- The Washington Times - Wednesday, May 10, 2000

Today, the Taiwan strait is probably the most dangerous flashpoint on earth. With the People's Republic of China (PRC) determined to absorb Taiwan, by force if necessary, Taiwanese popular opinion moving towards independence, and the United States committed to providing Taiwan with the means for its defense, and positioned to intervene if necessary, there is no other place where an armed clash between two of the great powers is more likely.

Unfortunately, to date, the debate on Taiwan's status has been limited to two diametrically opposed solutions Taiwan's full independence, or its absorption into the PRC with, at most, autonomous status. There is, however, a middle ground provided by the accepted norms of international law.

Under international law, if Taiwan is merely China's province, then its autonomy and self-government are at risk. As a sovereign state, China could lawfully alter or abandon any commitments made to Taiwan at the time of its integration into the PRC even if such commitments were incorporated into China's constitution.

If Taiwanese democracy is to survive, Taiwan must be accepted as a full-fledged member of the international community, subject to the protection of international law. In fact, Taiwan already has all of the legal attributes of a sovereign state: It has an organized government controlling a defined territory with a permanent population, and has the actual capacity to conduct international relations with other states.

(Today, Taiwan maintains diplomatic relations with approximately two dozen countries.)

However, a Taiwanese declaration of independence might well precipitate military action by the PRC. The key to a peaceful, satisfactory solution is to adopt a legal framework that would recognize Taiwan's "international legal personality," allowing it to claim the protections of international law, while also satisfying the PRC's oft-stated desire for "one China."

Under international law, states can have international legal personality without a formal declaration of independence. For example, Vattel, a leading 18th-century international law theorist, identified a number of different models where one sovereign state acknowledged greater or lesser obligations to another, while preserving the international legal personality of both. These included states bound by unequal alliances; states sharing the same head of state; and certain forms of federal and, in particular, confederal states.

A prime example of states bound together as a unit, but nevertheless enjoying their own international legal personalities, was the Holy Roman Empire in the 17th and 18th centuries the very period when modern international law was developed. This state included dozens of countries. Some of them were major European powers, such as Prussia and Austria, and others were comparatively insignificant duchies and margravates. Under the empire's "constitution," and based upon agreements enshrined in the 1648 Peace of Westphalia, these states had their own international legal personalities, but also were clearly part of a single entity. The Westphalia settlement is a particularly apt model for Taiwan, since it too was designed to accommodate two, at the time, diametrically opposed systems of belief in one country Catholicism and Protestantism.

Other examples of such "confederal" states have included, over time, the Seven United Provinces of the Netherlands, and the United States from 1781 to 1789. More recently, although the European Union (EU) is not a "sovereign state," it has been recognized as a subject of international law, and receives ambassadorial level diplomatic representatives from nonmember states. Indeed, in many ways, the EU's current composition and "constitution" are reminiscent of the Holy Roman Empire. There is no reason why, based upon these precedents, international law cannot now accommodate a China that includes a self-governing Taiwan, with a distinct international legal personality, subject to the protection of international law, and with full diplomatic recognition by the United States and the rest of the international community.

Nor should U.N. membership for Taiwan, either now, or as part of a future Chinese Confederation, be legally problematic, or viewed as synonymous with a declaration of independence. The U.N. Charter provides that membership is "open to all … peace loving States." It does not define such states, and before its demise, the Soviet Union was a member of the U.N. while two of its republics, the Ukraine and Byelorussia, were also full U.N. members.

With growing international confidence in its role as a stable democracy, and given the importance of the rule of law in the post-Cold War international system, now is the time for Taiwan to frame its case in legal, rather than merely diplomatic, terms, using the above framework. Indeed, since President-elect Chen Shui-bian of Taiwan already has suggested that a federal model might be acceptable to Taiwan, a confederal model should be seriously considered.

The adoption of this framework would infuse Taiwanese diplomacy with new dynamism, by giving it a legally defensible basis for augmenting its international presence and providing a strong negotiating posture with the PRC. This model should not lead to a confrontation. It is entirely consistent with Beijing's formulation of "one China, two systems," while featuring an international component that would guarantee Taiwan's democracy, without at the same time subjecting the PRC to any special international regime.

If the Beijing government is, in fact, merely concerned with preserving "one China," and not interested in smothering Taiwanese democracy or imposing its political and economic system on the island, this solution should be entirely acceptable.

Under this model, there would be one China, but Taiwan would retain all of its current political and economic freedoms, with the guarantee of an international legal personality. This is genuinely a middle ground for the Middle Kingdom.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP.

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