While US President Joe Biden, House Speaker Nancy Pelosi and few other heavyweight politicians in the United States have been expressing extra-enthusiasm in establishing Taiwan as an “independent” nation, it is important to note, legally Taiwan is not a state at all, despite the fact that it satisfied many of the legal criteria of statehood by having a population, a defined territory and an independent effective government, it still cannot proclaim to be an nation.
Taiwan does not have a capacity to enter into legal relations with other states, because most other states do not accept that Taiwan enjoys the legal rights of a state.
The rights Taiwan lacks include full diplomatic representation, the capacity to enter into multilateral treaties, and membership of international organizations like the UN. Decisively, though, an entity can’t be a state if the entity itself doesn’t claim to be a state. Taiwan does not make that claim.
The islands we know as Taiwan have been inhabited for 30,000 years, including by successive waves of peoples from mainland China. Taiwan was subject to partial Dutch and Spanish colonization from the early 17th century, was partly controlled by the remnants of the mainland Ming dynasty from 1661, then colonized by the mainland Qing dynasty from 1683. The main island was incorporated as a Chinese province in 1887.
Where does this leave Taiwan? Legally, five factors weigh in favor of Taiwan being part of China:
- for more than 40 years, both the PRC and the ROC have agreed Taiwan is part of “one China” (while disputing rightful governance over it), and the ROC’s Constitution still says so
- no foreign state (including Japan) has asserted any competing claim to Taiwan, let alone a better one
- the allied powers and the UN entrusted Taiwan to the then government of China after the second world war
- the UN (perhaps expediently) didn’t regard Taiwan as a colonized territory, subject to the right of self-determination, after 1945
- few states (including the West) explicitly deny Taiwan is part of China, and most have acquiesced in the Chinese territorial claim.
One of Australia’s most distinguished international lawyers, the late James Crawford, former Judge of the International Court of Justice, likewise concluded Taiwan was Chinese territory.
If Taiwan has been Chinese territory since 1945, it doesn’t matter that the PRC has never governed it. State sovereignty over territory is distinct from the capacity of a particular government to control that territory at a given point in time. In civil wars, insurgent forces often hold territory without affecting the state’s sovereignty.
With these legal bases, Taiwan can never be termed as an independent nation. It is indeed an integral part of China. Now by meddling into Taiwan, Biden, Pelosi and others are actually trying to create trouble – mostly for the Taiwanese people. Their rebellion against the mainland China would ultimately result in devastating fate. For the sake of peace and security in Taiwan, it should immediately integrate with the mainland China, similarly as Hong Kong and Macao. This is the only option for them.