Analysis of the Taiwan International Solidarity Act
By Ho Chih-yung
The Storm Media, August 1, 2023
Not long ago, the U.S. House of Representatives passed the Taiwan International Solidarity Act, which indicates that Resolution 2758 adopted by the United Nations General Assembly (UNGA) in 1971 does not address Taiwan's legal status in the organization, and this Act is now on the floor of the U.S. Senate for consideration. The content of this Act has triggered heated discussions among people in Taiwan. Those who believe that this Act symbolizes an important milestone in establishing a legal basis for Taiwan’s international status supported by the U.S. will eventually find it is nothing but wishful thinking given the international political reality.
In the real world, political concerns on many occasions outweigh the law. The Taiwan International Solidarity Act is based on the Taiwan Allies International Protection and Enhancement Initiative Act (TAIPEI Act) signed into law by former President Donald Trump in 2020.
Based on the TAIPEI Act, the executive branch of the U.S. government is required to help Taiwan secure diplomatic relations with her allies. For those diplomatic allies who take unfavorable actions against Taiwan, punishment measures might be imposed by the U.S. Department of State and U.S. embassies in the host countries. However, Nicaragua and Honduras still severed diplomatic relations with the Republic of China (Taiwan) consecutively and switched diplomatic recognition to the People’s Republic of China even with the TAIPEI Act in place.
While law is an important element of politics, most political/diplomatic problems cannot be resolved by resorting to the law. In 1979, the United States severed diplomatic relations with the Republic of China (Taiwan), the Mutual Defense Treaty between the United States of America and the Republic of China, also known as the Sino-American Mutual Defense Treaty, was accordingly terminated on January 1, 1980. Barry Goldwater, a well-known anti-communist and pro-Taiwan U.S. senator at that time sued President Jimmy Carter for what he saw as an “unconstitutional” unilateral termination of the mutual defense treaty. Given the political nature of this issue, this lawsuit was not accepted by the U.S. Supreme Court.
"Conduct of diplomacy" is a jurisdiction that solely belongs to the president’s executive power, this includes the establishment and severance of diplomatic relations and the making of foreign policy. The Three Joint Communiques signed as the basis for the establishment of diplomatic relations between the United States and the People’s Republic of China (PRC) were not legally binding treaties passed by the U.S. Senate, but they still make up the framework that dominates the development of the trilateral relations between the United States, China, and Taiwan to this day.
As for the "One China” policy that President Joe Biden has repeatedly voiced support for, the wording "One China" are only seen in the above-mentioned joint communiques but is not found in the "Taiwan Relations Act" passed by the US Congress in the immediate aftermath of switching diplomatic recognition to the PRC in 1980. Therefore, even if the "Taiwan International Solidarity Act" can be passed by the Senate in the future, it is still questionable whether this Act will be powerful enough to amend the long-term political stance of the United States on the cross-strait issues framed by the Three Communiques.
As far as Resolution 2758 is concerned, it aimed to solve the issue of representation of China in the United Nations by recognizing the People's Republic of China as the legitimate representative of China in the UN, replacing the Republic of China. This resolution nevertheless did not mention whether China has sovereignty over Taiwan, governed by the government of the Republic of China. As early as in the years of World War II period, the return of Taiwan to the Republic of China was confirmed both in the Cairo Declaration in 1943 and the Potsdam Declaration in 1945. The restoration of ROC’s sovereignty rule over Taiwan was documented in the Japanese Instrument of Surrender witnessed by the representatives of the Allies at the U.S. battleship USS Missouri in Tokyo Bay. On the other occasion of the Japanese surrender in Nanjing, China, Japanese commander Neiji Okamura surrendered to General He Yingqin, the representative for the Supreme Commander of the China Theater of Operations Chiang Kai-shek. On October 25 of the same year, then-chief executive and garrison commander of Taiwan Province, Chen Yi, issued the first order to Japan on behalf of the government of the Republic of China in Taipei. So, there is no doubt that Taiwan belongs to the Republic of China.
When the debate of China's representation in the UN, the United States tried to propose a "dual representation" to accommodate both the People's Republic of China and the Republic of China in the United Nations (n.b., not the representation of "Taiwan"), which once again confirmed that Taiwan belongs to the Republic of China. Only this proposal failed to pass, which led to the passing of Resolution 2758.
The only purpose of the adoption of Resolution 2758 is to switch the recognition of the representative of China in the United Nations from the Republic of China (Taiwan) to the People’s Republic of China, which only needed to pass the UNGA, whereas the admission of a new member state to the UN requires the recommendation of the UN Security Council. If Taiwan means to pursue "legal independence" and wants to join the United Nations in the name of a new country as “Taiwan,” then it has to first survive the test of scrutiny by the Security Council and the hurdle of the PRC’s veto. This will for sure be a political reality that Taiwan must tackle.
Rather than giving hope that the Taiwan International Solidarity Act, currently under consideration in the U.S. Senate, will help promote the legal ground for Taiwan’s de jure independence, it is perhaps more pragmatic and more feasible to expect the United States and its like-minded allies to propose an observership for Taiwan in the international organizations.