Taiwan Is Already a State; International Law Should Say So
Chloe Menoud
Taiwan has 23.6 million residents, a defined territory, a freely elected government, and foreign relations. By the Montevideo Convention’s qualifications for statehood, that is a state. Yet Taiwan sits outside the United Nations because its statehood has been set by power dynamics rather than principle. Currently, the PRC asserts authority over Taiwan, claiming it as inalienable Chinese territory according to the One-China principle. Despite this, Taiwan continues to hold de facto trading relationships with the U.S. and members of the E.U. while also being formally recognized by 11 countries. Below is why you should recognize them, too.
Beijing’s legal defenses of the Cairo and Potsdam declarations, upon closer inspection, do nothing to justify its seeming sovereignty over Taiwan. These declarations were wartime statements announced during conferences involving strategies to weaken Japan in World War II, including Japan’s ceding of formally owned Taiwanese territory to China. Crucially, neither of them qualifies as a treaty according to Article 52 of the Vienna Convention on the Law of Treaties. Specifically, by mandating a victorious state cannot legally force a defeated state to sign away territory through military pressure, the Cairo and Potsdam declarations remain not legally binding because they never obtained Japan’s consent. What is legally binding, however, is the 1951 San Francisco Peace Treaty outlining Japan’s renunciation of Formosa (Taiwan). This treaty notably omits a subsequent recipient of Formosa, meaning the territory formally remained independent.
Furthermore, the UN General Assembly Resolution 2758, while often cited, also does not attest to China’s sovereignty over Taiwan. All it declares is that “the People’s Republic of China are the only lawful representatives of China to the United Nations and decide to restore all its rights to the PRC…” The resolution does not address the international legal question of Taiwan’s status, and as previously established under international law, the ROC and PRC are not states but governments.
Critics invoke the Constitutive Theory to argue that Taiwan’s lack of recognition is disqualifying. However, the Montevideo Convention is widely considered more legally binding than Constitutive theory because it is codified in international law. As such, Article 3 of the Montevideo Convention states that a state’s existence does not depend on recognition. Recognition is a political choice and oftentimes arbitrary. Bosnia and Croatia were recognized without controlling their territory, while Macedonia was denied recognition despite meeting every criterion, over a dispute about its name. As the jurist Lauterpacht observed, recognition follows national interest, not legal duty.
Nor does Taiwan’s silence on independence count against it. China’s 2005 Anti-Secession Law threatens “non-peaceful means” if Taiwan formally declares independence, rendering silence necessary and not voluntary. Meanwhile, courts in the United States, Britain, Canada, and Japan already treat Taiwan as a separate sovereign, granting it immunity and honoring its property rights.
Finally, the people of Taiwan have governed themselves for decades under a government Beijing has never ruled. The principle of self-determination in Resolutions 1514 and 2625 belongs to the peoples, not to powerful states that claim to speak for them. As a first step, governments should expand official diplomatic and institutional engagement with Taipei and affirm that UN General Assembly Resolution 2758 addressed China’s representation at the UN and did not settle Taiwan’s sovereignty. These actions would align foreign policy with existing international law and with courts and trading partners that already treat Taiwan as a distinct sovereign.
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