Since March 1, 1950, the Chinese Nationalist Party (KMT) and the Chinese Communist Party (CCP), separated by the Taiwan Strait, have been competing with each other to win the right to represent China in the international community. Both sides have regarded themselves as the only legitimate representative of China.
It was not until Oct. 25, 1971, when UN Resolution No. 2758 was passed, that the issue was resolved.
The resolution states that "[the UN decides] to expel forthwith the representatives of Chiang Kai-shek (
Today, the international community recognizes the government of the People's Republic of China (PRC) as the only legitimate government of China. As a result, the government of the Republic of China (ROC) has lost the legitimacy and legal right to act as the government of China.
This does not mean, however, that the PRC can can assert sovereignty over the ROC's territory. The reasons for this are two-fold.
First, the ROC refers to the Chiang regime, which had no legal claim to sovereignty over Taiwan's territory.
Second, after the signing of the San Francisco Peace Treaty on Sept. 8, 1951, Taiwan's sovereignty automatically passed to the Taiwanese people, but the Chiang regime deprived them of that right until the 10 Additional Articles of the Constitution were promulgated on May 1, 1991, during the administration of former president Lee Teng-hui (
Through that amendment, the ROC government handed back sovereignty over Taiwan to the Taiwanese people and Taiwan legally speaking became a new state.
In other words, Taiwan is a de jure independent nation.
Article 1 of the Montevideo Convention on Rights and Duties of States, which was written in 1933, stipulates that a state as an international legal entity should possess the following qualifications: a permanent population, a defined territory, a government and the capacity to enter into relations with other states.
Taiwan obviously meets all four qualifications. Today, the nation's government is no longer a government-in-exile, but a legal government completely of and for this nation.
Furthermore, Article 3 of the Montevideo Convention also stipulates that "the political existence of the state is independent of recognition by the other states."
Therefore, even if Taiwan is not recognized by the international community, Taiwanese still have the right to safeguard the sovereignty of their nation and the integrity of their territory.
Those who do not identify with the nation of Taiwan should be allowed to leave for another country.
In short, the government of Taiwan is not the "Chinese government" that Chiang's regime falsely made itself out to be, but a political community with effective jurisdiction over Taiwan, the Pescadores, Kinmen and Matsu.
No other state has the right to claim sovereignty over the territory under the effective control of this political community.
According to British barrister Ian Brownlie, the PRC claims that "Taiwan is a part of China" and that "the `mainland' and Taiwan belong to the same China" do not deprive Taiwan of statehood.
The reason is that based on the Montevideo Convention, Taiwan is already a democratic nation with de jure independence.
Wilson Chen is an honorary professor at the Graduate Institute of National Development at National Taiwan University.
Translated by Lin Ya-ti
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