Sun, Sep 30, 2007 page8

• John Tkacik on Taiwan: Taiwan's status remains `unsettled'

  • By John Tkacik
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  On the matter of Taiwan, UN Secretary-General Ban Ki-moon has gone too far, even for the US State Department.

  The matter began innocuously enough. In March, the tiny Pacific island nation of Nauru deposited with the UN secretary-general Taiwan's ratification of the Convention on the Elimination of All Forms of Discrimination Against Women.

  Ban returned the letter on March 28 to the Nauru representative, explaining he could not accept the document. He referred to UN General Assembly Resolution 2758 (XXVI) of Oct. 25, 1971.

  "In that resolution," he explained, "the General Assembly decided `to recognize the representatives of the People's Republic of China are the only legitimate representatives of China to the United Nations.

  "In accordance with that resolution, the United Nations considers Taiwan for all purposes to be an integral part of the People's Republic of China," he said.

  "For all purposes?" Could the UN secretary-general unilaterally and without consultation make a major pronouncement in international law on the status of 23 million people?

  This caused such diplomatic concern in Washington and Taipei that both sides tried to keep it secret.

  The US State Department, in its own methodical way, convened internal meetings and disseminated several confidential memorandums on how it might neutralize the secretary-general's stance without angering China.

  This, of course, was impossible. Indeed, many officials in the department believe that Taiwan had brought all this on itself.

  Others, however, argued (successfully) that unless Ban's pronouncement were reversed, Taiwan may find itself bound by a number of international protocols under China's signature.

  The Department of Agriculture was particularly concerned that China, which bans US beef, would ensure via the World Organization for Animal Health (known by the French acronym "OIE") that Taiwan cease imports of the meat.

  So, after considerable internal consultation, a delegation of US diplomats quietly approached one of their only friends in the UN Secretariat, Under Secretary-General for Political Affairs Lynn Pascoe.

  Pascoe, a retired US ambassador, once served as the director of the American Institute in Taiwan. Pascoe was sympathetic, but demurred that the issue was a "legal" one, not a political one. He directed the Americans to UN Assistant Secretary-General for Legal Affairs Larry Johnson.

  In late July, the Americans confronted Johnson on Ban's letter. The assertion that Taiwan was "for all purposes an integral part of the PRC [People's Republic of China]" was very disturbing, the US diplomats said, because "while this assertion is consistent with the Chinese position, it is not universally held by UN member states, including the United States."

  Significantly, China's position is held neither by Japan, nor the UK, Canada, Australia nor New Zealand, all of which signed the San Francisco Peace Treaty of 1951 under which "Japan renounce[d] all right, title, and claim to Formosa and the Pescadores [Penghu]," but the treaty did not add to whom "right, title and claim" to Formosa might ultimately devolve.

  At the time, Britain set down for the record that, while the treaty provided for Japan to renounce sovereignty over Taiwan, "the treaty itself does not determine the future of these islands." As such, Britain was happy to sign it, as did Australia and New Zealand.

  The delegate from the Soviet Union complained that: "The draft contains only a reference to the renunciation by Japan of its rights to these territories [Taiwan] but intentionally omits any mention of the further fate of these territories."

  This omission, he said, was a major reason that the Soviet Union would not sign the treaty.

  The "Republic of China" was not included in the San Francisco Treaty because there was no consensus on whether it or the infant "People's Republic" was the appropriate party to sign on behalf of "China."

  When Taiwan signed its own peace treaty with Japan in 1952, the matter remained unsettled. According to a report from the US embassy in Taipei on July 23, 1952, Taiwan's Minister of Foreign Affairs George Kung-ch'ao Yeh (葉公超) reported to the Legislative Yuan thus: "The delicate international situation makes it that they [Taiwan and Penghu] do not belong to us. Under present circumstances, Japan has no right to transfer [Taiwan] to us; nor can we accept such a transfer from Japan even if she so wishes."

  In July 1971, the State Department's position was: "As Taiwan and the Pescadores are not covered by any existing international disposition, sovereignty over the area is an unsettled question subject to future international resolution."

  And this remains the US' stance.

  Thus, in October 1971, the US and Japan voted against UN General Assembly Resolution 2758 to seat the representative of the "People's Republic of China" because it also denied Taiwan representation. Both the US and Japan wanted "dual representation" -- both China and Taiwan -- in the UN.

  For the following decade, the State Department kept silent on the matter of Taiwan's sovereignty. In a 1982 letter from the State Department to Republican Senator John East, the department answered the direct and simple question "What is the United States' position on the matter of sovereignty over Taiwan?" with the answer "The United States takes no position on the question of Taiwan's sovereignty."

  Aside from that one assertion of agnosticism, the matter had been avoided assiduously for 34 years. Until now.

  In June, a mid-level State Department official began answering mail from citizens concerned about Taiwan with the explanation that: "Although the United States recognizes the PRC Government as the sole legal government of China, we have not formally recognized Chinese sovereignty over Taiwan. In fact, we have not made any determination as to Taiwan's political status."

  It was the first time in a quarter century that the State Department had approached the dread subject of Taiwan's "undetermined" status.

  Letters from mid-level officials are one thing; the State Department generally, however, hoped to avoid drawing further attention to the matter. Which is why, last summer, US diplomats read "nine points" off of a simple sheet of paper -- "a non-paper" in diplomatic parlance -- and left the anonymous document for Larry Johnson's reference in the UN Office of Legal Counsel.

  Apparently they were concerned not so much that China would find out that the US still, after all these years, has no position on Taiwan's international status, but that the official exchange would be made public.

  While it might not seem like it, this year marks a significant move forward for Taiwan's international status. For the first time in a quarter century, the US Department of State was obliged to reiterate its "long standing" position that the US has "not formally recognized Chinese sovereignty over Taiwan and [has] not made any determination as to Taiwan's political status."

  Formal recognition or no, the US Code treats Taiwan as it does all other "foreign countries, nations, states, governments, or similar entities." For US legal purposes, at least, Taiwan is indeed a state.

  Moreover, given that Taiwan possesses "a permanent population; a defined territory; government; and capacity to enter into relations with the other states," it meets the description of a "state" under the 1933 Montevideo Convention (which the US ratified on June 29, 1934).

  This precise point -- that Taiwan is, de facto, a state in the international community, despite the fact that the US does not recognize de jure that Taiwan is independent -- was at the heart of the State Department's alarmed demarche to the UN barely two months ago.

  It now appears that the US government is finally returning to its "long standing" position that Taiwan's sovereignty is "unsettled."

  This is infinitely preferable to the slippery slope to Chinese sovereignty that begins with the declaration: "Taiwan is not a state in the international community."

  Once Americans get into the habit of thinking of Taiwan's "sovereignty" as "undetermined," it is just a short distance to the question: "Who has sovereignty over Taiwan if not the people of Taiwan?"

  Ultimately, the people of Taiwan must determine their own future. But now is not the time for Taiwan to leap into such a decision without careful preparation or without close consultation with its most important friends.

  Now is the time for Taiwan to reeducate the international community that the idea that Taiwan is an "integral part of the People's Republic of China" is, as the State Department told the UN, "not universally held by UN member states, including the United States."

  John Tkacik is a senior research fellow at the Heritage Foundation.
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