Legal basis of China’s claims over Province of China

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OPINION

By Joshua Kingdom

Saturday, October 25, will mark fifty-four years since the passing of Resolution 2758 by the UN General Assembly. Given its widespread adoption and the solidarity it has continued to garner among countries worldwide, one would have hoped that all concerned actors would have conceded to its legitimacy. Unfortunately, that is not the case, hence the need to retaliate on its core position.

Before burying ourselves in the nuances surrounding this discussion, we should take a moment and acknowledge how much of a turning point the instrument was in and of itself to begin with. Leading up to that moment, PRC had been advocating for recognition in New York for at least two decades in vain.  A vote that suddenly stripped the Republic of China (ROC) of the status that it had managed to still possess all those years after losing control on the ground told those looking on everything they needed to know thus. 

At present, the loudest voices coming out against to the People’s Republic of China’s (PRC) interpretation of the 1971 resolution fault it for overreaching, but they could not be more wrong. In contending that the resolution does not explicitly mention Taiwan to be part of China, they give no credence to the exclusive nature of its language.

Take the terms “restoration” and “only” as adopted in the second and last paragraphs, respectively. Restoring carries with in it the understanding that someone else had taken away the rights in question and that now they have to give them back. Something they cannot possibly do while also continuing to be beneficiaries. Relatedly, “only” reveals the intention of the General Assembly as placing the administration of China under a single custodianship.

It is under this precipe then that the “one-China” principle, i.e. the idea that there is but a single China, took effect. For the UN, one-China meant that ROC lost not only privileges such as Security Council membership or its seat at the UN but also participation in activities of other international bodies. In case that is not sufficient, the Legal Affairs office has gone as far as holding that it considers Taiwan to be a province in China, and all official UN documents continue to address it as such.

As for state practice, the monopoly that the PRC enjoys among nations is impossible to exaggerate. Over one hundred and eighty-three of them have already thrown their weight behind Beijing’s claim over all Chinese territory. That is, they find Taiwan’s sensationalism abhorrent. For context, the countries that rallied behind China at the 21^st session General Assembly when the initial motion was tabled were seventy-eight. So, support has only grown in the years since.

Moreover, China has been at the centre of spearheading new international umbrellas in recent years (including BRICS, FOCAC, Shanghai Corporation Summit, etc.). By the look of things, its compatriots elsewhere have not only accepted it but also trust its leadership. Parallels cannot be drawn with Taipei.

Involvement in diplomatic relations at such a level is crucial because it satisfies the more difficult theory of state formation in international law, thereby putting to rest the last well-grounded questions of legitimacy that could arise. I am referring here to the constitutive theory, which, unlike its sibling declaratory theory, requires more than meeting the conditions of having a permanent population, proper boundaries, and an administrative entity as stipulated by the Montevideo Convention of 1933.

In other words, PRC is not only the rightful administrator over the Taiwan province but also the kind that has shown veracity to navigate the practicalities that come with having such responsibility. Its situation is unlike the many incidents in which the law is on the side of a given people, but the political conditions in which they find themselves mean that they remain hostages of a nefarious actor.

There is no question then that the Communist Party of China is justified in its vision of fully reuniting Taiwan with the rest of the country. In fact, even those who are pushing back know this quite well. Still, they continue to pursue their agenda as though they did not know better, thereby warranting an inquiry into their real motives. That is where we will start next time.

The writer is a research fellow, Development Watch Centre