IS THERE A QUESTION OF TAIWAN IN INTERNATIONAL LAW?
PART I THE SETTING
Leopoldo Lovelace, Jr.*
4 Harvard Asia Quarterly 3
(Summer 2000)
In 1949
the civil war in China concluded as a matter of fact with the complete control of mainland
by the armies of the Communist Party, which established the People’s Republic (PRC).
The nationalist army made itself strong in the island of Taiwan –a territory largely
inhabited by the Hakka and Fulkien Taiwanese which had been under Japanese rule until
1945–, where it established the Republic of China. The division of China became one
of the pivots of Cold War politics. During the Cold War both governments claimed to be the
legitimate China. The recognition of the PRC by a majority of the international community
after 1971, when it also took over the ROC’s seat in the United Nations, and the
establishment of democracy in Taiwan in 1988, gave a new dimension to the conflict, as a
pro-independence movement transformed the political discourse in the island and began to
redefine its international claims. The PRC, which remains a one-party state, has also made
a paramount principle of the one-China concept, and it threatens to use force against
Taiwan if it proclaims independence. After the victory of the independence party in the
Taiwanese elections of March 2000, the new government in Taipei might accordingly
terminate the Republic’s official commitment to one-China. Is there a question of
Taiwan in international law? Does Taiwan have a right of independence? Does the PRC
government on the contrary have a right to maintain the unity of China? Can Beijing adopt
any policy, including the use of force, to assert such a right (assuming it has it)? May
Taipei and Beijing have other stronger international obligations than those related to
their respective interests in the dispute? Is there an obligation to self-government, or
to democracy, under international law, which may bind both parties to the conflict in
order to achieve a just and peaceful settlement of the conflict? What are the interests
and the obligations of the international community in this conflict?
THE ROC RETURNS TAIWAN
In the presidential elections of
March 18, 2000, with a turnover of near 83 percent, a plural majority of the people of
Taiwan decided to elect the candidates of the Democratic Progressive Party, Chen Shui-bian
and Annette Lu, over their rivals of the Independent and Kuomintang parties [1]. In his
victory speech that same day, Chen proclaimed that “Taiwan provided a model for the
third wave of the global democratic process”, that his government “will use
Taiwan’s experience to promote democracy and safeguard human rights in the
international community”, and that for the sake of peace and stability in the Taiwan
Strait, “the common expectation of the people of both sides”, he was willing to
enter immediate negotiations with Beijing, to reach a “peace agreement [and] a
military mutual-confidence-building mechanism” [2]. Later on, Chen reiterated he
favored a constructive dialogue with the People’s Republic, but he also rejected the
“one country, two systems” as unacceptable, and the Hong Kong and Macau
processes as inapplicable to Taiwan, which was to “insist on its independent
sovereignty”. And he proclaimed: “this is our mission, we are determined to
safeguard this land” [3]. Though an integral component of the party’s program,
independent sovereignty, as a goal, was now heading for further adjustments to the
imperatives of actual governance under specific material constraints. This is hardly
surprising. However, any changes proposed in the party’s stance on independence have
to be approved by a qualified majority of the party members, largely committed to a
sovereign Taiwan, at the forthcoming party congress. It is unlikely the changes be
different than simply reflecting the need for a more complex approach to the ultimate goal
of independence. There might be a stronger emphasis on the requirement of democracy in
Mainland. Overall, the mood among the independentists ranks is dominated by the perception
that the break down of the KMT hegemony is also the beginning of the end of the historical
Chinese links, and of the near-absolute dependence on the American connection. There is a
widespread feeling that the time has come for furthering the Taiwanization of the
political system of the island, and for taking more distance with respect to Chinese
identity issues. The precise policy stance of the plural pro-independence forces which are
going to dominate Taiwan’s politics remains to be determined, but an air of
realignments and constitutional reforms aimed at the establishment of sovereign statehood
is pervasive. Perhaps only a convincing move toward democratic changes in the
People’s Republic could imprint a different direction in the historical trend of
Taiwan [4].
BEIJING, THE OLD ONE-CHINA
In its first reaction to the
elections outcome, Beijing restated it was never going to allow Taiwan’s independence
and that there was only one China of which Taiwan was an inseparable part, though it
declared to be open to dialogue with the new leadership [5]. In the months before
Taiwan’s elections, perhaps as far back as the Kosovo crisis [6], which had
compounded with the Falun Gong’s peaceful, yet system-shocking, Taoist insurgency
[7], Beijing had pursued a four-fold approach to the overall situation: a nationalist,
pro-state sovereignty shift in its international security policy stance; a sustained
military buildup at all levels of its defense posture and systems, with an ongoing
concentration of personnel and firepower across the Taiwan Strait [8]; an incremental,
gradually accelerated strengthening of the political and legal state control mechanisms,
including a reinforcement of the communist party’s role along ideological and
organizational lines [9]; and a coherent, widespread, persistent public diplomacy effort
related to those three aspects of its approach, though specifically aimed in the Winter
2000, at exercising as much leverage as possible on the outcome of Taiwan’s
elections, the key message being that a vote on March 18 for Chen Shui-bian could mean war
[10].
Less than a month before the
elections, on February 21, Beijing had issued a restatement of its position on the
one-China principle and the Taiwan issue [11]. The document, consistent with the style of
Beijing’s official political literature, is repeating and doctrinaire, but it is an
authoritative statement of the People’s Republic policy stance on this crucial
matter. A careful understanding of its main contents and propositions is necessary in
order to identify and organize the core issues on a subject where there is no substantial
body of accumulated research. In the introduction on the “origin of the Taiwan
issue”, the new White Paper specifies that “the struggle between the Chinese
government and the separatist forces headed by Lee Teng-hui finds its concentrated
expression in the question of whether to persevere in the One-China Principle or to create
‘two Chinas’ or ‘One-China, one Taiwan’” [12]. It goes on next on
the de facto and de jure basis for one China. The argument here is that, upon the
surrender of Japan, which had occupied Taiwan since 1895, “the Chinese government
recovered Taiwan, resuming the exercise of sovereignty” over it; and that, when four
years later, on October 1949, the government of the People’s Republic was proclaimed
in Beijing, it replaced that of the Republic of China “to become the only legal
government of the whole of China and its sole legal representative in the international
arena”. The successful establishment of the revolutionary government would thus have
brought “the historical status of the Republic of China to an end”. The
“replacement of the old regime by a new one” entailed a transfer in China’s
sovereignty, “including its sovereignty over Taiwan” [13] The new Central
People’s Government had then “telegraphed the United Nations announcing that the
KMT authorities had no right to represent China at all” any longer, and that the
government of the PRC had to be recognized “as the sole legitimate government
representing the whole of China”, which also required to “sever or refrain from
establishing diplomatic relations with the Taiwan authorities” [14]. But that
recognition did not come until twenty-two years later, when, on October 1971, the U. N.
General Assembly adopted Resolution 2758 (XXVI), “which expelled the representatives
of the Taiwan authorities and restored the seat and all the lawful rights of the
government of the PRC in the United Nations” [15].
Turning then to the basis for
achieving peaceful reunification under the “one-China principle”, the document
focuses on the ‘one country, two systems’ concept, a follow-up of Deng Xiaoping
1979’s initiative, with three main propositions: mainland China and Taiwan would keep
their different political and economic systems after reunification; Taiwan would
“enjoy a high degree of autonomy”, without mainland’s military or
administrative personnel stationed in it; and the settlement of the Taiwan issue would
remain an “internal affair of China, which should be achieved by the Chinese
themselves” [16]. However, to “safeguard China’s sovereignty and
territorial integrity and realize the reunification of the two sides of the Straits, the
Chinese government has the right to resort to any necessary means” [17].
The government of the People’s
Republic has championed the one-China principle, waging a “resolute struggle”
against the “separatist activities” of the
Taiwan authorities under Lee Teng-hui. Nevertheless, the “situation in the Taiwan
Strait” remains so critical that the Chinese government may be compelled “to
adopt all drastic measures possible, including the use of force” [18]. Three core
aspects must be taken into account to transform cross-Strait relations in light of the
one-China principle, according to the Paper: the status of Taiwan, the compatibility of
the “one-China principle” with any of Taiwan’s concerns (other than
independence), and the question of democracy. On the status of Taiwan, the departing
premise is that the persistence of non-reunification “has not imbued Taiwan with a
status and rights” of its own under international law, for three reasons: first,
“under both domestic and international laws Taiwan’s legal status as a part of
Chinese territory is unequivocal”; second, people’s “sovereignty over
Taiwan belongs to all the Chinese people, and not to some of the people in Taiwan”;
and third, since “at no time in history has Taiwan been a state in its own right, the
issue of national self-determination, therefore, does not exist” [19]. On the
compatibility of one-China with Taiwan’s concerns, the document declares without much
elaboration that “any question can be discussed, including the various issues which
are of concern to the Taiwan side”, for as long as it is within the one-China
framework [20]. Finally, on the question of democracy, the document contends it has become
“an excuse for postponing and resisting reunification, as well as a scheme to deceive
compatriots in Taiwan and world opinion”. Whereas the Chinese government “is
prepared to apply a looser form of the ‘one country, two systems policy’ in
Taiwan than in Hong Kong and Macao”, it would be “unreasonable and undemocratic
for the Taiwan authorities to force the more than 1.2 billion people living in on the
Chinese mainland to practise the political and economic systems in Taiwan” [21].
There are also basic implications of
the one-China principle in the international community, a restatement as well of
Beijing’s already established positions in this respect: Taiwan is not eligible for
membership into public international, or governmental, organizations; United Nations
members must abide by their obligations under the Charter, “including mutual respect
for sovereignty and territorial integrity and non-interference in each other’s
internal affairs, and never, in any form, support Taiwan’s joining the U. N.”,
nor “provide arms to or enter into military alliance with Taiwan; United States must
remain committed to a one-China policy, end “its sale of advanced arms and military
equipment to Taiwan”, and drop legislative and defense initiatives which are
“obstructing the peaceful reunification of China and jeopardizing the peace and
stability of the Asia-Pacific region and the world at large”. The government of
China, however, “has no objection to Taiwan’s non-governmental economic and
cultural contacts with foreign countries”, and it “safeguards all the justified
and lawful rights and interests of Taiwan compatriots abroad” [22].
WHAT A NEW ONE CHINA WOULD BE LIKE
Responses
to Beijing’s Paper by both the Mainland Affairs Council, and the Ministry of Foreign
Affairs, of the Republic of China, did not take long to follow. In its statement of
response to Beijing, of February 22, the Ministry sticks to a well-established line:
“that the two sides of the Taiwan Strait have been ruled by separate governments
since 1949”, and that “Taiwan is therefore entirely justified in promoting its
own diplomacy as this is nothing but the fulfillment of its duty towards the development
of the 22 million people of Taiwan and the safeguarding of its existence” [23]. A
line of thinking on the subject, perhaps with a stronger tone, also emphasized by the
ROC’s Mainland Affairs Council that same day: “Since 1949, Taiwan and the
Chinese mainland have been governed separately, with neither side subordinate to the
other. The Chinese mainland authorities have never ruled Taiwan," how could they
possibly be sovereign over Taiwan? China is now divided, like in the last half-century,
and both sides have “different definitions of one China”. That is why, the
Council goes on, Taipei and Beijing agreed in 1992 on that “each side is entitled to
its respective interpretation of one China” [24].
Yet Taiwan’s approach and policy
stance on both its own status concept and its relations with Mainland China, do not make
easier either the task of defining the fundamental questions of international law at stake
in the conflict. Part of the problem stems from the fact that throughout its history after
1949, as Republic of China under the rule of the Kuomintang, the conflict was caused not
by a question of identity but by one of legitimacy in the representation of China as a
whole. Democratic opposition during the 38 years of martial law under the KMT rule was
conducted, mainly but not only, by native Taiwanese nationalists, who tend to construe the
establishment of democracy in the island from 1988 on as a devolution of the sovereign
prerogative, usurped by the leftover of the Chinese nationalist army after its defeat by
the PLA in mainland China [25]. But the hypothetical right of self-determination of native
Taiwan is only one aspect, and probably not quite the most decisive, of the international
legal complexion of the conflict. A decisive aspect in terms of positive international law
remains the title to China, as demonstrated by the defining role of the Guidelines for
National Unification in Taiwan’s metaconstitutional architecture and international
design. President-elect Chen Shui-bian has won the elections of March 2000, rallying
almost 40 percent of the vote around a pro-independence platform, which the DPP has
championed since 1986: but so far he has disregarded the logical move to modify or simply
abolish the Guidelines [26]. National unification is “the common responsibility of
all Chinese people”, and it is a direct corollary of the Guidelines’ first
principle, that “both the mainland and Taiwan are parts of Chinese territory”.
Yes, but unification, in the design
of the Guidelines, is not an end by itself. Unification is an instrument, not of an
abstract concept of Chinese sovereignty, but for the establishment of “a democratic,
free and equitably prosperous China”, and for “safeguarding human dignity,
guaranteeing fundamental human rights, and practising the rule of law”. Indeed, the
fundamental idea, explicited in the Guidelines’ Foreword, is to “build a new
China” over the basis of democracy and freedom. The Guidelines in this light open a
different perspective of the conflict and its settlement with two relevant propositions
for purposes of international legal analysis: that unification is not a merger nor an
annexation, but the result of a process of simultaneous dissolution of the existing
entities and an act of political constitution, and that the bases of both the process and
the outcome is the democratic consent of the peoples of the larger China. An aspect, this
latter, which contrasts with the conventional notion, somewhat espoused by Beijing and the
most nationalist Taiwanese segment, that the sovereign prerogative can be exercised
separately by each of the respective peoples, if with consequences for both of them. The
idea of one China, which seemed instrumental for Beijing’s framework of annexation,
or even incorporation, acquires a different dimension in this perspective, a dimension
which conveys three normative, but common sense, propositions: first, one-China can be
construed not as a function of power relations but of principle prevalence, and that
principle is two-fold: self-government via democracy and equal justice under the rule of
law; second, one-China is based not on territorial control but upon the wide, historical
and cultural elements of community and the bonds of common heritage and purpose [obviously
this touches a sensitive fiber in Beijing’s overall texture, and at the same time
compels to reconsider the problem of the historical Chinese heritage in terms of the
rather extraneous communist culture]; and third, it returns the center of gravity of the
conflict where it historically and politically belongs, which is not the question of
Taiwan but the question of China [27]: the fact that the end of the hostilities of the
civil war, in 1949, left in place two sovereign governments in China, one in the
continental China (mainland), and the other in the island of Taiwan; that these two
governments rule on two different and separate political systems, the system of the
People’s Republic in mainland China, and the system of the Republic of China in
Taiwan; and that during the fifty years to the present both governments have claimed, and
do still officially claim to be the legitimate government of the whole of China [28].
The controversy between the
authorities of Taipei and Beijing, apparently bound to enter into a new phase after the
elections in Taiwan, is couched in a terminology fraught with ellipses, indirects, and
hidden meanings. Perhaps this may be due to the fact that, in the last resort, both
governments are trying to find somewhat, through words and agreements, a way out of the
historical impasse of a civil war, which could not be ended by the force of arms, and that remains unconcluded. Viewed in this narrow
perspective, it might be of relevance and utility today to reexamine the mediation efforts
of the United States, through the mission of General Marshall in the period 1945-1947 [29
] I will be back on some of these questions later in this note, but want to recapitulate
first on some difficulties in the setout of the controversy, before identifying the three
types of international law issues which are at stake in this conflict.
The first technical, or conceptual,
difficulty concerns the relationship between succession to legal rights and revolutionary
change of government, particularly when: a)[international acts of the ] the nationalist
government [such as the 1941 Declaration of War against Japan, the 1943 Cairo Declaration
[30], and the 1945 Potsdam Proclamation [31], are treated as sources of the titles claimed
by the communist government, yet b) the nationalist government, not only does not cease to
exist as an operating reality –which would be the case had its persistence be one as
a government in exile–, but remains a territorial, and thus a population, reality.
Consider in this light a situation in which the 1911 Republic would have prevailed in the
whole of Mainland China but the Imperial government had remained effective in Taiwan. The
question here is whether, under the conditions of territorial persistence by both
governments, the control of the larger portion of the territory by one of them amounts to
a transfer of sovereignty on all of the territory: though the discussion on that question
is bound to have a dominant interpretive element if, as a matter of fact, the sovereign
prerogative remains in effect and separate for both governments.
A second
conceptual difficulty lies in the binding force, or force of material evidence, which the
government of the People's Republic confers on its own declarations of policy, intent, or
principle. Beijing construes its own insistence over time on that there is only one China
and Taiwan is part of it as a normative act which generates two types of obligations, one
of contents and the other of forms, and opposable both to Taiwan and the international
community, namely: that the one China is the PRC, and that it so has to be recognized by
every other state. We are here thus confronted with two serious problems out of this
second difficulty. One is the misunderstanding of the relationships between unilateral
acts and the sources of international obligations [32], an issue which takes the
controversy into the larger and deeper context of Beijing’s approach to and practice
of international law [33], and its effects upon this conflict. The other is the chilling
effect that such an interpretation of the sources of international obligations has on the
prospects of a peaceful settlement of the conflict: in projecting the normativity of its
own acts upon the others, instead of simply on itself, Beijing generates a dynamics of
coercion which is contrary to common principles and general assumptions on the conditions
of peaceful settlement. The idea that “the Chinese government has the right to resort
to any necessary means”, including the use of force, is a corollary of its
unilateralist interpretation of international law. Yet at the same time it is a position
very difficult to reconcile with the PRC’s contention that the conflict is
exclusively an internal matter, since the military confrontation caused by the exercise of
such a “right” would surely drag the international community into the conflict.
THREE CLAIMS, ONE OVERRIDING INTEREST
The PRC’s interpretation of its
conflict with Taiwan, as it is restated in the White Paper of February 21, 2000, shows
also that there are at stake substantial differences on the interpretation of its dispute
in international law, and on the concept of international law generally, certainly between
China and Taiwan now, and probably between China and a majority of all the other member
states of the United Nations. However, whereas the differences on the concept of
international law between China and the majority of the international community may have a
fairly demonstrable historical pedigree [34], those between Beijing and Taipei,
specifically on the applicable international law which may substantiate their claims,
appear to be at least of two types, which I identify for the time being as historical and
new world order types of differences, depending on the nature of the issues underlying
their claims. The former concern rights and obligations of states, such as those affecting
the conditions of statehood, the practice and the effects of recognition, succession, and
acquisition and lost of territorial sovereignty [35].
The latter focus instead primarily on rights of peoples, such as
self-determination, the protection of fundamental freedoms and civil liberties, equality
under the law, and self-government or democracy [36]. Both types of differences and issues
have respectively marked also the trajectory of the conflict: state status and rights
issues, during the Chinese phase, dominated by the questions of entitlement to represent
the legitimate China and its international recognition; and people’s rights issues,
in the Taiwanese phase, centered on the question of independence.
There is a significant amount of
overlap between these two types of differences and issues, particularly during the latter,
rather ambiguous and imprecisely defined Taiwanese phase of the dispute, which is somewhat
the dominant now. The main reason for this overlap is the existence of a third type of
issues, which do not arise as such from the claims and the underlying interests of the
parties to the conflict, the People’s Republic and the Republic of China, but from
interests of direct relevance for the international community. The third type of issues,
which may be identified for now as international community-based, is fundamentally and
simply concerned with the problem of peace and security in the Taiwan Strait, in the
region and worldwide, to the extent it may be affected. And there are a number of
convincing estimates as to that an armed conflict in the Taiwan Strait would have
devastating consequences for the world economy and for the peace of the region, and create
also an extremely dangerous situation for world peace at large: even in the doubtful
scenario it were to remain limited to China and Taiwan, and to last only like, say,
NATO’s intervention in Yugoslavia over Kosovo in the Spring of 1999, or Russia’s
campaign in Chechnya in the Winter of 2000. International community-based interests in
relation to this dispute are therefore overriding. And so are its responsibilities too,
which affect all and every one of the U. N. members, and especially the major powers,
within and outside the Security Council, the normative bases for which seem unequivocal in
the Charter and general international law [37].
A second reason for the overlap
between the historical and the new world order international law issues at stake in the
conflict lies in its juridical and legal indeterminacy Obviously, neither Taipei nor
Beijing have ever made any move indicating they were interested in a juridical settlement
of their differences, that is, through some form of international judicial or arbitration
procedure. Moreover, their approach to the international legal basis of their claims has
been vague and contradictory. Beijing for instance has repeatedly contended its axiomatic
postulates were backed by principles of international law: that there is only one China,
that China is the People’s Republic, and Taiwan is an absolutely inseparable part of
it. Taipei was forced to change course, wisely, due to the new international conditions,
and above all because of its own peaceful democratic revolution. Thus, from being the
legitimate China it moved to acknowledge there were two concepts of China. But it has
formally remained China, even amidst a growing but unofficial demand for Taiwan, which has
now reached the government. Whereas it would appear to meet the conditions for statehood,
it is not a separate state because it formally claims to be part of China [38] This
observation appears to concern an exclusively formal aspect of the situation: whether the
issues and the claims are well defined in terms of international law. Yet the absence of
legal determinacy induces uncertainty about the nature of the stakes, as it prevents a
precise answer to whether there is a Taiwan question in international law, and what is it
exactly, which does not allow for the establishment of an optimal policy framework.
International law is the system of
rules governing the relations among states and providing the common principles for
humankind. The extent to which the common principles of humankind can be construed in
autonomy with respect to, or even with supremacy over, the interests and conditions of
interstate relations, is a subject which requires ascertainment on case-by-case basis
[39]. A growing consensus is taking place, however, as to that there are internationally
protected interests which affect interstate relations and limit the scope of sovereign
rights. The international community has made determinations of this kind for its
interventions in a number of cases these years, in Kosovo, Bosnia, Haiti, though it is
true that not without strong controversy in relation to some of them. In all those and
comparable cases, the questions of international law which were at stake blended interests
concerning peoples rights, such as the prohibition of genocide and the right to democracy,
with interests concerning states rights and rights of the interstate system at large, such
as international peace and security.
Against such a background, here are
the preliminary conclusions concerning the status of the three types of issues at stake,
which I address with greater detail in the follow-up parts of this article.
First, the historical international
law issues between China and Taiwan, related to state rights, present generally political
questions, which are determined by international practice. There is no established right
or obligation to recognize. Recognition may have constitutive and declaratory functions,
but none has absolute control over international practice or its effects. There is no
specific international law question in this respect. Nor for that matter the present
configuration of international recognition will be determinant of the long-range standing
of the PRC or the Republic of China in the interstate system.
Second, the new world international
law issues, such as the rights of self-determination and independence, are also political
questions, for as long as they are not explicitly construed as contradictions of positive
international legal interests. To get there, there must be both declarations of principle
and assertions of right. Generally, however, there is no compelling principle which could
prevent such an assertion of independent sovereignty, if all other material conditions of
statehood are demonstrably satisfied.
Third, international law issues based
on international community interests are established unequivocally in the legal and
juridical texture of the law. That shapes the nature of the question of Taiwan as a
question which concerns primarily at this time the law of peace and security
–especially in the context of the indeterminacy of the second type of issues and
given the political nature of the rights inter partes at stake in relation to the first
type of issues. Moreover, for as long as it remains a situation likely to endanger
international peace and security, the rights related to the first and second type of
issues must be construed in light of the universal obligation to preserve peace. As things
stand now, this obligation is in the first place demandable from the party which is
threatening to use force. But it is also
opposable to the international community, and the Security Council, in order to exercise
the necessary preventive measures. Such an obligation however is no static and it also
demands from the parties and the international community the adequate action to achieve a
just and final settlement of the dispute, which requires to take into account the
interests, fairly and freely manifested, of the peoples of Mainland China and of the
island of Taiwan. This appears to be also the most adequate framework for an effective
foreign policy on the conflict.
NOTES
1. Government Information Office,
Presidential Election Updates. The final count of the vote gave the DPP (Chen Shui-bian)
39%, the independents (James Soong) 37%, and the KMT (Lien Chan) 23%.
2. Taiwan victory speech, BBC News, March 18, 2000
18:20.
3. Taiwan voters defy China, BBC News, March 19, 2000.
4. See New Taiwan, Ilha Formosa, at
<http://www.taiwandc.org/>, on the post electoral climate in Taiwan; also Taipei
Times, at <http://www.taipeitimes.com/>; and BBC News/Asia-Pacific.
5. Taiwan voters defy China, BBC News, March 19, 2000
18:20; Jiang Zemin: ‘One China’ is basis
of negotiations, China Daily, March 21, 2000; China
Issues Statement on Taiwan Election, March 19, 2000, Ministry of Foreign Affairs, PRC.
6. NATO Action Against Serbian Military Targets Prompts
Divergent Views as Security Council Holds Urgent Meeting on Situation in Kosovo. U. N.
Press Release SC/6657 (March 24, 1999); Security
Council Rejects Demand for Cessation of Use of Force Against Federal Republic of
Yugoslavia. U. N. Press Release, SC/6659 (March 26, 1999).
7. On April 26, 1999, some 10,000
people staged a surprise demonstration across the State Council (China’s government
cabinet) headquarters, near the Forbidden City in Beijing, which was followed by a
massive, systematic crackdown by the government. See Chinese fight for right to meditate, BBC News,
April 26, 1999; Hewitt, China’s perplexing
crackdown, BBC News, November 21, 1999; General
jailed for Falun Gong links, BBC News, January 14, 2000; Security clamp on Falun Gong, BBC News, April 24,
2000.
8. The new fiscal year came with a
record increase of over 12% (more than $14 bn) in the defense budget for 2000-2001, as
announced early in March 2000 by Xiang Huaicheng, the Finance Minister; see, China ups military spending, BBC News, March 6,
2000; Marcus, Analysis: China’s military thinks
long-term, BBC News, March 6, 2000. China’s official data on defense expenditure
shows an 80% increase in the period 1989-1998; see The SIPRI Military Expenditure
Database, Military Expenditure in China 1989-98 [at
<http://first.sipri.org:7020/milex_retrieve>].
9. Hewitt, Beijing stresses party role, BBC News, April 16,
2000.
10. Hutchings, Beijing’s threats overshadow Taiwan poll, BBC
News, March 6, 2000.
11. See Special Section on the PRC “White Paper on the
One-China Principle and the Taiwan Issue”, Taiwan Documents Project (TDP) [at
<http://taiwandocuments.org/whitepaper.htm> ].
12. The One-China Principle and the Taiwan Issue, p. 2.
References to the document here are made to the printed version of the New York
Time’s edition, February 21, 2000 [at
<http://www.nytimes.com/library/world/asia/022200china-taiwan-text.htm> ]. See also
TDP, supra n.28, for the responses of Taiwan’s authorities, the Mainland Affairs
Council, Comments on Beijing’s White Paper,
February 22, 2000, and Statement on Mainland
China’s ‘White Paper’, February 25, 2000; and Ministry of Foreign
Affairs, Statement responding to the PRC,
February 25, 2000.
13. Id., at 3. The White Paper turns
somewhat cryptic here, in stating that “this is a replacement of the old regime by a
new one in a situation where the main bodies of the same international laws have not
changed and China'’ sovereignty and inherent territory have not changed
therefrom”.
14. Id., at 3.
15. Id., at 4. UNGAR 2758 (XXVI) was
adopted by 76 votes in favor, 35 against, and 17 abstentions, on a draft introduced by
Albania and 20 other states, over the opposition of the United States, and without a
formal recommendation of the Security Council, as required by Article 4(2) of the U. N.
Charter. See Tanner, U. N. seats Peking and expels
Taipei, The New York Times, October 26, 1971. The resolution decided “to restore
all its rights to the People’s Republic of China and to recognize the representatives
of its government as the only legitimate representatives of China to the United Nations,
and to expel forthwith the representatives of Chiang Kai-shek from the place which they
unlawfully occupy at the U. N. and in all the organizations related to it”. Id.,
para. 3. The resolution declared nothing, however, concerning the status of Taiwan in
relation to the PRC’s sovereignty claims. See U. N. Report, Representation of the People’s Republic of China
within the Organizations of the United Nations System, XI International Legal
Materials 3, 561 (May 1972).
16. The One-China Principle, at 5.
17. Id., at 6.
18. Id., at 8-11.
19. Id., at 12. The document rejects
also in this part any comparison with the ‘two German states formula’, on the
grounds this was the result of a partition imposed by the conditions of foreign
occupation, in the context of the “confrontation between the United States and the
Soviet Union”. Id., at 12-13.
20. Id., at 13.
21. Id., at 14.
22. Id., at 15-16.
23. Statement of the Ministry of Foreign Affairs of the
Republic of China responding to the PRC white paper of February 21, TDP, supra n. 28
[at <http://newtaiwan.virtualave.net/mofa01.htm>]. A problem for establishing the
true nature of the claims in this case is that the pressure exercised upon the Taiwanese
authorities, and generally the Taiwanese people, both by Beijing and its various partners,
especially trade partners, in the Asia-Pacific region, and by Taiwan’s official main
ally, the U. S., have a negative effect upon Taipei’s capacity for expressing
truthfully its perceptions and claims.
24. Comments on Beijing’s White Paper by the Mainland
Affairs Council of the Republic of China, February 22, 2000; TDP [at
<http://newtaiwan.virtualave.net/mac01.htm>].
25. See White Paper regarding Taiwan and its Future, at
<http://www.taiwandc.org/white-p1.htm>; Yang, Taiwan’s legal status: going beyond the
unification-independence dichotomy, CSIS Seminar on Cross-Strait Relations at the Turn
of the Century, Washington, D. C. (Sept. 21-22, 1999), at
<http://taiwansecurity.org/TS/Yang-9910-Taiwan’s-Legal-Status.htm>; generally,
Chiu, The international legal status of the Republic
of China, University of Maryland School of Law, Occasional Papers Series in
Contemporary Asian Studies, No. 5 (1992); and Chen, Taiwan’s
Current International Legal Status, 32 New England Law Review 3 (Spring 1998).
26. The Guidelines for National
Unification were adopted first by the ROC’s National Unification Council in February
1991, and by the Executive Yuan Council in March. See
<http://www.gio.gov.tw/info/mainland/index1.html>.
27. For an early statement of the question of China, see the confidential Memorandum
of the U. N. Secretary-General, “concerning the problem of recognition raised by the
claim of the Communist government to represent China in the organs of the United
Nations”, transmitted to the President of the Security Council in a letter of March
8, 1950, partially reprinted in Quincy Wright, Some
Thoughts About Recognition, 44 AJIL 3 at 548-549 (1950).
28. In order to clarify the 1991
Guidelines, the ROC’s National Unification Council issued on August 1, 1992, the
document The Meaning of “One-China”,
stating Taipei’s recognition of two concepts of China,
PRC’s and ROC’s. and its position that, nevertheless, China is as a matter of
fact divided, and neither of those two entities has any jurisdiction over the other.
Therefore, the ROC government encourages “the mainland authorities [to] adopt a
pragmatic attitude, set aside prejudices, and cooperate [ ] toward the building of a free,
democratic and prosperous China”. The document also includes the rather cryptic
statement, in this context, that “Taiwan is part of China, and the Chinese mainland
is part of China as well”, which may be construed by some at least as that, given
that there are two practical concepts of china, and two sovereign entities claiming to be
China, neither is actually China, and if any one-China is ever going to emerge out of this
situation, it will be trough the joint dissolution of the two entities. See
<http://www.gio.gov.tw/info/mainland/index1.html>.
29. See U. S. Department of State,
THE CHINA WHITE PAPER, AUGUST 1949, 127-220 (Van Slyke edition, 1967).
30. Statement by President Roosevelt, Generalissimo Chiang
Kai-shek, and Primer Minister Churchill, December 1, 1943; Department of State
Bulletin, Dec. 4, 1943, 393; A DECADE OF AMERICAN FOREIGN POLICY: BASIC DOCUMENTS,
1941-1949, 20 (U. S. Department of State, 1986).
31. Proclamation Defining Terms for the Japanese Surrender,
July 26, 1945; Department of State Bulletin, July 29, 1945, 137-138; A DECADE OF AMERICAN FOREIGN POLICY, 39-40.
32. [the doctrine of estoppel in its application to divided states
with separate, effective governments ]
33. See Chiu, Communist China’s Attitude Toward International
Law, 60 AJIL 2, 245 (April 1966); Id., Chinese
Views of the Sources of International Law, Occasional Papers / Reprints Series in
Contemporary Asian Studies, No. 2 (University of Maryland School of Law, 1988).
34. See Chiu, Communist China’s Attitude, and Chinese Views, supra n.311. In this latter
material, however, the author documents the significant evolution experienced in
China’s concepts of international law, generally from the Maoist period, 1949-1976,
to the post-Maoist, Deng period, after 1978. For
the official approach to international law, see China’s Work on Treaty Law, Ministry of
Foreign Affairs, Policy, PRC; at <http://www.fmprc.gov.cn/english/dhtml>.
35. There is no integrated body of
rules on the conditions of statehood. But see the 1949 Draft Declaration on Rights and
Duties of States, 1961 Convention on Diplomatic Relations, 1969 Convention on the Law of
Treaties, and 1978 Convention on Succession of States in respect of Treaties,
International Law Commission, at <http://www.un.org/law/ilc/convents.htm>. The U. N.
Charter constitutes the most general code on the rights and obligations of states. Article
2(1), which provides for the right of sovereign
equality, must be construed in light of the obligations in Article 2(3), requiring that members shall settle their international disputes by
peaceful means in such a manner that international peace and security, and justice, are
not endangered, and Article 2(4), prohibiting
the threat or use of force against the purposes of the United Nations.
36. See 1966 International Covenant
on Civil and Political Rights, A/RES/2200A (XXI), December 16 1966, in force since March
23 1976; UNHCHR, The right of self-determination of
peoples (Art.1): .13/04/84. CCPR General Comment 12, at
<http://www.unhchr.ch/tbs/doc.nsf/[symbol]/CCPR+General+comment+12.En?OpenDocument>;
Rosas, Internal Self-Determination, MODERN LAW
OF SELF-DETERMINATION (Tomuschat, ed., 1993), as to that “the internal aspect of self-determination (democracy)
cannot be excluded from self-determination as a legal right”, at 232-240, 239, and
that it is a right of all peoples and not only of peoples under colonial rule, at 241-252.
UNGA Declaration on Principles of International Law
concerning Friendly Relations among States in Accordance with the Charter of the United
Nations, A/RES/2625 (XXV) (1970), I, The Principle of Equal Rights and
Self-Determination of Peoples. Franck, The Emerging
to Democratic Governance, 86 AJIL 1, 46 (1991).
37. U. N. Charter, Articles 1(1),
103.
38. See Henkin, Pugh, Schachter,
Smit, INTERNATIONAL LAW, 286 (1993).
39. v. 1969 Convention on the Law of
Treaties, Art. 53. At <http://www.un.org/ilc/convents.htm>. Barcelona Traction (Belgium v. Spain), 1970
International Court of Justice, 2nd Phase – Judgment of Feb. 5 1970.
* Research scholar at the Mershon
Center for Education in International Security and Public Policy, and Lecturing Professor
of International Studies, The Ohio State University in Columbus, Ohio, USA. Contact him also at:
<lovelace.12@osu.edu>.
Forthcoming:
PART II, Historical International Issues: The
Formation of the State in China,
and
PART III, New World Order Issues:
Self-determination and Democracy in China and the Real Question of Taiwan.
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