Legal argument flawed
HoonTing (雲程) has broken new ground in the search for a collective security mechanism for Taiwan.
In contrast, Hofstra University law professor Julian Ku has argued that Taiwan should be left to fend for itself against a Chinese invasion. He has incorrectly stated that it is illegal to defend Taiwan against a Chinese invasion. Professor Ku has made the argument that defending Taiwan is illegal under UN Charter Article 51 — the right to collective self-defense.
The geopolitical problem in northeast Asia is that there has not been a multilateral treaty signed for collective self-defense against Chinese interference. Since Japan signed the San Francisco Peace Treaty in 1951, there has been only the bilateral mutual defense treaty signed with the US. Japan signed the bilateral defense treaty on the same day that it signed the peace treaty.
The US and South Korea signed a bilateral defense treaty in 1955. The US-ROC Mutual Defense Treaty was also signed in 1955, but then former US president Jimmy Carter’s administration terminated this bilateral treaty in 1980. The Taiwan Relations Act is a substitute for this termination, but the treaty-making powers were examined in Goldwater versus Carter (1983).
There is an argument that the executive branch can exercise their monopoly over foreign affairs, but the court states they had not examined the issue of the termination in terms of actions by the commander-in-chief. The People’s Liberation Army (PLA) has attempted to drive a wedge between the bilateral security arrangements in Northeast Asia with the conflicts over the Diaoyu Islands (釣魚).
The solution for collective self-defense lies in the trilateral relationship between the US and Japan, South Korea and Taiwan.
While Professor Ku argues that collectively defending the island of Taiwan is illegal, the “San Francisco System” fosters the continuation of the 1950s’ geopolitical problems of the Korean Peninsula and Taiwan.
Hoon Ting, however, explores historical concepts of derecognized exiled governments and their roles in the geopolitical situation of Northeast Asia. Some exiled governments are sponsored by their recognizing states, and this bilateral military relationship between the US and its co-belligerent exiled government (eg, Free French on Continental France) demonstrates they were the instruments of both foreign policy and military strategy.
The San Francisco System underwrites the security of the ROC and casts a shadow whenever creating collective security arrangements for Northeast Asia.
US policy makers must become cognizant that the geopolitical history of the Korean War Armistice is rooted in the San Francisco System. US Foreign policy has military ramifications for the protection of both South Korea and Taiwan, but then termination of mutual defense treaties was never examined by the US Supreme Court in Goldwater versus Carter.
Perhaps it is time to reexamine treaty-making powers in US jurisprudence before the PLA lawyers adopt the international law advice of Professor Ku.
US leadership in our collective security arrangement must be reformulated before blue-helmeted PLA troops start invading Taiwan under the legal auspices of Article 51 of the UN Charter.
I look forward to further research on the topic.
Seung Mi Hong
Seoul, South Korea
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