The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

The U.S.-Taiwan-China Relationship and the Evolution of Taiwan Statehood

[Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations. He is the author of The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), and An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015).] On May 20, 2016, Tsai Ing-wen will be inaugurated as the first female president of Taiwan. Tsai is the first member of the Democratic Progressive Party (DPP) to hold the presidency since the administration of Chen Shui-bian from 2000 to 2008. She will be the first DPP president to enter office with a DPP majority in the Legislative Yuan—a crucial condition for effective governance never afforded to Chen. The DPP has historically been associated with the movement for greater national independence for Taiwan, and, as many commentators have observed, the shift in power will reinvigorate the debate over Taiwan’s status under international law. As I write in chapter two of my book An Introduction to Contemporary International Law: A Policy-Oriented Perspective, Third Edition (Oxford University Press, 2015) and in my new book The U.S.-Taiwan-China Relationship in International Law and Policy (Oxford University Press, 2016), the past thirty years have witnessed a profound and persistent movement of democratization—and Taiwanization—that runs counter to the People Republic of China’s (PRC) unrelenting claims of ownership over Taiwan. After decades of de facto independence and the emergence of a vibrant democratic society and national culture, the Taiwanese people will never be content to see their country become the next Hong Kong under a flawed “one country, two systems” formula. In my view, the time has come for the world community to support the Taiwanese people in achieving recognition of an evident fact: Taiwan is a state under international law, not a part of China. Taiwan easily satisfies the traditional requirements for statehood as embodied in the 1933 Montevideo Convention: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such. The PRC advances the fictitious claim that Taiwan is an integral part of China from time immemorial, but has never exercised control over Taiwan for a single day in its 67 years of existence since its founding in 1949. The situation is exacerbated by China’s campaign to strong-arm, coerce, and bribe states and international organizations to further isolate Taiwan. (The PRC’s insistence that Taiwan identify as a part of China as a condition to participating as an observer at the World Health Assembly provides a recent example.) Under the 2005 Anti-Secession Law, Chinese leaders arbitrarily empowered themselves to respond with force if Taiwan declared the obvious fact of its independence. The PRC’s unceasing threats of the use of force against Taiwan encroach upon the right of the Taiwanese people to self-determination and endanger the peace and security of the Asia Pacific and even the world community. Some scholars, such as James Crawford in his The Creation of States in International Law (Oxford University Press, 2006), have written that Taiwan cannot be a state because it has not issued a declaration of independence from China. There is no precedent in international law for such a requirement. Even if there were one, President Chen’s 2007 application for UN membership in the name of Taiwan implicitly declared that Taiwan was an independent, sovereign, and peace-loving state that possessed the ability and willingness to carry out the purposes, principles, and obligations of the UN Charter. The move was tantamount to a “declaration of independence” addressed to all humankind. I have advanced a solution to this stalemate based on a theory of the evolution of Taiwan statehood. I submit that Taiwan’s statehood is best understood in the context of an ongoing process of evolution propelled by the will of the Taiwanese people for self-determination and democracy. In chapter 12 of my new book, I stress that the time has come for an internationally supervised plebiscite on Taiwan’s future to be held in full view of the world community. This is not a new concept. It is a straight-forward application of existing international law. It was not until 1887 that the Qing dynasty formally made Taiwan a province of China. Eight years later, following the Chinese defeat in the Sino-Japanese War of 1894-95, China ceded Formosa (Taiwan) and the Pescadores (Penghu) to Japan in perpetuity under the Treaty of Shimonoseki. In 1945, Japan surrendered control of Taiwan to the Allied forces, who delegated responsibility for military occupation of the island to the ROC army led by Chiang Kai-shek. In 1949, after the ROC’s defeat in the Chinese civil war, Chiang and his Kuomintang (KMT) supporters fled to Taiwan and established a regime in exile, imposing martial law, which lasted for 38 years until 1987. Taiwan remained a Japanese territory until the San Francisco Peace Treaty took effect in 1952. Under Article 2(b), Japan renounced all right, title, and claim to Taiwan. However, the Treaty’s framers were deliberately silent as to whom Japan was ceding the territory. It is important to note the San Francisco Peace Treaty—signed by 48 nations—superseded wartime declarations such as the Cairo Declaration and the Potsdam Proclamation. In 1971, the United Nations General Assembly adopted Resolution 2758, expelling Chiang Kai-shek’s representatives and making the PRC the only lawful representative of China in the UN. In 1978, President Carter announced the United States would switch diplomatic recognition to the PRC while maintaining unofficial relations with the people of Taiwan. Following Carter’s announcement,

Symposium: Defining the Rule of Law

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the introductory post in the Defining the Rule of Law Symposium, based on this article (free access for six months).] References to the ‘rule of law’ in international law books, articles and blogs...

Symposium: Defining the International Rule of Law–Defying Gravity?

This week, we are hosting a symposium on Defining the International Rule of Law: Defying Gravity?, (free access for six months) the latest article from Robert McCorquodale, the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. The article was recently published in the International...

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.] The emerging legal framework governing foreign fighters, whose importance is set...

Anchugov and Gladkov is not Enforceable: the Russian Constitutional Court Opines in its First ECtHR Implementation Case

[Marina Aksenova is a Post-doc at the Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen. You can reach her at: Marina.aksenova@jur.ku.dk.] On 19 April 2016, the Constitutional Court of Russia (CC) issued its pilot decision testing newly acquired powers to refuse the implementation of the rulings of the European Court of Human Rights (ECtHR) contradicting Russia’s Constitution. The case under review of the CC was Anchugov and Gladkov v Russia. In this case, the ECtHR previously found that automatic and indiscriminate ban on Russian prisoners’ voting rights was disproportionate and thus in violation of Article 3 of Protocol No. 1 (right to free elections) of the European Convention on Human Rights (ECHR). Ever since it was issued in 2013, the Russian authorities viewed this ruling as problematic because it directly contradicts Article 32(3) of the Russian Constitution, which reads as follows: Deprived of the right to elect and be elected shall be citizens recognized by court as legally unfit, as well as citizens kept in places of confinement by a court sentence. The CC has been enjoying powers to refuse the implementation of contested decisions of the ECtHR for only nine month, and, more precisely, since 14 July 2015 when it issued ground breaking decision to reaffirm the primacy of the Russian Constitution over the conflicting rulings of the ECtHR and any other international bodies tasked with human rights protection (some aspects of this decision are discussed here and in the second half of this post). On 14 December 2015, the legislature, in line with the position of the CC, amended the law regulating the operation of the Russian Constitutional Court, granting the President and the Government the right to appeal to the Court in instances when they suspect that executing the ruling of the ECtHR may contradict the Constitution. Following the introduction of this new internal review mechanism, the Ministry of Justice swiftly filed an appeal to the CC asking it to rule on the possibility of implementing the ECtHR judgment in Anchugov and Gladkov. The CC held on 19 April 2016 that the ECtHR judgment in Anchugov and Gladkov could not be executed. The CC adopted, however, a diplomatic approach by not ruling out the introduction of future penalties involving non-custodial sentences that limit the freedom but do not impede on the voting rights. The CC nonetheless insisted on its previous interpretation of Article 32(3) as sufficiently discriminate to satisfy the requirements Article 3 of Protocol No. 1. The Court further stressed European pluralism in what concerns organisation of the electoral processes in different members states as well as inconsistent position of the ECtHR itself in matters concerning voting rights (the CC contrasted Hirst v UK (2005) and Scoppola v Italy (2012) judgments, pointing to a certain change of heart by the Strasbourg court). The CC distinguished general measures and measures that benefit the applicant in making three important pronouncements:

• Anchugov and Gladkov cannot be implemented in what concerns general measures involving repealing or changing the imperative provision of Article 32(3) of the Constitution given its supremacy within Russian legal system. The CC found it particularly troubling that the provision in question can only be changed by virtue of adopting a new Constitution;
• Anchugov and Gladkov can be implemented in what concerns general measures ensuring fairness, differentiation and proportionality of the restrictions on voting rights. Here the CC adopted a rather questionable approach arguing that only a custodial sentence leads to the disenfranchisement of the offender concerned, which ensures sufficient differentiation because most of the first-time offenders charged with minor crimes do not get imprisoned, ergo their voting rights are intact. The ECtHR has however already dismissed this argument in Anchugov and Gladkov (para. 106) pointing to the lack of evidence that courts take into account impending disenfranchisement when deciding on the type of sanction to be imposed on the convicted person. Possibly sensing some weakness in this position, the CC made an additional promise for the future – the legislator may optimise Russian penitentiary system so as to ensure the existence of punishments limiting freedom but not involving imprisonment, thus guaranteeing voting rights to the convicted persons;
• Finally, Anchugov and Gladkov cannot be executed in what pertains measures benefitting individual applicants because the applicants were convicted for serious offences and sentenced to fifteen years of imprisonment, automatically leading to their disenfranchisement. Moreover, restitutio integrum is simply impossible in this case for the elections that the applicants wished to participate in took place between 2000 and 2008.

14 July 2015 CC Ruling The CC Anchugov and Gladkov ruling was made technically possible due to the adoption of

Jus ad Bellum Implications of Japan’s New National Security Laws

[Craig Martin is an Associate Professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law He can be reached at: craigxmartin@gmail.com.] Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes. The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law. By way of background, Article 9 of Japan’s Constitution provides, in part, that the Japanese people “forever renounce war as a sovereign right of the nation and the threat or use of force in the settlement of international disputes.” It was initially drafted by a small group of Americans during the occupation, and they incorporated language and concepts from the Kellogg-Briand Pact of 1928, and Article 2(4) of the U.N. Charter that had been concluded just months earlier. Thus, Article 9 incorporated concepts and language from the jus ad bellum regime for the purpose of imposing constitutional constraints that were greater than those imposed by international law, and waiving certain rights enjoyed by states under international law. While drafted by Americans, it was embraced by the government and then the public, such that it became a powerful constitutive norm, helping to shape Japan’s post-war national identity. (For the full history, see Robinson and Moore’s book Partners for Democracy; for a shorter account and analysis, see the law review article “Binding the Dogs of War: Japan and the Constitutionalizing of Jus ad Bellum”). Soon after the return of full sovereignty to Japan in 1952, the government interpreted this first clause of Article 9 as meaning that Japan was entitled to use the minimum force necessary for individual self-defense in response to an armed attack on Japan itself. It also interpreted it as meaning that Japan was denied the right to use force in the exercise of any right of collective self-defense, or to engage in collective security operations authorized by the U.N. Security Council. These were understood to be the “sovereign rights of the nation” under international law that were waived by Japan as a matter of constitutional law. All branches of government have consistently adhered to this interpretation every since. In 2014, however, frustrated in its efforts to formally amend Article 9,

Rest in Peace, John Jones QC

It is with great sadness -- and ongoing shock -- that I report the unexpected passing of John Jones QC, one of the great international lawyers. Accomplishments are not important at a time like this, but here is a snippet from his Doughty Street International profile to give readers  a sense of what a spectacular barrister John was: John has acted as Counsel in...