Canberra, 28 September 1971
Confidential
Representation of China in the UN
The issue of Chinese representation in the UN will obviously not be decided on legal grounds by the General Assembly. Nevertheless it occurs to me that, where legal difficulties have been urged as grounds for not supporting our draft resolutions, there may be some point in making a legal reply. Legal answers may have some utility also in discussions with uncommitted delegations. The ground is already familiar to our own people in New York. I have however set down the notes that follow, against the possibility that they may be of some use as a kind of round–up.
2. Legal grounds of objection to the draft resolutions have recently been mentioned to our Missions in Argentina, Britain, France, Malaysia, Netherlands, Nigeria, South Africa and Singapore. Attached is a list of the main telegrams that seem relevant.1 There may be others that I have missed.
3. Though the objections are differently expressed, they seem for the most part only variants of the same five–pronged contention:
(i) only one ‘China’ is a member of the UN;
(ii) the representation of ‘China’ is basically a mere question of credentials—i.e. which of the rival authorities in ‘China’ is entitled to appoint the representatives of ‘China’?;
(iii) if only because Taiwan is merely a province of ‘China, this question must be answered in favour of PRC;
(iv) no question arises of the ‘expulsion’ of a member of the UN, but only of the exclusion of invalidly appointed representatives;
(v) Chiang Kai–Shek’s regime can only retain a place in the UN on application for a new membership, as a separate state of Taiwan.
4. The short answer to this objection is that it is explicitly ‘the Republic of China’ that the Charter recognises as an original member of UN: Arts. 3, 23 and 110.2 That state, though now much abridged territorially, still exists, and indeed is still under the same government as the government by virtue of whose acts in 1945 it became an original member of UN. The Chiang Kai–Shek Government is not a government in exile, or a government without territory. PRC cannot claim to exercise present authority in Taiwan, any more than ROC can claim to exercise present authority on the mainland.
5. Notwithstanding the difficulties created by the Charter text, the United Nations must now find some way of giving effect to the changes that have taken place in ‘China’ since 1945. The result of the civil war is that since 1949 there have been two governments, each exercising authority as such, within different parts of the territory that belonged to ‘China’ in 1945. It is in substance a case of partial, or dual, state succession. The question of representation cannot now be treated as a simple matter of credentials, any more than it could in 1947 when Pakistan was established as a separate state within the territory of the existing UN member, India: [another case of partial or dual successions.]3
6. The DR resolution is an attempt to give practical effect to the changes in ‘China’ since 1945. In the case of India/Pakistan in 1947, all that was necessary was to admit Pakistan as a new member in pursuance of the Charter, Art. 4.4 But in that instance there was no Security Council problem, as there is now with ‘China’. It was by virtue of Chiang Kai–Shek’s authority on the mainland that ROC was accorded in 1945 the status of a permanent member of the Security Council. Logically, or at any rate as a matter of political principle, the replacement on the mainland of the authority of the ROC by that of the PRC should be followed by the like replacement in the membership of the Security Council. This step would be in accordance with the substance and intention of the Charter, though not in accordance with the actual text of Art. 23.
7. There is no disposition among members of the UN to seek an amendment of the Charter, or for that matter to proceed in accordance with the India–Pakistan precedent. The reasons for this are well known. But some states do not seem to realise that both the AR and the DR alike involve some departure from the text of the Charter as it stands. We contend that overall the DR is in accord with the whole substance and intention of the Charter, and departs from its letter only to preserve its substance.
8. The whole thrust of the AR, on the other hand, is to deprive the ROC of international status, to relegate the position of Taiwan to that of a matter of purely internal or domestic concern for the PRC, and thus to set the PRC free from Charter obligations towards the ROC. In contrast, the DR is in accord with the existing political and juridical realities in preserving the international status of … 5 and in maintaining the application to it of the full regime of the Charter.
9. Some states (e.g. Iran, Netherlands, Nigeria) seem to regard the fact that the ROC claims de jure sovereignty over territory which is effectively ruled by PRC as making it impossible for ROC to continue as a member of UN together with PRC. As a legal proposition this has no substance. There are at least several members of UN which claim de jure sovereignty over territory that is at present effectively ruled by another member—e.g. Philippines, Ireland, Argentina, Guatemala. Indonesia was for years in the same position as regards West Irian. Diplomatic recognition of a state does not of itself involve acceptance of that state’s territorial claims. Still less does support for a state’s admission to or representation in UN.
10. The insistence by PRC on being recognised as ’sole legal government of China’ is an attempt to secure a concession that the act of recognition would not of itself imply. Many states seem to regard acceptance of the ’sole legal government of China’ formula as obliging them to oppose the continued membership of ROC in UN. But this does not follow at all, as Belgium has strongly insisted. In point of law, the recognition of a state, and its acceptance as a member of the UN, are altogether distinct from and independent of the recognition or acceptance of its territorial claims.
[NAA: A1838, 3107/38, x]
1 Not published.
2 Article 3 of the UN Charter states that the original Members of the United Nations ’shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of January 1, 1942, sign the present Charter and ratify it in accordance with Article 11 0’. Article 23 of the UN Charter lists the Republic of China as one of the permanent members of the Security Council. Article 110 of the UN Charter states that the ‘present Charter shall be ratified by the signatory states in accordance with their respective constitutional processes’.
3 The words in parentheses were handwritten on the source document.
4 Article 4 of the UN Charter states that membership in the United Nations ‘is open to all other peace–loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations’.
5 A word here is illegible.