Sun, Apr 19, 2009 - Page 8 News List

Taiwanese right to determine jurisdiction

By Joshua Tin 田台仁

The Taiwan Relations Act (TRA) passed by the US Congress in 1979 refers to “relations between the people of the United States and the people on Taiwan.” The TRA’s starting point is neither territory nor sovereignty, but “people.”

The wording of the 1972 US-China Shanghai Communique is different, referring to the “Chinese on either side of the Taiwan Strait.”

While the “people on Taiwan” include some of the “Chinese on either side of the Taiwan Strait,” the “Chinese on either side of the Taiwan Strait” cannot conversely be interpreted as including the “people on Taiwan,” otherwise the TRA would protect the interests of the “Chinese on either side of the Taiwan Strait.”

If the TRA covered the Chinese on the other side of the Taiwan Strait, things would really get complicated.

Since the collective referred to in the TRA is the “people on Taiwan,” the “people on Taiwan” can of course express their position to the US based on the terms of the TRA, namely that they cannot accept the jurisdiction of the Chinese government.

Such a position does not touch on the questions of territory and sovereignty, but it is a clear expression of the intentions of the “people on Taiwan” with regard to who shall have jurisdiction over them as citizens.

From beginning to end, the TRA stresses the purpose of guaranteeing the right to express this will. Furthermore, people’s fundamental right to choose who shall have jurisdiction over them is a matter of individual will and therefore cannot be decided by any kind of democratic process.

To make a more extreme example, if one day the US felt that the territory of Taiwan should be administered by the Chinese government in Beijing, it would first have to deal with the question of what will happen to those “people on Taiwan” who don’t want to be administered by the Beijing government.

In other words, the US is obliged by its own law — the TRA — to guarantee the right of the “people on Taiwan” to decide who will have jurisdiction over them, and the US defines Taiwan’s territorial sovereignty as “political power.”

Under the terms of the 1898 Treaty of Paris that concluded the Spanish-American War, the US and Spain gave every resident of the Philippines the right to choose his or her nationality.

Similarly, in the Treaty of Shimonoseki, signed in 1895 at the end of the First Sino-Japanese War, China and Japan gave each inhabitant of Taiwan the right to choose his or her nationality after China ceded the island to Japan.

Based on these historical precedents, the US, when considering the question of Taiwan’s territorial sovereignty, should also give serious consideration to the individual will of each Taiwanese as to whether they are willing to accept China’s jurisdiction.

Under the TRA, Taiwan’s territorial sovereignty and the “people on Taiwan” are clearly different. More than 5 million of the “people on Taiwan” could firmly express to the US their unwillingness to be citizens of China or accept the Chinese government’s jurisdiction. Such an expression of will would send a clear message to the world.

In August, the US and China will hold an unprecedented three-day closed-door meeting on the Taiwan question in Washington. If Taiwanese were to make known their stand on the issue, US President Barack Obama would have to give it serious consideration in the course of the talks.

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