Published: 18 December 2019 Authors: Rohan Sinha and Stefan Talmon DOI: 10.17176/20220127-112949-0
The Republic of China (ROC) was founded on 1 January 1912 upon the downfall of the Qing dynasty in China. The island of Taiwan lies some 180 kilometres off the south-eastern coast of mainland China. Taiwan and its outlying islands were ceded to Japan by China in 1895 after the First Sino-Chinese War. After the Japanese surrender in the Second World War on 25 October 1945 ROC troops occupied Taiwan and its neighbouring islands. In the Treaty of San Francisco, which re-established peaceful relations between Japan and the Allied Powers, Japan renounced “all right, title and claim” to the island. In the last phase of the Chinese civil war, the Nationalist Government of the ROC under General Chiang Kai-shek was forced by its Communist opponents to abandon mainland China and to relocate to Taiwan. By proclamation of 8 December 1949, the Nationalist Government transferred the capital of the ROC from mainland China to Taipei, the capital of the island of Taiwan. On 1 September 1949, the Communist counter-government under Mao Tse-tung proclaimed the foundation of the People’s Republic of China (PRC). The Communist Government in Beijing informed all States that it considered itself the sole legal Government of China, and that it was ready to establish diplomatic relations “with any foreign Government willing to observe the principles of equality, mutual benefit, and mutual respect of territory and sovereignty.” Precondition for diplomatic relations with the PRC Government was, however, that foreign governments severed their relations with the Nationalist Government in Taipei.
At the end of the Second World War, the German Reich no longer maintained diplomatic relations with the ROC Government under General Chiang Kai-shek. The ROC Government which had fled the Japanese invasion to Chongqing severed diplomatic relations with the German Reich on 2 July 1941 after the Reich Government had accorded de jure recognition to the pro-Japanese Government Wang Ching-Wei at Nanking as the government of China. In May 1949 the Federal Republic of Germany (FRG) was established. While the ROC Government on Taiwan was interested in establishing diplomatic relations with the FRG, the Federal Government decided not to establish diplomatic relations either with the ROC Government on Taiwan or the PRC Government in Beijing. It was only after the United Nations General Assembly in October 1971 recognized that “the representatives of the Government of the People’s Republic of China are the only lawful representatives of China” and that the “People’s Republic of China is one of the five permanent members of the Security Council” that the Federal Republic of Germany and the PRC established diplomatic relations on 11 October 1972.
On 31 May 2019, a petition was filed with the German Parliament which demanded that Parliament request the Federal Government “to establish full diplomatic relations with the Republic of China (Taiwan).” The petition, which attracted more than the required 50,000 signatures, was considered by the Petitions Committee on 9 December 2019. During the committee hearing, the Federal Foreign Office explained Germany’s position on Taiwan, which is governed by Germany’s One-China-Policy. The Director-General for Asia and the Pacific at the Federal Foreign Office stated:
“Since the end of martial law in 1987, Taiwan has come a long and impressive way. It has developed into a lively democracy, in which the citizens have the possibility of political participation and in which human rights and freedom of expression are respected. For Germany, Taiwan is therefore in many areas a partner of common values. Taiwan also plays an important role for Germany in the economic field. We have a bilateral trade volume of about 18 billion euros, which makes Taiwan our 5th largest trading partner in Asia. Vice versa, Germany is Taiwan’s most important trading partner in Europe. We have about 300 German companies in Taiwan and there are about 320 companies from Taiwan in Germany. Apart from economic relations, Germany maintains a very intensive exchange with Taiwan, especially in the areas of culture, science, education, and transport. […].
The Federal Republic of Germany established diplomatic relations with the People’s Republic of China in 1972 and recognizes the People’s Republic of China as the only sovereign State in China. This stance is reflected in Germany’s ‘One-China-Policy’ and it is also the approach of the majority of the international community of States including all other EU member States. The ‘One-China-Policy’ does not allow for diplomatic relations with Taiwan. Germany therefore maintains diplomatic relations only with the People’s Republic of China. However, we support exchange with Taiwan in many areas beneath the level of diplomatic relations through the relevant specialist departments up to the ministerial level. For us it is important not only to maintain the status quo of this relationship but also to develop it further, because we view our relationship with Taiwan as very positive. We appreciate this relationship and, as already stated, we share with Taiwan a partnership of values in many areas.”
Responding to the question of what consequences recognition of Taiwan might have, the Federal Foreign Office replied:
“China is an important strategic partner for us. We maintain various political and economic relations with China. We have more than 80 different dialogue formats with the People’s Republic of China in order to facilitate an exchange on topics of common interest. Renunciation of the One-China-Policy would seriously endanger Sino-German relations and that is not in our interest. However, I want to reiterate that we maintain very good working relations with Taiwan beneath the level of diplomatic relations. We maintain contacts with Taiwan up to the level of specialist ministers. We do not always make it public when such contacts happen, but we received a visit of the Minister of Science and the Minister for Economic Affairs, and the Mainland Affairs Council from Taiwan was also in Germany. We further have many contacts at the level of deputy ministers with our Taiwanese counterparts […]. So from the viewpoint of the Government: relations work even below the level of diplomatic relations and they work quite well.”
It was also emphasized that maintaining the current status quo was important for the Federal Government:
“We always make our position clear, even in our contacts with the People’s Republic of China, that we want to maintain the status quo of our relations with Taiwan without any conditions and that we reject any unilateral change of this status quo. […] We actively promote the continuation of these contacts with Taiwan and, even if this is not always seen favourably by Beijing, we confidently advocate this position because it reflects the current status quo with Taiwan.”
Elaborating on the consequences which non-recognition has on high-level contacts between the Federal Government and officials from Taiwan, the Federal Foreign Office representative stated:
“[T]he consequence of our non-recognition of Taiwan as a State is that State officials with a strong connection to State sovereignty in Germany cannot meet with their Taiwanese counterparts. Constitutional organs with a strong connection to State sovereignty in Germany are the Bundestag, the Bundesrat, the Federal Constitutional Court, the Federal Government represented by the Federal Chancellor, and the Federal President. Furthermore, as part of a common EU policy, it has been agreed that we do not maintain contacts at the level of Foreign and Defence Ministers. That means, when contacts are requested at this level, we refer to Germany’s One-China-Policy and ask to refrain from a visit. But we do not deny entry; instead we sort it out by dialogue beforehand.”
Regarding Taiwan’s participation in international organizations, the following position was outlined:
“[W]e, just like many others, have an interest that for important topics there are no blank spots on the world map. Especially regarding world health, but also air traffic co-operation, we encourage that a useful involvement of Taiwan in international organizations is made possible – observer status or other forms of contribution. However, the fact is that participation in many international organizations is reserved for members of the United Nations and also granting observer status is dependent upon the approval of particular bodies, on which certain States sit. So it is not easy to make this possible. Notwithstanding, we, as Federal Government, always stand for facilitating a useful involvement of Taiwan in these areas. And where we cannot achieve this because, for example, another member voices its disapproval, we try to enable and strengthen co-operation at the bilateral level, in order to exchange views on these topics.”
A member of parliament asked for the general criteria for establishing diplomatic relations and whether it made a difference that a State was a democracy or not. To this question, the Federal Foreign Office representative replied:
“Our diplomatic recognition refers to States and not Governments and we, as the Federal Republic of Germany, have recognized the People’s Republic of China in 1972 as the only sovereign State in China. The same holds true for other States; it is not a question of the [nature of the] government, but who exercises public authority, and therefore which State one recognizes.”
With regard to the Federal Government’s One-China-Policy, another member of parliament asked whether Taiwan was seen as part of the territory of the PRC. The Director-General for Asia and the Pacific at the Federal Foreign Office replied:
“This question is very difficult and sensitive […]. For us, Taiwan is a part of China. As far as international legal recognition is concerned, we recognize the People’s Republic of China as the only sovereign State in China. It is not always easy to make this clear but we offer consultation to all those who need to know this well, so they can act as correctly as possible.”
The Federal Government’s position presented to the Petitions Committee was in line with Germany’s previous statements and practice concerning the non-recognition of Taiwan. Since the establishment of diplomatic relations with the PRC on 11 October 1972, Germany has constantly and consistently emphasized its One-China-Policy when describing its bilateral relations with the PRC and the authorities on Taiwan. In reply to a parliamentary question, the Federal Government on 19 July 1989 rejected the proposition to establish diplomatic relations with the ROC (Taiwan), stating:
“Our attitude towards the People’s Republic of China and towards Taiwan has never depended on the internal affairs in the People’s Republic or in Taiwan. By initiating diplomatic relations with the People’s Republic in 1972, Germany has implicitly recognized Beijing’s responsibility for Taiwan. For us and the large majority of the international community of States, Taiwan is not a subject of international law. Germany does not maintain official relations with Taiwan and has no intention of doing so.”
On 21 October 1993, the Minister of State at the Federal Foreign Office stated in reply to parliamentary questions:
“The Federal Government views the Government of the People’s Republic of China as the only legitimate government of China. As Beijing and Taipei both equally pursue a One-China-Policy, the question of recognizing a second Chinese State in the UN does not even arise.”
“The situation does not depend on the view of the Federal Government, but on the views of the Chinese, that despite the partition – which cannot be compared to our [German] partition – there is only one China, in which all Chinese have their place.”
The Federal Government further emphasized that its views were not influenced by the developments in Taiwan regarding liberalization and democracy. It was stated:
“The One-China-Policy entails neither an assessment of the internal policies of the People’s Republic, nor a depreciation of the positive democratic developments in Taiwan.”
In practice, the bilateral relationship between Germany and the authorities on Taiwan is maintained at an informal level beneath the threshold of implicit State recognition. The “German Institute in Taipei” is Germany’s representation in Taiwan and administers the economic and cultural ties. It is headed by a “Director General” rather than by an ambassador; although the Director is usually a career diplomat. The Taiwanese authorities are represented in Germany by the “Taipei Representation Office in the Federal Republic of Germany”, which offers services to Germans and “overseas Chinese” with regard to visa-affairs, information about the economy and trade, education, science and culture.
Preventing implicit State recognition sometimes poses certain practical difficulties and accounts for legal anomalies. For example, direct air traffic with Taiwan was restarted in 1993 only after consultations with the Government in Beijing. The requirement of prior consultations with the PRC Government was explained by Germany’s “overriding foreign policy considerations and the protection of extensive […] transport and economic interests” in the PRC.
A double taxation between agreement Germany and Taiwan could not be concluded between the two governments, but had to be made as an “agreement” between the German Institute in Taipei and the Taipei Representative Office in the Federal Republic of Germany. In an explanatory memorandum on the agreement, the Federal Government stated in June 2012:
“The Federal Government has negotiated an agreement with Taiwan, which lends most of its provisions from the 2005 OECD Model Tax Convention. As the Federal Republic of Germany has never recognized a sovereign State of Taiwan, the agreement was not concluded as a treaty governed by international law. Instead, it was signed between the Head of the Taipei Representation Office in the Federal Republic of Germany and the Head of the German Institute in Taipei. The Permanent Treaty Commission of the federal states and the Finance Committee of the Federal Parliament have already advised on the content of the agreement and had no objections. The agreement will not be ratified as per Article 59(2) of the Basic Law, as would normally be the procedure for international agreements. Instead, the domestic implementation should take place, pursuant to Articles 105 and 108(5) of the Basic Law, in form of a national tax law. So far, this approach is unparalleled.”
The double taxation agreement was signed in December 2011 and does not refer to Taiwan, but refers instead to “the territory in which the taxation law administered by the Taxation Agency, Ministry of Finance, Taipei, or fiscal authorities of political subdivisions thereof is applied.”
Extradition matters are regulated by individual case-by-case agreements and “pragmatic solutions” rather than by a formal extradition treaty.
Non-recognition further means that high-level political contacts cannot take place. For that reason, the Taiwanese “President”, “Vice President”, “Prime Minister”, “Foreign Minister”, “Defence Minister”, and “President of Parliament” were denied an entry visa to Germany (when such visa were still required), even for private visits.
Military cooperation does not take place due to its strong connection with State sovereignty. With respect to multilateral cooperation, the One-China-Policy does not allow Germany to support membership or observer status for Taiwan in international organizations whose membership is reserved to sovereign States only. Instead Germany encourages and promotes cooperation with Taiwan at expert-level.
Since 1949 the island of Taiwan has been administered as a de facto independent territorial unit, with its own laws and administration. This raises the question of whether diplomatic relations can be established with the ROC (Taiwan) as demanded in the petition filed with the German Parliament. Formal diplomatic relations would unquestionably imply recognition of the ROC (Taiwan) as an independent State. An entity, however, can only be recognized for what it claims to be. The ROC (Taiwan) to date does not consider itself to be a separate independent State. Like the PRC, it takes the position that there is only one “China” of which both Taiwan and the mainland are a part.
Germany’s adherence to the One-China-Policy is thus in accordance with the views adopted by both the PRC Government and the authorities on Taiwan. Germany cannot recognize the ROC (Taiwan) as a State, because the ROC (Taiwan) itself does not claim to be a separate State. The Federal Government also cannot recognize the ROC authorities on Taiwan as the Government of the State of China, because they evidently lack effective control over the Chinese mainland territory. Consequently, Germany cannot establish diplomatic relations with the authorities on Taiwan either as the government of China or as the government of a separate State. As long as the authorities on Taiwan do not make a formal claim to statehood, the question of diplomatic relations with the ROC (Taiwan) does not arise for Germany. The Federal Government is thus spared the choice between its strategic interests and democratic values.
Category: Statehood and recognition