The Effect of ’One China’ Policies of Foreign States on the International Status of Taiwan

ABSTRACT

This article investigates the cumulative effect of ‘One China’ policies of foreign states on the international status of Taiwan. It argues that these policies have come to constitute a global diplomatic framework marginalizing Taiwan legally, institution- ally, and politically, turning it into a de facto state with only limited international rights. Still, adhering to the notion of ‘One China’ is Taiwan’s most viable option for maintaining its de facto independence. Any unilateral attempt to alter Taiwan’s interna- tional status can be expected to result in Taiwan facing main- land China alone. This is not simply because of the latter’s power and geopolitical weight: International society has been oppos- ing unilateral changes of statehood for more than 60 years. Since at the root of cross-strait antagonisms is the lack of an agreed-upon ‘One China’ framework, the most favorable path forward for Taiwan is a comprehensive long-term bargain with mainland China that would expressly define and stabilize it. The framework should be grounded in the shared feature of the constitutional status quo on both sides of the strait – that there is, legally, one Chinese state.

Acknowledgement

For their comments on previous drafts of this article I am grateful to Yui-je Chen, Adam Liff, Dalton Lin, Scott Kastner, George Kyris, Fei-Ling Wang and Lynn White.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. James Crawford, Creation of States in International Law, 2^nd ed. (Oxford: Oxford University Press, 2006), 207 (fn. 48).

2. Friedrich Kratochwil, “How do Norms Matter?” in Michael Byers (ed.), The Role of Law in International Politics (Oxford: Oxford University Press, 2000); Wayne Sandholtz, “Explaining International Norm Change,” in Wayne Sandholtz and Kendall Stiles (eds.), International Norms and Cycles of Change (Oxford: Oxford University Press, 2009); Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (Oxford: Oxford University Press, 2011); Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford: Oxford University Press, 2012); Antje Wiener, A Theory of Contestation (Heidelberg: Springer, 2014).

3. This provision was referenced in the subsequent 1952 Treaty of Taipei between Japan and the ROC. This separate peace treaty between the two was necessary because, as a result of the disagreement on China’s representation, neither the ROC nor PRC government had been invited to the negotiations in San Francisco.

4. By contrast, China’s sovereignty over the islands of Matsu and Kinmen was never questioned, even as they remained under ROC administration after 1949. The US commitments under the 1954 mutual defence treaty applied only to Taiwan and Penghu.

5. D.P O’Connell, “The Status of Formosa and the Chinese Recognition Problem,” The American Journal of International Law 50, no. 2 (1956), 409–410.

6. Madoko Fukuda, “The Normalization of Sino-French Diplomatic Relations in 1964 and the Formation of the ‘One-China’ Principle: Negotiations over Breaking French Diplomatic Relations with the Republic of China Government and the Recognition of the People’s Republic of China as the Sole Legitimate Government,” World Political Science Review 8, no.1 (2012), 252-271.

7. This was a minimal condition given to the US (J. Bruce Jacobs “One China, Diplomatic Isolation and a Separate Taiwan,” in Edward Friedman (ed.), China’s Rise, Taiwan’s Dilemmas and International Peace (London: Routledge, 2006), 89) and direct US allies (Hungdah Chiu, “China, the United States and the Question of Taiwan,” in Hungdah Chiu (ed.), China and the Question of Taiwan: Documents and Analysis (New York: Praeger, 1973), 166).

8. Joint Communiqué of Government of People’s Republic of China and Government of Canada on the Establishment of Diplomatic Relations between China and Canada, October 13, 1970, in Peking Review 13 (October 16, 1970), 12 and Joint Communiqué of Government of People’s Republic of China and Government of Republic of Italy on the Establishment of Diplomatic Relations between China and Italy, November 6, 1970, in Peking Review 13 (November 13, 1970), 6.

9. US-PRC Joint Communiqué, February 27, 1972, in Shirley Kan, China/Taiwan: Evolution of the “One China” Policy - Key Statements from Washington, Beijing, and Taipei (Washington, DC: Congressional Research Service, 2014), 36.

10. Joint Communiqué on the Agreement of the People’s Republic of China and the United Kingdom of Great Britain and Northern Ireland on an Exchange of Ambassadors, March 13, 1972, in Peking Review 15 (March 17, 1972), 3; Joint Communiqué on the Establishment of Diplomatic Relations between China and Australia, December 21, 1972, and Joint Communiqué on the Establishment of Diplomatic Relations between China and New Zealand, December 21, 1972, in Peking Review 15 (December 29, 1972), 3.

11. Joint Statement of the Government of the People’s Republic of China and the Government of Japan, September 29, 1972, Peking Review 15 (October 6, 1972), 12.

12. I thank an anonymous reviewer for these two examples.

13. US-PRC Joint Communiqué on the Establishment of Diplomatic Relations, January 1, 1979, in Kan, China/Taiwan: Evolution of the “One China” Policy, 39.

14. US-PRC Joint Communiqué on Arms Sales, August 17, 1982, in Kan, China/Taiwan: Evolution of the “One China” Policy, 45.

15. Later, the US would, alongside the US-PRC 1982 communiqué, also refer to Six Assurances given to Taiwan in its list of documents informing US ‘One China’ policy.

16. For a full range of public positions and statements made by foreign states, see Tzu-wen Lee, “The International Legal Status of the Republic of China on Taiwan,” UCLA Journal of International Law and Foreign Affairs 1, no. 2 (1996), 351-392 and Ja Ian Chong, “The Many “One Chinas”: Multiple Approaches to Taiwan and China,” Carnegie Endowment for International Peace (February 9, 2023).

17. President Reagan’s Statement on US Arms Sales to Taiwan, August 17, 1982, in Kan, China/Taiwan: Evolution of the “One China” Policy, 46.

18. The US had received the ROC’s political commitment not to attack the PRC as a condition of concluding the 1954 mutual defence treaty.

19. On occasion, however, that ambiguity would be lifted. When defending the 1972 establishment of ambassadorial relations with the PRC in the British parliament, UK Foreign Secretary declared that ‘We think that the Taiwan question is China’s internal affair to be settled by the Chinese people themselves’. This statement does not make sense unless Taiwan is considered to be part of ‘China’. See House of Commons Debates 833 (March 13, 1972), 32.

20. The positions of foreign states would not necessarily remain static and on occasion would move closer to accepting the PRC position. For instance, the French government, which refused to address Taiwan’s status when it established diplomatic relations with the PRC government in 1964, declared in the January 12, 1994 Sino-French communiqué explicitly that it ‘recognizes … Taiwan as an integral part of the Chinese territory’. See “France Bans Taiwan Sales, Warming China Ties,” New York Times, January 13, 1994.

21. Cal Clark, “The Statehood of Taiwan: The Strange Case of Domestic Strength and International Challenge,” in Peter Chow (ed.), The “One China” Dilemma (New York: Palgrave, 2008), 87.

22. T.Y. Wang, “Taiwan’s Bid for UN Membership,” in Edward Friedman (ed.), China’s Rise, Taiwan’s Dilemmas and International Peace (London: Routledge, 2006), 175.

23. The terms ‘free area’ and ‘mainland area’ appear in Additional Articles 1,2, 4, 11 and 12 of the latest, 2005 version of the ROC Constitution.

24. See, for example, Taiwan’s White Paper on Cross-Strait Relations, July 5, 1994, in Kan China/Taiwan: Evolution of the “One China” Policy, 54.

25. To the extent that any changes were proposed or implemented by President Chen Shui- bian, they were publicly opposed by the US and the European Union. These included the characterisation of cross-strait relations as ‘one country on each side of the strait’, the call for a new Taiwanese constitution, the suspension of the National Unification Council and the National Unification Guidelines, and a referendum on the application for UN membership under the name ‘Taiwan’.

26. ROC President Chiang Ching-kuo’s Statement, December 29, 1978, in Kan China/Taiwan: Evolution of the “One China” Policy, 38.

27. Huang-Chih Chiang and Jau-Yuan Hwang, “On the Statehood of Taiwan: A Legal Reappraisal,” in Peter Chow (ed.), The “One China” Dilemma (New York: Palgrave, 2008), 72.

28. Lee, “The International Legal Status of the Republic of China on Taiwan”; Jason Hamilton, “An Overview of the Legal and Security Questions Concerning Taiwanese Independence,” International Law Review 1, no. 1 (2003), 91-101; Eric Huang, “Taiwan’s Status in a Changing World: United Nations Representation and Membership for Taiwan,” Annual Survey of International and Comparative Law 9 (2003), 55-99; Chiang and Hwang “On the Statehood of Taiwan: A Legal Reappraisal”; Pasha Hsieh, “The Taiwan Question and the One-China Policy: Legal Challenges with Renewed Momentum,” Die Friedens-Warte: Journal of International Peace and Organization 84, no. 3 (2009), 59-81.

29. Mikulas Fabry, Recognizing States: International Society and the Establishment of New States since 1776 (Oxford: Oxford University Press, 2010).

30. Fabry, Recognizing States.

31. Brad R. Roth, “The Entity That Dare Not Speak Its Name: Unrecognized Taiwan as a Right-Bearer in the International Legal Order,” East Asia Law Review 4, no. 1 (2009), 105.

32. Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947) 6, 55.

33. Hans Kelsen, “Recognition in International Law: Theoretical Observations,” The American Journal of International Law 35, no. 4 (1941), 608.

34. Hedley Bull, “The State’s Positive Role in World Affairs,” in Kai Alderson and Andrew Hurrell (eds.), Hedley Bull on International Society (London: Macmillan Press, 2000), 149.

35. Sandholtz, “Explaining International Norm Change.”

36. Fabry, Recognizing States, chs. 2–4.

37. Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World ((Cambridge: Cambridge University Press, 1990); Gerard Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons from the Decolonization of Sub-Saharan Africa (Leiden: Martinus Nijhoff, 2004); Fabry, Recognizing States.

38. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), chs. 4–5.

39. Mikulas Fabry, “The Contemporary Practice of State Recognition: Kosovo, South Ossetia, Abkhazia and Their Aftermath,” Nationalities Papers 40, no. 5 (2012), 661-676.

40. But it goes too far to say, as some international lawyers do, that this presumption amounts to a clear-cut legal prohibition. In recent secessionist cases, for example, Croatia (1995), Russia (1996), Sri Lanka (2009) and Azerbaijan (2023) forcibly reinte- grated the de facto states of the ‘Republic of Serbian Krajina,’ the ‘Chechen Republic of Ichkeria,’ ‘Tamil Eelam’ and the ‘Nagorno-Karabah Republic,’ respectively, without foreign governments questioning their right to do so.

41. Some, including President Ma, have suggested that the Treaty on the Basis of Relations between the Federal Republic of Germany and the German Democratic Republic of 1972, which normalised their mutual relations without settling the final organisation of Germany, might serve as a model for a PRC-ROC agreement. However, the inter- German treaty is expressly grounded in the existence of two German states with two international legal personalities, something the PRC, with its decades-long opposition to ‘Two Chinas’, rejected publicly (Denny Roy, Taiwan: A Political History (Ithaca, NY: Cornell University Press, 2003), 214). In the same vein, the PRC dismissed various proposals for a cross-strait ‘confederation’ (Richard Bush, Untying the Knot: Making Peace in the Taiwan Strait (Washington, DC: Brookings Institution Press, 2005), 271–276). In PRC eyes, confederal arrangements contravene the concept of a single Chinese state and sovereignty.

42. Because ‘One China’ is so divisive in Taiwan, proposals of alternative concepts such as ‘Whole China’ (Ya-chung Chang, “A Modest Proposal for a Basic Agreement on Peaceful Cross-Strait Development,” Journal of Current Chinese Affairs 39, no. 1 (2010), 133-148), a ‘Chinese Union’ (Steve Tsang, “A Sustainable Basis for Peace Between China and Taiwan,” American Asian Review 20, no. 4 (2002), 65-82), and a ‘Greater Chinese Union’ (Linda Jakobson, “A Greater Chinese Union,” The Washington Quarterly 28, no. 3 (2005), 27-39) are unlikely to attract consensus there. Any new concept would have to be defined and the DPP, which is not committed politically to a single Chinese state in the first place, would be worried about the very same issues that make it reluctant to subscribe to ‘One China’ currently. The proposal here would pre-empt this problem by requiring only the reaffirmation of assertions already made in the ROC Constitution, thus papering over the KMT-DPP differences over Taiwan’s final status for the duration of the interim agreement.

43. In 1999 US Assistant Secretary for East Asian and Pacific Affairs raised the possibility of cross-strait ‘interim agreements, perhaps in combination with specific confidence-building measures, on any number of difficult topics’. See US Assistant Secretary Stan Roth on ‘Interim Agreements’, March 24, 1999, in Kan, China/Taiwan: Evolution of the “One China” Policy, 66.

44. KMT President Ma Ying-jeou’s First Inaugural Address and ‘Three Noes’, May 20, 2008, and PRC Leader Hu Jintao on ‘Peace Development’, December 31, 2008, in Kan, China/Taiwan: Evolution of the “One China” Policy, 83.

45. Kenneth Lieberthal, “Preventing a War Over Taiwan,” Foreign Affairs 84, no. 2 (2005), 60.

46. Lynn T. White, “War or Peace Over Taiwan?” China Information 14, no. 1 (2000), 1-31.

47. It is highly unlikely that the PRC would accept Taiwan’s authority ‘in all external affairs’ (Chang, “A Modest Proposal for a Basic Agreement on Peaceful Cross-Strait Development,” 136) since that would challenge the Beijing government’s claim to be the sole legal government of China, including Taiwan. Nevertheless, that status would not be undermined by Taiwan’s participation in particular international organisations if there was mutual agreement that such participation involves a ‘Chinese’ entity. This is how Taiwan currently participates in international organisations but only on an ad hoc basis. A cross-strait agreement would essentially regularise and institutionalise prior ad hoc arrangements.

48. Chien-min Chao and Chih-chia Hsu, “China Isolates Taiwan,” in Edward Friedman (ed.), China’s Rise, Taiwan’s Dilemmas and International Peace (London: Routledge, 2006), 61.

49. Jean-Pierre Cabestan, “Marginalizing Taiwan Weakens Mainland Security,” in Edward Friedman (ed.), China’s Rise, Taiwan’s Dilemmas and International Peace (London: Routledge, 2006), 244.

50. While there are currently debates in the US about the proper extent of US commitments towards Taiwan, it is unlikely that the existing commitments, undergirded by Congressional legislation and enjoying strong bipartisan support, will weaken in the future. The Hong Kong case is dramatically different from that of Taiwan: Aside from actually being part of the PRC and hosting its military garrison, Hong Kong has had neither a military force of its own nor material commitments from outside to help protect its autonomy.

51. Taiwan President Chen on ‘Integration’, December 31, 2000, in Kan, China/Taiwan: Evolution of the “One China” Policy, 70.

52. Edward Friedman, “China’s Dilemma on Using Military Force” in Edward Friedman (ed.), China’s Rise, Taiwan’s Dilemmas and International Peace (London: Routledge, 2006).

53. It should be noted that authoritative PRC statements on ‘One China’ themselves evolved, at least in verbal emphasis. The PRC white paper on Taiwan of 2000 still reiterated the traditional three-part line that there is only one China in the world, that Taiwan is part of China, and that the PRC government is the only legitimate government of the whole of China and its sole representative in the international arena (Kan, China/Taiwan: Evolution of the “One China” Policy, 68). In contrast, the 2005 law designed to forestall Taiwanese ‘secession’, which also outlined a positive agenda aimed at convincing the Taiwanese of the benefits of peaceful unification, left out the third part. Article 2 stipulates that: ‘There is only one China in the world. Both the mainland and Taiwan belong to one China. China’s sovereignty and territorial integrity brook no division’. This formulation, reiterated in the 2022 PRC white paper on Taiwan, is much more compatible with both the KMT position and the current ROC Constitution than previous PRC texts. For the text of the 2022 white paper, see https://english.www.gov.cn/atts/stream/files/62f34db4c6d028997c37ca98

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Mikulas Fabry

Mikulas Fabry is Associate Professor in the Sam Nunn School of International Affairs at the Georgia Institute of Technology in Atlanta. His research focuses on international norms that regulate claims of, and conflicts over, legitimate statehood, government, and territorial borders. In addition to numerous journal articles and chapters in edited volumes, Dr. Fabry is the author of Recognizing States: International Society and the Establishment of New States since 1776 (Oxford University Press, 2010) and, with James Ker-Lindsay, Secession and State Creation: What Everyone Needs to Know (Oxford University Press, 2023).