Taiwan political status has been a controversial matter since the end of the 19thCentury, when the island passed under Japanese dominion after the First Sino-Japanese War; only at the end of the Second World War, Taiwan returned to be a Chinese possession.
Taiwan became the stage of the political quarrel that is still going on nowadays, when the Chinese Civil War led to the definitive defeat of the Kuomintang, the Nationalist Chinese Party, and Mao Zedong proclaimed the creation of the People’s Republic of China; for this reason the nationalist leader, Chiang Kai-shek, was forced to flee to Taiwan. Both Chiang Kai-shek and Mao Zedong declared the reciprocal governments unlawful and were not willing to make an agreement.
Gradually the international community started to recognize the government of the continental China as the legitimate one; the two main hallmarks of this process are the year 1971, when the Kuomintang lose its seat as China’s representative in the United Nations, and the 1979, when the United States of America stopped to recognize Taiwan as a rightful State.
In 2000 there was a new attempt to promote Taiwan’s independence from its then President, Chen Shui-bian; he proposed to draft a new Constitution, in which Taiwan would have been recognized as a sovereign and independent State. The Chinese government reacted by creating a new law, according to which any modification of the Constitution, aimed at rendering the island independent, could have led to a Chinese military action; however, a law forces the United States of America to defend Taiwan from any possible Chinese attack.
Between effectivity and recognition
So, when speaking of Taiwan’s legal status, the main question is whether it can be considered as an actual subject of international law or not.
From a merely theoretical point of view, Taiwan has all the main hallmarks of a State; a permanent population, a territory, an independent governmental power and also the capacity of entreating relations with other States. These characteristics confer to it both effectivity and independence, namely the two main prerequisites for being a subject of international law.
However, what actually keeps Taiwan oscillating between being a State and not is recognition. Recognition is not considered as a fundamental prerequisite for subjectivity, in fact it is only a unilateral political act, that each State has to evaluate at its own discretion; therefore, not being recognized from a State or an international organization does not prevaricate the subjectivity of any entity.
Currently the People’s Republic of China is one of the strongest and most powerful States of the whole international community, and its decisions strongly affect the ones of the other members. Obviously, China does not recognize Taiwan, claiming it as part of its own territory, and this situation has created a sort of “political crossroad” for all the other States: indeed, all the political and economic partners of China are not allowed to officially recognize Taiwan, otherwise they may lose all the benefits coming from this relation.
The People’s Republic of China is also one of the permanent members of the UN’s Security Council and, having the veto power, its decisions are somehow binding for the whole community.
At the moment, there are only eighteen members and a permanent observer of the UN, the Holy See, officially recognizing Taiwan as a State, and so also as the only representative and legitimate government of the whole China.
Nevertheless, Taiwan’s industrial-exporting economy is the 16thlargest in the world, making it a fundamental partner for many entities; Taiwan is, in fact, member of the World Trade Organization, the Asia-Pacific Economic Cooperation and the Asian Development Bank. However, following the “ban” issued by China, Taiwan does not participate in these organizations with its actual name, but with different ones, such as “Chinese Taipei”. Other countries maintain unofficial economic relations with Taiwan trough representative offices that operates as de facto embassies or consulates.
Taiwan’s position is, in the final analysis, strictly linked to the oppressive claims of China, a State whose decisions are not easily questionable.
Yet, in the last decades, some decisions taken by the international community seem to be favourable towards Taiwan’s situation: for example, in May 2009, Taiwan participated as an observer, under the name of “Chinese Taipei”, to the 62nd World Health Assembly held by the World Health Organization, one of the most important specialized agencies of the UN.
Similar events may allow Taiwan to gain room for maneuver in the diplomatic landscape, helping it to better shape its blurred legal status.