Mon, Apr 08, 2019 page6

• Little-known fact on sovereignty

  • By HoonTing 雲程
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  This year marks the 40th anniversary of the signing of the US’ Taiwan Relations Act (TRA). A series of seminars and discussion forums will be held throughout this year to mark the event that will generally focus on two distinct themes: history and international relations.

  Historical discussions will mainly focus on the events that took place at the time and ask whether there is any classified information yet to enter the public domain. International relations-themed TRA events will discuss how to respond to future events given that the external environment has significantly altered since it was signed.

  However, whichever of these two are explored, there are several fundamental questions nobody is asking: Why did the breaking of formal diplomatic relations result in the formulation of a piece of US legislation? What entitled the US to pass the act? Why do no other countries possess the same authority?

  The TRA is a legacy of the Pacific War. To efficiently deploy resources toward fighting, the Allies agreed to transfer a degree of sovereign power to the US, and then-British prime minister Winston Churchill said that he readily agreed to hand America the seat at the head of the table. This framework continued up until the cessation of the Pacific War in 1945 and the enactment of the San Francisco Peace Treaty in 1952.

  Under the terms of the treaty, the US undertook the position of “principal occupying power,” so it had a responsibility to guide and supervise unresolved territorial issues such as Taiwan. In other words, each Allied power transferred a degree of sovereignty to the US president so that he could exercise power on their behalf — which therefore also connects the treaty to the US Constitution.

  The US military commander appointed by the US president functions as the president’s representative abroad. This means that the theaters of war and the administration of occupied territories also fall under the authority of the US president and the US constitution.

  The TRA applies not just to the inhabitants, territory, people and government of Taiwan and Penghu, it also covers the wider Western Pacific region. The Sino-American Mutual Defense Treaty, effective from 1955 to 1979, similarly refers to the Western Pacific region.

  The past almost 80 years has been a period marked by change and continuity, and of US responsibility in the region. There has seen a transition from the Pacific War to continued US influence within the Western Pacific region, and the replacement of the Sino-American Mutual Defense Treaty with the TRA. It is because of this high level of US involvement that in 1955, then-US Air Force general Benjamin Davis demarcated the median line of the Taiwan Strait, which exists to this day.

  Since 2014, some voices in Japan have been talking up the idea of a Japanese version of the TRA. However, Japan was on the losing side in World War II and as such does not possess the sovereign power of a victor nation. Given this, how could Japan implement its own version of the TRA?

  The answer is that although Japan renounced all sovereignty, title and claim over Taiwan and Penghu according to the terms of the San Francisco Peace Treaty and is forbidden from reneging on its commitments through an estoppel clause — a legal bar to alleging or denying a fact because of a previous action or words to the contrary — the treaty did not assign Taiwan to a third country, nor did it call for the administration of Taiwan by a legally mandated governing authority following the re-establishment of a political system.

  As a result, the procedures for relinquishing sovereignty were never carried out. Until such time as a legal assignment of Taiwan occurs, Japan has had to deal with Taiwan in its status as the “former sovereign,” using its residual legal sovereignty over Taiwan and Penghu to ensure that Taiwan’s status is not unilaterally altered. As such, Japan has always included Taiwan in the formulation of its defense policy and even extended it to the South China Sea.

  Based upon the terms of the treaty, Japan is therefore second only to the US in possessing sovereign power to formulate its own version of the TRA. Few people are aware of this little-known — but extremely significant — point of international treaty law.

  HoonTing is the author of two books on Taiwan’s sovereignty.

  Translated by Edward Jones
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