Wed, May 18, 2005 - Page 8 News List

Power is the key

By Michael Falick

As an American, I found Richard Hartzell's article quite thought-provoking ("Taiwan's Legal Standing," May 16, page 8). But outside proponents of a "new American Empire," I can't imagine very many people taking Hartzell's idea seriously. I don't appreciate the idea of giving US war hawks another reason for military adventure, but my larger concerns with Hartzell's letter rest with his ideas about international law and history.

True enough, there are many people who simply haven't got the patience for the niceties of law -- international or otherwise. In the US, lawyers are greatly disparaged and many civil rights are barely understood or appreciated. Likewise, many Americans have little use for international bodies, treaties and courts that seem to limit US sovereignty and often work against our interests.

But, unlike US and Taiwanese domestic jurisprudence, international law is really quite limited. That is why there are also at least a few Americans who are willing to suffer whatever inefficiencies and indignities the price of a strong UN might be. We realize what a thin and recent veneer international law places on the normal historical method of deciding issues between nations: military power.

Valuable though it may be, international law's contribution to the solution of Taiwan's problems will be quite limited. International law cannot decide the issue, but it can be a means of enforcing the world's position once it has decided Taiwan's fate. The problem, as I hope Hartzell will agree, is that the world is in the process of deciding things China's way, and there is very little visible global opposition to that point of view.

By law or simple logic, the US and the world would seem to be on fairly safe ground continuing with the assumption that Taiwan is part of China. This is what the "great powers" decided during World War II and none of them have stepped forward to change their minds since. Neither the people of Taiwan nor its effective government has ever declared anything to the contrary. The closest the Taiwanese have ever come to voicing their opinion was on Feb. 28, 1947, and that incident will be forever cloaked in controversy.

Why wasn't Taiwan given independence at the end of World War II? One answer is that Taiwan had never been independent before and that the Allies could not be sure that it had the means to govern itself, an argument that obviously no longer applies.

Why wasn't it put under a UN trusteeship or the like, until such time as it could either govern itself or vote on its disposition? The answer is probably that the Chinese leadership -- both Nationalist and Communist -- would have seen such a move as thinly veiled Western imperialism by the US and Britain.

It might be a great legal convenience that no recipient of Taiwan's sovereignty is named in the 1951 peace treaty. This fact might end up being an "escape clause" that could allow the world the legal means to enforce a declaration of Taiwanese independence. But the only reason that Chiang Kai-shek's (蔣介石) Republic of China (ROC) was not declared the recipient in 1951 was that the US and other powers didn't want to chance the People's Republic of China (PRC) taking over instead. The "man who wasn't there" in the San Francisco Treaty is not likely to step up now and make one of the world's tough choices on Taiwan's behalf.

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