Political Status of the ROC in Taiwan

Abstract

This chapter reviews the position of the government officials in Taiwan as well as that of foreign governments on the political status of the Republic of China (ROC), or more specifically whether the ROC has become a State, after its move to Taiwan.

The chapter begins by detailing the constitution of the ROC and then briefly describes the exile of the ROC government to Taiwan after losing the control of mainland China to the Communists in a civil war. The rule of the ROC in Taiwan is outlined as is the position of the United States and the United Nations towards the international status of the ROC and People’s Republic of China (PRC) in representing the State of China.

The chapter then discusses the reforms of the ROC under the Presidency of Lee Teng-hui and the “special state-to-state relationship,” followed by the position of the next President Chen Shui-bian regarding the international status of the ROC. Finally, the chapter concludes with a brief discussion of the positions of Presidents Ma Ying-jeou and Tsai Ing-wen on the political status of the ROC.

1. The ROC in Taiwan

It was observed in Chapter 4, The State and Governments of China, that the Republic of China (ROC) was not a State before it moved its seat to the island of Taiwan, but was a government of the State of China. This chapter reviews the position of the government officials in Taiwan as well as that of foreign governments on the political status of the ROC, or more specifically whether the ROC has become a State, after it moved to Taiwan.

In 1945, immediately after Japan surrendered to the United States and its allies, the United States entrusted the ROC government with the administration of Taiwan.477 Thereupon, Jiang (Chiang) Kai-shek sent his army in the US ships to the island in October of 1945. On October 25, 1945, the Chinese Military Commander accepted the surrender of the Japanese Military Authority in an official ceremony in Taipei.

Jiang (Chiang) Kai-shek immediately established a military authority to rule Taiwan. In less than 2 years, a conflict between the Chinese Military Security Guards and the Taiwanese civilians led to bloodshed in the whole island. On February 28, 1947, the brutal treatment of a female sidewalk vendor in Taipei by a Chinese tobacco inspector angered the Taiwanese bystanders, who began to defend the woman. The ensuing conflict between the Taiwanese civilians and the Chinese military police turned into a revolt by the Taiwanese people against the ROC authority throughout the island. To suppress the revolt, Jiang (Chiang) Kai-shek in Nanjing (Nanking) quickly sent enforcement troops to Taiwan. Upon arrival in Taiwan, the troops shot thousands of unarmed Taiwanese indiscriminately on sight. After the revolt was put down, the ROC authority arrested and executed without trial thousands more of the Taiwanese, including many elites such as medical doctors and lawyers. The atrocity committed by the Chinese army was later called “the 228 Incident” or “the 228 Massacre.”478 Subsequent to the 228 Incident, further oppression of the Nationalist Chinese incited an anti-Chinese sentiment among the Taiwanese people, especially the intellectuals.

In 1949, the ROC government moved its seat to Taiwan. In the winter of 1949, the ROC government, having lost China proper to the Communists in a civil war, was forced to take exile in Taiwan on December 8, 1949. Jiang (Chiang) Kai-shek moved the political structure of the ROC to Taiwan, even though Taiwan was under a military occupation.

Before Jiang (Chiang) Kai-shek moved the seat of his government to Taiwan, he had ruled China under the authority of the ROC Constitution. After the 1911 revolution, the State of China became a republic. Several constitutions were promulgated by different governments until 1946 when the present ROC Constitution was promulgated by the ROC government seated in Nanjing (Nanking). The ROC Constitution was based on the political doctrine, “the Three people’s principles,” formulated by Sun Yat-Sen, the nominal leader of the 1911 revolution.479

The Constitution provides a presidential system with a National Assembly and five Institutes (Yuan). The President of the republic is the head of the State and also the head of the government exercising the executive power. The National Assembly “exercises political powers on behalf of the whole body of citizens,” in particular the function of electing and recalling the President and the Vice-president.480 Jiang (Chiang) Kai-shek, who was Chairman of the Chinese Nationalist Party (the Kuomintang or the KMT) at the time, was elected the first President in 1948 by the National Assembly convened in Nanjing (Nanking) pursuant to the ROC Constitution.481

The five Institutes (Yuan) are five organs of the government (in the broad sense) collectively exercising the various powers of the State. They are the Executive Institute (The Executive Yuan), the Institute of Legislation (The Legislature Yuan), the Institute of Judiciary (The Judiciary Yuan), the Examination Institute (The Examination Yuan), and the Institute of Control (The Control Yuan). The Executive Institute, headed by the Premier, is the administrative organ under the President to implement the law enacted by the Institute of Legislation and the ordinances of the President.482 The Institute of Legislation (The Legislature Yuan) is the highest legislature of the country.483 The Institute of Judiciary (The Judiciary Yuan) is the highest judiciary.484 The Examination Institute is the highest organ in charge of matters relating to the selection and promotion of civil servants.485 The Institute of Control (The Control Yuan) exercises the power of impeachment and the power of reprimanding government officials, as well as auditing the governmental expenditures.486

The National Assembly, the Institute of Legislation, and the Institute of Control together are subsequently referred to as the three houses of the “congress.” Each house of the “congress” is composed of deputies elected from all Provinces and Autonomous Regions. The number of deputies to be elected from each Province is proportional to the size of its population and the number of deputies from each Autonomous Region is fixed. The Autonomous Regions included Mongolia and Tibet. Where it is relevant is that in 1946 when the ROC Constitution was promulgated Taiwan was not part of China: it was Japan’s territory.

In 1948 when the ROC government was losing the civil war to the Chinese Communists, the National Assembly, meeting in Nanjing (Nanking) in May of 1948, promulgated “Temporary Provisions Effective During the Period of Communists Rebellion Act” (“Temporary Provisions Act”), which allowed the President to enlarge his power without following certain procedural requirements prescribed by the Constitution.487 After the ROC government took exile in Taiwan in December of 1949, the ROC government also applied the Act to the island.

The 1948 Temporary Provisions Act allowed Jiang (Chiang) Kai-shek to rule Taiwan until his death. It suspended an article of the Constitution which limits the term of the President and the Vice-President to two terms, thereby allowing Jiang (Chiang) Kai-shek to be reelected many times by the National Assembly until his death.488

In Taiwan, Jiang (Chiang) Kai-shek controlled the government apparatus including the “congress” during his life time. After the ROC government moved its seat to Taiwan, the Constitution continued to apply to the entirety of China in theory. When the ROC government and the “congress” went into exile in the island of Taiwan, most deputies of the “congress,” who were elected by the people in China, also followed the government to Taiwan. They continued to represent the people in China under the rule of the Chinese Communists. The National Assembly amended Temporary Provisions Act by adding a provision which authorized the President to issue ordinances for electing new congressional delegates in addition to the original delegates.489 The original delegates continued to represent their old congressional districts even after their original terms expired. Thus, for 40 years the congressional deputies were in fact permanent members of the “congress” until the 1991 amendment of the Constitution. Jiang (Chiang) Kai-shek could control the congressional deputies as his puppets because their livelihood depended on the KMT Party’s support.

Ever since Jiang (Chiang) Kai-shek arrived in Taiwan, he imposed a totalitarian rule on the Taiwanese. In 1954, Jiang (Chiang) Kai-shek had Martial Law amended to authorize trials of civilians by court martial for offenses against national security, and then declared implementation of the Martial Law in Taiwan. Special penal laws were enacted to suppress opposition. National security was placed under the control of the Military Security Guards. Many dissidents were tried and sentenced to death by court martial, or simply disappeared without trace.490

Jiang (Chiang) Kai-shek took three steps to legitimize his rule of the island of Taiwan and its inhabitants. The first step was that while in China he claimed that the island of Taiwan was returned to the ROC by the surrender of the Japanese military authority to the Chinese authority in Taipei in 1945, notwithstanding that the island was still Japan’s territory. The second step was that the ROC government in China issued a decree in January of 1946 announcing that all the Taiwanese people residing in Taiwan “are restored” the citizenship of the ROC retroactively to October 25, 1945 when Japan surrendered,491 even though the Taiwanese people still resided in Japanese territory and had neither renounced nor been deprived of their Japanese citizenship.

After the ROC government moved its seat to Taiwan, Jiang (Chiang) Kai-shek took a third step to legitimize his authority to rule Taiwan. He created some political slogans collectively characterized here as the “one China dogma.” The one China dogma is, “There is only one China; China means the Republic of China; the Republic of China’s territory consists of China proper and the island of Taiwan; and the People’s Republic of China (PRC) illegally occupies the Republic of China’s territory.”492

From the beginning, Jiang (Chiang) Kai-shek’s one-China dogma was a myth. When the ROC took exile in Taiwan in 1949, it had lost China forever. The Nationalists lost the trust of the people in China due to the mismanagement of the ROC officials. By 1950, the PRC government was firmly established, controlling China proper except for two small offshore islands (Kinmen and Matsu). In contrast, the ROC government only controlled the two Chinese small offshore islands and the island of Taiwan which was not China’s territory. Thus, while there is only one China, China could not mean the ROC; the PRC did not “illegally occupy the ROC’s territory” as the one-China dogma claimed. Although Jiang (Chiang) created the myth to legitimize his authority and power in Taiwan, since he was the paramount leader of the KMT Party, the Party and the government were able to permeate the dogma throughout the Taiwan society.

2. Position of Two Jiang (Chiang)s on the Political Status of the ROC in Taiwan

Jiang (Chiang) Kai-shek, like most of the Chinese people, did not distinguish the concept of State and the concept of government and treated the ROC as a State. In addressing his countrymen Jiang (Chiang) Kai-shek often used an expression “our country the ROC.” After Jiang (Chiang) Kai-shek moved to the island of Taiwan, he still considered himself the legitimate leader of his country “the ROC.” He regarded the PRC as a traitor regime established by the Chinese Communists, who “had stolen the territory of his country the ROC.”

In Taiwan, Jiang (Chiang) Kai-shek never intended to establish a new State limiting its territory to the island of Taiwan. After the 1951 Peace Treaty of San Francisco was concluded, he still intended to retake the China mainland. In an attempt to motivate his army, he created a slogan: “Counter attack the mainland (Chinese Communists); retake the lost territory.” In 1964, on the eve of France switching its recognition from the ROC to the PRC, French President De Gaulle called Jiang (Chiang) Kai-shek and advised him of the imminent French action and that if Jiang (Chiang) would declare the ROC a new State limiting its territory to the island of Taiwan, France would recognize the new State and the ROC as its legitimate government. Jiang (Chiang) refused.493 He refused because such a move would lose the legitimacy of his ambition to recover his homeland.

After Jiang (Chiang) Kai-shek died in 1978 during his term of the presidency, his son Jiang (Chiang) Jing-guo succeeded to his power. Upon the death of Jiang (Chiang) Kai-shek, the Vice President Yen Chia-kan succeeded to the Presidency pursuant to the ROC constitution, but soon resigned to allow Jiang (Chiang) Jing-guo to become the President.494 During the lifetime of Jiang (Chiang) Kai-shek, Jiang (Chiang) Jing-guo had already built up a strong position in the ROC government. Jiang (Chiang) Kai-shek appointed him the Premier (officially “The President of the Executive Institute”) of the ROC,495 who also controlled the KMT Party.

Jiang (Chiang) Jing-guo never established a new State in Taiwan either. As the President of the ROC, Jiang (Chiang) Jing-guo never intended to establish a State limiting its territory to the island of Taiwan. He also relied on the one-China dogma to legitimize his rule of Taiwan. But he had no intention to retake the China mainland, and simply adopted a new slogan, “Unification of China by the Three People’s Principles.”

To other States, the ROC in Taiwan was a government of China in exile. Until the conclusion of the Peace Treaty of San Francisco, the island of Taiwan, while under the administration of the ROC government at the assignment of the US Government, was Japan’s territory. In 1951, when the United States and other Allied powers signed the Peace Treaty of San Francisco with Japan, the ROC was not a party to the Peace Treaty, though it also had conducted the war with Japan. When the United States and the United Kingdom were drafting the peace treaty, they could not include “the Republic of China” as a party because the War was between States, and the ROC was not a State, just a government. They did not include China as a party because they did not want either government to represent China in the Treaty: the PRC government which fought the United Nations (UN) forces in the Korean War496 was not recognized by most Western States as the legitimate government of China; the ROC government, which had lost most of China’s territory, had no legitimacy to represent the State of China.

As stated earlier, in 1964 when France recognized the PRC and simultaneously withdrew its recognition of the ROC, the ROC did not become a State.497 Other Western States which followed France to accord recognition to the PRC also recognized it as the government of China. The ROC continued to be a government of China in exile after the Peace Treaty of San Francisco entered into force.

In 1970 when the UN General Assembly debated which government, the ROC or the PRC, should take China’s seat, the PRC accused the US Government and Japanese government of plotting to create two “Chinas.” The Japanese Ambassador to the UN Min Aichi replied that “Japan will continue to espouse the ‘1-China’ policy,”498 implying that the ROC was not a new State.

When the United States withdrew recognition of the ROC in 1979, the ROC did not become a State. Then President Jiang (Chiang) Jing-guo did not intend to establish a new State limiting its territory to the island of Taiwan. Other States followed the United States, leaving only a number of small States which continued to recognize the ROC as China’s representative government. The ROC government became isolated in the international community.

In Taiwan, since 1945 when the ROC government took over the administration of the island, the political power was in the Chinese people. For 43 years, the political power was in Jiang (Chiang)’s family: first Jiang (Chiang) Kai-shek and then his son Jiang (Chiang) Jing-guo. Most government officials and deputies of the “congress” were Chinese, whom the Taiwanese referred to as “the mainlanders” or “people from the other Provinces.”

The Chinese totalitarian rule finally aroused anti-Chinese sentiment among the Taiwanese people. When the Chinese soldiers arrived in Taiwan on US Navy ships in 1945, they called themselves “the liberators” and were welcomed by the Taiwanese. But since 1947, for decades, the people lived in fear of persecution under the shadow of the 1947 “228 Incident.” In the 1960s, after a long period of the totalitarian rule under the martial law, a Taiwan independence movement began to sprout. In 1979, the year after the United States withdrew its recognition of the ROC government, an incident, subsequently called “The Incident of Formosa magazine,”499 illustrated the KMT’s totalitarianism. In December of that year, Taiwanese political leaders gathered in Kaohsiung City to celebrate the 31st anniversary of the signing of the UN Convention of Human Rights. After the meeting, as the Taiwanese politicians and the audience were preparing to march on the street they were blocked and beaten by the ROC’s Military Security Guards and police. The conflict between them resulted in the arrest of many Taiwanese politicians. Many were sentenced to a long-term imprisonment.

Another incident occurred in 1981. A Professor Wen-chen Chen of Carnegie-Mellon University, while visiting Taiwan in July 1981, was found dead from falling from a second floor in the campus of his alma mater, The National Taiwan University, after being questioned by the Military Security Guards on the day before. Although the authority announced suicide as the cause of death, many people would not rule out a political assassination.

While Jiang (Chiang) Kai-shek called Taiwan “Free China,” the Taiwanese people subsequently called the period under the two Jiang (Chiang)s “the White Terror era.”500 Although the ensuing unrest in the Taiwanese society eventually forced Jiang (Chiang) Jing-guo to lift the martial law in 1987, a year before his death, the Taiwanese people were still mistreated by the Nationalist Chinese.

The next section will closely examine the position of the United States on the political status of the ROC during the era of the two Jiang (Chiang)s.

3. US Position on the Political Status of the ROC Before Lee Teng-Hui

Whatever the two Jiang (Chiang)s’ characterization of the ROC in the one-China dogma, there was no doubt to other States that the ROC was a government of the State of China from the very beginning when it was established in 1912 and was a government after it moved its seat to the island of Taiwan in 1949.

The United States’ treatment of the ROC is particularly relevant, since it became the occupying state of Taiwan and the dominant power in the region after World War II. Its Executive, Legislative, and Judicial branches all held the same position—that the ROC was only a government of the State of China. A closer analysis of the view of each branch follows.

A. The Executive Branch

As discussed in Chapter 2, The State and Sovereignty, it is the power of the Executive head, the President in the United States, to grant diplomatic recognition. It was pointed out before that the Executive branch of the United States considered the ROC a government of the State of China from the time when it was established in 1912. Its recognition of the ROC in 1913 was recognition of the government, since the United States had long recognized the State of China before 1913.

The ROC did not become a State independent of China after it moved its seat to the island of Taiwan. From October 25, 1971 on, the PRC government has replaced the ROC government to represent China in the United Nations. The US Government, however, continued to recognize the ROC in Taiwan as the representative government of China until 1979.501 On December 30, 1978, the Carter Administration finally accorded recognition to the PRC and simultaneously withdrew its recognition of the ROC502 When the US recognized the PRC, it did not recognize the PRC as a new State, but recognized it as the representative government of China. Since the State which the PRC represented was still China, the United States had to withdraw simultaneously its recognition of the ROC Upon withdrawal of its recognition of the ROC, the United States also terminated the US–China (the ROC) Mutual Defense Treaty because the treaty had lost its purpose—defending against the invasion of the PRC government, which was now recognized as the representative government of the other party to the treaty.

The withdrawal of the recognition of the ROC by the US demonstrated that the US regarded the ROC as a government. As it was discussed in Chapter 2, The State and Sovereignty, in State practice, while recognition of a State cannot be withdrawn, recognition of a government may be withdrawn. The withdrawal of recognition of the ROC by the United States and other States did not make the ROC a new State as some people in Taiwan have claimed. Withdrawal of recognition is an act of destruction of a relationship, not an act of creation of a new entity.

B. The Legislative Branch

Nor did the US Congress consider the ROC a State. When the United States terminated the US–China (the ROC) Mutual Defense Treaty, the US Congress enacted the Taiwan Relations Act (the “Act”)503 to protect the people of Taiwan against the invasion of the Chinese Communists as well as the security and interest of the United States in the Western Pacific. If the ROC was a State, then the US Government could enter into a mutual defense treaty with it, instead of employing such a roundabout maneuver. The United States does not have South Korea Relations Act or Japan Relations Act. It does not need such domestic law because both South Korea and Japan are States. The two States and the United States have signed mutual defense treaties.504 Thus, the United States has obligations and power under the treaties to protect them. Some may say that Taiwan Relations Act treats the ROC like a State.505 It is true that in the Act, the ROC is treated like a State by the United States and enjoys some of the same prerogatives and courtesy accorded by the US Government to other States. But if the United States treats the ROC like a State, the implication is that the ROC is not a State, only similar to one. In fact, after the United States withdrew recognition of the ROC, it no longer regarded the ROC as a “government.” Taiwan Relations Act calls it “the governing authorities.”506

Taiwan Relations Act is a US domestic legislation, not a treaty. If the PRC government uses force against Taiwan,507 the US Government has no treaty obligation toward the ROC government to protect Taiwan, though the US Government may, as the occupying power, defend Taiwan pursuant to the Taiwan Relations Act or other considerations.

C. The Judicial Branch

Furthermore, the judicial branch of the United States has not considered the ROC a State either.508 In the United States, a constitutional principle is that on matters of recognition of a foreign State and a foreign government, the judicial branch follows the decisions and opinions of the Executive branch because they are political questions.509 The Court in Cheng Fu Sheng v. Rogers 510 stated,

“It is fundamental that such questions as whether a foreign country or a foreign government should be formally recognized are problems that are not to be solved by the courts, but are political matters that are to be decided by the executive and legislative departments of the Government. On such topics the President and the Secretary of State speak for the United States, and the courts are obligated to follow their pronouncements.”511

Nevertheless, the US courts, in deciding the application of an international treaty or a municipal law, had occasions to give their reasons that the ROC was not a State. Two cases involving the application of the Warsaw Convention512 confirmed that the ROC was not a State. In the first case, John Lee and Margaret Lee v. China Airlines Ltd.,513 two passengers on a flight from Hong Kong514 to San Francisco sued China Airlines in a US federal court sitting in California for injuries caused by a sudden drop of the airplane of 31,000 ft in the air, off the coast of California. The defendant argued that the US federal court had no jurisdiction to try the case. The plaintiffs argued that the federal court had jurisdiction, and, if their action were dismissed for lack of jurisdiction, they would be compelled to bring the action abroad, either in Taiwan515 or in Hong Kong,516 where they would not receive an adequate hearing of their claims because, they argued, the Warsaw Convention would not apply to either Hong Kong or Taiwan. The court, in holding that the Warsaw Convention applied and it had no subject matter jurisdiction according to the Convention, dismissed the action.517 The court added that if the plaintiffs sued in either Hong Kong or Taiwan, “[t]he Warsaw Convention will figure prominently in the decision making process over there because both Hong Kong and Taiwan adhere to it.”518

The court statement that “Taiwan adhere[s] to [the Warsaw Convention]” implied that Taiwan was a contracting party of the Warsaw Convention. It should be noted, however, that at the time when the accident occurred, while the PRC government of China ratified and adhered to the Warsaw Convention in July 1958, the ROC government in Taiwan had neither ratified nor adhered to the Warsaw Convention. Thus, the reason that the court ruled that Taiwan was a contracting party was because it regarded Taiwan a part of China and covered by the Warsaw Convention; the ROC was not a State.

The second case in which an American court held that the ROC was not a State was Atlantic Mutual Insurance Co. v. Northwest Airlines.519 In this case, Tacoma Boat Building Co. (Tacoma) delivered some machinery to Northwest Airlines (“Northwest”) for shipment from Milwaukee, Wisconsin, to Taipei, Taiwan. Tacoma claimed that certain parts of their machinery components were damaged due to Northwest’s negligence during the air transport of the components. Atlantic Mutual Insurance Co.520 and Tacoma jointly sued Northwest in Milwaukee for damages. In the federal district court sitting in Milwaukee,521 the issue was whether the state court or the federal court had the subject matter jurisdiction to try the case. The plaintiffs, which argued that the state court had the jurisdiction, claimed that the Warsaw Convention did not apply on the grounds that Taiwan was not a party to the Convention and, thus, the federal court lacked subject matter jurisdiction. The defendant, Northwest, argued that the Warsaw Convention applied to the case and, thus, the federal court had jurisdiction. In reaching the conclusion that the Warsaw Convention applied, the federal court said that it had “federal subject matter jurisdiction … only if Taipei, Taiwan—the flight destination—also was a party to the convention.”522 Holding that Taiwan was a party to the convention, the federal court explained as follows:

Since 1949 to the present [1992], two governments—the Republic of China and the People’s Republic of China [PRC]—claim to be the sole legitimate government of “China,” which both governments agree is comprised of mainland China and Taiwan. In reality, the Republic of China retains control only over the island of Taiwan while the PRC retains control over the mainland; neither government has asserted that they are two separate countries.523

The court further stated:

The world community was compelled to determine whether the ROC or the PRC would receive formal recognition as the legitimate government of China. On December 30, 1978, the US formally recognized the PRC as the sole government of China, in its entirety, and withdrew recognition from the ROC. Over 100 other nations and the UN have done the same.524

Although the ROC in Taiwan had never adhered to the Warsaw Convention in its own name, the court accepted the defendant’s argument that Taiwan was a party to this convention because of the declaration made by the PRC when it ratified the Warsaw Convention. The PRC’s declaration stated that the convention “shall of course apply to the entire Chinese territory including Taiwan,” and that “the recognition of the PRC as the sole government of China by the United States, the United Nations and over 100 other nations legitimizes this declaration despite the continued existence of the ROC.”525

The two cases discussed above demonstrated that the US courts did not consider the ROC a State after the ROC moved its seat to Taiwan, but regarded it only as a government of China.526 Whether the courts were correct in stating that “Taiwan was a part of China” is a different issue to be dealt with later in this work. However, regardless of the characterization of the ROC by Jiang (Chiang) Kai-shek and Jiang (Chiang) Jing-guo while they were in Taiwan, the United States at the time did not regard the ROC as a State.

4. UN Position on the Status of the ROC in Taiwan Before Lee Teng-Hui

In 1949, the Chinese Communists did not establish a new State. As stated earlier, the PRC is a new government of China. Thus, the PRC did not apply to join the United Nations as a new member. Instead, it claimed that it was entitled to represent an existing member, China, in the United Nations on the ground that it was China’s sole legitimate government.

Until 1972, the State of China was represented by the ROC government in the United Nations. When the United Nations was formed in 1945, the ROC was the government that represented China. To the United Nations, the ROC was still the representative government of China after Jiang (Chiang) Kai-shek took exile in the island of Taiwan.

The PRC attempted to replace the ROC in the United Nations for 22 years. In its attempt to replace the ROC, the PRC solicited the assistance of its allies in the Soviet block. In September 1950, a year after the PRC was established, Cuba proposed in the United Nations to include in the annual meeting agenda of the General Assembly a discussion of the question of China’s representation. The General Assembly established a Special Committee consisting of seven members to consider the question.527 In December 1950, the General Assembly adopted a resolution recommending that the representation question “should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case,”528 but did not address directly the question of China’s representation.

During the 1951 and 1952 General Assembly sessions, no proposal to decide China’s representation was made. The UN’s armed forces were fighting the PRC’s “volunteer army” in the Korean Peninsula. Perhaps, no State thought it appropriate to raise the question.

After the armistice of the Korean War, the proposal to include the question of China’s representation in the General Assembly annual meeting agenda was resurrected. Each year from 1953 to 1960, a member of the Soviet bloc made the proposal. Each time the proposal was rejected by a majority vote.529

In the 1960s, the US Government insulated the ROC’s position in the United Nations by a procedural maneuver. When a similar proposal was made again in 1961, the US Government (the Kennedy Administration) invoked an article in the UN Charter to create a procedural barrier for any proposal to change the representation with respect to China in the United Nations. The General Assembly adopted a resolution proposed by the US Government to designate the representation question as an “important question” under the UN Charter.530 “Important questions” require a two-thirds majority vote of the members present.531 From 1962 to 1964, every year when a proposal was made in the General Assembly to replace the ROC with the PRC in the United Nations, the General Assembly adopted a resolution making the question of China’s representation an “important question.”532 Each time the proposal to replace the ROC government with the PRC government did not receive the required two-thirds majority vote.

A crucial event in the international politic occurred in 1965: France broke her diplomatic ties with the ROC and accorded her recognition to the PRC. Soon after that, other Western States began to follow. However, attempts to replace representatives of the ROC with representatives of the PRC failed again in the UN General Assembly in 1967,533 1968,534 and 1969535 because the proposals did not receive the required two-thirds majority vote for the “important question.”

In September 1970, the US Government began to change its policy toward the PRC. By 1970, more than one half of the UN members recognized the PRC as the representative government of China.536 At the same time, the number of the States which recognized the ROC decreased correspondingly. In 1970, the Nixon Administration was willing to allow representatives of the PRC to take China’s seat in the General Assembly and in the Security Council on a condition that the representatives of the ROC remained in the General Assembly.537 The PRC, on the other hand, insisted that it would take over China’s seat only if the representatives of the ROC were expelled from the United Nations.538 The US Government refused to accept the PRC’s condition, and again proposed that the representation question was an “important question.”539 The proposal was adopted by a narrower margin this time.540 A proposal by Albania, which followed, to expel the representatives of the ROC was again defeated.541

In 1971, the United States sustained defeat in the United Nations. In September 1971 when the General Assembly convened, the US Government (the Nixon Administration) again proposed a dual representation: both the PRC and the ROC were represented in the UN General Assembly, and the PRC also occupied China’s seat in the Security Council.542 The General Committee543 prepared a General Assembly agenda which included both the United States proposal calling for “the continued right of representation of the ROC [in the General Assembly]”544 and Albania’s proposal calling for the representatives of the PRC to take China’s seat as well as for the expulsion of the representatives of the ROC from the United Nations.545 In the General Assembly, the United States proposal to make the question of expelling the representatives of the ROC from the United Nations an “important question” was, for the first time, defeated.546 Thus, China’s “representation question” was to be decided by a majority vote.

The proposed resolution of Albania put to the vote at the end of the debates on October 25, 1971 was adopted.547 In the General Assembly, the United States again attempted to create dual representations, but failed. When Albania’s proposed resolution to replace the ROC with the PRC was presented for voting, the Nixon Administration voted against Albania’s proposal. But Albania’s proposed resolution was carried by a large margin.

Resolution No. 2758 of the General Assembly stated,

The General Assembly … 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.548

The Resolution became effective immediately and the representatives of the ROC left the UN Headquarters.

Resolution 2758 of the United Nations did not involve an expulsion of a member State. When the General Assembly expelled the ROC, it did not remove a member even though “the Republic of China” was the name of a member and also a permanent member of the Security Council. As mentioned earlier, in 1945 when China joined the United Nations under the name “The Republic of China,” international society regarded that the State that joined the organization was the State of China and that the ROC was the government representing China at the time. During the 1971 debate in the General Assembly resulting in the passage of Resolution 2758, the State involved was the State of China. The proposal was to expel the ROC government, not to expel one of its members, China.

The Resolution of the United Nations involved a question of representation in the United Nations. Since in principle only one government was allowed to represent a member in the United Nations, the question at the time was: Which government, the ROC or the PRC was to represent the member China. The Resolution made this point clear in the language adopted. It “[d]ecides 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.”549 Thus, when the United Nations expelled the ROC, what it expelled was a government, not a State. After the representatives of the PRC replaced the representatives of the ROC in the United Nations, the UN documents listing its members state “China” as its member and also indicates that China was admitted on October 24, 1945, a date prior to the establishment of the PRC. The name plate on the desk where the representatives of the PRC to the UN sit states “China,” not “the People’s Republic of China” or “the PRC.”

Resolution 2758 created the UN’s China policy. The Resolution has three propositions: there is only one China; its government is the PRC; in the United Nations, the people in China will be represented by the PRC government thereafter. If the propositions have become the UN’s policy over China, it is quite different from “the UN’s one China policy” that subsequently developed.

5. Position of Lee Teng-Hui on the Political Status of the ROC

A. Lee’s Initial Position—The KMT’s One-China Dogma

In 1988, the political power of the ROC fell on a Taiwanese. When Jiang (Chiang) Jing-guo died in January 1988 before his second term expired, Vice-President Lee Teng-hui assumed the presidency for the rest of Jiang (Chiang)’s term. Lee was the first Taiwanese to become the ROC President.550 He, at the same time, became the Chairman of the Chinese Nationalist Party (The KMT). In 1990 when Jiang (Chiang) Jing-guo’s residual term expired, the National Assembly elected Lee to be the President for a term of six years.551

When Lee first assumed the presidency in 1988, the ROC was already isolated in the international society. An overwhelming number of the States recognized the PRC as the representative government of China. Fewer than 40 States still recognized the ROC as the representative government of China. All of those States were small and, except the Holy See (the Vatican), had received significant financial aid from the ROC government.

From the beginning, Lee Teng-hui, like his predecessors, considered the ROC a “country” that had sovereignty over the entire China as well as the island of Taiwan. As the Chairman of the KMT, Lee adhered to the KMT’s one-China dogma. He had no intention to establish a new State limiting its territory to the island of Taiwan.

The people of Taiwan were confused as to the political status of the ROC. Throughout the rule of Jiang (Chiang) Kai-shek and Jiang (Chiang) Jing-guo, the people of Taiwan lived under the shadow of the one-China dogma. But to them, China, Zhong (Chung) Guo or the “Middle Country,” referred to the country called the PRC or Zhong (Chung) Hua Jen Min Kung He Guo across the Taiwan Strait. They, however, had different perceptions on the political status of the ROC. Although some people understood that the ROC was a government of the State of China exiled on the island of Taiwan, most people regarded the ROC as a country, largely due to the influence of the Chinese name of the ROC, Zhong (Chung) Hua Min Guo, and the one-China dogma.

After Lee took the office of the presidency of his own term in 1990, he embarked on some political reforms. In 1991, he terminated the Temporary Provisions Effective During the Period of Communists Rebellion Act552 pursuant to its provision.553 The most important reform was restructuring of the “congress” to reflect the reality that the ROC no longer governed the territory and the people under the control of the PRC. Up until that time, the “congress” included “representatives” of regions in mainland China that were under the control of the PRC. In order to reform composition of the deputies in the three houses of the “congress” to reflect the reality, Lee initiated an amendment to the ROC Constitution by the National Assembly in 1991. The Amendment of the Nanjing (Nanking) Constitution of 1946554 changed the structure of the “congress.” The “permanent” deputies who represented the people who never elected them were persuaded to retire with favorable entitlements to quell their opposition. The amendments were welcomed by the people of Taiwan.

However, the amended ROC Constitution does not forsake the one-China dogma, in particular the ROC’s claim of sovereignty over “Mainland China.” The 1991 Amendment consists of 10 Articles. The most important provisions concern the formation of the members of the three houses of the “congress.” The first three Articles provide the number of deputies in the National Assembly,555 the Institute of Legislation (the Legislature Yuan),556 and the Institute of Control (the Control Yuan).557 The Amendment creates two geographic regions for the purpose of selecting the deputies: “the Free Region” and “the Entire Country.”558 The term “the Free Region,” by implication, refers to the territory under the actual control of the ROC: the “Province of Taiwan” and China’s two offshore islands, Kinmen and Matsu. The term “the Entire Country,” by implication, refers to both the territory under the control of the ROC and the territory under the control of the PRC. Thus, the amended ROC Constitution still applies, in theory, to entire China as well as Taiwan.

Under the amended Constitution, the people in “Mainland China” still have representation in the ROC’s new “congress.” For each house of the “congress,” the number of deputies elected by the residents of cities or prefectures in the Free Region (Taiwan) is determined by the size of the population of the cities or the prefectures. In addition, a fixed number of deputies collectively represent the entire population of “the Entire Country.”559 The latter are appointed by political parties according to a system of proportional representation: each political party gains additional seats proportionate to the votes it receives in the congressional election. Thus, the people in “Mainland China” are represented by the deputies selected to represent “the Entire Country.”

In 1992, Lee persuaded the National Assembly to make another amendment to the ROC Constitution.560 The major change of the 1992 Amendment to the Constitution was on the method of electing the President and the Vice-President. It changed from an indirect election method—an election by the National Assembly—to a direct election method—a general election by the people in the “Free Region.” Other than that, the amended ROC Constitution continued to apply to the territory and the people under the control of the PRC government.561

In 1996 when Lee Teng-hui’s term expired, he was reelected for a term of 4 years in a general election pursuant to the 1992 Amendment to the Constitution. In the spring of 1996, Lee ran for the presidency as the candidate of the KMT Party against Peng Ming-min, the candidate of the opposition party, the Democratic Progressive Party (the DPP). During the election campaign, Peng, who was once imprisoned during Jiang (Chiang) Jing-guo’s term for writing a “Manifesto of the Taiwanese self-preservation,” was perceived to be pro-independence. But Peng lost the election not because of his political stand but due to other factors. One factor was that Lee as the President had achieved some political reforms, leading some voters to perceive that Lee, a Taiwanese, was in a better position to pave a way for the eventual independence of Taiwan; another factor was that the KMT Party, which had ruled Taiwan for one half a century, had built up influence on the voters by controlling local officials of the compartmentalized municipalities, an administrative system based on the system established by the former Japanese government. The 1996 election pursuant to the amended Constitution was the first time in the history of the ROC that a general election was employed to elect the President and the Vice President. Some Taiwanese politicians claimed that the election of the President and the Vice-president by a general election turned the ROC into a new State.562

However, Lee disappointed many of his supporters in his 1996 inaugural speech when he called for a “peaceful reunification of China.”563 He proclaimed that “there is only one China; there is no so-called ‘Taiwan independence.’”564 The speech followed the lines of Jiang (Chiang) Kai-shek’s one-China dogma. The term “reunification of China” implied that Taiwan was part of China. While Lee had been perceived by many people in Taiwan as pro-Taiwan, his proclamation in his inaugural speech confused them and created a society which was, as a New York Times reporter described it, “in a schizophrenic environment.”565 For the next 5 years, Lee maintained the same position.

Though Lee had said that the ROC was a country many times, to other States the ROC in Taiwan was a government of China exiled in the island. Neither of the two amendments to the Constitution made the ROC a new State, as some Taiwanese politicians claimed. To other States, it was the PRC government in Beijing, rather than the ROC government in Taipei, that represented the State of China and exercised its sovereign power. As a matter of theory, Lee’s insistence on the one-China dogma that Taiwan was part of China could unintentionally lend color to the PRC’s claim that “Taiwan is [China’s] renegade province.”

B. The “special state-to-state relationship” Statement

An event in 1999 surprised the people in Taiwan as well as foreign governments and political observers. On July 9, 1999, in an interview by a German TV reporter, President Lee said that “The Republic of China has been a sovereign country since it was founded in 1912. The 1991 Amendment to the Constitution designated the cross-Strait relationship as a special state-to-state relationship. Consequently, there is no need of declaring independence.”566

The statement of Lee stirred up political debates both in Taiwan and abroad. The statement was subsequently referred to as the “special state-to-state relationship statement.” Some called it the “Two-state doctrine.”

C. Reaction in Taiwan and the ROC Government’s Clarification

In Taiwan, the topic was a sensitive one and the reactions to the statement were diverse. The day after the interview was broadcast in the German TV, Taiwan’s newspapers printed exciting headlines, claiming that Lee Teng-hui had created two Chinas during the interview. Many Taiwanese joyfully acclaimed that Lee had declared independence. Some even started to call Lee “Father of the country.”

Whether Lee intended to create confusion or his statement created an unintended consequence was a subject of debates. His officials were caught off guard. There was no advanced warning to them that he would make such a drastic statement. They were quickly engaged in damage control, lest there would be a misunderstanding inside and outside of Taiwan. The immediate action for them to take was explaining to the people in Taiwan what Lee meant by his “special state-to-state relationship” statement in the context of the one-China dogma. They did not believe that Lee had declared independence because he said that “there is no need of declaring independence.” But he had said something in the interview contrary to what the KMT had thus far preached to the people after Jiang (Chiang) Kai-shek moved to the island of Taiwan.

However, the ROC officials were confused. They could not reach a consensus on the meaning of the statement. On July 12, the Commissioner of the Mainland Affairs Su Q (Chi) said that “Lee Teng-hui means ‘two countries in one nation.’”567

On July 15, the Chief of Information Bureau Cheng Jian-ren also said that “The special state-to-state relationship means ‘two countries in one nation.’”568

But Cheng quickly withdrew his explanation next day. He said that “‘Two countries in one nation’ is a wrong interpretation; I have to think it over for a better explanation.”569

He never further publicly clarified the meaning of the statement, probably because he could not come up with a sensible explanation.

Lee himself, realizing that he had created a controversy, attempted to clarify his own statement. Less than two weeks after the interview, he took an opportunity of trying to explain his statement. At a meeting of the Taipei Chapter of International Rotary Club on July 20, 1999, when he was asked to explain the “special state-to-state relationship,” he replied that “[t]he [ROC] government is not engaged in the Taiwan independence [movement]. Without equal status in a negotiation [with the PRC government], problems such as smuggling of drugs and guns or transmitting of the foot-and-mouth disease,570 are difficult to resolve.”571 It was not much of an explanation of the controversial statement. Instead of providing the meaning of “the special state-to-state relationship,” he merely explained why he made the statement.

If the ROC officials were confused, it was because the statement itself was confusing. In fact, there were outright contradictions in Lee’s statements made during the interview, if the word “state” in the “special state-to-state relationship” meant an independent territorial political institution. The first aspect of contradiction regarded the time when the ROC became a “State.” Lee explained in the interview that “the 1991 constitutional amendment had designated cross-Strait relationship as special state-to-state relationship, rather than an internal relationship between a legitimate government and a renegade group or between a central government and local government.”572 By 1999 when Lee was interviewed, the PRC government was already recognized by a great majority of the States as the representative government of China—a government which called Taiwan a “renegade province.” Thus, Lee’s statement implied that the ROC was upgraded to a State from a “local government” by the Amendment to the ROC Constitution in 1991. However, in the same interview, Lee also stated that “the ROC was a sovereign country since 1912.”573 Was it 1912 or 1991 when the ROC was established as a “State”? For sure, he did not mean that the ROC became a State limiting its territory to the island of Taiwan at the time of the interview. In fact, as discussed earlier, when the ROC was established in 1911, it was a government of China. China was a State long before the establishment of the ROC

The second aspect of contradiction there would be was on the statehood of the ROC, if the word “state” meant an independent territorial political institution. If the word “state” in his statement meant independent territorial political institution, Lee’s statement in the interview meant both the ROC and the PRC were independent territorial political institutions. Then, the 1991 Amendment to the ROC Constitution also had the same effect of making both the ROC and the PRC States in 1991. However, in 1991 there was only one China, the ROC, under the amended ROC Constitution. To other States, though there was also only one China, the State China was represented by the PRC.

The third aspect of contradiction if the word “state” in his statement meant an independent territorial political institution was with the one-China dogma. When Lee made the statement in the 1999 interview, it would be the first time an ROC President attempted to seek an equal status between the ROC and the PRC: declaring that both were independent territorial political institutions, each with its own territory. Yet, there was no provision in the 1991 Amendment which could be interpreted to have turned the ROC into a State limiting its territory to the island of Taiwan, or have created a “special state-to-state relationship” between the ROC and the PRC. On the contrary, the ROC still attempted to exercise sovereign power over China under the 1991 amended Constitution. In amending the ROC Constitution in 1991, the ROC did not discard the KMT’s one-China dogma.

If interpreting the word “state” in the “special state-to-state relationship” statement as “independent territorial political institution” makes no sense, the word “state” must be given a different meaning.

D. The Meaning of the “special state-to-state relationship” Statement

It will make more sense if the word “state” in the “special state-to-state relationship” statement is rendered as “government.” The circumstances under which Lee made the statement would shed some light on the meaning of the word. In the television broadcast, during the interview while the German Deutsche Welle TV Asian expert Dr. Guenther Knabe asked questions in English, Lee replied in Mandarin Chinese with a simultaneous English translation. Lee’s Chinese words that were rendered “state-to-state” in English translation were “Guo (country) and Guo (country).” Since both the Chinese terms for the Republic of China or Zhong (Chung) Hua Min Guo and the People’s Republic of China or Zhong (Chung) Hua Jen Min Kung He Guo end with the word Guo (country), Lee’s statement “Guo to Guo relationship” in fact referred to “the Republic of China” to “the People’s Republic of China” relationship. As it was explained before, though both the ROC and the PRC use the word “Guo (country)” at the end of their Chinese names, both the ROC and the PRC are governments of the State of China. Thus, Lee’s statement means that the ROC and the PRC [should be] in equal status in the relationship between the two governments.

Lee’s own explanation at the Rotary Club confirmed this interpretation. He explained that “[t]he [ROC] government is not engaged in the Taiwan independence [movement]. Without equal status in a negotiation [with the PRC government], problems … are difficult to resolve.”574 A negotiation is conducted between governments. Thus, however Lee characterized the ROC, his statement, in fact, referred to “the government to government relationship.”

Maybe, Lee himself was aware that he was not talking about a normal State-to-State relationship and, thus, used the word “special” to describe the relationship between the ROC and the PRC. After more than 40 years since Jiang (Chiang) Kai-shek created the one-China dogma, much of the world politic had changed at the time when Lee was interviewed: The UN passed Resolution No. 2758 expelling the ROC from the organization; a great majority of the world community had recognized the PRC as the representative government of China. The PRC government now treated the ROC as “renegade group.” It was the ROC government that struggled to seek to be an equal to the PRC government. If Lee’s “government [was] not engaged in the Taiwan independence”575 as he said, then it just sought for an equal status between the two governments for negotiation.

E. Reaction of Foreign Governments

The reaction of foreign governments was uniformly reserved. Practically, no States considered that Lee’s statement had turned the ROC into a new State limiting its territory to the island of Taiwan. To foreign governments and political observers, the ROC was a new government of the State of China when it was established in 1912. When the PRC was established in 1949, it was also a new government of China. Lee’s “special state-to-state relationship” statement was not a declaration establishing a new State limiting its territory to the island of Taiwan.

The Deutsche Welle interviewer did not see a declaration of independence in Lee’s statement either. Immediately after the German TV broadcast showing the interview, the anchorman, Brian Thomas, asked the interviewer Gruenther Knabe: “Based on your discussion with President Lee, did you get the impression that he was prepared to declare independence?” Knabe emphatically replied, “I think not. He stopped short of doing that.”576 A few days after Lee’s interview, US Senator Frank H. Murkowsky (R-Alaska) dismissed a suggestion that “Taiwan has virtually declared independence by President Lee Teng-hui’s statement [about the cross-Strait relationship.]”577

Three months after Lee made the statement, the UN Secretary General Kofi Annan also rejected any view that the ROC had become a State by Lee’s statement. In September 1999, a severe earthquake struck the central part of the island. Many people died. Many more were injured, lost their houses, and traumatized. Immediately thereafter Annan announced that the United Nations had to wait for the approval of the PRC government before the UN Office for the Coordination of Humanitarian Affairs could send a disaster assessment team to what he called “the Taiwan Province of China.”578 If in Annan’s view Taiwan was a “Province of China,” the ROC in Taiwan could not be a State. Whether Annan was correct in characterizing the island of Taiwan as a “Province of China” is a different issue to be analyzed later, but his view was that the ROC in Taiwan was not a State because no State can be a province of another State.

6. Position of Chen Shui-Bian on the Political Status of the ROC

In March 2000, a general election was held before the end of Lee Teng-hui’s term. The three way race was among Chen Shui-bian of the DPP, Lian Zhan of the Chinese Nationalist Party (The KMT), and Soong Chu-yu (James Soong), who had left the KMT to form The People First Party. Chen Shui-bian (Chen) won the election. Chen, like Lee, was a native Taiwanese. It was the first time the Chinese Nationalist Party lost the executive power of the government, though the Party still retained a majority in the “congress.”

Although Chen was perceived by his supporters as pro-independence, in public he wavered on his stance on the political status of the ROC throughout his presidency. During the campaign for the president of the ROC, his announced policy toward China was that of compromise and cooperation. He advocated integration of Taiwan with China. A majority of the Taiwanese cast their votes for him because the alternative was worse. In his May 20, 2000 inaugural speech, Chen angered many of his Taiwanese constituencies by announcing a blatantly negative agenda.

Chen declared that his China policy was that of “four-nos and one have-no”: “as long as the Chinese Communist Party regime has no intention to use military force against Taiwan, I pledge that during my term in office I will not declare independence; I will not change the country name; I will not push forth the inclusion of the so-called ‘state-to-state relationship’ concept in the Constitution; I will not promote a referendum to change the status quo in regards to the question of independence or unification; I have no plan to abolish the National Reunification Council or the National Reunification Guidelines.”579

In essence, Chen had a “no Taiwan independence” policy.

But in August 2002, Chen suddenly changed his position on the political status of the ROC. This time, he claimed that the ROC was a country separate from China. When the World Federation of Taiwanese Associations, an organization formed by the overseas Taiwanese associations, held an annual conference in Tokyo, Japan, Chen gave a speech to the group via close circuit TV on August 5. During the speech, Chen suddenly, departing from his prepared speech, proclaimed that “Taiwan and China are two countries, each on one side of the Taiwan Strait and that the (ROC) Institute of Legislation (the Legislature Yuan) should consider passing a referendum law [permitting the people] to protect its sovereignty.”580

The Taiwanese were jubilant. The proclamation became known as the “two countries each on one side [of the Taiwan Strait]” statement. Chen used the word “Taiwan,” even though he was the President of the ROC. He often used “Taiwan” instead of “the ROC,” possibly to please the people of Taiwan. From then on, Chen claimed that Taiwan or the ROC had sovereignty.

In March 2004, Chen Shui-bian was reelected for a second term of the presidency. In the presidential campaign, the competition was between Chen, who sought a second term, and Lian Zhan of the KMT Party. Chen won again in the general election. During the campaign, Chen often proclaimed that the ROC was a “sovereign country.” In February 2004, in an interview with a reporter, he said that “The ROC is a sovereignty[sic] independent country,” but also said that “Taiwan is a sovereignty[sic] independent country.”581 So, after he was reelected, he announced that he would not use a referendum to create a new Constitution, just amend it.582

But in 2005 President Chen again angered his supporters by making an ambiguous statement on the political status of the ROC. On February 24, 2005, he and his former political rival, The People First Party Chairman James Soong, issued a joint statement. It was not clear why the President had to join with a political rival to make the statement, but the statement said that “According to the Constitution of the Republic of China (the ROC), our country’s status and position is defined as the de facto and de jure status quo existing [with the PRC each] on the opposite side of the Strait.” But then, Chen pledged in the same joint statement that “during my term as president, I will not declare independence, [and] will not promote a referendum to change the status quo on the issue of independence or unification.”583

Although the language was ambiguous, for sure it was not a declaration establishing a new State separated from the State of China. In fact, Chen in the joint statement said clearly that he “will not declare independence.” Soong, who was a pro-China politician, could not have agreed to a make a joint statement declaring independence of the ROC.

Like his predecessor Lee Teng-hui, Chen was simply confused as to the political status of the ROC thinking that it was a country. As a consequence, he constantly made statements that did not make sense in term of international law. For instance, after stating that he would not declare independence in 2005, in an interview in November of 2006 with a Financial Times reporter he claimed that “Taiwan is a sovereignty[sic] independent State.”584 With such a political leader, the people of Taiwan lived in an ever-confused environment.

A. Reactions of Other States

Notwithstanding Chen’s repeated statement that “The ROC is a sovereignty [sic] independent country,” or “Taiwan is a sovereignty [sic] independent country,” the United Nations and its related organizations as well as the United States did not consider the ROC or Taiwan a sovereign State during his presidency.

In 2003, World Health Organization (WHO) echoed Kofi Annan’s view that “Taiwan is a province of China,” implying that Taiwan was not a State. For many years, the ROC applied to WHO to be an “observer,” not as a member. Every time, the application was rejected. In April 2003, a disease known as “severe acute respiratory syndrome (SARS)” spread to the island of Taiwan. Not being a member of WHO, the ROC government in Taiwan could not receive information provided by the organization for preventing the spread of the disease. A month earlier in March 2003, the ROC government applied, as it had done repeatedly several years in the past, to WHO to become an observer at its annual meeting, World Health Assembly (WHA). When the WHA opened its General Session in Geneva in May 2003, it again rejected the ROC’s application, even though the SARS disease continued to spread in Taiwan. The WHO shared Kofi Annan’s view on the political status of the ROC, and referred to Taiwan as “the Taiwan Province, China” in its website.585 If Taiwan was a province of China, the ROC could not be a State.

Later in May 2003, Kofi Annan, as the Secretary General of the United Nations again made a statement implying that the ROC was not a State. Puzzled by the WHO’s action or inaction, the UN Press Club decided to hold a press conference586 at the UN Headquarters in New York City to discuss the WHO’s decision in rejecting the ROC in its efforts to gain entry into the organization. The Press Club invited a ROC official in New York City,587 equivalent to the rank of a consulate general, to speak at the conference. When the ROC official attempted to enter the UN building, Kofi Annan barred him from entry “because of the organization’s one-China policy.”588 Kofi Annan’s statement—the organization (the United Nations)’s one-China Policy—implied that Taiwan was part of China and that the ROC in Taiwan was not a State in the eyes of the United Nations.

The position of the United States was the same. It did not regard the ROC as a State. In October 2004, the US Secretary of State Colin Powell made some remarks on Taiwan’s sovereignty that drew protests in Taiwan. On his way to China, Powell gave an interview to a CNN reporter on October 25, 2004. During the interview, Powell made two remarks. The first remark was, “[t]here is only one China; Taiwan is not independent. It does not enjoy sovereignty as a nation.” His second remark was, “[w]e want to see both sides not take unilateral action that would prejudice an eventual outcome, a reunification that all parties are seeking.”589 While Powell’s view that “[all parties] are seeking a reunification” was not correct, his first statement that “[The ROC] does not enjoy sovereignty as nation” simply reflected the position of the US Government. A senior US officer repeated the US position on the political status of the ROC in 2007. In September 2007, Dennis Wilder, Senior Director for Asian Affairs of the White House National Security Council, said that “Taiwan, or the Republic of China, is not at this point a state in the international community.”590

7. Political Status of the ROC Under Lee and Chen in International Law

It was concluded in the previous Sections that regardless of the characterization of former President Lee and former President Chen on the political status of the ROC in Taiwan, other States and the United Nations did not consider the ROC a State after it moved to the island of Taiwan. This section will apply State theory and international law discussed in Chapter 2, The State and Sovereignty, to the ROC to see whether it met the requirements of a State after it moved its seat to Taiwan.

As it was observed in Chapter 2, The State and Sovereignty, a territorial political institution with the required elements of a State becomes a State by an act of declaration. It was also pointed out that after the declaration, for the political institution to establish a State effectively, it must act consistently with the fact that it is a State, i.e., asserting its statehood and acting like a State in international affairs. This section will review the acts of the ROC in Taiwan in the world community to see whether the ROC met the two requirements.

A. There Was No Act of Declaration Establishing a State

For the ROC to become a State, it has to declare independence from China limiting its territory to the area under its actual control—Taiwan. The ROC government under Jiang (Chiang) Kai-Shek and his son Jiang (Chiang) Jing-guo never intended to establish a new State independent of China or build a separate identity. Both the father and the son stuck to the one-China dogma.

Many people in Taiwan, in particular the Taiwanese politicians, claim that the ROC turned into a State at a certain historical event during the presidency of Lee Teng-hui or Chen Shui-bian. The most common events that have been cited were: (a) the amendment of the Constitution in 1991; (b) the election of Lee Teng-hui as the President by a general election in 1996; (c) the announcement of the “special state-to-state relationship” statement by Lee Teng-hui in 1999; and (d) the announcement of the “two countries each on one side (of the Taiwan Strait)” statement by Chen Shui-bian. This subsection will examine whether any of the events listed above amounted to an act of declaration of the ROC under Lee Teng-hui or Chen Shui-bian sufficient to establish a new State in international law.

a. The Amendment of the Constitution in 1991

When Lee Teng-hui in the 1999 TV interview said that “The 1991 Amendment to the ROC Constitution designated the cross-Strait relationship as a special state-to-state relationship,”591 he seemed to indicate that the ROC turned into a “State” by the constitutional amendment, thus, “there is no need of declaring independence.” As explained before, the amendments of the Constitution, both in 1991 and 1992, did not change the character of the Nanjing (Nanking) Constitution as a constitution for the entire country of China. A change in the method of electing the President from an indirect election to a general election in 1992 did not make the political institution a new State. Such a change in procedural rules does not effect a change in the substantive status of a political institution.

b. The Election of Lee Teng-Hui as the President by a General Election in 1996

Advocates of this view held that the new direct election by the people of the ROC’s President and Vice President to replace the indirect election by the National Assembly created a new State. Again, this was simply a change in procedure, rather than a substantive change in the nature of the political institution. If a change in the constitution of the method of electing the President and the Vice President did not create a new State, neither would the implementation of the new method.

c. The Announcement of the “Special State-to-State Relationship” Statement by Lee Teng-Hui in 1999

Lee’s “special state-to-state relationship” statement was not a declaration of independence or a declaration establishing a State. As fully discussed earlier, Lee had no intention to establish a new State limiting its territory to the island of Taiwan. In fact, Lee’s statement that there was no need to declare independence in the TV interview negated any interpretation that the statement was itself a declaration of independence. A declaration for the establishment of a new State is a solemn statement and should be open and clear. The purpose of such a declaration is to make the existence of a new state open and unambiguous to the population and other States. Every State has a birthday. A new state cannot gradually evolve into existence. The modern State practice is to make such declaration by the political leader, such as the Executive head of the government, or representatives of the people, such as the legislature, in a document officially executed and announced in public to the international community. Lee’s statement, made in an interview by a foreign reporter in a closed chamber, not supported by any formal document, was not a serious declaration, which would establish statehood.

d. The Announcement of the “Two Countries Each on One Side (of the Taiwan Strait)” Statement by Chen Shui-Bian

Chen’s statement was not a declaration establishing a new State either. Chen made the statement to limited attendees of a conference via a closed circuit TV, not to the public in general. Such an oral statement was not qualified as an official declaration establishing a State. Similar to Lee’s “special state-to-state relationship” statement, Chen’s statement was not an open and unambiguous statement to the world of establishing statehood. Additionally, Chen subsequently negated any notion that Taiwan had become a State when he said that he “[would] not declare independence.”592

The above analyses of the events demonstrated that none of them constituted an act of declaration establishing a new State limiting its territory to the island of Taiwan. Thus, there was no point in time or event that the ROC transformed into a State during the tenure of the two ROC Presidents. A comment by the drafters of the Restatement states that “Taiwan might satisfy the elements of the definition [of a State], but its authorities have not claimed it to be a State, but rather part of the State of China.”593 Failure to formerly declare independence prevented the ROC from being a State.

B. The ROC Has Not Acted Like a State in the World Community

For a political institution to become a State effectively existing, after it declares establishment of statehood, it must assert statehood in the world community. That neither Lee Teng-hui nor Chen Shui-bian established a new State was evidenced by their subsequent government practice in participating international affairs. Both Presidents asserted that the ROC was an “independent country.” If the ROC was a State, its subsequent actions did not match the words. In its attempts to participate the world organizations, the ROC did not assert statehood as illustrated by its attempts to rejoin the United Nations or its participation in the Olympic Games, APEC (Asia Pacific Economic Cooperation), and WTO (World Trade Organization).

a. The United Nations

During the presidency of Lee Teng-hui, the ROC began a campaign to join the United Nations. Since December 1971 when the UN General Assembly decided by Resolution No. 2758 that its member State, China, was to be represented by the PRC government, the ROC in Taiwan was shut out from the United Nations and its related organizations. Twenty-two years later, beginning in 1993 when Lee Teng-hui was the President, the ROC attempted to rejoin the United Nations.

Importantly, in its attempt to join the United Nations, the ROC did not apply for a new membership. Under the UN Charter, an application by a State to join the United Nations as a new member is to be submitted through the Secretary General’s office to the Security Council for approval. Lee Teng-hui did not apply to the Security Council for the ROC to be a new member.

Instead, Lee Teng-hui sought to regain China’s seat in the United Nations, which the ROC lost in 1971. Before the UN General Assembly’s session in September 1993, the ROC asked friendly countries to submit a request to the General Committee, which was in charge of arranging the General Assembly’s annual meeting agenda, to include in the agenda a discussion of the return of “The Republic of China” to the United Nations. The General Committee denied the request. From 1994 to 1999, Lee Teng-hui repeated the request each year. Each time, the request was denied.

President Chen Shui-bian continued the effort to join the United Nations. Although Chen called the ROC a “sovereign independent country,” he did not apply to the United Nations for a new membership either. The ROC again sought to return to China’s seat, which was occupied by the PRC government. Like Lee Teng-hui, Chen also sought the assistance of friendly States to send the request for inclusion of the matter in the General Assembly’s annual meeting agenda every year.594 Each year, the General Committee rejected the request.

The reason which the ROC gave for returning to the United Nations changed many times. In Lee Teng-hui’s time, at the beginning, the application challenged Resolution 2758 itself.595 In 1998, the ROC requested the UN General Assembly to revoke the Resolution, and restore the ROC’s rights at the United Nations by allowing the ROC to participate in the United Nations.596 In 1999, the Lee administration softened the stand and requested to return to the United Nations solely to represent the people of Taiwan. In its supporting documents, the ROC requested the United Nations to allow the State of China to be represented by two governments: the PRC and the ROC. The document claimed that the twenty three-million people under the ROC were not represented in the United Nations.597 Chen Shui-bian, in the request (application) of 2002, argued that Resolution No. 2758 “has been subsequently misused to justify the exclusion of Taiwan.”598 It claimed that participation in the United Nations was the fundamental human right of the people of Taiwan.599

In the requests submitted to the United Nations, Chen also created a new identity for the ROC by associating the name “The Republic of China” with “Taiwan.” When the Chen administration first applied to the United Nations in 2000, the document used the name “The Republic of China on Taiwan.”600 The word “Taiwan” was but a geographic name where “the Republic of China” government was located. But in 2002, the Chen administration created a new name by incorporating the word “Taiwan” into the official name when Chen used the term “The Republic of China (Taiwan)” as the applicant.601 In 2006, the word “Taiwan” then became an alternative term for the name of “the Republic of China” when the supporting document (Explanatory memorandum) began with “the Republic of China (hereinafter referred to as ‘Taiwan’) is a free and peace-loving sovereign State.”602 Despite the new name used by the ROC, the General Committee rejected the requests.

Frustrated by the repeated rejections of the United Nations of the ROC’s applications to become a member, President Chen in July, 2007 sent to the UN Secretary-General Ban Ki-Moon an application for a new UN membership in the name of “Taiwan.”603 Ban Ki-Moon rejected the application arbitrarily and returned it without submitting the application to either the Security Council or the General Assembly for consideration. Ban cited “the UN’s one-China policy based on Resolution No. 2758” as his grounds for rejection.604

The ROC’s attempts to join the United Nations have thus far failed.605 The failure cannot be solely attributed to obstruction by the PRC government. There was a legal aspect in the ROC’s applications that was repugnant to the principle of international law. The United Nations is an organization formed by States; only political institutions with statehood may be members. Yet, the ROC government never declared establishment of a new State independent of China and never applied for a new membership as a new State. It just attempted to return to the UN General Assembly to share the China seat with the PRC government. As stated in Chapter 2, The State and Sovereignty, sovereignty is indivisible. Only one government can represent a State. International law does not permit dual representation of a State.

b. World Olympic Games and APEC

The ROC’s athletic teams use the name “Chinese Taipei” in the World Olympic Games.606 The ROC had used the name “the Republic of China” in the Olympic Games until 1988 when the International Olympic Committee (the IOC) refused its use of the name under pressure from the PRC.607 In 1989, an agreement was reached between the PRC and the ROC that “in all the occasions of the IOC, Taiwan should be called ‘Chinese Taipei’ (Zhonghua Taipei).”608 Later, when the ROC joined the APEC, it did not use the name “the Republic of China” or Taiwan but again used the name “Chinese Taipei.” Thus, the ROC did not assert statehood while participating in the Olympic Games and APEC, but instead acquiesced to being referred to as a part of China.

c. The GATT and WTO

In its application to join the General Agreement on Tariff and Trade (the GATT) and WTO,609 the ROC did not assert to be a State either.610 After World War II, in order to promote world trade, 23 States signed the GATT.611 Initially, all signatories were States. However, some members, particularly the United Kingdom and France, had overseas territories, which, due to their special geographical and economic conditions, would suffer hardships if they were subject to the same customs duty and other import regulations as their parent States. Therefore, GATT was amended to add a new type of membership called “Customs Territories.” This type of membership permitted these overseas territories, with the sponsor of their parent States, to join as members and to be treated separately from their parent States. The United Kingdom was a member of GATT and made her territory Hong Kong a Customs Territory for it to join GATT as a separate member. The United Kingdom did this before it handed Hong Kong over to China in 1987 pursuant to an international agreement of 1985.612 In 1995, GATT transformed into the WTO.

The ROC attempted to apply for membership of GATT and later the WTO for many years before it was finally admitted in 2002. Although President Lee Teng-hui and President Chen Shui-bian claimed that the ROC was a “sovereignty[sic] independent country,” when the ROC applied to join GATT and later the WTO as a member, it did not apply as a State. It could not use the name “China” because a great majority of the member States did not regard the ROC as the representative government of China. It did not apply in the name of the “ROC” because it was the name of a government and the ROC did not assert that it was a State in international affairs. Thus, the ROC applied as a Customs Territory. The ROC used the name “The Customs Territory of Taiwan, Penghu, Kinmen, and Matsu” in its application.613

In short, the ROC did not assert that it was a State in the international community, but instead claimed to be just a part of a State, China. In conclusion, other States did not regard the ROC in Taiwan as a State because the ROC did not act as a new State.

8. Position of Ma Ying-Jeou on the Political Status of the ROC

The KMT Party regained political power in 2008. In March 2008, when Chen’s term was about to expire, there was a two-way competition in a general election of the ROC President between Hsieh Chang-ting of the DPP Party and Ma Ying-jeou (Ma) of the Chinese Nationalist Party (the KMT). Ma won the election and the KMT Party regained the executive power of the ROC after eight years of the DPP rule.

After Ma, a native of Hong Kong (China), assumed the presidency of the ROC in May 2008, he announced that Taiwan was merely a region. There were two implications of the statement that “Taiwan is a region.” One was that Taiwan was part of China. By referring to Taiwan as a region, Ma implied that Taiwan was China’s territory. The other implication was that the ROC was not a State. He ordered his officials, in dealing with foreign countries, to refer to the island, as “Chinese Taipei,” instead of “the ROC” or “Taiwan.”

To the Taiwanese people, the illusion that the ROC was a State was shattered overnight. When Ma invited a PRC official Chen Yun-lin in charge of Taiwan Affairs to visit Taipei on November 6, 2008, the national flags of the ROC in the reception hall were removed before Chen’s arrival; the Chinese official addressed him “Mr. Ma,” not “President Ma.” When the people held a demonstration against him for giving up “Taiwan’s sovereignty” on May 17, 2009, he rebutted that “No country in the world thinks that Taiwan was not a country.” But the people knew that he made the statement simply to pacify them.

In July 2010, Ma’s government and the PRC government entered into a trade agreement called “the Economic Cooperation Framework Agreement (ECFA).”614 The ECFA, said to promote trades between Taiwan and China, was not signed by the two governments, but by governmental agencies from both sides.615 Whether such an agreement binds the governments is an intriguing question for constitutional lawyers. Subsequently, the Agreement was sanctioned by the Institute of Legislation (The Legislature Yuan).

But in August 2010, Ma gave an intriguing characterization of the nature of the ECFA. The deputy news editor of Taipei Times wrote in an editorial that “Ma on Wednesday (August 4, 2010) told visiting Japanese academics that the Economic Cooperation Framework Agreement (ECFA) signed in late June was not a treaty signed between two states [because] [w]e do not recognize China as a state, so our relationship with each other is not one of state-to-state.”616 The statement implied that while the ROC was a State, the PRC was not. Ma Ying-jeou later said that “China” in the term “One China” referred to the ROC. This was the position of the KMT’s one-China dogma. His characterization of the ROC was contradictory to his earlier statement that “Taiwan is a region.”

Whatever characterization Ma made with respect to the ROC, he did not intend to establish a new State limiting its territory to the island of Taiwan. As London’s Economist magazine observed, “Ma, unlike his predecessor, the DPP’s Chen Shui-bian, has not trumpeted Taiwan’s separate identity.”617 The position he took was: The ROC was not a State separate from China.

9. Position of Tsai Ing-Wen on the Political Status of the ROC

In 2016, the DPP Party regained the political power in Taiwan. In a presidential election in January 2016, the contest was between the DPP’s candidate Tsai Ing-wen and KMT’s candidate Chu Li-lung. Tsai won a landslide victory.

In her inaugural speech, Tsai said that she wanted to maintain the established relation with the PRC government and referred to the ROC and the PRC as two “institutions representing each side across the strait.”618 She did not leave any impression that she wanted to establish a new state limiting its territory to the island of Taiwan. On May 29, when the Minister of Public Health of her administration spoke at the WHA in Geneva, he kept referring to Taiwan as “Chinese Taipei,” a name which implies that the island was part of China, not a state.619