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Focus on national
name a distraction
By Chiang Huang-chih «¸¬Ó¦À
Looking at the timeline of changes in Taiwan¡¦s sovereignty, both the 1943 Cairo
Declaration and 1945 Potsdam Declaration made a political promise that Taiwan
should be transferred to the Republic of China (ROC). This means that the ROC
ruled Taiwan between 1945 and 1949, while waiting for the signing of a peace
treaty transferring Taiwan to the ROC. For Taiwan, the ROC was a ¡§foreign
regime,¡¨ and thus Taiwan¡¦s sovereignty remained undetermined.
The Allies were unwilling to keep their promise after the ROC lost control over
China in 1949. However, they were also unwilling to sit idly by as the Chinese
Communist Party grew stronger and so they continued to support the ROC
government¡¦s right to represent China internationally, treating it as China¡¦s
sole legal representative. Before the Treaty of Peace with Japan, also known as
the San Francisco Peace Treaty, took effect on April 28, 1952, sovereignty over
the Taiwanese territories legally remained with Japan. However, Taiwan¡¦s
sovereignty remained undetermined even after the treaty came into effect. In
other words, for a considerable period of time, the ROC government became a
government-in-exile as it set up government in a territory to which it did not
belong.
Although the ROC continued to claim the right to represent China on the global
stage even after the ROC withdrew from the UN in 1971, that claim was no longer
recognized, although the regime continued to effectively rule Taiwan. Following
this, the cross-operations of international and domestic law have meant that the
ROC and Taiwan have been gradually fused into one entity. In 1996, Taiwanese
directly elected their national leader for the first time and Taiwan scrapped
its claim to represent all of China in the international community. Through
domestic presidential elections, its assertions to the outside world and
practical implementation of public self-determination during this period, Taiwan
and the ROC were closely linked together.
Through the changes from a ¡§foreign regime¡¨ to a ¡§government-in-exile¡¨ and a ¡§de
facto government,¡¨ the concept that ¡§the ROC is Taiwan, and Taiwan is the ROC¡¨
gradually developed. The effort to build and consolidate Taiwan as an
independent and sovereign state through internal change and external assertions
lasted until 2008. After the Chinese Nationalist Party (KMT) regained power that
year, these efforts came to an abrupt end, as Taiwan once again started to lean
toward and then further strengthen an identity as part of China.
Like the Constitution domestically, international law attaches great importance
to practical strength. Given current international law, we should follow the
path that brings minimal change to the so-called ¡§status quo¡¨ to be able to
develop independence and sovereignty for Taiwan as a country. As for the
national title, there is a lot of room for flexibility. In the UN Charter signed
in 1945, the ROC and the USSR are still listed among the five permanent members
of the UN Security Council. No one would think of that Republic of China as the
ROC that now exists in Taiwan, just as no one would deny that Russia is a
permanent member of the Security Council. The key issue is substantive
representativeness.
If we care about Taiwan¡¦s national sovereignty, we should make every effort to
prevent the current KMT government from making any legal promise to recognize
Taiwan as being part of China, thus hurting its sovereignty, instead of arguing
about what title a Taiwanese state should use in the international community.
Chiang Huang-chih is a professor of law at National Taiwan University.
TRANSLATED BY EDDY CHANG
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