The ratification was refused by the depositary, which is the United Nations Secretary-General. In a letter dated 15 June 2009, the UN Under Secretary-General for Legal Affairs, Patricia O’Brien, wrote that the Secretary-General ‘was in no position to accept Taiwan’s ratification because of UN Resolution 2758, which recognizes the People’s Republic of China as the sole and legitimate representative of China’.
Here’s the background. On 5 October1967, the Republic of China signed the International Covenant on Civil and Political Rights . At the time, the ‘Republic of China’ (i.e., Taiwan) occupied the Chinese seat at the United Nations. This all changed with Resolution 2758. It recognized the People’s Republic of China as ‘the only legitimate representatives of China to the United Nations’.
Then, in 1998, the People’s Republic of China declared that it had signed the International Covenant on Civil and Political Rights. The treaty website of the United Nations contains the following declaration of the People’s Republic of China: ‘The signature that the Taiwan authorities affixed, by usurping the name of “China”, to the [Convention] on 5 October 1967, is illegal and null and void.’ But the website of the United Nations continues to list 1967, not 1998, as the date of signature of the Covenant by China.
Here is the text of article 48 of the Covenant:
Article 48The problem is that if the People’s Republic of China does not in effect acknowledge the 1967 signature, then the Republic of China remains a signatory to the Covenant and is therefore entitled to ratify it. There is no requirement that a ratifying State be a member of the United Nations. Any signatory State can ratify. General Assembly Resolution 2758 concerns the place of China with respect to the United Nations, and does not seem to contemplate treaties that have an autonomous existence. Isn’t the issue whether the Republic of China was a Member State of the United Nations in 1967, a fact that is confirmed by Resolution 2758? And if that is the case, is it not a State capable of ratifying the Covenant, even if it is no longer a Member State of the United Nations, provided it has legally signed the Covenant.
1. The present Covenant is open for signature by any
State Member of the United Nations or member of any of its specialized agencies,
by any State Party to the Statute of the International Court of Justice, and by
any other State which has been invited by the General Assembly of the United
Nations to become a party to the present Covenant.
2. The present Covenant is
subject to ratification. Instruments of ratification shall be deposited with the
Secretary-General of the United Nations.
Is Taiwan a State at all? The question as to what is a State has been debated elsewhere on this blog in recent months with respect to the declaration by the ‘State’ of Palestine pursuant to article 12(3) of the Rome Statute.