PANEL: Taiwan, Ukraine and Nations under Threat – Why Protect Democracy Abroad?

Law-making workshop after the Panel: How to implement Sanction mechanisms against not
only State aggressors, but also to prevent circumvention of sanctions by State and private supporters?

Members of the Law-making workshop

Hans Corell, Chair
Vanessa Hope
Ming Chiang
Maysing Yang

Report

This is the report of the Law-making workshop that was held immediately after the Panel and finalised after the Forum through e-mail exchanges. The report was approved by its members on 11 March 2024.

The workshop resulted in the following reasoning.

General Comments

In our consultations, we came to the conclusion that the mandate of the working group was too narrow in comparison with the discussion in the Panel, moderated by Vanessa Hope. Focusing first on sanctions, we concluded that such would be appropriate in situations like the aggression by the Russian Federation against Ukraine. However, in more peaceful situations, sanctions would not be appropriate. As a matter of fact, they could even be counterproductive.  If a state wishes to influence and assist another state in establishing democracy and the rule of law, it is more appropriate to engage in a positive interaction with people in this state, both at the political level and, not least, with civil society; an active civil society is an indispensable component in a democracy.

At the same time, it is very important to make sure that politicians are aware of their responsibility for democracy and the rule of law in a state. Here, reference could be made to a publication entitled “Rule of Law – A guide for politicians”, elaborated under the auspices of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University, Sweden, and the Hague Institute for the Internationalisation of Law (HiiL), The Netherlands. The guide is of some 40 pages freely available on the web for downloading and printing in 26 languages.

The Special Situation in Ukraine

The situation in Ukraine is extremely serious because of the aggression against the country by the Russian Federation – a permanent member of the United Nations Security Council. It is therefore important to mention how the situation has been treated by the United Nations. The UN General Assembly has addressed the situation through a very unusual procedure called "Uniting for Peace". The system was introduced by a General Assembly resolution in 1950 and means that if the Security Council is prevented from intervening in a very serious situation, the Security Council can, through a procedural resolution, where the veto does not apply, request that the General Assembly be convened in an emergency special session within 24 hours. The most important provision in the resolution reads:

• Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. If not in session at the time, the General Assembly may meet in an emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations. 

On 27 February 2022, the Security Council adopted a resolution that the General Assembly should hold an emergency special session. The General Assembly acted immediately. The emergency special session was held the next day, and on 2 March 2022, the Assembly adopted a resolution entitled “Aggression against Ukraine”. 

In the vote, 141 states voted for the resolution, five against, and 35 abstained. The five countries that voted against the resolution were the Russian Federation, Belarus, Syria, North Korea and Eritrea. The Assembly's resolutions are not legally binding but can reflect and influence world opinion.

In the resolution the Assembly reaffirmed its commitment to the sovereignty, independence, unity and territorial integrity of Ukraine within its internationally recognized borders, extending to its territorial waters; deplored in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the UN Charter; demanded that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State; and also demanded that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders. The Assembly also deplored the involvement of Belarus in this unlawful use of force against Ukraine and called upon it to abide by its international obligations. For the rest, reference is made to the resolution.

As it appears from the left column on the website referred to in note 2, there are five additional resolutions adopted by the emergency special session.

This is the 11th time in the history or the United Nations that this procedure is applied.

With respect to the present situation in Ukraine reference is made to the five additional resolutions adopted by the emergency special session, to the reports of the Independent International Commission of Inquiry on Ukraine, and the news reports from the conflict. The situation is extremely serious, and it is obvious that the behaviour of the Russian Federation is a determining factor with respect to the prospects for stopping the aggression.

During the World Forum we also received the news about Alexei Navalny's death which cast a dark shadow over the summit we all attended. Here, we had the opportunity of listening to his widow Yulia Navalnaya’s speech before the European Parliament on 28 February 2024. The EU has now also published the text of her speech.7 It is a very powerful statement, and we refer to it since it also directly addresses the question of sanctions against the Russian Federation. We also refer to an article about the speech published by the EU.

Another important factor here is that those who are responsible for the crime of aggression must be brought to justice. As the Chairman of the workshop informed the Cinema for Peace Foundation before the World Forum there is a proposal for A Special Tribunal for Ukraine on the Crime of Aggression, prepared by the Ukraine Task Force of The Global Accountability Network. There is also an article focusing on the role of the United Nations General Assembly in this matter.

The Special Situation in Taiwan

We also focused on the special situation in Taiwan. Here, we noted that Taiwan is not a member of the United Nations in spite of the fact that it is a democracy fully qualified for such a membership. We noted the tensions between China and Taiwan and the very special relationship between Taiwan and the United States of America. In 1978, President Jimmy Carter declared an end to America’s longstanding diplomatic relations with Taiwan, inclusive of the termination of a mutual defence treaty, in pursuit of normalized relations with the Peoples Republic of China (PRC). In response, Congress passed the Taiwan Relations Act of 1979 (TRA), which continues to serve as the foundation for America’s “unofficial” relationship with Taiwan. Under the TRA, Taiwan and the United States maintain a de facto diplomatic relationship. Reference should also be made to the Taiwan Allies International Protection and Enhancement Initiative (TAIPEI) Act of 2019.12

In this context, we discussed Article 4 in the UN Charter, according to which membership in the UN is open to all peace-loving states which accept the obligations contained in the UN Charter and, in the judgement of the Organization, are able and willing to carry out these obligations. The admission of any such state to membership in the UN will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

Against this background we suggest that the democracies in the world should start convincing the UN Member States that they should support Taiwan as a UN Member State and coordinate a proposal for a Taiwanese membership in the UN.

Discussing this, we came to the conclusion that we could suggest that Taiwan, as a first step, could apply for the status of Permanent Observer in the General Assembly of the United Nations.

What is a Permanent Observer? The following information is available on the UN website:

• Non-Member States of the United Nations, which are members of one or more specialized agencies, can apply for the status of Permanent Observer. The status of a Permanent Observer is based purely on practice, and there are no provisions for it in the United Nations Charter. The practice dates from 1946, when the Secretary- General accepted the designation of the Swiss Government as a Permanent Observer to the United Nations. Observers were subsequently put forward by certain States that later became United Nations Members, including Austria, Finland, Italy, and Japan. Switzerland became a UN Member on 10 September 2002.

  Permanent Observers have free access to most meetings and relevant documentation.
  Many regional and international organizations are also observers in the work and annual sessions of the General Assembly.

There are two Non-Member States that have received a standing invitation to participate as Observers in the sessions and the work of the General Assembly and maintaining Permanent Observer Missions at Headquarters, namely the Holy See and the State of Palestine.14

We would also like to refer to the following information that we found on the website of the Government of Taiwan. It appears under the title “International Participation”:

• Taiwan has full membership in 45 intergovernmental organizations and their subsidiary bodies, including the World Trade Organization, Asia-Pacific Economic Cooperation, World Organisation for Animal Health and Central American Bank for Economic Integration. It also enjoys observer or other statuses in 28 IGOs and their subsidiary bodies, including the European Bank for Reconstruction and Development and committees of both the Organisation for Economic Co-operation and Development and Central American Integration System. In light of Taiwan’s robust capital market and pivotal position in Asia, the Central American Bank of Economic Integration opened an office in Taiwan on July 6, 2021, becoming the first new branch to be opened outside of Central America and deepening Taiwan’s participation in regional integration outside the Indo-Pacific.

We think that this is important information in relation to the first sentence in the first quote above: “Non-Member States of the United Nations, which are members of one or more specialized agencies, can apply for the status of Permanent Observer.”

This is of course a matter that Taiwan should decide about itself. However, in a report of the nature that we are preparing we should at least mention this UN arrangement.

In the meantime:

• Taiwan should be recognised as an important partner and a democratic country which can contribute to the development of the world.

• Any use of force or coercion by China against Taiwan should be condemned and necessary support for Taiwan's security and defence capabilities should be provided.

• Diplomatic, economic, and security ties with Taiwan should be strengthened to ensure its security and well-being.

• Any efforts by China to isolate or intimidate Taiwan should be opposed and like-minded partners should work to defend Taiwan's democratic values and sovereignty.