The US Court of Appeals in Washington recently ruled in favor of the US government in the case of Roger C.S. Lin et al v United States of America. The decision, which was written by Judge Janice Rogers Brown, stated that: “America and China’s tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory. During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community, which infects the population’s day-to-day lives. This pervasive ambiguity has driven Appellants to try to concretely define their national identity and personal rights.”
Indeed, the people of Taiwan have lived in political purgatory for 60 years because the US did not establish domestic legislation or automatically execute the San Francisco Peace Treaty after signing it, nor did it act in accordance with the guiding principles of the UN Charter and other international declarations on human rights and loyally carry out its international duties and responsibilities as outlined in those treaties — i.e., end the occupation and assist Taiwan in establishing itself as an independent nation.
Nor did the Taiwan Relations Act (TRA) — a domestic US law enacted to handle the problems created after the US severed diplomatic ties with the Republic of China (ROC) — handle the Taiwan issue that was created as a result of the San Francisco Peace Treaty. This has caused the Taiwanese public to suffer the dilemma of occupation by a Chinese government in exile and lack of diplomatic recognition.
While there is no doubt that the TRA has made major contributions to the security, peace and prosperity of Taiwan and the Western Pacific region and kept Taiwan free of military encroachment and annexation by China, the “one China” policy framework has caused Taiwan to lose almost any formal diplomatic recognition — be it of de facto or de jure independence. This has had a negative impact on Taiwan’s sovereignty and human rights.
From this perspective, the “one China” policy has limited Taiwan’s international relations and participation in international organizations. This has damaged Taiwan’s sovereignty, which in turn has damaged regional security. Diplomacy is a soft form of military force and the cross-strait military imbalance is the result of diplomatic imbalance, which in turn has had a negative impact on stability and prosperity in the Western Pacific area. This reasoning is borne out by Section 4(d) of the TRA which states: “Nothing in this Act may be construed as a basis for supporting the exclusion or expulsion of Taiwan from continued membership in any international financial institution or any other international organization.”
The “one China” policy has also had a negative impact on human rights. Section 2(c) of the TRA states: “Nothing contained in this Act shall contravene the interest of the United States in human rights, especially with respect to the human rights of all the approximately eighteen million inhabitants of Taiwan. The preservation and enhancement of the human rights of all the people on Taiwan are hereby reaffirmed as objectives of the United States.” Part (b) of the same section also states that it is the policy of the US “to make clear that the United States decision to establish diplomatic relations with the People’s Republic of China rests upon the expectation that the future of Taiwan will be determined by peaceful means.”
Self-determination is the basis of human rights, while peace is merely the form which human rights take. The majority of people in Taiwan, especially the Taiwanese people as defined by the San Francisco Peace Treaty, do not believe that they are Chinese and therefore naturally do not agree that Taiwan is a part of China or that they should decide Taiwan’s future together with the people of China.
Although the Treaty of Taipei signed in 1952 by the ROC and Japan did not deal with the territorial sovereignty of Taiwan — it did not have the power to do so — in terms of terminology, the treaty states that “nationals of the Republic of China shall be deemed to include all the inhabitants and former inhabitants of Taiwan (Formosa) and Penghu (the Pescadores),” and this has been detrimental to human rights in Taiwan. The government used bloody suppression, martial law and assassinations to achieve its goal of controlling Taiwan. The methods were very similar to the military threats of China and were in clear breach of Article 2.4 of the UN Charter, which prohibits the use of military force. The US should have submitted these crimes to the UN to be solved via resolution.
In addition, the TRA governs the relations between the peoples of the US and Taiwan, and it regulates foreign, rather than diplomatic, relations. However, it is not concerned with the long-standing issue of “the governing authorities on Taiwan” and does not include anything on urging these “authorities” to improve human rights in Taiwan.
Since President Ma Ying-jeou’s (馬英九) government took office, it has used the excuse of conducting peaceful dialogue with China to lean heavily toward China in the name of diplomacy in order to expedite its goal of eventual unification. This policy change and government comments last year that it would be prepared to go to war with Japan over an incident involving a sunken fishing boat in the disputed Diaoyutai (釣魚台) islands have severely damaged the US’ strategic interests in the Western Pacific region as well as Taiwan’s security.
Economically, the government is relying more and more on China and appears bent on uprooting all of Taiwan’s industries. The economic cooperation framework agreement that the government is preparing to sign with China is in conflict with the WTO framework and political and economic priorities, ignoring domestic unemployment and industrial survival. Even worse, in its pursuit of dictatorship and reestablishment of an authoritarian system of government, the Ma administration has damaged democracy, infringed on human rights and directed prosecutors, police and the judiciary to abuse their powers, harming the rule of law, fairness, justice, freedom and equality in Taiwan.
These examples are clear evidence that the government is moving toward substantive integration with China and selling off Taiwan’s democracy and human rights in the process. However, the US does not show appropriate concern or intervene, which clearly violates the spirit of the TRA.
While the TRA has contributed greatly to security across the Taiwan Strait over the last 30 years, security, sovereignty and human rights are complementary and cannot be separated from each other. Because the source of these threats is the same, the danger is unitary but multifaceted. Only by promoting Taiwan’s sovereignty and human rights can we establish a sound foundation for security. The only way to consolidate security in the Western Pacific and East Asia is by guaranteeing freedom and democracy in Taiwan. Entrusting peace to a dictatorship is not the way to do that.
Huang Chi-yao is an international lawyer and former visiting researcher at the Max Planck Institute.
TRANSLATED BY DREW CAMERON
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