to stop supporting the notion of “One China”; that one China simply doesn’t have to include Taiwan.

Even if Resolution 2758 stated plainly that Taiwan was part of the PRC, it wouldn’t matter: the UN is an organization of states, but isn’t the final determiner of what is and isn’t a country. Not being in the UN isn’t part of any treaty agreement or any other convention determining statehood. Before the UN existed, there were countries. Countries not yet in the UN can apply for membership, implying there is a period post-statehood but pre-UN membership in which a country is, well, a country. Taiwan can be a country even if the UN doesn’t yet believe it to be so.

Cultural and Name-Based Arguments

Both the ROC and PRC have “China” in their names. So do North and South Korea, but nobody thinks of them as one country (perhaps someday, but not now). So do the Republic and Democratic Republic of the Congo. So do Equatorial Guinea, Guinea-Bissau and Papua New Guinea, although there is no particular relationship between them. This is not the basis of an argument for “One China” including Taiwan.

Taiwanese people do not generally call their country China. Of course there will always be differing opinions in a free society, but the majority consensus is clear: most Taiwanese consider themselves solely Taiwanese, not Chinese. Of the minority who consider themselves both, most would choose Taiwanese over Chinese if forced; almost nobody identifies as solely Chinese. Most favor avoiding war – that’s what the status quo is – but also avoiding unification. As of a few years ago, most considered ‘the status quo’ to be sufficient qualification to consider Taiwan a nation and already consider Taiwan to be independent.

Why hasn’t the ROC changed its name, then? Surely it should, if most people don’t identify as Chinese? While there are some Taiwanese who would oppose such a change, the primary reason is the PRC’s threat of war. Nobody has asked what Taiwanese would like their country to be called if China’s threats were eliminated, but logically, one can guess. There would be lively public debate and some opposition, but eventually the name change would take effect. The name symbolically placates only China.

Former legislator and current ambassador to Finland Freddy Lim (林昶佐) once pointed out the absurdity of this.  The PRC doesn’t call Taiwan the “Republic of China”, he said, so what gives them the right to force Taiwan to call itself by a name they themselves refuse to use?

Beyond this, some argue that it isn’t the Taiwanese alone who can determine the future of Taiwan, that it’s a decision for “all Chinese people”. This begs the question: it assumes as a premise that all people in China and Taiwan are “Chinese”. What is the logic of this if Taiwanese mostly do not identify as Chinese?

If one does care about how China feels about Taiwan, they need look no further than venerated leaders Mao Zedong and Sun Yat-sen. The former stated in 1925 that Taiwan should liberate itself; he did not always consider the struggle of the people of Taiwan to be a goal of his Communist Party: 

“The CCP also] acknowledged the “national liberation movement” on Japan-occupied Taiwan as the struggle of a “weak and small nationality” that was separate from the Chinese revolution and potentially sovereign.

This was expressed most clearly by Chairman Mao Zedong in his 1937 interview with American journalist Edgar Snow, who quoted Mao as saying: “…we will extend them (the Koreans) our enthusiastic help in their struggle for independence. The same thing applies for Taiwan.” This position was reiterated in subsequent years by CCP luminaries like Zhou Enlai.”

As for Sun Yat-sen, he visited Taiwan twice during his life. Both times he considered Taiwan to be part of Japan, not China.

The Historical Argument

Another common argument for unification is historical, because Taiwan had been part of China for “centuries” before Japanese rule. This is not true. There is no evidence or record of any extensive Chinese government on Taiwan prior to the Qing dynasty, or very late Ming if Cheng Cheng-kung (鄭成功) counts. Contact from Japan – that is, a demand for tribute – in the late 16th century went unanswered, as there was no central leader to respond. If China had had any government on Taiwan, they would have been the recipients of that letter.

From Qing general Shi Lang (施琅)’s annexation of Taiwan from the Cheng loyalists until 1887, the Qing barely ruled the island: they not only seen as but considered themselves a colonial government, treating Taiwan as a “defensive hedge” and doing very little for what they called a “ball of mud beyond civilization” – not language one uses to describe a cherished part of one’s territory. After the Qing conquest, the court considered offering Taiwan back to the Dutch as part of trade negotiations – not something you do to a crucial province. Most of Taiwan remained inhabited by Indigenous people, not Chinese settlers, although the boundary between them frequently shifted.

For most of those “centuries”, the Qing only governed about a third of Taiwan, the eastern two-thirds unsettled, ungoverned (by the Qing – Indigenous tribes had their own systems) and even unmapped. When Japan sent a delegation to China over the murder of Ryukyuan soldiers at Mudan on Taiwan’s southern peninsula, China reportedly called the inhabitants “outside of civilization” (化外之民), which Japan took to mean “not Chinese”.

Taiwan was not made a province of China until the 1880s over fears of Japanese colonial ambition, and ceded Taiwan to Japan in 1895. Taiwan was a fully integrated part of China, then, for about a decade under the Qing. That’s hardly “centuries” of history.

Even if this history showed a long period of Chinese rule, which it does not, Taiwan governs itself now, and has the right of self-determination now. If Taiwanese don’t want to be part of the PRC, there is no historical argument that can justify forcing them.

There is a whiff of motte-and-bailey to all three of these arguments: when called out on the obvious violence of advocating a Chinese takeover of Taiwan, many pro-China voices will retreat to more “reasonable” sounding points about shared history, shared culture, or an imperative for Taiwan to change the country’s name or “declare independence”. These sound more peaceful and rational, but they are not. They only seek to take options away from Taiwan, and argue against the self-determination of its people.

Goaded by the US

This is a classic strawman argument: instead of looking at what Taiwanese people say they want, the commenter states that Taiwan independence “separatists” are supported by the US as part of the latter country’s attempts to undermine China.

This is a straw man. It’s difficult to reject the notion of Taiwanese self-determination on its face if one believes in sovereign governments handling their own internal affairs, so opponents link it to the big, bad imperialist United States: a target that is much easier to hate. It’s easier to justify a violent Chinese response if the real enemy is the US, not the Taiwanese people.

The problem is, it’s not true. The US considered and abandoned the prospect of supporting independence activists after WWII, and from that time until recently, they have mostly supported pro-China political elements in Taiwan. They propped up the KMT, who never saw Taiwan as independent, and allowed the KMT to suppress any talk or action regarding Taiwanese identity or self-determination. They discouraged Taiwan’s first openly pro-independence leader from making too many waves, and reportedly preferred pro-China presidential candidates well into the 2000s.

Taiwan identity and home-rule sentiment has existed in Taiwan since at least the Japanese era. Perhaps before, if one considers the short-lived 1895 declaration of a Republic of Taiwan by leaders such as Tang Ching-sung (唐景崧), Liu Yong-fu (劉永福) and Chiu Feng-chia (丘逢甲)  to be any sort of indicator. George Kerr, American diplomat and author of Formosa Betrayed, certainly considered it one. Much of the arts and music output from this time would later become cultural touchstones for the early Tangwai (黨外) movement that later morphed into the DPP.

Why would the US have been interested in a few home-rule rebels such as these? Years into Japan’s rule of Taiwan, would the US have known or cared about cultural activists such as Chiang Wei-shui (蔣渭水)? These were the early voices of this form of Taiwanese identity, and while many studied abroad, none were directly encouraged to spread Taiwanese cultural and identitarian sentiment in Taiwan.

There is no world in which the US has consistently supported “Taiwan independence”. Even now, friendlier to pro-independence leaders than they have ever been, the State Department re-iterates that it “opposes Taiwan independence”. This argument only makes sense if one considers the KMT to support “independence” because they once fought a civil war with the CCP. The KMT, however, has always considered Taiwan a part of China. Taiwanese identity flowered not because of US influence, but despite it.

Even if the US were stoking pro-independence sentiment, it wouldn’t matter. Such sentiment exists, and the US is even less a final arbiter on what is and is not a country than the United Nations.

Does Taiwan need to “declare independence”?

But in the first place, why should Taiwan even have to declare anything? It already meets all of the requirements for statehood under the Montevideo Convention. It already governs itself. It is, therefore, already independent, with only the name and a few odd wordings in the constitution creating some symbolic issues. It already does business with many nations. Those nations all tacitly acknowledge that they are not dealing with the PRC. If they didn’t, no trade would take place. 

Just to be clear, when the words “declare independence” appear in the context of Taiwan, what that really means is actions taken by the Taiwanese public to remove “China” from its official name. That’s it. 

No other country is quite in the same position as Taiwan, but no other country with the degree of sovereignty and recognition (official and tacit) that Taiwan has is asked to “declare independence” as a prerequisite for recognizing its existing statehood. For every other country in the world, name changes are completely legal, and completely up to the people of that country only. 

But it is now an odd Catch-22 for Taiwan: the international community is desperate to avoid a China-Taiwan war. Taiwan, more than anyone, wants to avoid that war as well. Only China threatens war; not even the US, despite their history of getting involved in international conflicts, wants it.

If Taiwan “declared independence”, which it does not have to do, it would give China the pretext to start that war. Insisting on “declaring independence” but no war is an impossible situation: the only outcome is annexation by China, which is exactly what the people making this argument want the world to believe.

It’s also something of a false dichotomy: either Taiwan can accept annexation, or a war will mysteriously appear from the ether. It doesn’t have to be this way – all China has to do is not start that war. By not naming the perpetrator of the undesired outcome, it’s easier to insist that Taiwan has no other choice. China, apparently, is unable to make decisions for itself and is guided by blind rage. Why else would they inevitably feel the need to start a war that doesn’t need to happen, when the choice not to start a war is right there? Does China lack free will?

These same commenters will insist that Taiwan does not call itself independent or consider itself a country. This is false: every elected president but one has stated that Taiwan, as the ROC, is an independent country. The constitution does not contradict this.

Neither does the 1992 Consensus, an agreement supposedly reached between representatives from China and Taiwan in, of course, 1992 saying that there is “one China” and Taiwan is part of it. There was no such consensus in 1992, however: the Taiwan side insists the agreement allows “each side to have their own interpretation”, but one side – China – never agreed to that. A consensus implies agreement of some kind, and there was no agreement, just a meeting. In fact, former KMT legislator Su Chi (蘇起) created the term in 2000. This is why histories of Taiwan published between 1992 and 2000 don’t mention the “1992 Consensus” – it hadn’t been invented yet.

Even if it had, the “representatives” of Taiwan were representing a pre-democratic society. Whatever they may have agreed on at that meeting is not representative of the will of the Taiwanese people.

The bigger question is: if Taiwan is a part of China and not independent, why does China feel it necessary to continue insisting on this point? If it were obvious, that level of angry rhetoric wouldn’t be necessary. They wouldn’t have to declare it if it were true. It would be a mundane fact, hardly worth mentioning.

That is, it’d be like “Taiwanese independence” spoken in Taiwan. Infrequently mentioned, because it’s assumed to be true. Few in their daily discourse call their country ‘China’ or themselves ‘Chinese’, and it doesn’t require any more discussion or spittle-flecked rhetoric to make that point.

Conclusion

There is no valid argument for the PRC annexing Taiwan. Under international law, Taiwan’s status is either undetermined or it qualifies as a nation. Historically, China has no clear claim to Taiwan, nor are cultural links sufficient. The United Nations cannot decide this, nor can the United States.

AIT’s assertion that Taiwan’s status is “undetermined”, if anything, is an understatement. Arguably, Taiwan isn’t undetermined; under a convention-based framework, it is a country. Indeed, that China refuses to renounce the use of force is the only necessary indicator for which side has the moral high ground. Those who have it don’t need to resort to violence. If Taiwan were such a cherished and ancient part of China’s sacred territory where people on both sides are ‘brothers and sisters’, they wouldn’t need to threaten to annex Taiwan by force. They would make a tempting, good-faith offer, and their so-called  ‘brothers and sisters’ would likely accept it.

That’s not what China is doing, and their violent rhetoric tells us all we need to know. 

(Featured photo by Alix Lee on Pexels)