Taiwan’s aspirations toyed with

The Statesman, 9 November

UN secretary-general Ban Ki-Moon has overstepped his brief by rejecting Taiwan’s application for UN membership without putting it up before the Security Council, writes SV Manesh

Recently UN secretary-general Mr Ban Ki-Moon returned Taiwan's application for UN membership without forwarding it to the Security Council. Taiwanese President Mr Chen Shui-bian had submitted the application in July, seeking to initiate membership procedures.

The UN office of legal affairs refused to forward the application to the Security Council as is the established practice for new membership applications but strangely, the office of legal affairs dismissed the application.

Mr Ban said the matter “was carefully considered by the secretariat” and that “it was not legally possible to receive” the application based on UN Resolution 2758.

“By Resolution 2758 of 1971, the General Assembly decided to recognise the representatives of the People’s Republic of China as the only legitimate representatives of China to the United Nations. This has been the official position of the United Nations and has not changed since 1971,” Mr Ban said.

This has raised questions about the tenor and the role of UN Security Council. According to Rule 58 (Chapter X) of the Rules of Procedure Security Council, and State, which desires to become a UN member, shall submit an application to the secretary-general. The rule insists that the application shall contain a declaration made in a formal instrument that it accepts the obligations contained in the Charter.

As per Rule 59, the secretary-general shall immediately place the application for membership before the representatives on the Security Council. Then it is for the latter to recommend the applicant for membership and forward to the General Assembly if it forms an opinion that the applicant-state is peace-loving, able and willing to carry out the obligations contained in the Charter as mandated by Rule 60.

Rule 60 says: “The Security Council shall decide whether in its judgment the applicant is a peace-loving state, able and willing to carry out the obligations contained in the charter and, accordingly, whether to recommend the applicant- state for membership.”

But what had occurred in dealing with the application of Taiwan is difficult to comprehend.

It came as a surprise for international lawyers. The secretary-general disposed of the application. Such a practice is beyond his mandate under the Charter. It is illegal and runs counter to the ideals, principles and norms of the UN. The reason for the secretary-general's action is due to China’s political pressure.The international community should decide whether such outside pressures could be allowed to usurp the various UN agencies of their lawful functions and duties under the charter.

It is true that political pragmatism should be a relevant factor in the UN scheme. But it should not be at the cost of established practices, for that would wreck the UN’s foundation. The UN is humanity's last straw for peace. The organisation, which makes listening an obligation, should survive for posterity.

Here, the secretary-general's unlawful action has brought disrepute to the organisation. It mocks at the grandiloquent declarations that the UN made and makes on human rights, freedoms and so forth.

In fact, he encroached upon the province of the Security Council. It is the Security Council's Charter-mandated function to recommend or reject an applicant-state for membership to the General Assembly.

In this case, the duly filed application of Taiwan is being withheld from the Security Council’s attention.

The secretary-general's action has a telling effect upon the UN system, which is founded in constitutional terms upon a relatively clear theoretical distinction between the functions of the principal organs of the organisation. The Security Council’s credibility is at stake. It ought to function as an effective international political executive.

The Security Council should not remain a disinterested and mute spectator whose inaction has the effect of an unjustified abdication of its powers.

Whether Taiwan’s application is meritorious or not is another question, which can only be judged based upon the rules of international law governing the matter. Taiwan is truly self-governing. It also satisfactorily meets the Montevideo criteria which stipulates that state as an international juristic person should possess (a) a permanent population, (b) a defined territory, (c) a stable government and (d)capacity to enter into relations with other states.

Also, it meets the ancillary criteria such as democracy and state responsibility. Scholars and international law practitioners made no serious dispute to this except by some China-sponsored ones. It is undeniable that Taiwan is more qualified to join the UN than China.

A nation that persistently violates its peoples cherished values and freedoms, whose rule is authoritarian and established without consent of its people is no doubt less qualified, less credentialed than democratic Taiwan which shows respect for all human rights and fundamental freedoms declared by the UN.

Though prevented from acceding to international treaties and agreements, Taiwan has striven to implement them. It safeguards the rights and freedoms enshrined in the two human rights covenants more effectively than do many covenant signatories.

Taiwan respects and upholds virtually all the important international treaties. Taiwan acts on the premise that it is the duty of all players in the international arena to conform to global standards necessary for the evolution of an international society founded on the rule of law.

Resolution 2758 of 1971 declared nothing, however, concerning the status of Taiwan in relation to China’s sovereignty claims. It never endows China any right to represent the people of Taiwan.

The UN General Assembly has to ensure that this resolution should not be wrongly used as an excuse to exclude Taiwan from the UN system.

The 23 million people of Taiwan should not be allowed to continue as politically isolated and remain international nomads without due acknowledgement.

Taiwan has no sort of representation in the UN since then. It has become necessary for the Security Council; the august body whose edicts enjoy the “highest legislative dignity in contemporary human history” maintain its majesty.

The Security Council or its president should immediately require the Secretary-General to transfer to it the Taiwanese President's application for UN membership, which was delivered to Mr Ban on 19 July in accordance with Rule 59 of the Rules of Procedure of the Security Council.

The Security Council, which is intended to operate as an efficient executive organ of limited membership, should recuperate its plenary powers endowed by the Charter. That would also play a major part in regaining the lost credibility of the organisation.

(The author is a legal researcher.)