The Legal Controversies between China and Taiwan in the WHO From the Perspectives of an International Law Scholar in Taiwan

• Author: Michael Sheng-ti Gau
• Position: Associate Professor of International Law at Soochow University School of Law in Taipei, Taiwan. LL.B.
• Pages: 159-170

Page 159

1. Introduction

Since 1997, the Government of Taiwan has been continuously and, unsuccessfully, bidding for observer status at the World Health Assembly.¹ In 2006, the idea of Meaningful Participation by Health Entity of Taiwan" was used as legal ground to seek observer status, while hoping to leave the sovereignty issue untouched.² In 2007, the issue of sovereignty surfaced, as the deeply frustrated Taiwan Government toughened its tone by applying for WHO Membership, which was again fruitless.

Meanwhile, the year of 2005 saw the President of Taiwan depositing to the UN the accession instrument³ to the WHO Framework Convention on Tobacco ControlPage 160 (FCTC)⁴. As Taiwan is not recognized by the UN as an independent State, such move was unable to make Taiwan a Contracting Party to the FCTC. However, in February 2006 when the 1st FCTC Conference of Parties (COP-I) convened in Geneva, the final negotiation and adoption of the Rules of Procedures for the COP became interesting because of the Marshall Islands' proposal which, if accepted, would have provided an opportunity for Taiwan to be eligible to become an observer at the COP meeting in the capacity of "Other Bodies." It goes without saying that such move did not succeed.

On the other battle front, as the revision of International Health Regulations (IHR) was completed in 2005 at the WHO,⁵ the Health Administration of Taiwan announced in 2006 that it would implement such revised international regulations, before entry into force in 2007.⁶ However, as the revised IHR requires WHO, inter alia, to be open reports submitted by bodies other than Governments of Contracting Parties, the Chinese Government quickly closed a bargain with the Director General of the WHO as a precaution. A secret MOU was signed which disallows direct contact between the WHO and Taiwan, and hinders the application of the revised IHR to Taiwan.

The present author has the privilege to know the concrete legal issues involved in the controversies between China and Taiwan in making Taiwan eligible to enjoy the benefits from the revised IHR and to participate in the Conference of Parties of the FCTC. In this short paper, the legal issues involved in these wars will be addressed. The author, however, will not take the opportunity to discuss the most controversial and fundamental issues concerning the sovereignty of Taiwan. Rather, attempts will be made to provide some personal and scholarly comments and solutions which may not please either side across the Taiwan Strait at first sight, but may be worthy of further consideration.Page 161

2. The Implementation of IHR and the MOU between WHO and China

The Secret MOU

The 2005 Memorandum of Understanding between the WHO and the People's Republic of China (the MOU) was signed for the purpose of allowing official communications between the WHO and Taiwan. This MOU, however, was kept secret⁷ until one year later, when it was commented on by McKee and Atun in the Lancet,⁸ a leading British Medical and Public Health Journal.

From a legal perspective, it is believed that the WHO does have the competence to enter into such agreement with the Chinese Government, as a necessary action to attain the objective of the Organization.⁹ However, to judge if such instrument serves the purpose of the WHO, its formulation, interpretation, and operation must all be evaluated by the WHO Constitution and its related regulations, including the IHR.

How this MOU May Frustrate the Implementation of the WHO and IHR Principles?

First, According to McKee, the MOU provides that all possible contacts between the

WHO and the Taiwan authorities need to be cleared, via a WHO contact point, with the

Chinese delegation in Geneva no less than five weeks before they take place. Chinese authorities will decide which Taiwanese individuals will be contacted.

To be submitted, such arrangement is not only inefficient, but also inconsistent with Article 2 of the IHR then applicable, which entitles the Organization to communicate directly with the health administration of the Member State, instead of going through diplomatic channels.¹⁰ As widely known, lots of items and missions, under WHO purview, cannot be predicted five weeks earlier. Particularly, the speed of spread ofPage 162 communicable diseases and transformation of viruses are not up to the WHO or any State to foresee. On the other side of the coin, the WHO is disallowed, by this MOU, to be contacted by the Taiwan authorities directly. Hence, the right of the WHO to consider Other Reports as granted by Article 9(1)¹¹ of the newly revised IHR is also being violated.

In addition, the appointing authority being Chinese but not Taiwanese is also inoperative. It is hard to expect the Chinese Government to appoint somebody from Taiwan's health administration, which is not recognized by the Chinese Government. Even if the Chinese Government wishes to do so, such Taiwanese official, not under its command, may feel difficulty in complying.

Importantly, Articles 8¹² and 41¹³ of the WHO Constitution offer the possibility for the national organizations, governmental or non-governmental, to be represented at the related conferences of the Organization. The message revealed is the significance of representation of the organization, as opposed to invited experts or individuals. As a matter of fact, it is up to the separate, if not independent, Taiwanese public health administration to implement whatever has been adopted by the WHO. However, the MOU only allows Taiwanese individuals to be contacted by the WHO. As a democracy, Taiwan's legislative body will be very hesitant, if not deterred, to endorse any negotiation results reached by the WHO with this individual not having authorization. Nor will Taiwan's public health administration welcome the message brought back by such "chosen individuals."Page 163

Second, also according to McKee, the MOU provides that Taiwanese citizens will not be invited to join expert advisory panels of the WHO. And the WHO is required to take care that Taiwanese citizens are not inadvertently included within delegations of NGOs attending WHO meetings. Direct contacts between the WHO and Taiwan is only possible when emergencies occur, as designated by the Director General, provided Chinese authorities agree with such contact.

It is believed that the exclusion of Taiwanese experts, from WHO expert advisory panels, cannot be based on technical or professional justifications, given the achievements of the Taiwan Public Health Authority. Such exclusion, not intending to facilitate the WHO in obtaining more useful opinions from experts, is not conducive to the achievement of WHO objectives.

The other requirement for the WHO to eliminate the possibility for Taiwanese citizens to join the NGO in attending WHO meetings is totally contrary to the rationale of having NGO represented, whose presence is meant to provide the WHO with different perspectives. The collective opinions of the NGOs might force the Organization and certain Member States to improve. The negative arrangement shows that Chinese public health administration is not tolerating different voices from civil society. The most recently revised IHR Articles 9 and 10 require a different and much open attitude of the WHO in terms of verification of governmental notification. Such open attitude should be placed in the MOU.

The veto power of China, in emergencies, is to hinder direct contact between the WHO and Taiwan and does not help Taiwan at all. The Chinese health administration cannot solve Taiwan's problems. When a dangerous situation is confirmed by the WHO, the exercise of such veto power will result in a violation of Article 1 of the WHO Constitution.¹⁴ It is submitted that if this provision cannot be modified, then the Chinese Government should announce publicly that it will never exercise any veto power in such a situation.

Comments and Suggestions

To conclude, this MOU puts effective public health actions aside and fails to serve the WHO's object and purposes, with potentially catastrophic consequences. It does not remedy any loopholes in the global surveillance system. It must be renegotiated and modified to produce something workable and meaningful, with the full participation of the Taiwanese authorities.

3. The Implementation of FCTC and the Idea of Inclusive Participation in...