Taiwan is caught in a trap of law and history

We are between a ROC and a hard place. The ROC is the Republic of China – better known as Taiwan. The hard place is the PRC – better known as the People’s Republic of China and even better known as China. Who has sovereignty over Taiwan? It’s complicated, or, in international legalese, it has “incomplete status’ and is “undetermined”.

The two different versions of China do agree on something – there’s only one China. The problem is each claim to be its sole legitimate representative. Yes, that’s right – Taiwan’s constitution says it is the legal representative of Taiwan and mainland China, Tibet, Mongolia, and all the rest. The People’s Republic, or rather the Communist Party of China, begs to differ and regards Taiwan as a renegade province which will be returned to the fold one way or another.

In recent years, Taiwan has played down the legitimate sovereignty angle and simply argues that the island has the right to govern itself but stops short of declaring independence. Smart move – China’s 2005 “Anti-Secession Law” says that to prevent this “the state shall employ non-peaceful means and other necessary measures”, by which it means going to war.

Do these legal aspects matter? They do to the parties which might be drawn into that war which, in a very unlikely scenario, could even include the UK. If Taiwan is not a state, then it can be argued that, in international law, an invasion by China would be an internal matter. States have the right to maintain authority over their territory. That’s Beijing’s view. On the other hand, perhaps Taiwan is a de facto state and as such can legally call on allies to come to its aid. After all, it has a permanent population living in a defined territory with a government which has relations with numerous governments.

So, to the history, in which we see the island has only been ruled directly from the mainland for a few years. The original inhabitants were Aboriginals from the Austronesian family of peoples of the South Pacific who are thought to have arrived about 6,500 years ago. When the Dutch colonists showed up in 1623 there were only about 1,500 Han Chinese there, but they brought in thousands more as labourers. The Dutch were turfed out in 1662 by an army from the mainland led by a man called Koxinga who set up the Kingdom of Tungning.

The kingdom was overthrown in 1683 by the Qing Dynasty of China which, at first, restricted Han immigration but after 1760 allowed in more than two million people and in 1885 declared Taiwan to be a province of the Qing Empire. By then the settlers had displaced the indigenous population. Only the hill tribes have survived, and they now make up about 2 per cent of the 24 million strong population.

After just 10 years as a Chinese province Taiwan was ceded to Japan following China’s defeat in the First Sino-Japanese War (1894-1895). In 1912, Chinese revolutionaries overthrew the Qing Empire and established… the Republic of China – ROC. Which makes subsequent events even more interesting, and complicated.

So, the ROC was the legal inheritor of the Qing Dynasty (and territories) and its government was recognised internationally. At the end of the Second World War, it was the ROC which accepted the surrender of Japanese troops in Taiwan, which was “occupied by the ROC on behalf of the Allied Forces” – so status “undetermined”. In 1951, Japan formally surrendered ownership but did not specify to whom it was “returned”.

Tokyo’s deliberate lack of clarity was because, by then, the Communists had won the civil war and announced the People’s Republic of China. The ROC government had fled to Taiwan, along with about a million Han people. Other states could hardly recognise both governments and over the next two decades the realities of hard power kicked in. In 1971, the UN General Assembly recognised the People’s Republic of China as the country’s only legitimate representative.

But what about Taiwan? Well, Japan “fully understands” China’s stance that it is an inalienable part of the PRC, but it’s never said it “recognises” it. The US plays similar linguistic games – it doesn’t “challenge that position” but nor does it acknowledge it.

It also does not recognise the recent declaration from China that the Taiwan Strait is part of “China’s internal waters” rather than international waters. The US Navy promptly sailed the USS Benfold through the Strait to show Washington’s “commitment to a free and open Indo-Pacific.” Even if Taiwan was shown to be part of China it would still contain a corridor of international waters including parts which would qualify as China’s Exclusive Economic Zone.

Nancy Pelosi’s visit to the island needs to be seen against this background. Beijing fears the US may be changing its position and that Pelosi may have acted in coordination with the White House. The White House can, and does, repeat over and over again that its policy remains unchanged, but China remembers that Biden invited Taiwan’s US representative to his inauguration, that Secretary of State Anthony Blinken called Taiwan a “country”, and that Pelosi is the third-ranking politician in the US. Currently Taiwan is recognised as the government of China by only 15 of the world’s 193 countries, it has informal representation in 57 states, and 49 countries maintain “offices” (de facto embassies) on the island.

And what of the Taiwanese? The belligerence of the Xi administration in Beijing has brought support for unification “as soon as possible” to a near all time low. The islands leading polling institution, ESC, found those in favour at 1.3 per cent and those who want an eventual “move to unification” at just 5.2 per cent.

Those favouring the “status quo indefinitely” were at 28.6 per cent with 28 per cent choosing status quo but “decide at a later date”, while 25.2 per cent wanted the status quo with a view to “move toward independence.” The figures reflect a clear majority which wants a recognised separation but also caution and an understanding of the dangers of moving in that direction. Only 5.1 per cent want independence at the earliest opportunity.

Xi talks of “national rejuvenation” by 2049. That includes the unification of Taiwan with the Motherland in time for the centenary of the PRC. The Communist Party says only a few “separatists” on the island want independence. It’s a lie. That a clear majority wants it speaks with more clarity about what is right and wrong than the legal arguments of history.