Wednesday, March 1, 2000
'One-China' and international law
Published: March 1, 2000
Source: United Daily News
The Taiwan Affairs Office and the Information Office of the State Council of the People's Republic of China jointly published the White Paper "The One-China Principle and the Taiwan Issue." The following are my comments, in paragraph order, on certain points in the White Paper:
The White Paper's statement that the Chinese Communists founded the People's Republic of China in 1949 is true. However, it is noteworthy that Beijing used the word "founded" here. It is, therefore, quite obvious that the succession relationship between the Republic of China and the People's Republic of China is not government-to-government, but state-to-state. In fact, the government of the Republic of China was still in Guangzhou, and the issue of "two Chinas" began to emerge in the international community at that time.
The central government of the Republic of China relocated to Taipei on December 8, 1949, and was supported by the majority of foreign countries, including the US and France. After relocation, the ROC continued to represent the whole China (in the United Nations), until October 26, 1971. Beijing also admitted this fact in the White Paper.
Therefore, the issue of "two China's" was actually created by the Chinese mainland. It is Beijing that initially violated the one-China principle; otherwise, there would, at most, be an issue of "two governments" on the two sides of the Taiwan Strait, and there would be no issue of "two China's." Consequently, there is no excuse whatsoever for Beijing to accuse Taipei of generating the issue of "two China's."
According to the White Paper, "Taiwan is an inalienable part of the territory of China." If the "China" here means the ROC, then this statement is completely valid. However, under no circumstances can this "China" be equated with the PRC.
According to the White Paper, the China mentioned in such documents as the "Declaration of War with Japan by China" in December, 1941; the "Cairo Declaration;" and the "Potsdam Declaration," refers to the Republic of China, because at that time the People's Republic of China had not yet come into existence.
Moreover, the White Paper states, in 1949, the Chinese government reclaimed Taiwan and Penghu, regaining its sovereignty over Taiwan. Here again, the Chinese government can only refer to the ROC government.
Through these ambiguous statements, the White Paper attempts to use the "national succession principle" of international law to expropriate a legitimate status for the PRC in the international community. The White Paper maintains: "On October 1, 1949, the central people's government of the People's Republic of China was established, replacing the government of the Republic of China as the sole legitimate government of all of China and the sole legitimate representative of China in the international community. Thereafter, the ROC ended its historical status under the situation when a new regime replaces an old one and the same sovereign state, regulated by international law, does not undergo any other changes. Thus, the sovereignty, original territory, and boundaries of China were not altered. And the government of the People's Republic of China by all rights enjoys and exercises complete sovereignty over China, including sovereignty over Taiwan."
The statement contains serious flaws. First of all, according to Article II of the Peace Treaty signed by Japan and the ROC on April 28, 1952, Japan abandoned all the rights, nominal rights, and claims concerning Taiwan and Penghu. Most important, the first article of the exchange of notes between the two sides explicitly states that Japan relinquishes these rights and claims to the Republic of China.
Secondly, in December 1959, the Tokyo High Court noted in its verdict in the Lai Jung-chin case: "It can at least be certain that, after the treaty became effective on August 5, in the 27th year of the Showa (Emperor Hirohito) period (1952), Taiwan and Penghu belonged to China, according to the stipulations of the treaty, and the people of Taiwan, who attained Chinese nationality in accordance with the ROC laws, certainly lost Japanese nationality and should be regarded as ROC citizens."
On June 7, 1960, the Osaka District Court stated in the case of Chang Fu Kue Hui vs. Chang Chin Min: "It must, at least, be recognized that when the sovereignty of the ROC on Taiwan was acknowledged, that is to say, when the peace treaty concerning territorial change was valid, the people of Taiwan lost Japanese nationality and acquired ROC nationality."
Those who wrote this White Paper in Beijing may not understand the course of development during this period of history. Nor do they clearly understand the relevant provisions of international law.
The Japanese government translated the two decisions into English and entered them into the Materials on Succession of State, published in 1967 by the UN Secretariat. However, in the joint communique on the establishment of diplomatic relations with the Chinese mainland on September 29, 1972, Japan only states that People's Republic of China reiterates that Taiwan is an inseparable part of the PRC's territory. It also says that the Japanese government fully understands and respects the position of the Chinese government and insists on adhering to the stipulation of Article VIII of the Potsdam Declaration. In the joint communique? Japan does not, in the least, recognize mainland China's sovereignty over Taiwan.
In fact, the succession of the ROC by the Chinese Communists has not been fully recognized to date. The Koka Ryo case, involving a residence for Chinese students studying in Japan, purchased by the Ching government, is an obvious example. The reason the case has not been finally decided is exactly because the Japanese courts, at most, are willing to adopt the position of "incomplete succession," regarding the PRC's succession of the ROC.
Only a handful of countries in the Third World have recognized PRC sovereignty over Taiwan. Of course, what matters most is the US position. In the PRC-USA Joint Communique on the establishment of diplomatic relations on January 1, 1979, it is clear that the US only "acknowledges," but does not "recognize," the PRC's position declaring its sovereignty over Taiwan. Moreover, during the US Congressional review of the Taiwan Relations Act, it was particularly emphasized that the US only acknowledges, but does not agree with, the PRC's position.
It is noteworthy that Section 4 of the Taiwan Relations Act (approved April 10, 1979) clearly states:
(a) The absence of diplomatic relations or recognition shall not affect the application of the laws of the United States with respect to Taiwan, and the laws of the United States shall apply with respect to Taiwan in the manner that the laws of the United States applied with respect to Taiwan prior to January 1, 1979.
(b)The application of subsection (a) of this section shall include, but not be limited to, the following:
(1) Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.
From the above, we can determine that the PRC's statement in the White Paper, not only diverges from the truth, but the major countries of the world will not agree with it.
The White Paper also says "¡Kachieve reunification through peaceful negotiations and, on the premise of the One-China Principle, any matter can be negotiated. After reunification, the policy of 'one country, two systems' will be practiced, with the main body of China (Chinese mainland) continuing with its socialist system and Taiwan maintaining its capitalist system for a long period of time. After reunification, Taiwan will enjoy a high degree of autonomy, and the Central Government will not station troops or administrative personnel in Taiwan. Resolution of the Taiwan issue is an internal affair of China, which should be achieved by the Chinese themselves, and there is no call for aid by foreign forces."
But this "one-China" principle clearly falls far short of "the Meaning of One China," a document passed by the ROC National Unification Council on August 1, 1991, which truly reflects the spirit of parity in cross-strait dialogue for unification. It states that "Both sides of the strait uphold the "one-China" principle, but they have different definitions of the principle."
The Beijing authorities define "one China" as the People's Republic of China, with Taiwan as a "special administrative region" under its jurisdiction after unification. The ROC believes "one China" refers to the Republic of China, founded in 1912, whose sovereignty covers all of China, but whose present jurisdiction only covers the territory of Taiwan, Penghu, Kinmen, and Matsu. Taiwan is a part of China; the Chinese mainland is also a part of China. By contrast, Taipei's definition of "one China" provides both sides of the strait a more creative future development.
US weapon sales to Taiwan have always been an area of contention between Washington and Beijing. On the day when the August 17 Communique was issued, Assistant Secretary of State for East Asian and Pacific Affairs John Holdridge declared in the US Senate Foreign Relations Committee hearing: "Any adjustment in weapon sales to Taiwan is premised on China's policy of peace toward Taiwan."
Since then, the US has adhered to such a policy. Since Beijing has frequently conducted military exercises targeted at Taiwan, the US has adjusted its policy and sold large quantities of weapons to Taiwan, and Taiwan can do nothing less than make massive weapons purchases for self-defense, thus heightening cross-strait tensions.
Perhaps, reflecting on this point may help foster a new outlook for cross-strait relations after Taiwan's March 18 presidential elections.
The writer, Hungdah Chiu, is a member of the ROC's National Unification Council and president of the International Law Association.
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