Sat, Mar 12, 2005 page8

• Sadly, Taiwan is still not a state

  • By Frank Chiang 江永芳
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  On Feb. 24, President Chen Shui-bian (陳水扁) and People First Party Chairman James Soong (宋楚瑜) issued a joint statement, which states "According to the Constitution of the Republic of China (ROC), our country's status and position is defined as the de facto and de jure status quo existing between the two sides of the Strait."

  In the statement, Chen also pledged that "during my term as president, I will not declare independence, ... [and] will not promote a referendum to change the status quo on the issue of independence or unification."

  Last year, former US secretary of state Colin Powell gave an interview during which he made two remarks that have drawn protests from many quarters -- "Taiwan is not independent. It does not enjoy sovereignty as a nation," and "We want to see both sides not take unilateral action that would prejudice an eventual outcome, a reunification that all parties are seeking."

  Angered Taiwanese Americans rebutted Powell's remarks in open letters. They claimed that Taiwan is a sovereign state and that the people of Taiwan oppose unification with China.

  Last month, Premier Frank Hsieh (謝長廷) alluded to the status of Taiwan as, "one China under the ROC Constitution."

  These remarks and the claim came down to two questions: Is Taiwan a sovereign state? And do the Taiwanese Americans and Hsieh view the status of Taiwan differently?

  Both questions were answered by Chen in the joint statement. The statement made no claim that either the ROC or Taiwan is an independent state. On the contrary, Chen emphatically stated that he "will not declare independence."

  According to international law, Taiwan is not a state. Although many people have claimed that Taiwan is a "de facto state," such a status does not exist in the theories of states or international law.

  A political entity is either a state or it is not. There is nothing in between.

  The situation of Taiwan is similar to that of Palestine. Palestine has people, territory and a governing authority formed under a written Constitution, which provides for a president elected by the people and a prime minister elected by a parliament.

  The Palestinian Authority said several times in the past that it would declare the establishment of a state at a future date.

  It has not done so because Israel has threatened to annex the Palestinian land under its occupation if Palestine declares statehood without a peace accord with Israel.

  Since Palestine has not declared statehood, no one, including the Palestinian Authority, calls Palestine a state or a "de facto state."

  Taiwan cannot be a state because it has not declared establishment of a new state. "State" and "sovereignty" are inseparable concepts. Each state is a sovereign, and only states have sovereignty.

  Some people hold that "Taiwan's sovereignty resides with the 23 million people." This could only be true if Taiwan had sovereignty. The position has no support in international law because Taiwan is not yet a state.

  Powell's claims that "Taiwan is not independent" and "It does not enjoy sovereignty as a nation" are unfortunately true.

  The ROC was a government, not a state. It was established to succeed the Qing Dynasty as the government of the state of China.

  When a national revolution succeeded in overthrowing the Qing government, the revolutionaries established a new government called the "Republic of China" in 1912 to succeed the Qing.

  The state of China remained unchanged, even though the name "Republic of China" was sometimes used as the name of the state.

  In 1945, after Japan was defeated, the US assigned Chiang Kai-shek's (蔣介石) ROC government to accept the formal surrender of the Japanese army in Taiwan.

  In 1947, the ROC government was reorganized when the ROC Constitution was promulgated in Nanking.

  Later, Chiang and his government lost the civil war to the Chinese Communists and took refuge in Taiwan in 1949. The ROC government today is still organized under the Nanking Constitution.

  People who say that Taiwan is a state form two camps.

  One camp claims that the ROC is a state representing Taiwan. The other camp claims that Taiwan itself is a state.

  But the ROC is not a state because it has never transformed itself from being a government of China into an independent state.

  In fact, none of the ROC presidents, including Lee Teng-hui (李登輝) and Chen Shui-bian, have denied that their presidency was sanctioned by China's Nanking Constitution.

  Taiwan is not a state either. Fundamentally, Taiwan is not a state because there is no government constituting the government of the state of Taiwan. Although there is a governing authority in Taiwan -- the ROC government -- it is a government of China in exile.

  The ROC government is not the government of the state of Taiwan because that government was organized under China's Nanking Constitution. A government of the state of Taiwan cannot be organized under the authority of another country's Constitution.

  If the ROC government were the government of the state of Taiwan, it should have, pursuant to the UN Charter, applied to the UN Security Council for the state of Taiwan to join as a new UN member.

  Instead, the ROC government requested that the UN General Assembly "recognize the right of the 23 million people of Taiwan to representation in the United Nations system."

  What the ROC government is asking the UN General Assembly for is dual representation in China's seat.

  Further evidence that Taiwan is not a state is that its own government does not claim that Taiwan is a state. Why did it not apply for membership at the World Health Organization? Instead, it applied to be an observer. And why did it apply to join the WTO not as the state of Taiwan? Instead, it applied as "The Customs Territory of Taiwan, Penghu, Kinmen and Matsu, [also] called Chinese Taipei."

  Although some would argue that this was done to avoid opposition from China, the ROC government should not have been so cautious because at the time, China was not yet a member of the WTO.

  Recently, in trying to transform the ROC government into the state of Taiwan, some have come up with a few vague slogans. Some, including Chen, claim, "Our country is the Republic of China; its short name is Taiwan."

  Adopting a short name "Taiwan" for "ROC" does not make the ROC a state. Its purpose is to justify the ROC as a legitimate state.

  But such legitimacy is illusory because eventually, like an adopted algebraic symbol, "Taiwan" will be replaced by the true name, the "ROC," which is a government in official documents.

  Some people say that Taiwan is a state and that the name of the state is the "Republic of China (Taiwan)." They claim that "ROC" equals Taiwan.

  Such a claim is intriguing because "Taiwan" in its narrow sense means the island of Taiwan, or Formosa, and in its broadest sense means a territorial entity or a political entity. Joining the two, the "ROC" and "Taiwan," will not amount to a state.

  If Taiwan is a state, it is the only state where its people cannot agree on its existence. And those who have claimed its existence cannot agree on the name of their country.

  Hsieh's remarks "one China under the [ROC] Constitution" will silence any claim that the ROC is a state or that Taiwan is a state. Chen's joint statement confirmed the new premier's remarks.

  Powell may have said something which many people don't like to hear.

  But if his remarks reflect the view of other nations in the international community, then maybe they will provide the people of Taiwan with an opportunity to re-examine the difficult situation in which they find themselves.

  The Chinese government claims that Taiwan is a part of China. Last Dec. 17, Beijing announced that the National People's Congress would enact an "anti-secession" law. It intends to use this law to intimidate the "Taiwan independence" movement.

  Any attempt by Beijing to apply a domestic law to Taiwan is based on the claim that Taiwan is part of China. Does Hsieh's statement of "one China under the [ROC] Constitution" not echo Beijing's claim?

  The island of Taiwan is not Chinese territory.

  Because China ceded the islands of Taiwan and Penghu to Japan under the Treaty of Shimonoseki in 1895, China has never regained title to the islands under means recognized by international law.

  After Japan renounced title to the islands of Taiwan and Penghu without designating a transferee in the Treaty of San Francisco, Taiwan did not revert to China. The island has become a territorial entity not subject to any sovereignty.

  Under international law, Taiwan can become a state only by a declaration of the establishment of a state, with its own government that represents the new state in the international community.

  Powell's second remark is presumably based on his perception that Taiwan's governing authority seeks eventual unification with China.

  Hsieh's recent remarks and Chen's joint statement may have vindicated Powell's position.

  If Powell misunderstood the collective mood of the people of Taiwan, the solution is easy.

  All the government in Taiwan has to do is to announce that the people of Taiwan have no desire to unify with China.

  Frank Chiang is president of Taiwan Public Policy Council, a US think tank, and professor of law at Fordham University in New York.
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