(1,927 words | Estimated reading time: 11 minutes)
When can a group of persons break away from their nation and create an independent state? The ability to do so is strictly limited by law, and in this article I shall apply the rules to the so-called Taiwan Question.
We shall see that, legally speaking, Taiwan is not an independent country and has no right to become one. The implications of this are considered.
Basic Facts
Taiwan has, for thousands of years, been part of dynastic China, which traces its history with the island back to occupation of it by the Yue Dynasty around 2,000 years ago. The province, like many parts of China during the late 18th and early 19th centuries, was annexed by the Japanese. Following Japan’s defeat in the Second World War all annexed regions, from Shanghai to Nanjing, from Wuhan to Dalian, and indeed Taiwan, fell back into Chinese hands.
The end of the Second World War in 1945 enabled the resumption of a Civil War in China between two opposing factions that rose up after the end of dynastic rule in the country – the Chinese Communist Party (‘CCP’) and the Kuomintang.
The Kuomintang found themselves on the losing side of the war and ultimately retreated to Taiwan. Their ability to defend the Taiwan strait from the CCP secured their survival. A defence largely made possible by tying themselves to America, who strategically benefitted from having a presence in the Taiwan strait as it in turn facilitated their interference with the Korean Civil War.
The CCP has never acquiesced in the adverse possession of Taiwan by the Kuomintang or their successors, and has consistently pursued reclamation of the territory since it was taken at the end of China’s civil war.
Both the CCP and Kuomintang would continue to claim that they represented the whole of China. Indeed, up until 1987 it was unlawful for persons in Taiwan to promote the notion of Taiwanese independence as it was contrary to the Kuomintang’s continuing ambitions of taking control of mainland China from the CCP.
But, the vast majority of states worldwide have not recognised the Kuomintang’s claimed governance of China, and any ambition that they may have had of taking control from the CCP by force or otherwise has become more removed from reality as the years have passed. And so, a desire to retain what power they did have led the governing forces in Taiwan to abandon their ambitions to take control of China, and embrace the previously unspeakable aim of becoming independent from it.
Legal Analysis
So, Taiwan is a Chinese province, and there are persons within the province that seek for it to acquire the status of an independent state. But when can a group of people become a country?
The starting point for any discussion on statehood must begin with Art.1 of the Montevideo Convention on Rights and Duties of States 1933, which requires that states should possess:
- A permanent population;
- A defined territory;
- A government; and
- A capacity to enter into relations with other states.
Taiwan has all of these things. But, the manner in which they are obtained is important. You cannot do so unlawfully, and the creation of a state from out of the territory of another by use of force is unlawful. Northern Cyprus provides precedent for a principle that should require none. Turkey occupied so-called Northern Cyprus in 1974 by use of force, and established a presence that satisfies the four criterion listed above.
However, the unlawful nature of this conduct has led to Northern Cyprus being recognised by no nation other than Turkey. On recognition, note that it is not the act of recognition, or lack thereof, that confers statehood. It should, properly employed, act as one country’s objective assessment of whether a prospective state has satisfied the Montevideo Convention by lawful means.
Also note that when we speak of recognition in respect of Taiwan, we are referring to recognition by a third-party state that the government in Taiwan is the de facto government of China. It is not recognition of the rightness of that government in Taiwan in seeking independence from the rest of China. Indeed, to recognise a group of the government of a country but also support the notion that they should be independent from it would be paradoxical.
In the immediate aftermath of the Chinese Civil War, it was not clear where China’s future laid, and many countries initially recognized the Kuomintang as the de facto government of China.
However, within a short amount of time and given a better understanding of the Chinese situation, 110 of these countries have changed their mind and recognized the group in Beijing as China’s sole representative. Specifically, it became understood by the international community that the Kuomintang had and would continue to have, relative to the CCP, the weaker degree of control over the administration of China as a whole. And this should be borne in mind when determining which government to establish relations with when observing, as a third-party state, the outcome of any given civil war (Somalia (A Republic) v Woodhouse Drake & Carey (Suisse) SA [1993]).
Now, only 12 countries continue to have full diplomatic relations with the government in Taiwan, and thus refuse to recognize the CCP’s People’s Republic of China as “China”. These recognitions come from small island nations that have a vested interest in supporting the little guy, with little regard for the Rule of Law. You must acknowledge the particular absurdity of Palau, the Marshall Islands and Saint Lucia recognizing the government in Taiwan as representatives of China even after the government in Taiwan government decided that they are not China and should in fact be independent from China.
There is no precedent for providing the losers of a civil war with territory as a consolation prize. The province was taken by force from the de facto government in China, and is defended with the threat of the use of further force.
And the international community has made clear that you cannot carve one state out of another in this way.
There is a government in Taiwan with the capacity to enter into international relations, but their existence was brought about by unlawful means and so they fail to satisfy the requirements for statehood.
For all intents and purposes, Taiwan is to China what Northern Cyprus is to Cyprus.
It really is that simple.
Even countries like America, which have a strong vested interest in Taiwan maintaining some degree of autonomy from centralised government in Beijing, know where the line is. Most recently, on 29 August the National Security adviser for the United States reiterated in a meeting with Xi Jinping that America does not support Taiwan independence.
In recent English-language, mainstream coverage of the Taiwan Question, the legal merit of Taiwan’s claim to statehood is rarely the focus. Instead, foreign media outlets are quick to highlight how culturally aligned Taiwan is with “western” nations. In todays headlines, we see pointing to Taiwan being the first territory in Asia to permit same-sex marriage, and the similarity of its electoral process1.
Internally, when queried on how he would resist pressures from the CCP, the president of Taiwan’s governing forces indicated today that they are dependent on cooperation from “democratic camp” military alliances like AUKUS2. They are reliant on smelling and acting similarly to other nations in order to curry favor from them. The legal conversation is deflected in favor of an appeal to more tribal instincts.
To support Taiwan independence is to disregard the law in favour of extra-legal, political revolution. China’s decision to label this a security threat and punish it accordingly vis-à-vis it’s Anti-Secession Law is entirely sensible.
It is ironic that many supporters of Taiwan independence will also claim, often in justification of their cause, that it is China who imperfectly adheres to or does not respect the Rule of Law.
One should not be so quick to abandon their principles just because one think it will benefit them to do so.
Side-Note: Addressing Popular Misinformation
(1) Taiwan’s Austronesian Ethnic Minority Population has a Legal Right to Independence
Some English-language commentators argue that in the thousands of years that China occupied Taiwan, the territory was never properly settled within Chinese borders3. They argue that it is the island’s ethnic minority group of Austronesian descent who has the best claim to the island, and that they now have a right to independence.
Firstly, more than 95% of the population of Taiwan are Han Chinese – they have clearly settled on the island.
As for the approximately 2% of the population of Taiwan that are of Austronesian descent: per the Opinions of the EC Arbitration Commission on Yugoslavia, ethnic groups do not have an inherent right to self-determination without being able to link it to a previously existing state (such as persons claiming independence from Israel on the grounds that it had wrongfully encroached upon the pre-existing state of Palestine).
The Austronesian population on the island was historically comprised of small tribes that lacked a centralised government and who were culturally distinct from each other – collectively speaking more than 25 distinct languages. They would accordingly have failed, at any given point, the pre-requisite conditions to achieve statehood under Art.1 of the Montevideo Convention. They did not have a unified and clear population, with unified and clear territorial borders, or a centralised government.
The indigenous persons of Taiwan are an ethnic minority with no pre-existing state to point to that would validate a claim to independence. And even if, hypothetically, they did, this would be an entirely separate issue from the claim to independence being made by the currently governing Han Chinese forces of Taiwan, and would not increase the merits of that separate claim in any way.
(2) Alleged inconsistency in the CCP’s position regarding Taiwan
Several English-language news outlets4 claim that prior to the defeat of the Japanese and their expulsion from Taiwan, the CCP sometimes expressed support for the creation of an independent Taiwanese nation.
These sources can generally be traced back to commentary from Hsiao and Sullivan’s 1979 article ‘The Chinese Communist Party and the Status of Taiwan 1928-1943’.
The only evidence which they claim shows “explicit” support for Taiwanese independence by the CCP is an interview between Mao Zedong and American reporter Edgar Snow in 1936, in which it Snow reports Mao to have said:
‘…If the Koreans wish to break away from the chains of Japanese imperialism, we will extend them our enthusiastic help in their struggle for independence. The same thing applies for [Taiwan]’.
But the weakness of any conclusions that might be made from this point are immediately acknowledged by the authors themselves, who question:
‘was this an off-the-cuff statement by Mao, or the logical consequence of a consistent political line in Chinese Communist thinking? Without supporting documentary evidence we cannot prove conclusively that the CCP supported Taiwan independence between 1928 and 1943.’
Quite. Meaning may have been lost in translation. Independence from Japan may not have also meant independence from China. Certainly, nothing is explicit or clear in this regard.
What is clear is the CCP’s stance ever since winning the war and the mandate of the people to actually make decisions on this front. Namely, that Taiwan was and is part of China.
Spreading Awareness
If you are a media outlet seeking comment or an interview, or if you are an enterprise seeking a guest speaker on the Taiwan Question, please do get in touch.
I would be happy to consider ways of cooperating with you.