The Anti-Secession Law and the Use of Threat - Is China`s policy towards Taiwan a violation of Art 2 (4) UN Charter?
©2009
Diplomarbeit
79 Seiten
Zusammenfassung
Inhaltsangabe:Introduction:
An individual should not have too much freedom.
A nation should have absolute freedom.
Dr. Sun Yat-Sen.
The Cross-Strait Conflict concerning Mainland China and Taiwan continues to exist now for more than 50 years. The Civil War (1946-1949) divided the Chinese Nation into two parts: the Peoples Republic of China (PRC) on Mainland China and the Republic of China (R.O.C.) on Taiwan. Since 1949 conflicts between the two lead to several military confrontations. During the Cold War Era both sides claimed to be the formal representative of whole China.
Finally in 1991 Taiwan declared its effective control over the region of Taiwan and its recognition of the legal sovereignty of Beijing on the mainland. The question of Taiwans security and status keeps the struggle between the two alive. While China holds on to the one-China principle which defines Taiwan as an integral part of China, Taiwan sees itself as a sovereign entity. Even today Mainland China refuses to abandon the use of force and threat of force to attain its goal of reunification. Over the past decade Mainland China invested heavily in its military. Additionally in 2005 the Chinese National Peoples Congress passed the controversial Anti-Secession law (ASL), which authorizes the military to use force against Taiwan.
A recent Pentagon report states that there is much uncertainty surrounding Chinas future course, in particular with regard to its expanding and implementing military power. Further the report notes that Chinas near-term focus on preparing for contingencies in the Taiwan Strait, including the possibility of U.S. intervention, is an important driver of modernization.
The main objective of this thesis is to find out if the Anti-Secession law and the threat impose a breach of the non-violation principle of the UN-Charta. Some scholars have clearly stated that any threat or use of force would violate International Law. But the international law jurists and the UN itself have refrained from commenting on the issue. In fact when the PRC announced the passing of the concerned law in 2005 no one came out and voiced their opinion. The cross-strait relation and the ASL are well discussed in international policy. The EU for example had decided to revoke the arms embargo against China but failed to do so after the enactment. The ASL has caused more anxiety and uncertainty among the people of Taiwan and has created an even more unstable cross-strait […]
An individual should not have too much freedom.
A nation should have absolute freedom.
Dr. Sun Yat-Sen.
The Cross-Strait Conflict concerning Mainland China and Taiwan continues to exist now for more than 50 years. The Civil War (1946-1949) divided the Chinese Nation into two parts: the Peoples Republic of China (PRC) on Mainland China and the Republic of China (R.O.C.) on Taiwan. Since 1949 conflicts between the two lead to several military confrontations. During the Cold War Era both sides claimed to be the formal representative of whole China.
Finally in 1991 Taiwan declared its effective control over the region of Taiwan and its recognition of the legal sovereignty of Beijing on the mainland. The question of Taiwans security and status keeps the struggle between the two alive. While China holds on to the one-China principle which defines Taiwan as an integral part of China, Taiwan sees itself as a sovereign entity. Even today Mainland China refuses to abandon the use of force and threat of force to attain its goal of reunification. Over the past decade Mainland China invested heavily in its military. Additionally in 2005 the Chinese National Peoples Congress passed the controversial Anti-Secession law (ASL), which authorizes the military to use force against Taiwan.
A recent Pentagon report states that there is much uncertainty surrounding Chinas future course, in particular with regard to its expanding and implementing military power. Further the report notes that Chinas near-term focus on preparing for contingencies in the Taiwan Strait, including the possibility of U.S. intervention, is an important driver of modernization.
The main objective of this thesis is to find out if the Anti-Secession law and the threat impose a breach of the non-violation principle of the UN-Charta. Some scholars have clearly stated that any threat or use of force would violate International Law. But the international law jurists and the UN itself have refrained from commenting on the issue. In fact when the PRC announced the passing of the concerned law in 2005 no one came out and voiced their opinion. The cross-strait relation and the ASL are well discussed in international policy. The EU for example had decided to revoke the arms embargo against China but failed to do so after the enactment. The ASL has caused more anxiety and uncertainty among the people of Taiwan and has created an even more unstable cross-strait […]
Leseprobe
Inhaltsverzeichnis
Barbara Seelos
The Anti-Secession Law and the Use of Threat - Is China`s policy towards Taiwan a
violation of Art 2 (4) UN Charter?
ISBN: 978-3-8366-4374-0
Herstellung: Diplomica® Verlag GmbH, Hamburg, 2010
Zugl. Leopold-Franzens-Universität Innsbruck, Innsbruck, Österreich, Diplomarbeit, 2009
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© Diplomica Verlag GmbH
http://www.diplomica.de, Hamburg 2010
TABLE OF CONTENTS
ACKNOWLEDGEMENT
LIST OF ABBREVATIONS
1 INTRODUCTION
7
2 UNDERSTANDING THE TAIWAN ISSUE
10
2.1 Introduction
10
2.2 General Information on Taiwan
10
2.3 Taiwan's emergence as a territorial entity
12
2.4 Political struggle and the development of Taiwan since 1949
15
2.5 The legal status of Taiwan
20
2.5.1 Criteria for statehood
21
2.5.2 Taiwan's qualification for statehood
22
2.5.2.1 A Permanent Population
22
2.5.2.2 A Defined Territory
22
2.5.2.3 A Stable and Effective Government
22
2.5.2.4 The Ability to Enter into Relations with Other States
23
2.6 Conclusion
25
3 THE ANTI-SECESSION LAW AND THE USE OF THREAT
27
3.1 Introduction
27
3.2 Legal nature and general scope of armed force
27
3.3 The scope of Threat prohibited under International law
30
3.3.1 Threat of force
30
3.3.2 The Charter of the United Nations dealing with
the term of Threat
30
3.3.3 Precedents of the International Court of Justice
32
3.3.4 State practice concerning Threat of Force
34
3.3.5 Criteria for justification of Threat of Force
36
3.4 The Anti-Secession Law and the current circumstances
37
3.4.1 Background of the Anti-Secession Law
37
3.4.2 Contents of the Law
38
3.4.3 Political scope of the ASL
39
3.4.3.1 The one-China principle
39
3.4.3.2 The Status-quo of Taiwan
42
3.4.3.3
'
Taiwan independence
'
42
3.4.3.4 Economic, social and cultural exchange between the two
Sides
43
3.4.4 Legal scope of the ASL
44
3.4.4.1 The nature of the law
44
3.4.4.2 The cross-Strait dilemma a sole internal affair
of China?
45
3.4.4.3 Non-peaceful means and militarization of the PRC
46
3.5 Does the ASL and the current measures of PRC´s policy violate
Art 2 (4) UNC?
50
3.6 Conclusion
53
4 CONCLUSION
54
5 ANNEX I: Interview Ph.D. Joseph Chao-hsieh Wu
56
6 ANNEX II: THE ANTI-SECESSION LAW
7 BIBLIOGRAPHY
64
ACKNOWLEDGEMENT
Während meines Auslandssemesters in Taipei von September 2008 bis Jänner 2009 habe ich
die Möglichkeit genutzt, meine Diplomarbeit der Taiwanfrage zu widmen. Mir bot sich damit
die spannende Aufgabe theoretische Recherche mit praxisnahen Eindrücken und Interviews in
einer wissenschaftlichen Arbeit aufzuarbeiten. Obwohl die Frage um Taiwans völkerrechtliche
Stellung in der Literatur bereits ausführlich und teils sehr gut behandelt wurde, bildet sie noch
immer den Boden für Konflikte und hindert ein friedliches Verhältnis zwischen Festland
China
1
und Taiwan. Im Zuge dieser Streitfrage hat Festland China im Jahre 2005 das
Anti-Sezession Gesetz erlassen. Art 8 dieses Gesetzes besagt, dass China mit nicht-friedlichen
Maßnahmen gegen Taiwan vorgehen wird, wenn Taiwan sich für de-jure Unabhängig erklärt.
Bereits die militärischen Voraussetzungen für die tatsächliche Umsetzung einer
nicht-friedlichen Lösung der Taiwanfrage wurden von Festland China in den letzten Jahren
ausreichend geschaffen. Diese Arbeit setzt sich mit der Frage auseinander, ob Festland China
durch dieses Gesetz und den gesetzten Handlungen gegen das in Art 2 (4) Satzung der
Vereinten Nationen verankerte Gewaltverbot verstößt. Obwohl dieses Gesetz bereits 2005 in
Kraft getreten ist, findet sich kaum wissenschaftliche Literatur zu diesem Thema. Es war daher
für mich von großem Interesse in Taiwan Gespräche und Interviews mit Leuten von
besonderem Fachwissen zu führen.
An dieser Stelle möchte ich mich besonders bedanken bei Herrn Dr. Claudius Petzold, der mir
neue Perspektiven eröffnet hat und mich vor manchen wissenschaftlichen Fehltritten bewahrt
hat. Des Weiteren gilt mein dank Herrn Ph.D. Joseph Chao-hsieh Wu (), der sich sofort
bereit erklärt hat mir ein Interview zu geben (siehe Annex); Herrn Antonio Chiang (),
Chefredakteur des Apple Daily und früherer stellvertretender Generalsekretär des Nationalen
1
Aus Gründen der Verdeutlichung werden die Begriffe ,,Festland China" und ,,Taiwan" verwendet. Die Autorin
möchte keine rechtliche oder politische Äußerung indizieren.
Sicherheitsrates für interessante politische Einblicke; und natürlich Herrn Prof. Blake C. Y.
Wang, Professor der National Taipei University, der meine Diplomarbeit in Taipei betreut hat.
Viele weitere einprägsame Gespräche und Erlebnisse mit Professoren, Freunden und
Bekannten, vor allem jene mit meiner Gastfamilie haben dieser Arbeit ein Gesicht verliehen.
Ohne sie alle wäre ich außerstande gewesen diese Arbeit zu verfassen.
Die Literatursuche hat sich meist auf englischsprachige Unterlagen konzentriert, weshalb diese
Arbeit auch in englischer Sprache verfasst wurde. Es handelt sich trotzdem beinahe nur um
Primärliteratur. Viele taiwanesische Wissenschaftler/innen haben unter anderem in englischer
Sprache publiziert.
Abschließend danke ich Univ.-Prof. DDDr. Waldemar Hummer und V.-Ass. Dr. Jelka
Mayr-Singer für die Betreuung meiner Diplomarbeit an der Leopold-Franzens Universität
Innsbruck und der Möglichkeit meine Diplomarbeit in Taiwan zu verfassen.
Innsbruck, September 2009
Barbara Seelos
LIST OF ABBRIVATIONS
ARATS
Association for Relations across the Taiwan Strait (PRC)
ASL
Anti-Secession Law
CCP
Chinese Communist Party
DPP
Democratic Progressive Party (green pan party)
DoD
Department of Defense (U.S.)
Etc
Etcetera
E.g.
for example
EU
European Union
GA
General Assembly
IGO
Intergovernmental Organization
ILC
International Law Commission
KMT
Kuomintang (blue pan party)
MAC
Mainland Affairs Council (R.O.C.)
MOU
Memorandum of Understanding
PRC
People's Republic of China
R.O.C.
Republic of China
SEF
Straits Exchange Foundation (R.O.C.)
TECRO
Taipei Economic and Cultural Representative Office
TRA
Taiwan Relations Act
UN
United Nations
UNC
Charter of the United Nations
U.S.
United States
WHA
World Health Assembly
WTO
World Trade Organization
WW
World War
7
1 INTRODUCTION
,,An individual should not have too much freedom.
A nation should have absolute freedom."
- Dr. Sun Yat-Sen
2
The Cross-Strait Conflict concerning Mainland China and Taiwan continues to exist now for
more than 50 years. The Civil War (1946-1949) divided the Chinese Nation into two parts: the
People's Republic of China (PRC) on Mainland China and the Republic of China (R.O.C.) on
Taiwan
3
. Since 1949 conflicts between the two lead to several military confrontations. During
the Cold War Era both sides claimed to be the formal representative of whole China.
Finally in 1991 Taiwan declared its effective control over the region of Taiwan and its
recognition of the legal sovereignty of Beijing on the mainland.
4
The question of Taiwan's
security and status keeps the struggle between the two alive. While China holds on to the
one-China principle which defines Taiwan as an integral part of China, Taiwan sees itself as a
sovereign entity. Even today Mainland China refuses to abandon the use of force and threat of
force to attain its goal of reunification. Over the past decade Mainland China invested heavily
in its military. Additionally in 2005 the Chinese National People's Congress passed the
controversial Anti-Secession law (ASL), which authorizes the military to use force against
Taiwan.
2
Dr. Sun Yat-Sen (1866-1925) is the father of the nation whether for both mainland China and Taiwan. He
founded the Tongmenghi (= revolutionary alliance), which is the forerunner party of the Kuomintang (KMT).
3
The area Taiwan includes besides Taiwan proper, Penghu (Pescadores), Kinmen, Matsu, Orchid Island, Green
Island, the Diaoyutai Islets, Siaoliouciou Island, Dongsha and Taiping Island in the Nansha Islands. It is under
effective control of the R.O.C. The names "Taiwan", "Taipei", "Republic of China" and "Republic of China on
Taiwan" are used interchangeable in this thesis to refer on the Republic of China, which was established by Dr.
Sun Yat-Sen (supra n. 1). The names "Beijing", "People´s Republic of China" and "Mainland China" refer to the
separate region of mainland China, which was established in 1949 by Mao Zedong. For the purpose of easier
usage and better understanding this thesis uses the political titles of the particular political system. The author
won't indicate a biased view with it.
4
Eric Tinglung Huang, The status of Taiwan under International Law and in a changing World (Taizhong Shi :
Bai xiang wen hua, 2007), 22.
8
A recent Pentagon report states that there is much uncertainty surrounding China's future
course, in particular with regard to its expanding and implementing military power. Further the
report notes that "China's near-term focus on preparing for contingencies in the Taiwan Strait,
including the possibility of U.S. intervention, is an important driver of modernization."
5
The main objective of this thesis is to find out if the Anti-Secession law and the threat impose a
breach of the non-violation principle of the UN-Charta. Some scholars have clearly stated that
any threat or use of force would violate International Law.
6
But the international law jurists
and the UN itself have refrained from commenting on the issue. In fact when the PRC
announced the passing of the concerned law in 2005 no one came out and voiced their opinion.
The cross-strait relation and the ASL are well discussed in international policy. The EU for
example had decided to revoke the arms embargo against China but failed to do so after the
enactment.
7
The ASL has caused more anxiety and uncertainty among the people of Taiwan
and has created an even more unstable cross-strait situation. It is very important for the people
of Taiwan, East Asia and global peace to consider whether the way in which China wishes to
achieve its goal of reunification is justifiable under International Law or not.
The first part of the thesis addresses the history of Taiwan and its first appearance as a
territorial entity. Further you will gain an insight into the political development and the use of
force in the Taiwan Strait since 1945. To understand the current status of Taiwan it is
important to know about the political development of Taiwan especially in regard to
democracy. Finally, the first part examines the current status of Taiwan. The second part of this
5
Office of the Secretary of Defense, U.S. Department of Defense, Annual Report to Congress: Military Power of
the People's Republic of China 2008, 1. http://www.defenselink.mil/pubs/pdfs/China_Military_Report_08.pdf
(last visited on: 04.01.2009).
6
See e.g., Jean-Marie Henckaerts, "Self-Determination in Action for the People of Taiwan," in The International
Status of Taiwan in the New World Order: Legal and Political Considerations [hereinafter: The International
Status of Taiwan
]
, ed. Jean-Marie Henckaerts (London: Kluwer Law International Ltd, 1996), 242-264; Anne
Hsiu-An Hsiao, "Is China´s Policy to Use Force Against Taiwan a Violation of the Principle of Non-Use of Force
Under International Law?," New England Law Review 32, No. 3 (Spring 1998): 715-742.
7
"Anti-Secession Law Backfires," Asia Monitor: China & North Asia Monitor 12, 5 (May 2005): 3-3 available at:
http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=16844099&site=ehost-live last (last visited 21
st
Oct. 2008).
9
thesis will draw up the principle of non-violation under international law. The concept of force
prohibited under the International Law will be discussed too. It proceeds with an examination
of the ASL and the current measures China is using toward reunification. It concludes if the
ASL and the measures of China against Taiwan violate the principle.
Despite this thesis is a legal research into the question of the ASL and the current
circumstances violating the non-violation principle, it is necessary to have also a political input
to be able to examine properly the subject. Especially since the relation between International
Relations and International Law is to close to separate. Furthermore an interdisciplinary
argumentation to answer the question of this thesis creates a better and deeper understanding of
the subject.
U
N D E R S T A N D I N G O F T H E T A I W A N I S S U E
10
2 UNDERSTANDING THE TAIWAN ISSUE
2.1 INTRODUCTION
The tension in the Taiwan Strait goes a long way back in history. Taiwan, being an East Asian
island has always been attractive for foreigners to control.
8
The first part of this thesis as seen
in Chapter 2.3, focuses on China's gain and loss of control over the island. Chapter 2.4 scopes
the political struggles and development of Taiwan since 1949. The last chapter of this part
addressed the legal status of the R.O.C. on Taiwan. When questioning the status of the R.O.C.
the first step is examining the criteria for statehood. This thesis then puts forward proof that
Taiwan does in fact qualify for statehood. This qualification then forms the basis for the
application of the non-violation principle composed in Art 2 (4) UNC.
2.2 GENERAL INFORMATION ON TAIWAN
The Republic of China, also known as Taiwan, consists of the main island Taiwan, the
archipelagos of Penghu (the Pescadores), Kinmen, Matsu and numerous islands and islets. It is
located in the Pacific Ocean between Japan and the Philippines. Taiwan is divided from
Mainland China by the Taiwan Strait
9
, which forms a natural water boarder of 160 sq km.
The area spans 36.000 sq km and is home to more than 23 million people.
10
Taiwan is more
than twice as small as Austria, but at the same time has approximately three times its
population. The region is inhabited by four major ethnic groups, which includes the Indigenous,
8
See for general information: Government Information Office, Taiwan Yearbook 2007 (Taiwan: 2007), 20.
9
The Cross-Strait Relation, meaning the relationship between Taiwan and Mainland China is called after the
Taiwan Strait.
10
Government Information Office, supra n. 8, at 20.
U
N D E R S T A N D I N G O F T H E T A I W A N I S S U E
11
the Holo Taiwanese, the Hakka Taiwanese, and the Mainland Chinese (Mainlanders). The
Holo and Hakka Taiwanese moved to Taiwan during the 17
th
century in search of a more stable
and better life on the island. This took place during the upheavals of transition between Ch´ing
and Ming dynasties took place on the mainland. Mainlanders came to Taiwan because R.O.C.
relocated from Mainland China to Taiwan after the Kuomintang
11
was defeated by Mao
Zedong
12
during the Chinese Civil War. Over one million supporters of the R.O.C. arrived at
that time in 1949.
13
Because the Holo and Hakka came to Taiwan before the Mainlanders, they
call themselves Indigenous as well. Due to the rapid development of the country and
modernization of social structures, most people do not distinguish their ethnicity any more, but
see themselves as Taiwanese.
14
The main languages spoken in Taiwan are Mandarin, Holo and
Hakka. Beside the major languages several Austronesian languages exist but are mostly spoken
by indigenous people.
15
"Taiwan miracle" is a synonym for its economic growth during the second half of the 20
th
century. In the 1950s Taiwan was as poor as many African countries are today. Over the years
development and restructuring the economic sectors saw Taiwan's Gross Domestic Product
(GDP) per capita increase to US$ 16,030
16
by 2006 with good wealth and health indicators.
17
11
The Kuomintang (KMT) is the founding and one of the major parties of the R.O.C.. The party was founded in
Guangdong Province (Mainland China) on 25
th
Aug. 1912 as a democratic socialist party. Since its relocation to
Taipei it developed from a revolutionary part, to a revolutionary democratic party, to the modern democratic party
it is today. See for more information: http://www.kmt.org.tw (last visited: 9
th
Jan. 2009).
12
Mr. Zedong Mao (26
th
Dec. 1893 9
th
Sep. 1976) was the Chairman of the Chinese Communist Party (CCP)
and the chairman of the Central Committee of the Communist Party of China from 1945-1976. Under his
leadership the KMT was defeated in the Chinese Civil War and the CCP became the ruling party of Mainland
China. See for more information: http://en.wikipedia.org/wiki/Mao_Zedong (last visited: 9
th
Jan. 2009).
13
Government Information Office, supra n. 8, at 12, 22-26.
14
Eric Tinglung Huang, The status of Taiwan under International Law and in a changing World (Taizhong Shi:
Bai xiang wen hua, 2007), 23-24.
15
Government Information Office, supra n. 8, at 28-31.
16
Government Information Office, supra n. 8, at 99.
17
Christopher Howe, "Taiwan in the 20
th
Century: Model or Victim? Development Problems in a Small Asian
Economy," in Taiwan in the Twentieth Century: A Retrospective View, edited by Richard L. Edmonds, Steve M.
Goldstein (N.Y.: Cambridge University Press, 2001), 37.
U
N D E R S T A N D I N G O F T H E T A I W A N I S S U E
12
2.3 TAIWAN´S EMERGENCE AS A TERRITORIAL
ENTITY
The historical aspect of Cross-Strait Relation has been investigated, but to put the further
research into context it is important to gain an insight of the salient facts.
18
Formosa, as it was named by the Portuguese was colonized by the Dutch in the 17
th
century.
Jonathan I. Charney and J. R. V. Prescott have stated that "China's first occupation of the
island in 1661 occurred in circumstances anticipatory of 1949
19
." On the mainland the Ming
dynasty was on the brink of handing over power to the Ch´ing dynasty. Because of invasion by
the Manchus, barbarians coming from the north of the Great Wall, the existence of the Ming
Dynasty was in danger. Under the leadership of Cheng Ch´eng-kung supporters of the Ming
Dynasty retreated to Taiwan and the Dutch surrendered. Chen Cheng-kung, and later his son,
aspired to re-conquer the throne in Beijing and revive the Ming Dynasty but some 23 years
later it became clear that they had failed. For the next 212 years after 1683, Taiwan was a part
of Mainland China, ruled by the Ch´ing Dynasty. In 1886 the island became a separate
province of China. In 1895, only eight years after becoming a province, China signed the
Treaty of Shimonoseki, ceding Taiwan to Japan to secure the end of the first Sino-Japanese
War (1894-1985).
20
In Article 2 of the treaty it is stated that Japan obtains the sovereignty of
Taiwan "in perpetuity".
21
At the time when Japan was defeated in World War II, it had ruled
18
See generally Hans Kuijper, "Is Taiwan a part of China?," in The International Status of Taiwan, supra n. 6, at
9-19; Denny Roy, Taiwan: a political history (Ithaca: Cornell University Press, 2003); J. K. Fairbank, E. O.
Reischauer, A. M. Craig, East Asia: Tradition & Transformation (Boston: Houghton Mifflin Company, 1989), see
Chapter 8 9.
19
Jonathan I. Charney, J. R. V. Prescott, "Resolving Cross-Strait Relation between China and Taiwan," The
American Journal of International Law, 94, No. 3 (July 2000): 454.
20
Id. at 453-457.
21
Treaty of Peace, April 17, 1895, China-Japan, 181 Consol. TS 217, available at
http://www.onechinacommittee.org/shimonoseki.htm (last visited on 17
th
Jan. 2009).
U
N D E R S T A N D I N G O F T H E T A I W A N I S S U E
13
Taiwan for 50 years. Thereafter Japan surrendered Taiwan along with its other overseas
territories.
22
The question regarding Taiwan's status was handled by the Cairo Declaration in 1943
23
, the
Potsdam Proclamation in 1945
24
and the Japanese Instrument of Surrender in 1945.
Due to the Cold War and the Chinese Civil War Period (1945-1949), the Peace Treaty was
delayed for 6 years.
25
During that time China was split up into two parts. The Republic of
China, which was founded in 1912 by Dr. Sun Yat-Sen and the People's Republic of China,
constituted by Mao Zedong in 1949. After the communist victory, the Kuomintang (KMT),
party of the R.O.C. fled to Taiwan. Nearly two million nationalists followed the KMT. A
government based on the Chinese Constitution of 1947 was founded. No new state was
established, but a government in exile, which wanted to re-conquer the mainland. During the
Cold War two Chinas existed. The majority of the world recognized the R.O.C. as the
country's formal representative, while the communist bloc acknowledged the PRC on the
mainland.
26
Finally in 1951 a multilateral peace treaty
27
was signed in San Francisco by Japan
and the ´Confederation Members´. At this summit China was neither represented by the PRC
22
Jason X. Hamilton, ,,An Overview of the Legal and Security Question Concerning Taiwanese Independence,"
Loyola University Chicago International Law Review 1, 91 (Fall-Winter 2005): 92.
23
Final Text of the Communiqué, Dec 1, 1943, 3 Bevans 858, 1943 Foreign Relations of the United States, The
Conferences at Cairo and Teheran 448 [hereinafter Cairo Declaration]. In 1943 the United Kingdom (Prime
Minister Churchill), China (Chairman Kai-shek Chiang) and the United States (President Roosevelt) reached the
Cairo Declaration stating "that Japan shall be stripped of all the islands in the Pacific which she has seized or
occupied since the beginning of the First World War in 1914, and that all the territories Japan has stolen from the
Chinese, such as Manchuria, Formosa, and the Pescadores, shall be restored to the Republic of China."
24
Proclamation by the Heads of Governments, United States, China and United Kingdom, July 26, 1945, 3
Bevans 1204, 1945 Foreign Relations of the United States, 2 The Conference of Berlin (The Potsdam Conference)
1474 [hereinafter Potsdam Proclamation], Art. 8:
"The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the
islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine."
25
Chen-Yu Wang, The Impact of regional economic integration under the GATT/WTO regime toward the peace
process: The case of conflict resolution between Taiwan and Mainland China (Washington D.C.: American
University Diss., 2006), 47.
26
Hamilton, supra n. 22, at 92.
27
Treaty of Peace with Japan, Sep. 8, 1951, 136 U.N.T.S. 46 (entered into force Apr. 28, 1952) [hereinafter Peace
Treaty of Japan]. Art. 2 (b) of Chapter II of the treaty states that "Japan renounces all right, title and claim to
Formosa and the Pescadores."
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N D E R S T A N D I N G O F T H E T A I W A N I S S U E
14
nor the R.O.C. at the peace negotiations in San Francisco.
28
In 1952, in Taipei, the R.O.C. and
Japan signed a separate treaty
29
, which similarly tells:
"It is recognized that under Article 2 of the Treaty of Peace which Japan signed at
the city of San Francisco on 8 September 1951 (...), Japan has renounced all right,
title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the
Spratley Islands and the Paracel Islands."
Further it provides in Art. 4
" [...] that all treaties, conventions, and agreements concluded before 9 December
1941 between Japan and China have become null and void as a consequence of the
war."
30
All these treaties lacked in indicating a beneficiary. It failed to clarify whether Japan returned
Taiwan to the Chinese government or not. At the end this lack of clarity has been the cause of
conflicts in the Taiwan Strait. Many scholars have had heated debates about Taiwan's legal
title. However, it is unquestioned that the R.O.C. has actually governed Taiwan since 1949
31
and that "Taiwan and China have no jurisdiction over each other".
32
28
See Hungdah Chiu, "The International Legal Status of Taiwan," in The International Status of Taiwan, supra n.
6, at 4-5.
29
Treaty of Peace, Apr.28, 1952, R.O.C.-Japan, 138 U.N.T.S. 3.
30
Id., Art. 4
31
Charney, Prescott, supra n. 19, at 460.
32
Mainland Affairs Council ,,"One Law, Two Communiqués": The Shackle Enchaining the Destiny," 14
th
March
2008, 1, http://www.mac.gov.tw/english/english/macpolicy/one_law_two_communiques.pdf (last visited 17
th
Jan.
2009); Charney, Prescott, supra n. 19, at 462-463.
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N D E R S T A N D I N G O F T H E T A I W A N I S S U E
15
2.4 POLITICAL STRUGGLE AND DEVELOPMENT OF
TAIWAN SINCE 1949
When the Nationalists (Kuomintang) relocated the government from Nanjing (Mainland China)
to Taipei in December 1949, the citizens were faced with unrelenting one-party
authoritarianism. The imposition of Martial Law put the island into a "permanent state of
emergency"
33
. This period is to date also known as "white terror"
34
. Under the leadership of
Chiang Kai-shek
35
, the émigré régime wanted to re-conquer Mainland China. Chiang Kai-shek
held on to the one-China principle, which claimed "(...) there is only one China, Taiwan is part
of China, and the R.O.C. government is the sole legitimate government representing the whole
of China".
36
The U.S. wanted to give up its support of the R.O.C. because of its incompetent governing of
the country. However, when the communists invaded South Korea in June 1950 the U.S. feared
the PRC would use this opportunity to invade Taiwan as well. To prevent an attack on the
island by Mainland China, President Truman sent his 7
th
Fleet to the Taiwan Strait.
37
This
move helped Chiang Kai-shek´s regime to survive.
38
Taiwan developed into a key element of
U.S policy in East Asia. This relation was enshrined in the U.S.-R.O.C. Mutual Defense Treaty
in 1954
39
. Art 7 of this treaty gives the U.S. the legal authorization to defend Taiwan and the
33
Id. at 114.
34
See generally Dr. Chen Wen-chen Memorial Foundation, The Road to Freedom: Taiwan's Postwar Human
Rights Movement (Taipei: Taiwan Foundation for Democracy, 2004); Richard C. Bush, Untying the Knot: Make
Peace in the Taiwan Strait (Washington D.C.: Brookings Instn., 2005), 17.
35
Mr. Chiang Kai-shek (31. Oct. 1887 5. April 1975) was a Chinese political leader who took over leadership
of the KMT in 1928. After the retreat of the KMT to Taiwan, he was the first President of the R.O.C. on the island.
He remained so till his death. See for more information: Columbia Encyclopedia 6
th
ed.,
http://www.bartleby.com/65/ch/ChiangKa.html (last visited: 02
nd
Dec.2008).
36
Yun-Han Chu, Jih-Wen Lin, "Political Development in 20th Century Taiwan: State-Building, Regime
Transformation and the Construction of National Identity," in Taiwan in the Twentieth Century: A Retrospective
View, edited by Richard L. Edmonds, Steve M. Goldstein (N.Y.: Cambridge University Press, 2001), 117.
37
Jim W. Ko ,,Cold War Triumph? Taiwan Democratized in Spite of U.S. Efforts" Case Western Reserve Journal
of International Law 36 (Winter 2004): 143-144.
38
Bush, supra n. 34, at 18.
39
See Mutual Defense Treaty, Dec. 2, 1945, U.S.-R.O.C., 6 U.S.T. 433.
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N D E R S T A N D I N G O F T H E T A I W A N I S S U E
16
R.O.C. government.
40
Due to international recognition and security assistance from the U.S.,
as far as the membership in the United Nations and the seat in the Security Council was
concerned, the R.O.C. was officially regarded as the formal representative of whole China.
Nevertheless, in the mid 60´s Taiwan was faced with the beginning of a crisis concerning
international recognition and legitimacy. This began in 1965 when France, the first
non-communist state recognizing Mainland China as the formal representative, broke off
formal ties with Taipei, and continued in 1971 when the R.O.C. was replaced by the PRC in
the United Nations.
41
On 25
th
October 1971 the GA
"decide[d] [in its resolution] 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 occup[ied]
at the United Nations and in all the organizations related to it."
42
From that time the government on Mainland China was recognized predominately as the sole,
legal representative of China. It is worth noting, that this resolution does not address the legal
status of Taiwan nor the relation between the R.O.C. and the PRC.
43
The U.S. remained to
keep diplomatic ties with the R.O.C. until 1979. At that time the U.S. changed its foreign
policy toward China. At the same time the Taiwan Relations Act (TRA) was signed between
U.S.-R.O.C., due to the expiration of the Mutual Defense Treaty.
44
In Sec. 2 the TRA explains, that the U.S. has nevertheless
"terminated governmental relations" with Taiwan, "the Congress finds that the
enactment of this Act is necessary" to "help maintain peace, security, and stability
40
Id, Art 7: "The Government of the Republic of China grants and the Government of the United States of
America accepts, the right to dispose such United Stated land, air, and sea forces in and about Taiwan and the
Pescadores as may be required for their defense, as determined by mutual agreement."
41
Y. Frank Chiang "One-China Policy And Taiwan," Fordham International Law Journal 28, No. 1 (December
2004): 68.
42
A/RES/2758 (XXVI) Restoration of the lawful rights of the People´s Republic of China in the United Nations
(25
th
Oct. 1971).
43
See e.g. Chiang, supra n. 41, at 71-76. See in contrary: Su Wei, "Some reflections on the one-China principle,"
Fordham International Law Journal, 23, 4 (April 2000); Wei states that the legal implication of Res. 2758 is that
the GA of the UN has recognized the PRC as the sole legal government representing whole China.
44
Ko, supra 37, at 201.
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N D E R S T A N D I N G O F T H E T A I W A N I S S U E
17
in the Western Pacific; and to promote the foreign policy of the United States by
authorizing the continuation of commercial, cultural, and other relations [...] to
preserve and promote extensive, close, and friendly commercial, cultural, and other
relations".
In Sec. 2 (b) it
"declare[s] that peace and stability in the area are in the political, security, and
economic interests of the United States, and are matters of international concern",
and further "to provide Taiwan with arms of a defensive character".
45
This Act signifies the beginning of the U.S. as a formal player within the Cross-Strait Relation
and the ambiguity of U.S. actions.
More and more countries followed the example of the U.S. and changed their foreign policy
toward China while keeping unofficial diplomatic ties with the R.O.C. instant.
46
After the death of Chiang Kai-Shek in 1975, his oldest son Chiang Ching-kuo
47
became the
leader of Taiwan. He realized "that the R.O.C. would not survive long without reforming"
48
the country. Therefore the KMT developed three principles in the early 80´s to develop the
country: economic liberalization, social pluralization, and political democratization. Hence, in
the mid-80´s, Chiang Ching-kuo lifted Martial Law and formally announced the allowing of
the forming of new parties.
49
Chiang Ching-kuo´s policies were seen as fundamental
assumptions required in Taiwan's development.
50
His successor, Lee Teng-hui
51
continued
implementing his ideas and pushed the modifications towards democracy to completion.
52
45
Taiwan Relations Act, Pub. L. No. 96-8, 2, 93 Stat. 14 (1979), codified at 22 U.S.C. 3301 et seq. (1979)
available at http://www.taiwandocuments.org/tra02.htm (last visited: 06
th
Dec. 2008).
46
See Chapter 2.5.2.3; Chapter 4.4.3.1.
47
Mr. Ching-Kuo Chiang (27. April 1909 13. Jan. 1988) was the chairman of the KMT. He served as a Premier
of the R.O.C. from 1972 1978 and was the President of Taiwan from 1979 till his death in 1988. See for more
information: Columbia Encyclopaedia 6
th
ed., http://www.bartleby.com/65/ch/ChiangCh-ku.html (last visited: 06
th
Dec. 2008).
48
Shelley Rigger, Politics in Taiwan: Voting for democracy (London: Routledge, 1999
),
80.
49
Id. at 126.
50
Id. at 131.
51
Mr. Teng-hui Lee (15. Jan. 1923 - ) was Chiang Ching-Kuo´s premier from 1984-1988 and later the first
President born in Taiwan (1988-2000). See for more information: Columbia Encyclopedia 6
th
ed.,
http://www.bartleby.com/65/le/LeeTengh.html (last visited: 06
th
Dec. 2008).
52
Ko, supra n. 37, at 9.
Details
- Seiten
- Erscheinungsform
- Originalausgabe
- Jahr
- 2009
- ISBN (eBook)
- 9783836643740
- DOI
- 10.3239/9783836643740
- Dateigröße
- 668 KB
- Sprache
- Englisch
- Institution / Hochschule
- Leopold-Franzens-Universität Innsbruck – Völkerrecht
- Erscheinungsdatum
- 2010 (März)
- Note
- 2,0
- Schlagworte
- statehood one-china-principle international court justice taiwan
