FOREWARD
Michael P. Scharf*
During the first week of November 1997, the President of the Peoples' Republic of China (PRC), Jiang Zemin, made a historic visit to the United States. Of the many thorny issues raised during President Zemin's visit--human rights, trade, nuclear proliferation--none was as potentially explosive and far reaching as the issue of Taiwan. An island about twice the size of the state of Massachusetts, Taiwan has its own democratically elected government and free enterprise-based economy. Its population of 21.5 million is greater than that of Australia or Venezuela, and it is the world's fourteenth largest trading nation. And yet, the government of the PRC, which views Taiwan as a renegade province, has blocked Taiwan from joining international organizations and from conducting official diplomatic relations with most of the nations of the world.
With Hong Kong now under Chinese rule, the PRC has begun to press Taiwan to accept a similar one-country, two-system formula for reunification. But, according to a recent opinion poll, the people of Taiwan prefer independence to reunification by forty-three percent to thirty-four percent.(1) And, in October of 1997, the Democratic Progressive Party, which advocates Taiwan's independence, swept local elections on the Island. The PRC, in turn, has made clear that it would subject Taiwan to its military might if Taiwan were to make a formal declaration of its independence from China. As the American show of force in the Taiwan Strait in the summer of 1996 dramatically demonstrated, a Chinese attack on Taiwan could quickly escalate into a war between China and the United States. Thus, Taiwan is considered one of the world's foremost potential nuclear flashpoints.
On the eve of President Zemin's visit, it was felt that the collective wisdom of internationally recognized experts could provide the basis for a timely new perspective on how to resolve the China/Taiwan situation. A group of these experts gathered on October 17, 1997, at a conference entitled, "Bridging the Taiwan Strait," organized by the Center for International Law and Policy at New England School of Law. The Conference was co-sponsored by the Public International Law and Policy Group, the Carnegie Endowment for International Peace, the American Society of International Law, the American Branch of the International Law Association, the International Law Section of the Boston Bar Association, and the United Nations Association of America-Greater Boston. Among the conference participants were two former U.S. Ambassadors, a former Special Assistant to President Bush, three former Attorney-Advisers of the U.S. Department of State, a high level official from Taiwan,(2) an unofficial representative of the PRC,(3) and a dozen of the leading scholars in the field. This symposium issue of the New England Law Review contains fifteen articles which were generated by the conference panelists.
The articles reproduced herein reflect four broad themes that were the subject of insightful discussion and sometimes heated debate during the conference. The first--as indicated in the submissions by Professor Alfred Rubin of the Fletcher School of Law and Diplomacy, Professor Lung-chu Chen of New York Law School, and Professor Valerie Epps of Suffolk University School of Law--is that we live in an era in which the concepts of sovereignty, self-determination, and statehood are changing radically. It is particularly noteworthy in this regard that the United Nations and other international organizations have in recent years admitted several countries as members that do not meet the traditional definition of independent statehood.(4) Thus, at the same time, Taiwan has been moving toward de facto (though not de jure) "independence," the world has been moving toward a far less rigid understanding of the meaning of the term.
The second theme--as evinced in the submissions by Professor Che-Fu Lee of Catholic University, Mr. Nicholas Rostow, the former Chief Counsel of the NSC, Anne Hsiu-An Hsiao, of the London School of Economics, and Ambassador James Lilley--is that the PRC will not allow Taiwan to fully assert its independence, while the people of Taiwan will not accept a full unification with China. Moreover, the submission of Professor George Edwards of Indiana University School of Law highlights why Taiwan may have good reason not to accept the "one country, two system" Hong Kong model.
The third theme is that there are strong reasons not to continue indefinitely the current situation. Several of the articles in this issue attest to the fact that Taiwan has become an economic superpower, with the twenty-first largest economy in the world, the world's third largest information industry, and, as Professor Elizabeth K. Spahn suggests, a human rights record worthy of further scrutiny. Yet, Taiwan is presently excluded from participating in a host of international organizations which regulate international trade, transportation, and communication, and protect intellectual property, the environment, and human rights. In short, the "international pinocchio" with its 21 million citizens will not settle for being something less than a state for much longer.
The fourth and final theme--as manifested in the submissions by Ambassador Peter Rosenblatt, Professor Paul R. Williams, of the Carnegie Endowment for International Peace, and Attorney Mark Zaid, of the Public International Law and Policy Group--suggests that the first theme can provide a solution to the problem recognized in the second and third themes. These articles propose that Taiwan and China pursue a novel relationship, perhaps following the model of a Compact of Free Association, which lies somewhere between reunification and independence. Under such a relationship, Taiwan could continue to act like a state, with all its rights and responsibilities, without ever declaring its independent statehood (which is the one thing the PRC will not tolerate). Based on the precedent of Bhutan, Liechtenstein, the Federated States of Micronesia, the Republic of the Marshall Islands, Monaco, and Palau, Taiwan could be admitted into the United Nations and other international organizations such as the World Trade Organization, without having to satisfy the traditional criteria of statehood. Putting a new spin on the "if it looks like a duck . . . ." analogy, Mr. Zaid succinctly sums up the proposed solution as follows: "The key is for Taiwan to look like a state, act like a state, carry on diplomacy like a state, join international organizations like a state, but not to formally declare its independence, lest it become a target of the PRC's hunting season."(5) With the PRC and Taiwan's growing interdependence, including the opportunities presented by the Spratley Islands issue highlighted in the submission of Professor Christopher Joyner of Georgetown University, there is reason to be cautiously optimistic that such a solution may be possible.
The mission of the Center for International Law and Policy at New England School of Law is to fuse the disciplines of law and public policy, with the premise that the line between public international law and private international law has blurred and is disappearing. The China/Taiwan situation was the perfect topic for the Center's first international conference. Not only is it in the forefront of the news, but the legal and policy analysis of the distinguished panelists contained in this symposium issue of the New England Law Review can provide a useful framework for the status negotiations which are sure to come in the years ahead. To that end, copies of this symposium issue are being made available to policy makers in Washington, Beijing, Taipei, and the United Nations, thanks to a generous grant by the Taipei Economic and Cultural Relations Office of Boston.
* Professor of Law and Director of the Center of International Law and Policy at the New England School of Law; formerly Attorney-Adviser for United Nations Affairs at the U.S. Department of State. Professor Scharf chaired the Program Committee for the Bridging the Taiwan Strait Conference. The other members of the Program Committee were Dr. Susan Roosevelt Weld of Harvard Law School, Paul R. Williams, Executive Director of the Public International Law and Policy Group and Senior Associate at the Carnegie Endowment for International Peace, and Professor Frank Bae of the New England School of Law.
1. See Indira A.R. Lakshmanan, Anxious Taiwan Watches China, Boston Globe, July 27, 1997, at A1.
2. Dr. Chong-Pin Lin, Vice Chairman of the Mainland Affairs Council for the Republic of China (Taiwan).
3. Efforts to obtain the participation of an official representative of the PRC were politely rebuffed by the Chinese Embassy in Washington, which stated that it continues to be official PRC policy not to allow its officials to attend any meeting where officials of the Republic of China (Taiwan) are present, lest there be an implied recognition. Instead, the PRC Embassy asked Professor Che-Fu Lee of Catholic University to "unofficially" present the PRC's views on the Taiwan situation at the Conference.
4. For example, Bhutan, which was admitted to the United Nations in 1971, had by a 1949 Treaty of Friendship with India, agreed "to be guided by India in its conduct of foreign affairs." U.S. Participation in the UN: Report by the President to the Congress for the Year 1971, at 60 (1972). Liechtenstein, admitted in 1990, see United States Participation in the UN: Report by the President to the Congress for the Year 1990, at 40 (1991), had by treaty given Switzerland responsibility for conducting its routine foreign relations. The Federated States of Micronesia and the Republic of the Marshall Islands, admitted in 1991, see United States Participation in the United Nations 38 (1992), had through Compacts of Free Association, given the United States responsibility for their defense and the conduct of their national security policy. And Monaco, admitted in 1993, see United States Participation in the United Nations: Report by the President to the Congress for the Year 1993, at 40 (1994), had through a Treaty of Protective Amity, agreed to exercise its rights of sovereignty "in perfect conformity" with the political, military, naval, and economic interests of France. See Treaty of Protective Amity Between France and Monaco, July 17, 1918, Fr.-Monaco. The treaty further provides that measures concerning international relations of Monaco will always be the subject of prior agreement of the Government of France. See id.
5. Mark Zaid, Address at the New England School of Law Conference "Bridging the Taiwan Strait" (Oct. 17, 1997).