My response to Julian Ku’s Why Defending Taiwan Is Illegal.
Source: patricksaviation.com
Professor Julian Ku argues that helping Taiwan to defend itself is illegal. The core of his argument is that Taiwan is not an UN member, therefore– according to article 51 of UN Charter– it would be illegal for Japan or the U.S. to provide assistance to Taiwan should it find itself under attack by the People’s Republic of China.
Not so fast. Political scientists also have a few words to say on this matter. Taiwan is far from a clear cut case for us to apply a literal interpretation of the UN Charter.
First of all, it is not clear whether Professor Ku argues that non-members are international outlaws without any rights. Certainly a lack of UN membership does not mean that the respective non-member can be subject to armed attacks by other states as they please. Now, Taiwan is indeed not a UN member but it is not strictly speaking accurate to say that it is not a state. Here Taiwan’s status as the Republic of China recognized by some 21 states comes in play. While it is an argument that proponents of Taiwan’s independence would have a hard time swallowing, it gives Taiwan sense of international recognition.
From a de facto standpoint, it becomes even less ambiguous. Taiwan has territory, people (that even elects their government by democratic means, although that is not a requirement for sovereignty), government, armed forces, and it maintains relations with other states. Of course, Beijing’s position is that Taiwan is an integral part of China (i.e. the PRC) and therefore cross-Strait relations are not international relations. Yet, taking this position as a basis to asses Taiwan’s legality is extremely narrow and somewhat disingenuous if we consider the fact that Taiwan (or ROC) is not a UN member because Beijing opposes it.
Professor Ku finds Taiwan’s position worsened because, “Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China.”
Beijing would certainly agree with this standpoint. However to argue that Japan recognizes Taiwan as part of China is not what Japan actually says. The 1972 Japan-China Joint Communique on this matter reads (emphasis added): “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam Proclamation.” (Note: implication of Article 8 of the Potsdam Proclamation is that Japan gives up any territorial claims to Taiwan).
This is not dissimilar to the 1972 US-China Joint Communique (emphasis added): “The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China.” The U.S. position is outdated only in one aspect: increasingly ‘The Chinese’ on Taiwan’s side of the Taiwan Strait overwhelmingly consider themselves not to be Chinese. (article continues here.)
This article was originally published in The Diplomat on July 14.
Filed under: My Publications, The Diplomat
