Taiwan’s Long (Impossible) Road from a De Facto to a De Jure Country: Is a New Constitution the Answer?

“Weeping in the wind, the orphan of Asia / There is scarlet mud on his yellowish face / There is White Terror in his dark pupils / And there is West Wind whistling the sad song in the East.” As Lo Ta-yu lamented in his song “The Orphan of Asia,” Taiwan in the 1980s suffered an identity crisis, drifting between the Nationalist Party’s urge to reclaim mainland China and the inhabitants’ will to put down roots on the island—all amidst the Chinese Communist Party’s (CCP) intensifying efforts to subjugate the island. An abandonment sentiment began to brew, and today, it has amplified in more concrete ways: the denied entry to the United Nations (UN), the constant terror of an imminent Chinese invasion, and the lack of recognition from the international community. Resolving this identity crisis is no easy task, especially with the island’s twenty-four million population gradually losing confidence in their own homeland. Still, the people cannot let it detract from the ultimate goal of achieving independence from a legal standpoint. While barriers such as Taiwan’s inability to enter international relations would persist due to Chinese diplomatic pressure, a well-formulated constitution would reinforce the population’s right to exercise self-determination, establish a legal claim of statehood, and ultimately meet the prerequisite for full diplomatic representation that will protect the state from CCP encroachment.

Despite functioning as a de facto country, Taiwan’s legal status remains a mystery. Two factors play important roles in this ambiguity: Japan’s colonial history of Taiwan and the “One China” question. From 1895 to 1945, Japan imperialized Manchuria (present-day Northeast China), Formosa (island of Taiwan), and the Pescadores (islets scattered across the Taiwan Strait). During this period, the Republic of China (ROC) reigned over the rest of present-day mainland China. [1] After Japan’s defeat in World War II, the Allies—which included the United States, France, and the United Kingdom—signed the Cairo Declaration, which stated that “all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China.” [2] The Potsdam Declaration, which came into effect shortly after, affirmed that Japan must accept the terms provided in the Cairo declaration. [3] However, as the sole legal possessor of the island, only Japan had the right to alter the territory’s status, and was not a signatory of either treaty. Therefore, though both Cairo and Potsdam Declarations declared a transfer of control of the island, it had no legal effect on the island’s status. [4] 

Even if Japan had signed both treaties, another uncertainty would have arisen: both treaties stated that territories shall be returned to “ROC” instead of China. This language gives rise to the second issue: the “One China” question. The ROC used to be the only government representing China until Kuomintang (KMT)—the Chinese Nationalist Party that governed the ROC—lost the Chinese civil war and retreated to the island in 1949. Subsequently, the CCP, led by Mao Zedong, founded the People’s Republic of China (PRC) and began ruling mainland China while the post-war ROC occupied only the island. As a result, both the ROC and the PRC claimed to be the sole representative of the Chinese government in the international community. This issue was eventually “resolved” through Resolution 2758 of the United Nations (UN), which recognized the PRC as the sole representative of China. [5] Even if Japan were to recognize the Cairo and Potsdam Declarations, the question of which Chinese government Japan would be returning its territories to—in other words, whether or not the PRC serves as the legal successor of the ROC—remains. While the Chinese civil war was underway, Japan had not renounced its rights over the Chinese territories. It was not until 1951 that Japan officially completed its decolonization and signed the San Francisco Peace Treaty, which stipulated that “Japan renounces all rights, title and claim to Formosa and the Pescadores.” However, in surrendering its right over the Taiwanese territory, Japan never specified to whom it was relinquishing control over the island. Therefore, while the treaty officially ended Japanese imperialism over Taiwan, it legally never resolved Taiwan’s post-decolonization status. [6]

In addition, the ROC Constitution is obsolete and cannot provide the Taiwanese people with sovereignty. Though used interchangeably by most nowadays, “Taiwan” and the “ROC” are not synonymous. The ROC was founded in 1912 after the Xinhai Revolution, effectively succeeding the Qing Dynasty. Upon its founding, its territory encompassed present-day “mainland” China until the KMT lost against the CCP and fled to Taiwan in 1949. As the ROC Constitution inherited the elements it had since 1912, two main provisions are incompatible with the current status quo and require amending. [7] While the constitution doesn’t directly define the ROC’s territory, Article 26 of Chapter III includes the requirement for Tibetian and Mongolian political representation. [8] Not only does this provision contradict reality, but it also raises questions on the legal ownership of mainland China and the validity of the CCP’s potential invasion. Under the current ROC Constitution, both the PRC and the ROC occupy the same territory, which technically causes a de jure territorial dispute but was long disregarded given the PRC’s assertion over Taiwanese territory and its standing in the international community. However, even after relinquishing the mainland in de facto terms, if a war breaks out between two sides of the strait, it would be classified as an “internal conflict” under the current ROC Constitution—a technicality that the CCP could utilize to prohibit any foreign support of the Taiwanese people. [9] In sum, the current ROC Constitution would classify any cross-strait military conflict as domestic affairs and prohibit any form of foreign aid under the principle of non-intervention. Therefore, it has no ability to guarantee the people’s sovereignty.

While it would not guarantee official statehood, a new constitution—and the means to achieve it—asserts the population’s internal recognition and exercise of self-determination. Among various proposals by legal experts to renew the Taiwanese Constitution, the most feasible means of doing so under current constitutional provisions is to pass an “amendment” that all new articles supersede all existing ones. [10] Since the legal requirements for amending the constitution, laid out in Article 12 of Additional Articles of the Constitution of the Republic of China, are high, if the motion passes through a national referendum, it reflects a democratic process with bottom-up approval from Taiwan’s twenty-three million population. [11] In other words, if a motion to amend the Constitution passes, it indicates that a simple majority of eligible voters agree to a new Constitution and serves as a signal for the population’s internal recognition of Taiwanese independence. Ironically enough, as stated earlier, Taiwan does not necessarily need to assert self-determination since it is already considered “decolonized” by the Japanese government; the fact that the UN Trusteeship Council does not view Taiwan as a Japanese colony supports this argument. Nonetheless, one could argue that the national referendum could serve as Taiwan’s “remedial” self-determination to help resolve its post-decolonization incomplete statehood. [12] While there are currently no other cases of such a legal expansion of self-determination, there is also no basis for the PRC to legally claim Taiwan. Therefore, instead of passively accepting its status as decolonized yet incomplete, Taiwan’s priority should be to redefine its statehood for itself and by its own people. 

However, any new constitution seeking to assert Taiwan’s statehood will still be liable to the Chinese Constitution if its name or content contains any reference to the mainland. The UN General Assembly has passed Resolution 2758, effectively recognizing the PRC as the sole representation of China and earning them a seat in the UN. Thus, the crucial provision in the new constitution must include the renaming of the government overseeing Formosa and the Pescadores. Under the unchangeable fact that the People’s Republic of China shall remain the “sole representation” of China, a tactic the ROC could use is to obtain recognition without competing for the right to represent China. [13] This would not only undercut China’s claim to the territory but also allow Taiwan to eventually pursue international diplomacy through the United Nations.

Still, while the renewal of the Taiwanese Constitution sheds new light on redefining Taiwan’s status, it is insufficient to meet the criteria of statehood under the constitutive view. More specifically, Taiwan fails to meet either of the two criteria for statehood usually deployed by the international community: the constitutive and declaratory theories. The declaratory theory examines statehood as a factual but not legal question and determines whether or not a nation is an ipso facto state. Essentially, it uses the four empirical criteria provided by the Montevideo Convention to determine whether or not a nation is a state, which are (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other States.” [14] As a country ruling without dependence on any other nation, Taiwan is a sovereign state by definition. It also has a permanent population and a defined territory, effectively fulfilling the first three criteria of statehood. Finally, the Montevideo Convention does not have a definition for “capacity” when it comes to entering inter-State relations. Therefore, Taiwan could supposedly argue that though limited, it does have the capacity to enter into relations with other States; however, these alliances are “systematically and permanently controlled by another state,” namely the PRC. [15] With this limitation taken into account, Taiwan fails to meet the fourth prong, especially as previous allies have broken off relations due to the CCP’s pressure.

In addition, even with the new constitution, Taiwan would fail to satisfy the constitutive theory of statehood, which takes a more stringent view on international recognition. On top of the four Montevideo criteria, the constitutive theory requires “recognition of the new state by existing states” and discusses the legal aspects left out by the declaratory theory. [16] Recognition by other states, legal experts would argue, emphasizes the consensual nature of international law: the newly created state recognizes its obligations with existing sovereign states, whereas existing states express their consent to sharing such legal obligations with the new state. On one hand, Taiwan’s proactive measures in contributing to international efforts, such as the #TaiwanCanHelp initiative during the COVID-19 pandemic, show Taiwan’s recognition of its legal “obligations for existing sovereign states.” [17] Unfortunately, many of the existing states—perhaps many due to pressure from the CCP—may not feel the same obligation to acknowledge Taiwan and thus disqualify Taiwan as a state under the constitutive view. 

While both declaratory and constitutive views undercut Taiwanese statehood, the renewed constitution nonetheless paves Taiwan’s pathway to achieving external recognition. It is important to note that Taiwan, despite statements supporting Taiwanese independence made by former Presidents, has never once made a legal claim to be a country. However, a legal claim to statehood serves as a prerequisite for both diplomatic representation and relations because an undetermined state such as Taiwan can never be a state if the entity itself does not make that claim. [18] If Taiwan does successfully renew its constitution, it would, at the very least, serve as a legally grounded way to begin establishing its legitimacy as a state. Only after doing so would other countries be more willing to consider forging relations with Taiwan. 

The renewal of the Constitution per se satisfies neither the declaratory nor the constitutive view of statehood; however, it is still a long overdue, indispensable action to take. Content-wise, the ROC Constitution is extremely outdated, as seen in the inclusion of Mongolia and Tibet in the text among other details. The current Constitution, which views the ROC as the ruling government, also exacerbates issues with the sole representation of China. Such issues could be maneuvered by redefining Taiwanese territory to only include the island and the Pescadores and renaming the ROC to Taiwan to signal Taiwan’s disinterest in being the sole representative of “One China.” Voting-wise, the high bar for amending the Constitution, if successful, would show strong national support for Taiwanese independence if the motion were to pass. Internationally, a new constitution also demonstrates Taiwan’s commitment to legally claim statehood after maintaining its undetermined status as a de facto country for more than seventy years. However, even if Taiwan cannot obtain statehood on its own, a new constitution cements Taiwan’s democratic foundation by reaffirming the consent of its governed. To achieve Taiwanese independence, the people need to want it first.

Sources:

[1] Christopher J. Carolan, “The ‘Republic of Taiwan’: A legal-historical justification for a Taiwanese declaration of independence,” New York University Law Review 75, no. 2 (May 2000): 447-49. 

[2] “Cairo Declaration,” opened for signature November 26, 1943, Wilson Center Digital Archive, Foreign Relations of the United States, Diplomatic Papers, The Conferences at Cairo and Tehran, 1943 (Washington, DC: United States Government Printing Office, 1961), 448-449, https://digitalarchive.wilsoncenter.org/document/122101. 

[3] “Potsdam Declaration,” opened for signature July 26, 1945, Foreign Relations of the United States: Diplomatic Papers, The Conference of Berlin (The Potsdam Conference) 2, no. 1382, https://history.state.gov/historicaldocuments/frus1945Berlinv02/d1382.

[4] Carolan, “The ‘Republic of Taiwan,’” 447-49.

[5] Jessica Drun and Bonnie S. Glaser, “The Distortion of UN Resolution 2758 and Limits on Taiwan's Access to the United Nations,” The German Marshall Fund of the United States, March 24, 2022, https://www.gmfus.org/news/distortion-un-resolution-2758-and-limits-taiwans-access-united-nations. 

[6] Tzu-wen Lee, “The International Legal Status of the Republic of China on Taiwan,” UCLA Journal of International Law and Foreign Affairs 1, no. 2 (Fall/Winter 1996-7): 356. 

[7] Lindsay Maizland, “Why China-Taiwan Relations Are So Tense,” Council on Foreign Relations, August 3, 2022, https://www.cfr.org/backgrounder/china-taiwan-relations-tension-us-policy-biden.

[8] Chung Hua Min Guo Hsien Fa, Min Guo 36 nien, December 25 (R.O.C. Constitution, December 25, 1947), https://law.moj.gov.tw/ ENG/LawClass/LawAll.aspx?pcode=A0000001.

[9] Michael Wood, “Non-Intervention (Non-interference in domestic affairs),” Encyclopedia Princetoniensis, https://pesd.princeton.edu/node/551.

[10] Jacques DeLisle, “Reforming/Replacing the ROC Constitution: Implications for Taiwan's State (-Like) Status and U.S. Policy,” Woodrow Wilson International Center Asian Program Special Report, no. 125 (November 2004): 14.

[11] Courtney D. Smith, “Could Taiwan get a new constitution?” Taiwan News, September 24, 2022, https://www.taiwannews.com.tw/en/news/4666681.

[12] Ben Saul, “Explainer: the complex question of Taiwanese independence,” The Conversation, August 16, 2022, https://theconversation.com/explainer-the-complex-question-of-taiwanese-independence-188584.

[13] Lee, “The International Legal Status of the Republic of China on Taiwan,” 354.

[14] Joshua Wood, “Becoming a Country Under International Law,” Rule of Law Education Centre, December 4, 2018, https://www.ruleoflaw.org.au/country-international-law/.

[15] Amy E. Eckert, “Constructing States: The Role of the International Community in the Creation of New States,” Journal of Public and International Affairs 13 (Spring 2022): 21-23.

[16] Eckert. “Constructing States,” 23-24.

[17] Eckert. “Constructing States,” 24.

[18] Saul, “Explainer: the complex question of Taiwanese independence.”