What is Sovereignty? The Cases of Taiwan and Micronesia

Peter R. Rosenblatt^*

The title of my contribution to this discussion raises a point that is easy to overlook in discussions relating to the legal status of the Republic of China (ROC) on Taiwan. The range of options across the Strait is not confined, as the title of this conference suggests, to the reunification of China or Taiwan's independence, although either of these is obviously a possibility. A more likely option, in my judgment, is some future status for the ROC which involves neither incorporation into the People's Republic of China nor the challenging step of a declaration of "independence" as the Republic of Taiwan. This third option embraces a multiplicity of status shadings involving a continuing evolution of the ROC's current status of de facto independence. It is this option that I would like to address.

Nothing more vividly exposes Taiwan's anomalous international situation than the striking contrast of its present unique non-status with that of three small new nations, formerly portions of the U.S.-administered U.N. Trust Territory of the Pacific Islands, whose status arose out of negotiations with the United States. These are the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. A so-called Compact of Free Association negotiated between l977 and l981 and implemented as to Micronesia and the Marshall Islands in l986 terminated their status as wards of the international community and defined a new status of free association with the United States.

The Compact of Free Association recognizes that the three freely associated states (FAS) "have and retain their sovereignty and their sovereign right of self-determination" and confirms that "approval of the entry of their respective Governments into this Compact of Free Association constitutes an exercise of their sovereign right to self-determination." The Compact accords the governments of the three new states full control over every aspect of their national life, save that of "security and defense matters in or relating to" those states, and full authority and responsibility for which is assigned to the United States. Since free association agreements normally bundle defense and foreign affairs as the responsibility of the larger partner, the Compact's award of "the capacity to conduct foreign affairs . . . in their own name and right" to the FAS is quite unusual and is perhaps without precedent. However, "in recognition of the authority and responsibility of the Government of the United States" in the defense and security areas, the Compact provides that the FAS "shall consult, in the conduct of their foreign affairs with the Government of the United States." The United States, in the conduct of its foreign affairs, is to consult with the governments of the FAS "on matters which the Government of the United States regards as relating to or affecting any such Government."

The Compact of Free Association between the United States and the three FAS spells out, both in name and in fact, a relationship of free association internationally sanctioned under General Assembly Resolution l541 and other precedents, and legally distinguishable from independence. Nonetheless, the United States sponsored all three of the FAS for membership in the United Nations, and each one was admitted, although independence is considered a fundamental membership criterion.

Contrast this situation with that of the Republic of China. The ROC meets all of the criteria normally considered to define sovereign independence: a clearly defined territority over which it exercises full control; a population; a government; and the capacity to engage in foreign relations. However, it is recognized as an independent sovereign by only some thirty small nations and is excluded from membership in the U.N. and by most of the U.N.'s specialized agencies and all but a few other global and regional organizations upon the ostensible ground that it is not a sovereign state. (The reasons for this are discussed elsewhere in the conference and do not require elaboration here.)

The independence of the ROC has been a fact of international life for most of this century and in its current much diminished territory for half a century. It functions as a de facto sovereign although it is not recognized as one de jure. It is juridically indistinguishable from internationally recognized sovereigns in all but two particulars: it has been permitted to participate in very few international organizations, and it conducts its relationships with most of the nations of the world on a non-official basis. The non-official status of its non-diplomatic international relations permits its partners to carry on a full range of non-ceremonial diplomatic relations with the ROC without calling them relations, leaving the question of just what Taiwan is unaddressed.

A comparison of the respective statuses enjoyed by the unrecognized but fully independent Taiwan and the fully recognized but non-independent freely associated states of Micronesia must lead to the conclusion that the world is gradually accommodating itself to a far less rigid understanding of the meaning of independence than was the case during most of the nineteenth and twentieth centuries. This blurring at the edges of independence represents the international community's gathering perception that there is a need for flexibility in the status of some territories that do not desire or cannot sustain full independence but are not "dependent" territories.

During the nineteenth century a number of tiny European fragments left over from the pre-Napoleonic period, San Marino, Liechtenstein, Andorra and Monaco, were recognized as technically independent by the Concert of Europe even though the form of their limited sovereignty was more congenial to the semi-medieval political conceptions of the eighteenth century than to the era of the nation-state. The post-World War I interlude saw the creation of the Free City of Danzig and the internationalized city of Tangier. But, it was only after the end of World War II, with the decolonization of some very small and poor dependencies, that experimentation began in earnest with modifications to the traditional concept of independence. General Assembly Resolution l541 provided the principle legal space within which this took place. There was the short lived West Indian free association with Great Britain, the arrangement between Denmark and the Faroes and Greenland, New Zealand's free association with the Cook Islands and Niue, and the U.S. Compact of Free Association with the former Trust Territory entities previously discussed.

The relaxation of nineteenth century criteria of sovereign independence also led to decolonization grants of full independence to very small states, such as Sao Tome and Principe, St. Lucia, Kiribati and Nauru (population 5000), which under previous standards would have been considered too small and/or poor for full independence. These developments and the admission of the U.S. freely associated mini-states to U.N. membership served, in their turn, to enhance the international status of their European forerunners, which have now evolved from settings for musical comedies to full U.N. membership despite continuing limitations on the independence of at least three of them.

The new and flexible status devised for small former dependencies and the enhanced status accorded to tiny states previously considered too small to be permitted an autonomous role on the world stage, suggests the application of newer, more flexible political status concepts, not only to the world's few remaining colonies (viz. Hong Kong, Puerto Rico, or Guam), but also to territories in dispute, such as the Israeli-occupied areas west of the Jordan River, Kashmir, Nagorno-Karabakh, the breakaway area on the eastern fringe of Moldova, and Turkish-occupied northern Cyprus.

Taiwan does not fit into any of the above categories and is freely pioneering in the management of a form of de facto independence, which has no name, but may, in the long run, achieve some degree of recognition. The outcome of this process will depend on future events. Thus:

--The actions and declarations of the U.S. and some other countries have already established that, despite its curious status, Taiwan is enough of a state to be entitled to some form of international support against a threat of military attack by the PRC. Future threats or an actual attack by the PRC may accelerate this process with consequent political implications.

--Taiwan conducts varying degrees of non-official, non-diplomatic relations with most of the nations of the world. At what point will these relations be considered to have ripened into something quasi--or not quasi--official?

--Taiwan is an important economic factor with a major role in world trade. Its government conducts its trade relations in a manner indistinguishable from other governments, including the maintenance of trade offices, ministerial visits, the granting of visas, and so forth. These are normally considered state functions.

At what point will they be recognized as such in Taiwan's case? If internal and external events permit Taiwan to continue living within and expanding the boundaries of its current nameless status, that status seems likely to acquire an increasing measure of legitimacy. Taiwan's unique disabilities may be given as little heed as Nauru's and Liechtenstein's size or the non-independence of Micronesia by a practical world community with diminishing interest in old distinctions and formulations. Influenced by the altered perceptions of sovereignty and independence, of which the experiences of the three FAS are but one example, the world community may one day conclude that Taiwan's non-status is essentially irrelevant to the undeniable fact of its existence on the international scene and the rights of its people. Taiwan would then no longer have to fear that its non-recognition represents a major threat to its security. When that day comes, international lawyers might conclude that the concept of sovereignty had once again been subtly altered to embrace yet another case not foreseen under older concepts which have already undergone so many changes.

*Founding Partner, Heller & Rosenblatt; Founder and President, Fund for Democracy and Development; Member, U.S. National Committee for Pacific Economic Cooperation. B.A., Yale College, 1954; LL.B., Yale University Law School, 1957.