Context Is Open to Interpretation, Too

Taiwan is no longer ‘The Orphan of Asia’ as depicted in a 1983 mandarin Chinese pop song that gave expression to the Taiwanese’ feelings of betrayal and abandonment, after the US ‘recognize[d] the Government of the People’s Republic of China [PRC] as the sole legal Government of China’ in 1979 and withdrew its troops from the island. Today Taiwan is one of the most discussed geopolitical hotspots in news outlets, thinktank fora, and even international conferences. Even so, self-styled as the Republic of China (Taiwan), it remains straightjacketed by the notion of One China—regardless of whether it is rendered as the PRC’s ‘One China Principle’ or as the ‘One China Policy’ espoused by, inter alia, the US and the latter’s ‘like-minded’ diplomatic partners—which the PRC has attributed to the United Nations General Assembly Resolution No 2758 of 1971 (hereinafter the GA Resolution No 2758 or simply the Resolution). Against this backdrop, Chien-Huei Wu and Ching-Fu Lin’s recent blogpost on this site is a timely intervention, raising the question of the Resolution’s implications to the legal status of Taiwan and issues concerning the context of interpretation and the factor of time in international law.

In this contribution, I aim to take the discussion of Taiwan’s legal status forward in response to Wu and Lin’s outright rejection of the Resolution’s bearing on the Taiwan question, by drawing attention to the complexity of the context in which the Resolution was adopted. When the entirety of that context is taken into account, the original meaning of the Resolution turns out to be less clear than Wu and Lin contend. Thus, engaging with China in such a dogfight on the original meaning may not help free Taiwan of the Resolution’s straightjacket very much. Responding to their outright rejection of the Resolution’s bearing on the Taiwan question as the first step towards Taiwan’s full-fledged legal personality in international law, I suggest that the problem with the Resolution concerns its continuing applicability rather than its original meaning—if the latter did exist at all—thereby bringing up the question of time in interpretation. Without disputing the conclusion Wu and Lin have come to, I first address the opaqueness of context.

Mapping context: A matter of interpretation

First, I agree with Wu and Lin that the Resolution must be read and interpreted in context. The trouble is: What is the context in which to make sense of the GA Resolution No 2758? What counts in ‘context’ pertaining to the Taiwan question?

The white elephant in the room for Wu and Lin’s blogpost is (1) the position on the Taiwan sovereignty question taken by the ‘lawful’ government of Taiwan when the Resolution was adopted in 1971, and (2) the fact that the government that claimed to govern Taiwan as part of China from 1945 onwards had sat in the UN until 1971. With these two questions left out, the contention that Taiwan was not mentioned in the GA Resolution No 2758 so the Resolution did not address the Taiwan question at all is not without question: The relationship between Taiwan and China could be left out if neither party to the underlying dispute of the Resolution—the Government of the Republic of China and that of the People’s Republic of China—had differed on this point.

It is also notable that one alternative proposal to that which later became the Resolution in 1971 was to give a separate seat in the General Assembly (GA) to represent the people in Taiwan (see pp 126–33 for details). Thus, when read in such context, the meaning and legal implications of the GA Resolution No 2758 to the legal status of Taiwan would be not as clear as its terse text suggests or as Wu and Lin contend.

Taking time seriously: The lapse of applicability

Second and related to the first point is the question of time in analysis. What the GA Resolution No 2758 meant—when read in the entirety of the context as noted above—is one thing; whether the legal implication, if any, of the Resolution to the legal status of Taiwan, continues to subsist is another. Specifically, Wu and Lin’s argument seems to suggest that the Resolution has meant what it should be interpreted today (or what it should have been since the 1990s when Taiwan began its transformation from a Chinese unification-oriented autocracy into an island democracy), conflating its original meaning as read in the entirety of the context in 1971 and its (in)applicability by drawing an analogy to the treaty-law doctrine of clausula rebus sic stantibus — such as the alleged discontinuity between the Republic of China (ROC) that had sat in the United Nations until 1971 and the present ROC (Taiwan), Taiwan’s democratization, changing state practices of third parties, etc.

I hasten to add that I am not suggesting that the original meaning of the Resolution is what the PRC has attributed to it. Rather, my point is that its true meaning is never abundantly clear when read in the complexity of the 1970s geopolitical environment — which Wu and Lin call ‘context’. Leaving the then ROC’s position and other alternative proposals in the GA unaccounted for, I am afraid, weakens analysis, although the overall conclusion may turn out to be the same. Also, to deflate the text-based seemingly true meaning the PRC has distortedly attributed to the Resolution by virtue of Taiwan’s alleged statehood will not fly as it would be off-the-wall to contend that the Resolution did not affect Taiwan — or rather the ROC (Taiwan) — since the ROC (Taiwan) had been a separate State independent of the ROC that stood for the State of China.

In a nutshell, when taking the elapse of time into account, to continue to apply the GA Resolution No 2758—regardless of its original meaning—to the governance of the relationship across the Taiwan Strait becomes problematic.

Sleepwalking into non-statehood? The limits of international support for Taiwan

Third, I also agree with Wu and Lin that Taiwan should resume its application for formal membership in the UN and other International Organizations (IOs) instead of continuing its current practice in international relations. The reason is more than policy calculation, though. It rather has to do with why Taiwan should not see no limits to its acceptance of international support granted.

Despite international support for Taiwan’s independent participation in international relations, it also draws a line on Taiwan asserting full legal personality. Failing to recognize such limits, Taiwan would continue its current practice in international relations at its own peril—by seeking meaningful participation in the UN system without pursuing full membership. The TAIPEI Act, one of the numerous statutes passed by the US Congress and welcomed by the Taiwan government and embraced by the Taiwanese, illustrates this point.

Among other things, the TAIPEI Act provides that the US policy should be ‘to advocate, as appropriate, (A) for Taiwan’s membership in all international organizations in which statehood is not a requirement and in which the United States is also a participant; and (B) for Taiwan to be granted observer status in other appropriate international organizations’ (Section 4 (1), emphasis added). Continuing to seek ‘meaningful participation’ in the UN and its affiliated IOs short of membership (for example participation in the annual World Health A Assembly (WHA) as observer), Taiwan would be seen as acquiescing to its ineligibility for states-only IOs (including the UN) as alluded to in the legal instruments of its de facto security guarantor—the US—which has been effectively followed by other parties—further weakening its ostensible claim to statehood. Continuing to subscribe to the increasing and ‘pragmatic’ solution to Taiwan’s participation in IOs as illustrated by the TAIPEI Act, Taiwan may be sleepwalking further away from its claimed statehood.

Conclusion

To make a law-based case for Taiwan in the face of China’s aggressive policy in the Taiwan Strait, more heed should have been paid to the changing complexity of the geopolitical environment engulfing the Taiwan Strait since the 1970s and the continuing applicability of the Resolution beyond engaging with the fight over the latter’s true meaning. By bringing up the issues above, I wish to contribute to further exploration of issues concerning the legal status of Taiwan, including the continuing influence of the GA Resolution No 2758 on the relations across the Taiwan Strait, in light of China’s increasingly assertive position towards Taiwan and the continuing growth of a distinct identity among the people inhabiting Taiwan.