|
|
|
|
|
Welcome Back, Taiwan John
R. Bolton In the 1970s, the United Nations was a convenient, indeed preferred, venue for delegitimizing American and Western institutions, values and allies. The shameful Resolution 3379 of 1975, which equated Zionism with racism, was simply the worst of a long list of outrageous General Assembly actions. It was presaged in 1971 by Resolution 2758, which eliminated the Republic of China (now generally known as Taiwan) from the United Nations' rolls and replaced it with the People's Republic of China (P.R.C.). Although the Zionism resolution was repealed in 1991, the pernicious effects of Resolution 2758 persist to this day. As President Bill Clinton prepares to leave on his much debated trip to the P.R.C., Resolution 2758 stands out as a Cold War relic, a practical impediment to the more effective operation of the U.N. system and an affront to the often-trumpeted characteristic of U.N. universality. Resolution 2758 is itself illegitimate, violative by its own terms of the U.N. Charter in multiple respects and a virtually dispositive rebuttal to any contention that the United Nations functions within a "rule of law" context. So flawed is this resolution that only its effective repeal by the General Assembly can provide any hope of expunging the stain on the escutcheon of the United Nations. In the years since 1971, the crassly political way in which Resolution 2758 violated the U.N. Charter and its larger charter-breaking implications have been conveniently forgotten, but the history of its adoption tells us much about what is politically wrong with the United Nations today. That history may even provide a way out of the current quagmire for those willing to seize it. Failure to seize this opportunity -- and especially the failure of the United States to take the lead in righting this wrong -- can only have grave consequences for the United Nations, especially given the parlous levels of support it enjoys in Congress. Taiwan attempted to begin a debate on repeal during the latest session of the General Assembly. Although its efforts were turned aside by the P.R.C.'s typically energetic lobbying, the status of Taiwan is one that U.N. supporters ignore only at their own peril. The simplest way to explain the illegitimacy of Resolution 2758 is to state the basic facts that the P.R.C. never actually joined the United Nations and the Republic of China was never actually expelled, pursuant to the U.N. Charter. Resolution 2758's only operative paragraph states in full that the General Assembly:
Although the resolution was cast in the language of law, the P.R.C., Albania (lead sponsor of the draft resolution) and their supporters adopted the "representation" approach for highly political reasons. Any objective reading of Resolution 2758 clearly demonstrates its facial violations of the U.N. Charter. It had the de facto effect of admitting a new member to the United Nations, expelling a sitting member and replacing a permanent member of the Security Council, all without any Security Council action. Strikingly, a majority of the General Assembly persuaded themselves that none of these actions amounted to an "important question" under the charter. Had the P.R.C. applied directly for membership, Article 4(2) would have required it to be elected "by a decision of the General Assembly upon the recommendation of the Security Council." Quite obviously, in 1971, such an approach would have subjected the P.R.C. application to vetoes by the United States and the Republic of China. Similarly, efforts to suspend Taiwan from U.N. membership (under Article 5) or to expel it entirely (under Article 6) would have failed both because the substantive requirements of those articles were not met, and because General Assembly action under either provision also requires a Security Council recommendation, subject to the permanent members' veto power. Moreover, applications for new U.N. memberships, suspensions and expulsions are all explicitly enumerated in Article 18(2) as "important questions" requiring a two-thirds majority of those members present and voting in the General Assembly. Since 1961, the United States, Taiwan and their supporters had been able to rely on a series of resolutions that declared that "in accordance with Article 18 of the Charter, any proposal to change the representation of China is an important question." Using any route provided by the U.N. Charter thus would have (and had repeatedly in the past) led to defeat for the P.R.C. Accordingly, the P.R.C. decided to end-run the carefully crafted procedural protections of the charter and create a new and unauthorized procedure of simply replacing one set of "representatives" with another. On Oct. 25, 1971, in clear evidence of the decline and final collapse of the United States-led, pro-Republic of China coalition, the General Assembly first rejected the latest "important question" resolution by a vote of 55 in favor, 59 opposed, 15 abstaining, and two absent. The Albanian text that became Resolution 2758 was then adopted by a vote of 76 in favor, 35 opposed, 17 abstaining, and three not participating. Illegitimate as the proceedings that led to the adoption of Resolution 2758 may have been, however, the past cannot be rewritten. Today, attention must be focused on addressing the consequences of the resolution. Obvious Option The most obvious option is for Taiwan to seek its repeal and reobtain representation. In effect, Taiwan now faces the mirror image of the P.R.C.'s problem before 1971. Attempting to obtain membership through the normal U.N. Charter procedures would almost surely produce a Beijing veto. Accordingly, following the trail blazed by Beijing appears to be Taiwan's only realistic course, although it is one that will require enormous diplomatic efforts. What Taiwan needs is the visible support of the United States, which, sadly, is a dubious proposition during the current administration. The obstacles to repealing Resolution 2758, while numerous, are by no means insuperable. First, is the question of whether the General Assembly, acting on its own without the Security Council, has the authority to "reseat" Taiwan. The U.N. Charter is silent on this point. Of course, the charter process was also explicitly contrary to the ultra vires procedures followed by the General Assembly when it adopted Resolution 2758, so the problem of perfect procedure should not long detain us. In 1971, recognizing the likelihood that the P.R.C.'s efforts would finally succeed, the United States and others proposed "dual representation" of both the P.R.C. and Taiwan, with the P.R.C. being seated as a permanent member of the Security Council. Operative paragraph two of the draft U.S. resolution stated specifically that the General Assembly "Affirms the continued right of representation of the Republic of China." In describing this draft resolution at the time, U.N. Ambassador George Bush queried rhetorically: "Some may ask where and when the Charter has been used before in precisely the way our resolution proposes. The answer is: nowhere -- because in 26 years the United Nations has never faced precisely this situation." After reviewing such cases as the three General Assembly votes possessed by the U.S.S.R. (on its own, as well as through the Ukrainian and Byelorussian Soviet Socialist Republics), and the U.N. membership of India even before its full independence from the British Empire, Bush concluded by saying:
While the dual representation resolution never came to a General Assembly vote in 1971, reseating Taiwan would have the practical effect of adopting it today. This would indeed result in the addition of a U.N. member outside the procedures of Article 4. But that outcome cannot be any different in legitimacy than Resolution 2758 itself. It would be absurd to say that the General Assembly cannot correct the iniquitous effects of an illegal earlier resolution simply because of doubts about the corrective. Otherwise, the assembly would be unable to overcome self-inflicted wounds, even when it had the will and the ability to do so. Second, there is the question of whether Taiwan qualifies as a "state" under Article 4. Clearly it does: It controls a defined territory, has an identifiable population and a capital city, administers its own internal affairs and is able to enter into relations with other states. The United Nations' history, as Bush's remarks on the U.S.S.R. and India demonstrated, contains ample precedent for accommodating ambiguous circumstances. Both East and West Germany held U.N. membership prior to their reunification. The two Koreas are both U.N. members, even though their very existence as separate states stems only from the historical circumstances of Japan's surrendering in 1945 to the Americans in the south and the Soviets in the north. The two Yemens also held separate U.N. memberships prior to their merger, as did Tanganyika and Zanzibar before becoming Tanzania. Contrary to the fears expressed by the P.R.C., providing representation to Taiwan would not represent a "two China" policy, nor need it lead to the conclusion that the United Nations is recognizing Taiwan's "independence" from the P.R.C. In all the cases noted, practical political realities, not the theology of international law, ultimately governed the decisions of the United Nations. The same realities should guide it today. Third, Third World majorities have argued successfully in the past that the actions of one General Assembly cannot be overturned by subsequent General Assemblies. But this argument, while politically powerful, has always been a myth. As early as November 1950, the General Assembly repealed a resolution adopted by an earlier assembly. In Resolution 386, the General Assembly rescinded Resolution 38, which had barred Spain (as a former "enemy state") from U.N. membership. (Because of Second and Third World fears about the impact of repealing resolutions, other former "enemy states," including Germany and Japan, were subsequently admitted to the United Nations without a General Assembly vote revoking their "enemy state" status.) Whatever remaining doubts existed about the authority of the General Assembly to repeal should have been completely dispelled in December 1991, when the operative language of the "Zionism is racism" resolution was repealed by a vote of 111 in favor, 25 opposed, 13 abstaining, and the remainder not participating. Political Resolution Fourth, opponents of repeal might raise the "important question" issue, thus requiring a two-thirds General Assembly majority and making repeal much more difficult. But since Resolution 2758 itself was not originally decided as an "important question," there is no reason why its repeal should be subjected to a higher threshold. The resolution of this procedural issue is ultimately political: If there is truly a majority in the General Assembly with the necessary political will to reseat Taiwan, then there will be a majority to determine that the repeal of Resolution 2758 and adoption of the dual representation concept is not an "important question." Fifth, some might argue that, whatever the legality of Resolution 2758, the Republic of China's 1971 attempt to withdraw from the United Nations means that Taiwan has renounced its status as an original U.N. member and must now reapply under Article 4 as a new member. Taiwan's "withdrawal" occurred when, shortly after the vote was lost on whether to declare the Albanian draft resolution an "important question," the Republic of China delegation made a point of order, saying that it would no longer take part in any further proceedings. The next day, President Chiang Kai-shek explained the delegation's action: "Before this infamous Resolution 2758 could be put to a vote, this country announced its withdrawal from the United Nations, an organization which it took part in establishing." The U.N. Charter deliberately made no provision for the withdrawal of member governments, largely to prevent the threat of withdrawal from being used as a form of political blackmail or as a means of evading obligations under the charter. Japan's withdrawal from the League of Nations in March 1933 was very much on the minds of the U.N. drafters. Some have questioned, therefore, whether it is even permissible for U.N. members to withdraw. The only other example of an effort to withdraw -- a short-lived attempt by Indonesia in 1965 -- actually tends to show that withdrawal, at least in the short term, has no force or effect. Moreover, Taiwan's "withdrawal" was so completely intertwined with Resolution 2758 that it is doubtful whether the purported withdrawal should play any role here at all. Any fair reading of the situation in 1971 demonstrates that the Republic of China's various expressions of intent to withdraw all involved the actual or expected adoption of the Albanian draft, and should be taken as part of a single transaction that expelled Taiwan's representatives and installed those of the P.R.C. Thus, the repudiation of Resolution 2758 would eliminate the need for Taiwan's withdrawal, rendering it moot today. Card Games When the General Assembly adopted the infamous "Zionism is racism" resolution in 1975, U.S. Ambassador Daniel Patrick Moynihan declared in ringing terms that: "The United States rises to declare before the General Assembly of the United Nations, and before the world, that it does not acknowledge, it will not abide by, it will never acquiesce in this infamous act." No such gesture of defiance, no such challenge to a resolution's legitimacy was made in 1971 by Ambassador Bush -- perhaps because then Secretary of State Henry Kissinger was too concerned with playing the "China card" to allow the United Nations to get in the way. Yet legitimacy is a precious asset for any institution, and never more so than for one created ex nihilo like the United Nations. Losing that legitimacy is relatively easy, as the United Nations has repeatedly proven, but regaining it is a lengthy and arduous task, especially in U.S. domestic political terms. Today, the real question for U.N. members is whether the stain of Resolution 2758 can be expunged, or whether its corrosive effects will continue to hurt the organization's reputation and effectiveness. Many U.N. members are quick to criticize the withholding of American financial assessments by Congress, but their collective silence on the exclusion of the Republic of China is deafening. If critics of the United States are really serious about the United Nations, let them help renew Taiwan's representation. The author is the senior vice president of the American Enterprise Institute. During the Bush administration, he was assistant secretary of state for international organization affairs.
|
 |
   
|
