Although a "constitutional one China" is the talisman of the pan-blue camp, it no longer has much currency in mainstream legal circles in Taiwan. It is therefore surprising that Premier Frank Hsieh (謝長廷) should make so much of it.
Before becoming a Supreme Court judge, Hsu Tzong-li (
This sparked vigorous debate among legal scholars through the 1990s, and many of the papers that this debate generated were collected in the book Theory of Two States (
Beijing's "Anti-Secession" Law states that there is only "one China," but the fact is that the Additional Articles and the lifting of the Temporary Provisions Effective During the Period of Communist Rebellion pronounced the end of our claim of jurisdiction over China. When we restricted sovereignty of the ROC to Taiwan, the two sides of the Strait became separate nations. The use of terms such as "unification," "free area" and "mainland area" are no more than rhetorical devices to satisfy ideological demands of a nation in the process of partition, and really do not have much significance.
The word "unification" can be found in the constitutions of all divided countries. But its significance in the constitutions of the two Germanys and the two Koreas is different from that of China and Taiwan. In the constitutions of the divided Germanys and Koreas, unification was an imperative, a duty and a goal that the government was obligated to strive for. But in the Additional Articles, unification is regarded as a possibility, and there is no obligation for its realization.
Moreover, the Additional Articles are designed "to meet the requisites of the nation prior to national unification," and in that sense are similar to China's Anti-Secession Law. The difference is that while the Anti-Secession Law accepts that unification has not taken place, it denies the legitimacy of the ROC, and defines Taiwan as territory that has not been pacified. But in abolishing the Temporary Provisions Effective During the Period of Communist Rebellion, Taiwan effectively recognized the legitimacy of the People's Republic of China as a separate government.
From Taiwan's perspective at least, there are two legitimately constituted central governments, one on either side of the Strait. In this case, how can there be any talk of "one China?"
More importantly, the legal rights outlined in the Additional Articles are confined to "the populace of the free areas of the ROC," and totally ignore the rights of people of the "mainland areas." From the perspective of domestic law, such an expropriation of rights can only be seen as a revolutionary act, in which a new sovereignty was created and Taiwan became a separate entity.
The three main laws established on the basis of the Additional Articles, namely the National Security Law (國家安全法), the Act Governing Relations Between Peoples of the Taiwan Area and the Mainland Area (兩岸人民關係條例) and the Act Governing Relations with Hong Kong and Macau (港澳條例), are based on the immigration law, entry and exit laws and international commercial law, which means "the people in the Chinese mainland areas," in terms of their rights and obligations, have become foreigners.
Whether we look at it from the point of view of de facto sovereignty or the structure and the practice of legal rights, these all fail to give substance to the contention that there is "one China" across the Taiwan Strait. When the actual situation and a symbolic structure are in direct contention, it is only right and proper that this should be regarded as a "special state-to-state relationship."
There is no basis for the realization of "one China." Under our Constitution we may not take action to quell the "Communist rebellion," any more than we could arrest Tang Shubei (
Looked at from the standpoint of international law, Hsieh's advocacy of "one China" seems to be suicidal. In the past, China used the principle of exclusive recognition in international law to maintain that "there is only one China. The People's Republic of China is its legitimate government and Taiwan is part of China." This infuriated the pan-blue camp.
China subsequently changed this to "there is only one China. Both Taiwan and Mainland China belong to China" and that "sovereignty is indivisible." But really, from the perspective of exclusive recognition, there is really no difference between the former and the latter formulation.
During his visit to China, People First Party (PFP) Chairman James Soong (
So who would have thought that China would use the same old "Taiwan and Mainland China belong to China" formula to block Taiwan's WHO bid?
If we look at the Hu-Soong communique and the incident regarding Taiwan's WHO bid in tandem, we can see that Soong is doing no more than parading bankrupt rhetorical devices. And if that is the case, is there really any need for Hsieh to carry on talking about a "one China" structure?
Lin Cho-shui is a DPP legislator.
Translated by Ian Bartholomew
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