Amid ever-rising tensions over Taiwan between the United States and the People’s Republic of China (PRC), former U.S. ambassador-at-large for war crimes issues David Scheffer put forward a sobering suggestion for a deterrent warning in his recent post on Just Security, arguing that “[i]f China invades Taiwan, the United States should recognize the Republic of China (Taiwan) as a sovereign state while maintaining its long-standing recognition of the People’s Republic of China (PRC) and without severing diplomatic relations.”
As a recent Council on Foreign Relations task force report criticizes, and with which Scheffer himself agrees, such an extreme move would normally be “irresponsible and ill-advised” since it would merely escalate tensions with the PRC to the point of no return.
Yet, playing the recognition card is envisaged, as Scheffer suggests, only in “the worst-case scenario” where the invasion collapses “the entire premise of the one China policy—a peaceful resolution of the Taiwan question.”
When that happens, the U.S. would no longer be in a position to adhere to its long-standing policy, established at the 1972 Shanghai Communique, of the nonsupport of Taiwan’s independence, acknowledging that “all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position.”
Without a doubt, U.S. recognition of Taiwan as a sovereign state would have immeasurable political impacts on the status of Taiwan as well as the foundations of the post-World War II international order, notably in the Indo-Pacific.
Although it is not clear from Scheffer’s argument exactly how the recognition would function as “a powerful diplomatic weapon for Washington” in deterring the PRC from invading Taiwan, the statehood issue definitively affects a future legal justification for the U.S.’s military intervention in Taiwan singly or, arguably, jointly with Japan, the closest neighbor of Taiwan—the shortest distance is just approximately 69 miles (111 km)—as well as an allied state from which the U.S. military would first and foremost be sent out in the event of an invasion.
Among other scenarios, the consent of, or the request from, Taiwan as the victim state will firmly establish a legal basis for the U.S. and Japan to use military force in their operations to defend Taiwan and evacuate victims.
Here comes a long-debated problem, however: Does the recognition by the U.S. render Taiwan the status of sovereign state, or, in other words, does Taiwan fulfill the legal criteria for statehood? Scheffer claims that “Taiwan easily meets the international law test for statehood.”
Yet the complex relationship and history between mainland China and Taiwan tell us that it would hardly do so. Indeed, there remain some critical legal challenges that need to be overcome to secure Taiwan’s statehood in preparing for the “worst-case scenario.”
In an attempt to clarify those challenges and advance Scheffer’s deterrent warning proposal, it is necessary to address the following points: First, what is legally decisive for the statehood of Taiwan is not state recognition by the U.S., but a claim to statehood expressed by the people of Taiwan for themselves.
Second, as the situation now stands, the current claim of statehood officially expressed by the Taiwan authority does not fulfill the international law criteria for an independent state. Third, the authority therefore needs to reformulate its claim of statehood in a manner that adjusts to the status quo, notably, the wish of the people of Taiwan. Fourth, an explicit declaration of independence is ideal, but the timing must be examined carefully.
The Legal Criteria for Statehood and the Right to Self-Determination
The criteria, as originally set out in the 1933 Montevideo Convention on the Rights and Duties of States, for statehood under international law are a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.
The point at issue in determining statehood has been how these criteria are met, in particular whether recognition of other states is required in the determination of the statehood of the entity in question. It goes without saying, but recognition by other states certainly has a practical significance for building official diplomatic relations between the recognizing state and the recognized state.
Nevertheless, the prevailing view in modern international law is that recognition is no longer a condition sine qua non, meaning that an entity is entitled to become a state even without being recognized as such by other states as long as it meets the statehood criteria. Recognition by other states merely plays a declaratory role in reconfirming the fact of the successful fulfillment of the criteria.
Behind this view, there lies an idea that leaving the fate of people seeking independence as a state in the hands of the will of other states contradicts the principle of self-determination of peoples, under which they have a right to freely determine their political status, as stated in Paragraph 2 of the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples.
Another issue is that arbitrary state recognition or non-state recognition by other states could prejudice the certainty and stability of international law.
For these reasons, international law underlines that “[t]he political existence of the State is independent of recognition by the other States,” as stated in Article 3 of the Montevideo Convention, and most importantly in the context of the “worst-case scenario,” the explanatory note of Article 1 of the 1974 UN Resolution on the Definition of Aggression articulates that the term “state” is “used without prejudice to questions of recognition or to whether a State is a member of the United Nations.”
As it is often said that “[s]tatehood is a claim of right,” what is of utmost importance is that the fulfillment of the statehood criteria must be declared pursuant to the voluntary will of a people seeking external self-determination—namely, independence as a sovereign state—rather than state recognition by other states.
Hence, as a number of experts admit, “it is decisive whether Taiwan itself has expressed a claim to statehood.” In this respect, some argue that “[c]laims to statehood are not to be inferred from statements or actions short of explicit declaration,” but, refuting that “[s]uch a narrow position is unwarranted,” others insist that even a tacit expression would suffice. Proponents of the statehood of Taiwan thus posit that it has already achieved independence by tacitly expressing a claim to statehood as the exercise of the right of self-determination, for example, through its 1991 constitutional reform or its 2007 application for UN membership.
Are these proponents’ views justifiable under international law? To judge their validity, the following points must be examined: Can the Taiwanese become the holder of the right to self-determination who are entitled to express a claim of statehood in the first place? If they can, is it reasonable to argue that the Taiwan authority lawfully expresses a claim to statehood in line with the Taiwanese will?
Are the Taiwanese a “People”?
As the UN Charter specifies under “the principle of equal rights and self-determination of peoples” (Paragraph 2 of Article 1), the Taiwanese must be considered a “people” in order to qualify as the holder of the right to self-determination. On the one hand, although no authoritative definition of a people has been established in international law, given the fact that more than 95 percent of the Taiwan population are of ethnic Han Chinese origin, with the remainder split between Indigenous peoples and new immigrants, one might assume that the Taiwanese cannot be properly characterized as an inherent people in a strict legal sense, distinct from the mainland Han Chinese.
On the other hand, Taiwan has gradually fostered “its own history, culture, identity, and sense of national pride” in the long process of the one-party domination by the Nationalist Party of China (Kuomingtan) as well as the process of liberal democratization, following being ruled by Japan from 1895 to 1945. Professors Ching-Fu Lin and Chien-Huei Wu substantiate this claim of an independent identity as follows:
Thus, while controversial, there seem to be good reasons to believe that the Taiwanese can be characterized as a “people.”
“One China” Trap in the Claim of Statehood of Taiwan
That said, even allowing for the Taiwanese to have such a “sense of national pride,” another critical issue remains to be resolved. That is, the official position of the Taiwan authority does not reflect its sense of statehood in the status quo. In cases where the Taiwanese population is alleged to wish independence as a state, that has been understood as a state that is territorially grounded in the areas they live in under the control of the Taiwan authority.
By contrast, what has been actually claimed by the Taiwan authority is a state, the territory of which extends not just to the “the Taiwan Area” referring to “Taiwan, Penghu, Kinmen, Matsu, and any other area under the effective control of the Government” but also to “the Mainland Area, ” namely, “the territory of the Republic of China outside the Taiwan Area” over which the Taiwan authority is no longer exercising any effective control (see also Article 11 of Additional Articles of the Constitution of the Republic of China).
1947 Map of the Republic of China and Outer Mongolia. (https://commons.wikimedia.org/wiki/File:1947_Zhonghua_Minguo_Quantu.png; Public Domain)
While the modes of exercising the right of self-determination are open to debate, this obviously illustrates a significant gap in perception of statehood between the people and the authority of Taiwan, which renders it difficult to see the latter’s claim as a proper exercise of the people’s right to self-determination.
Although Taiwan has allegedly transformed into the new Republic of China with liberal democratization since 1991—the “Taiwanization” of the Republic of China—the authority still sticks with its old public stance contending with the PRC for the sole legal government of “one China” instead of independence for a separate state from the PRC.
Further, insofar as the Taiwan authority includes mainland China and the population therein in “a defined territory” and “a permanent population” of its claim to statehood, it will not constitute a “government” effectively controlling them with the “capacity to enter into relations with the other states” in the international legal sense.
In a bid to resolve these challenges and reach the status of sovereign state under international law, the Taiwan authority needs to escape this “one China” trap by reformulating its claim to statehood in a way that corresponds to the Taiwanese people’s wish for independence.
To do so, it would need to, first of all, seek constitutional and other legal reforms so as to limit Taiwan’s “defined territory” and “population” to the “Taiwan Area” and the people of Taiwan under its effective control. Admittedly, that would be an extremely tough path forward, all the more so under the circumstances in which the invasion might be imminent. Yet, again, the future of Taiwan’s independence is not in the hands of the U.S. and other states, but in the hands of the people and the authority of Taiwan.
Legally speaking, even if the U.S. were to recognize Taiwan as a sovereign state, at this rate, it could hardly be said that Taiwan would satisfy the legal criteria for statehood. To become a sovereign state, Taiwan itself needs to reformulate its claim to statehood by abandoning its old “one China” position and reforming its constitution and other laws and regulations in a manner that reflects the status quo, including the will of the Taiwanese people.
Further, although not necessarily required, the claim should ideally take the form of an explicit declaration of independence to ensure statehood.
On a related note, it could be argued that Taiwan’s declaration of independence, followed by the U.S.’s recognition of Taiwan as a sovereign state, would not infringe the territorial integrity of China, unlike the Ukrainian case in which the independence of Donetsk and Luhansk republics and the subsequent Russian recognition of them were strongly condemned as the violation of territorial integrity of Ukraine.
It should be recalled that the U.S. just “acknowledges” the position of “all Chinese on either side of the Taiwan Strait” that Taiwan is a part of China. As Ambassador Scheffer rightly explains, the U.S. “one China” policy is: “No agreement, no affirmation, no endorsement of one China.”
That said, such an explicit declaration, followed by American recognition, would run a high risk of needlessly giving the PRC an excuse for the invasion if it were done prematurely—Article 8 of the PRC’s Anti-Secession Law permits the PRC to “employ non-peaceful means” to prevent Taiwan’s independence.
It would, however, be too late if Taiwan’s independence was declared after the invasion in light of its purposes for the suggested deterrent warning as well as for offering a legal basis for the said military operations in Taiwan by the U.S., Japan and other countries.
So, the timing of the declaration matters. In Scheffer’s words, the independence should be declared “in the event Beijing abandons a peaceful means to resolve the governance of Taiwan.”
But when and how can the U.S., Japan, and Taiwan determine the occurrence and imminence of the event? What kind of action can be considered as the abandonment of a peaceful means? Does a harmful nonkinetic or nonmilitary action by the PRC, such as a massive cyberattack, constitute such an abandonment? It is indeed a challenging, but imperative issue on which the U.S., Japan, and Taiwan must build consensus to make Taiwan’s independence truly “a powerful lawfare deterrent.”
Masahiro Kurosaki is Professor of International Law at the National Defense Academy of Japan. He is also the Chair of the Study Group on International Law organized by the Operational Policy Division, Bureau of Defense Policy of the Ministry of Defense of Japan, and sometimes represents the Japanese government in diplomatic negotiations on international human rights and humanitarian law as a legal adviser.