Due to the recent outbreak of new coronavirus (COVID-19), Taiwan – which is greatly affected because of its intensive communication with China – has come under the international spotlight, because of its exclusion from the World Health Organisation (WHO), the largest institution responsible for disease control. Drawing on the rules/practices regarding the WHO-related meetings, this essay discusses why it is so difficult for the Taiwanese to be heard by the WHO, let alone for them to be present at relevant forums.
On 30 January, the Emergency Committee convened by the WHO Director-General under the International Health Regulations (IHR) 2005 regarding the outbreak of COVID-19 in China defined the situation as a Public Health Emergency of International Concern. Meanwhile, many other governments have also expressed concern about this matter (e.g. Japan, Canada, and the US), based on both epidemiological and humanitarian concerns regarding the exclusion of nearly 24 million Taiwanese people, calling the WHO to action beyond political considerations.
However, whether to include Taiwan – and in what name – is a tricky case of global health politics? Recalling the SARS (severe acute respiratory syndrome-related coronavirus) epidemic in 2004, Taiwan suffered a lot from the lack of connection with and information from the WHO – which, as a United Nations (UN) specialised agency, has complied with the One-China Policy since the People’s Republic of China (PRC) substituted the Republic of China’s (ROC) seat in the UN in 1971.
Struggling with the current epidemic, Taiwanese civil society has been begging for international cooperation, transparency of global pandemic governance, and an opportunity to participate in the WHO. Yet, the trickier part follows. Since the ROC’s total withdrawal from mainland China to Taiwanese islands in 1949, Taiwan has been occupied and constantly ruled by the ROC, following the defeat and retreat of Japan after the World War II, which left the colony a place in contestation.
You are here ≠ you are always welcome
From 2009 to 2016, following the SARS controversy, as mentioned above, and the adoption of the new version of the IHR in 2005, the ROC government was invited annually to join the WHA meetings, as an observer. The invitations sent from the WHO Director-General were considered as forming a political usage, which may have gradually become a legal practice (if there had been no interruption), with respect to the procedural matters of the WHO.
That is, in international institutional law, a ‘usage’, which is practised based on either consent or acquiescence in a spontaneous manner, is often pursued as a way out of the rigid interpretation of law. It is thus unbinding and always subject to change, but it may also potentially become an integral part of the law of the international organisation concerned (the WHO in this case) if such a means is resorted to for a long time and systematically.
The seven-year participation as an observer in the WHA, in the name of ‘Chinese Taipei’, was expected to be a pragmatic approach to eventually including the Taiwanese, represented by the ROC, in the WHO. Due to such optimism, the ‘WHA model’ was once considered by the ROC and its international allies to be perhaps applicable to Taiwan’s participation in other ‘non-political’ multilateral institutions (e.g. the International Civil Aviation Organisation, the World Meteorological Organisation, and the International Criminal Police Organisation).
The WHO’s ‘don’t ask, don’t tell’ policy
In effect, how the invitation-based approach started has always been a curious case. In the past few decades, the ROC government has attempted several times to apply to ‘come back to’ or to ‘newly join’ the WHO – respectively, in the name of ROC or Taiwan – and has even created a novel notion of a ‘health entity’ (drawing on the success regarding framing Taiwan as a ‘fishing entity’ joining the non-UN international fishery organisations), but all of these attempts have failed.
So, when the 2009 invitation arrived, which bypassed all of the formal processes and procedural discussions and was made simply based on the WHO Director-General’s discretion, everyone was surprised. Here the acquiescence of the PRC government and the usefulness of spontaneous ‘usage’ are the keys. Nonetheless, despite all of the political factors, such an invitation-based approach is actually consistent with the existing law of the WHO, particularly with respect to the rules concerning granting observer status.
Undoubtedly, compared to becoming a full or an associate member of the WHO (the institution as a whole), for Taiwan to be allowed to attend the WHA meetings as an observer is so much simpler, legally and politically. Having a new observer – who can thus legitimately pass the gates and checkpoints, have a seat behind the nameplate ‘Chinese Taipei’, listen to the debates between member states, and if lucky, be permitted to speak – is not necessarily strange.
Unwritten rules of WHA observer status
According to the WHA Rules of Procedure, members and associate members, representatives of the Executive Board, and all intergovernmental and nongovernmental organisations who have formal relationships with the WHO will be invited to be represented at the WHA. Besides, article 3-2 provides that the Director-General may, if appropriate, invite states or territories, having made an application for membership or associate membership, and states that have signed but not accepted the WHO Constitution to send observers.
The former WHO legal advisers, Vignes and Luca Burci (2004), mention that the WHA’s rules regarding observer status are a product of institutional practices – which have been implemented, accumulated, documented, and determined to be written down (codified and adopted by the WHA). In this regard, there are two main categories of WHA observers – temporary observers and quasi-permanent observers. Temporary observers are those that have been codified in article 3-2, as mentioned, to which Taiwan does not belong.
Quasi-permanent observers are the political entities who are invited to attend the WHA but do not qualify as being in the previous category, regarding which the rules are written in text. Such practices can be classified into: (1) observer for a ‘non-member state’ (the Holy See), (2) ‘observer’ without restrictions (the Order of Malta [since 1962], the ICRC [since 1995], the IFRC [since 1998], and the Inter-Parliamentary Union [since 2009]), and (3) observers invited ‘in accordance with resolution WHA27.37’ (Palestine).
Call us by our name! But, who are ‘we’?
Following the UN General Assembly resolution 2758 in 1971, which replaces the ROC representative with the PRC in the UN-related forums, including the WHO (WHA Resolution 25.1), ‘Chinese Taipei’ (Taiwanese people) – represented by the ROC – cannot follow the Holy See model, which is applicable only to a state. Nor can it follow Palestine’s resolution-based module. Thus, Chinese Taipei falls possibly within the case-by-case, discretion-based ‘observer’ category, if it is considered as a quasi-permanent observer.
These case-by-case practices are not legally binding, and yet they can always be revoked, making the status of this type of quasi-permanent observer precarious. Whether or not an invitation is given depends on the relevant political context and the Director-General’s willingness. Since 2017 the ROC has not received any invitation to the WHA, while the 2005 Memorandum of Understanding between China and the WHO reveals that ‘Chinese Taipei’ is considered as ‘Taiwan, Province of China’ within the organisation.
From the SARS and H1N1 to today’s COVID-19 epidemic, the outbreaks have again laid bare challenges against the WHO’s leading role in global pandemic governance, which is often stuck in the state-based structure with compromised efficiency, transparency, and justice, which the system requires the most. The paradox relating to the complex relationships between the ROC and PRC has resulted in ignoring health data from Taiwanese society and silencing Taiwanese people’s health needs, due to Taiwan’s unnameability.
Of course, this is also a paradox for Taiwanese people, while figuring out all of the rules of the game. Why do ‘we’ want to be part of the WHO? Who do we want to represent us? The rejection from international organisations is definitely a defeat for the ROC government, but it could also be an opportunity for the Taiwanese people to rethink the path – including the strategies and risks – that they aim to take towards participating in international society.
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