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A nation must think before it acts.
My charge today, I gather, is to address the referendum and perhaps more broadly the “new constitution” issues in Taiwan in the context of international legal questions of Taiwan’s status.
The referendum and the constitutional reform discussion can best be understood as the most recent twists in a very long-running story. President Chen Shui-bian, of course, insists that the referendum, which will be on the March 20 ballot, the broader legislation authorizing referenda, and the “new constitution” discussion have nothing to do with Taiwan’s status or, to put the point more provocatively, Taiwan independence.
We are assured it will not violate the “five no’s,” or as it is usually rendered in Chinese, the “four no’s and one not.” That is: no declaration of independence, no change the national title, no incorporation of former President Lee Teng-hui’s state-to-state language in the constitution, no referendum on independence or unification— those are the four no’s, and the not is: not to dismantle the National Reunification Council and the Guidelines for National Unification.
The way Chen Shui-bian has framed this is to say that he is seeking to maintain the status quo, and that this has no bearing on unification or independence issues. It is, we are told, purely a “defensive” referendum. Now, as a narrow legal matter, that’s probably right in ways that I will explain shortly, but the issues are a lot more complicated than that.
There is, first of all, a Taiwanese domestic legal question about whether what Chen is doing conforms with the referendum law that was passed last fall, but it is now clear that those issues will not derail the referenda and they will be on the ballot March 20.
So, if Chen has a good, or at least not-effectively-challenged, case that he stayed within Taiwanese law and a good case that he stayed within his highly public, internationally visible commitments about not changing Taiwan’s status, why all the fuss? Some of it, of course, is politics. You all know that at least as well as I do. Clearly there has been a big political flap surrounding the famous statement by President Bush during Chinese Premier Wen Jiabao’s visit to Washington, the various statement and signals sent by Messrs. Armitage, Powell, Moriarity, Paal, and, of course, Ms. Shaheen, and the familiar warnings from Beijing sources from Wen Jaibao down to a recent lengthy analysis of Taiwan politics and the referendum issue by the Propaganda Department of the Chinese Communist Party, which tends to be pretty thorough and profuse in spilling ink, both black and red.
The political tumult has extended to the Taiwan side with the “pan-blue” team (that is, the Kuomintang and People’s First Party) falling all over itself to figure out how to react to the “pan-green” team’s (that is, the Democratic Progressive Party-led group’s) referendum initiative. And, of course, perhaps most strikingly of all, that you all consider international law a fit talk for a lunch suggests that there is certainly some significant level of concern with the political and security implications of the referendum and related developments.
What I want to suggest is that there is, in addition to that politics, an international legal aspect to the controversy that’s worth plumbing, in part because itreflects the same kind of entanglement of politics and international law that we’ve seen going on in the cross-Straits relationship for 15 or more years now, in some ways for probably 30 some years.
By saying this, I do not want to suggest that international law is going to solve any of the problems. Indeed, quite the contrary. Nor do I mean to suggest that what everyone is worried about is resolving the legal implications of the referenda or related issues, or the legal niceties of Taiwan’s status. . Rather, what we have here is a situation where the volatile politics of cross-Strait relations is entangled with legal categories. To talk in legal terms has some use here because diplomats and politicians like vagueness, while lawyers like precision. If you have to use legal terms, you have to be a little more precise, and that tends to help expose where the political land mines are buried.
Beyond that, law tends to be a weapon of the weak. If you do not have anything more powerful on your side, you try the law. Taiwan is, of course, weak in its current international position. Also, arguments that invoke some legal principles may have unprecedented, if still limited, purchase with the PRC. China cares more about international law than it has historically, partly because it wants to be in the club. The WTO is the most recent example of that. More broadly international legal categories tend to do a pretty nice job of of reflecting and focusing some important features of political reality in the international realm. That may all sound a little abstract.Let me try to put it concretely with respect to one aspect:
The world regarded very differently on Iraq’s invasion of Kuwait than it did Iraq’s treatment of Kurds and Shiites in Iraq who happened, like the Kuwatis, to be sitting on a lot of oil. The world looks rather differently on how the PRC behaves toward Tibet or Xinjiang than it did on how the PRC behaved toward Vietnam during its ill-fated invasion a quarter-century ago.
As these contrasts indicate, it is very important for Taiwan toto make the cross-Strait relationship look “international” and for China to make it look “intra-national.”
So without further ado, let me turn to our principal topic: the referendum question. The text of the referenda do not raise squarely any question of Taiwan’s status. The first referendum is about the PRC missiles targeting Taiwan. It asks whether more defensive capabilities should be purchased by Taiwan. The question of withdrawing the missiles has been moved to a preamble condition rather than the focus of the referendum, which it was in an earlier contemplated form:
If China does not withdraw its missiles and renounce the use of force, should Taiwan upgrade its capabilities?
The second referendum question has to do with the establishment of a “peace and stability” framework for cross-Strait negotiations. There is nothing in these two referenda that mention “status” or “independence.” And both, again, are a climb down from an initial proposed referendum’s focus on withdrawing missiles. The two referenda have also emerged against the background of other referendum topics that were bandied about before the passage of the legislation that authorizes the referenda that will be on the ballot:
This strange grab bag of possible referendum topics included: whether Taiwan should build a fourth nuclear power plant, whether Taiwan should enjoy World Health Organization representation, whether Taiwan should shrink the size of its legislature, and whether Taiwan should have a new constitution. The first three say nothing explicit about Taiwan’s status and do not seem obviously to implicate such questions.
Constitutional change also does not necessarily say anything about Taiwan’s status or independence. The issues that are officially on the agenda for constitutional reform in Taiwan are fairly familiar domestic affairs: A constitution drafted across the Strait in 1947 for a big underdeveloped country doesn’t fit so well for an industrialized country of 23 million in the current century. How do you deal with the cumbersome institutions that the old constitution established to represent a vast and far-flung people? How do you deal with the half presidential/half parliamentary structure, which does not work so well in a system of multi-party democracy?
So, why all the charges and worries that the referenda or constitutional reform are efforts to change the status quo with respect to Taiwan’s status ? Looking at the international law questions starts to make things clearer. When you say “referendum” in the same breath as “Taiwan,” everybody thinks of the old platform of the DPP— of President Chen’s party, which called for referendum on independence. It is hard to get away from the idea that the developments of the last several months can be characterized as a “referendum in search of a topic.” For the very idea of a referendum in Taiwan evokes the notion that we are tossing around the familiar term that resonates in Taiwan’s recent political history with a referendum on the independence question.
The other potential referendum topics that were being discussed in recent months also have implications for questions of Taiwan’s international legal status. Consider WHO representation for Taiwan. The quest for representation, which the referendum would have sought to advance or at least to spotlight is part of Taiwan’s relentless quest for as much international “status” as it can grab. A standard, established principle of international law makes it clear that Taiwan’s capacity to engage in international relations is one of the criteria of statehood.
While the precise meaning and application of this principle is controversial, it at least counts for something to be a member of as many organizations as you can. The closer you can get to membership or some affiliation with UN-affiliated, state-members-only organizations like the WHO, the better. So, in this way, the potential WHO representation referendum implicated questions of Taiwan’s status.
Constitutional reform does too. In the discussion of constitutional reform and the possible referendum to support it, Chen and other advocates of change have said much about how the people of Taiwan need a constitution that belongs to them. They should not have to live with need an ill-suited constitution that was crafted by and for a China with very different characteristics.
This discussion of constitutional renovation comes against the background of a trajectory of past constitutional reforms on Taiwan that, step by step, severed or weakened links to the mainland. To adopt a wholly new constitution made on Taiwan would push that trend significantly farther, even if it did not formally change the name of the country to “Taiwan” or “Republic of Taiwan.”.
So while, of course, governments draft new constitutions and ongoing states change their constitutions, one of the things that new states routinely do is make new constitutions. This albeit loose correlation between newly acquired statehood and adoption of a new constitution resonates particularly strongly in the post-Cold War world in which the Soviet Union’s breakup created numerous new states that wrote new constitutions. Indeed, a few of my colleagues, not at my university, but in other law schools, made a tidy living providing form-book constitutions to new republics, many of which have since been revised.
Let me take a step back and look at some of the broader contextual issues surrounding the two upcoming referenda and constitutional reform.. If you probe the discussion of the referenda and their context a little more closely, you can see that, everywhere you turn, they resonate with international law questions that have been part of the politics of Taiwan’s international status.
The biggest one here is, of course, whether Taiwan is a state or not. We used to play what I call “Montevideo games” : assessing how far Taiwan was going in playing the game of claiming to meet the standards of statehood of international law.
The basic rules of these games are set forth in the Montevideo Convention on the Rights and Duties of States, which here does not bind as a treaty. Instead, it tracks and states customary international law. It sets forth four factors. One is territory; another is population. It is pretty obvious Taiwan has a lot of people (more than many states) and, as an island, it has a nicely stable territory, barring an occasional earthquake.
The third criterion is a government, an effective government. This means a government that exercises power independently of the government of any other state. That is, the government does not answer to any larger or other entity. Effective government also means a government that provides governmental authority and order domestically. Taiwan does well on these criteria as well.
The fourth factor, the capacity to engage in international relations, is more complex and controversial. There are some who lean toward the highly formalist notion that asks: are you recognized by other countries as a state? That view is largely passe. The proponents of this “constitutive” theory basically lost the argument. Most international law views accept the rival, “declaratory” theory. If we put the jargon aside, what this theory means is we do not care what states say (whether they formally recognize another entity as a state), we care what they do (whether they treat an entity in practice as if it were a state). If other states let you into their organizations, if they let you have something that looks like an embassy, that is pretty good evidence of satisfaction of the fourth criterion of statehood on the declaratory view.
As a legal matter, it is plausible to say that no state recognizes Taiwan as a state. There are countries that maintain diplomatic relations with the ROC-on-Taiwan government, but they fudge the issue of what state that government represents. What the question of Taiwan’s status brings to the fore is that there is a fifth, unstated Montevideo factor. That is: you must say you are a state. The factors set forth in the Montevideo Convention were formulated in a world in which many entities claimed to be states that, in fact, probably did not satisfy the four listed substantive criteria.
Taiwan is in many ways the opposite case. It scores high in terms of the enumerated criteria, but it has been oddly slippery or opaque in terms of making the requisite assertion that it is a stateIf you parse the sacred texts of the Taiwan status issue over the last several years– Lee Teng-hui’s Deutche Welle interview, Chen Shui-bian’s various formulations, if you go through all the talk of “state-to-state or at least special nation-to-nation relations”, and “one side/one country,” and so on, if you line those up and examine them carefully in an almost jesuitical way, you can find that they tend to do one of two things:
They sometimes stop just short of the line. They do not quite cross the Rubicon of saying Taiwan is an independent separate state that we hereby declare ourselves to be now. Or, at other times, they try to imply that independent statehood is a fait accompli. They say, in effect, at some earlier point, Taiwan became a sovereign independent state. They say: we are either not going to tell you exactly when it happened, or, if we are going to tell you, we say it was 1911. Thus, moves away from independence— not toward it— would be changes to the status quo.
So, in sum, they say either, “We haven’t quite crossed the Rubicon,” or “We already got to the other side awhile ago, when you weren’t looking.” They are, in effect, saying, that that there is no moment now when Taiwan is wading into the dangerous waters. So, there is no reason literally or figuratively for the PRC to go ballistic now.
Either way, the foundation is laid for the Taiwanese claim that Taiwan enjoys state or fully state-like status and that nothing in that regard has changed recently. It is as it was.If you want to think that the way it was was “one country,” you are free to do that, but that is not how Taiwan officially sees it.
These are very artful moves in addressing the big international legal issue concerning Taiwan’s status: statehood or its equivalent. There are important resonances of these broader arguments in the current referendum and new constitution issues. If you look at Article 17 of the Referendum Law, the legal basis for the referenda that will be on the March ballot, what does it say? It says that when the state is threatened by an outside force so that sovereignty is in danger of alteration, the president may propose a referendum on his own. In effect, it asserts that Taiwan is a sovereign state. It asks: Is this state in mortal peril? Such language implies that we have already crossed the Rubicon to which I have referred and are trying to protect the status quote oa a separate sovereignty from erosion.
As to the new constitution, again, adopting a new constitution is what new states tend to do. More specifically, if we do see a new constitution for Taiwan— -and, while we will not know the details for some time, we do see hints— it likely will reaffirm the notion of the relevant territory, which is the geographic limitation to Taiwan and the offshore islands that Lee Teng-hui undertook in constitutional amendments more than a decade ago. It likely will reaffirm that this is a constitution of the people on Taiwan or the people of Taiwan.
It will reaffirm that Taiwan has a a government (with the structure specified in the constitution) because, after all, constitutions structure and create governments. And it will, I predict, make the same type of complex assertions about Taiwan’s status that we have seen during the last several years of official pronouncements, saying that the constitution does not change anything with respect to status and/or claiming that Taiwan already became a sovereign state some time ago.
There is’s a still-broader question here of status in international law: However you assess the statehood question, there is an assertion by Taiwan of equality with the PRC. Taiwan and the PRC should deal with one another as equals. That is the Taiwan position. You can see this in Lee Teng-hui’s “two essentially equal political entities” formulation and the various demands for level playing field party-to-party negotiations, as well as in the “sate-to-state” and “one side, one country” locutions.
The second referendum question of the March 20 ballot raises the same issue quite explicitly. Its topic of the framework for cross-Strait negotiation resonates with that whole discussion of cross-Strait equality.
Another international law principle with deep implications for Taiwan’s status is at issue in the referendum controversy: the use of force. The use of force by states is often perfectly okay in international law if that use of force is domestic. You can use force to put down rebels. The U.S. did it in the 19th century. It is not, however, often okay under international law to use force internationally. That is a core principle of post-war, UN Charter-based international law.
So, by saying the PRC should renounce the use of force in the first referendum question— saying that if the PRC does not renounce the use of force and withdraw the missiles, an upgrade in Taiwan’s defenses will follow— the referendum question implicates the international law governing the use of force. It invokes not only the “five no’s” which, remember, are all declard to be binding only on the condition of the PRC’s not threatening force and not intending to use force against Taiwan. Thus, the first referendum and, to a degree the second, and the context of the “five no’s” in which Chen placed the referenda essentially say to China: “Don’t use force. You must renounce the use of force against Taiwan.” That at least resonates and, in context, perhaps entails an assertion that Taiwan is a state because China could use force against Taiwan (to put down what China considers to be a rebellion, and subject only to human rights constraints) if Taiwan were not a state.
The referenda also invoke the international legal principle of the obligation to resolve disputes peacefully. Customary international law says that states have obligations to resolve their disputes peacefully. What is key here is that this obligation attaches primarily, arguably exlusively, to relations among states. So, saying that there is an obligation for China and Taiwan to sit down peacefully or that Taiwan and China should agree to a peaceful framework is essentially putting in, through the back door, this notion of equality among the parties and, indeed, evoking the idea of equality among states.
President Chen has also said that having a referendum is a basic universal human right. This is playing the human rights card, much the way that Taiwan has played the human rights card for more than a decade now.
This move has two elements. One is to assert that, whatever you think of Taiwan’s state or non-state status, the people of Taiwan have human rights. People are visible to international law in a way they were not 60, 70 years ago. They directly hold international legal rights that states are bound to respect, and, therefore, whatever you think of Taiwan’s status in other respects, Taiwan as a political entity gets credit and standing for its role as the protector of the human rights of the people on Taiwan. One way to protect those human rights is to make sure those 23 million people have a place at the table at the UN or elsewhere, or that their bodily integrity is protected from flying missiles, or that their opportunity to shape their own government is not lost to foreign domination.
Next, democracy is another international legal principle relevant here. Taiwan has pushed this card pretty hard, and, of course, the referendum issue is about democracy. Chen says the referenda represent the next stage of democratization and the deepening of Taiwan’s democracy. The referendum law itself says in its preamble that it is rooted in the principle of sovereignty of the people. Thus, the referenda embody a a democratic principle and an exercise of democracy which resonate with an argument that Taiwan has long made—one that says that Taiwan is a democracy and that being a democracy counts for something in terms of international status.
As with human rights, here, with democracy, international law (and the politics it reflects) has left behing the old world of black box states. States that are more democratic or near-states that are more democratic get “leveled up” to enjoy a higher or more secure status than they otherwise would enjoy. Uncontested states that are not democratic get “leveled down” in status. This is another post-Cold War legacy. Democracy was a condition (or at least a factor) of recognition that Europe and the U.S. adopted in handling recognition of some of the post-Soviet states.
As an aside to, there has been much discussion in the context of Taiwan’s impending referenda of whether the referendum is the appropriate democratic tool that Chen claims it to be for dealing with the questions that will be put to the Taiwanese electorate. Such criticisms have tended to come from a rather American perspective on referenda, one which sees referenda as a means for resolving contentious issues that seem incapable of solution through ordinarily legislative processes, and which therefore tends to regard Taiwan’s pair of referenda as inappropriate acts of political posturing or manipulation.
Referenda, however, have deep roots in Chinese constitutional law. Sun Yat-sen included the right to referenda as one of the four powers of the people, and this still is reflected in the Republic of China Constitution today. Thus, it still exists in the constitution that is operative on Taiwan today, in a provision that provides the basis for the referendum law that in turn provides the basis for the upcoming referenda.
I would suggest that if you parse those four powers of the people, actually the referendum lines up not so badly with the kind of presidentially proposed initiatives Chen has proposed. The Sun Yat-sen type of referendum is a kind of thumbs up/thumbs down plebiscite, with no obvious restriction as to subject matterGiven the constraints that Chen faced under the referendum law as passed, which allows the president to propose a referendum on his own only in a narrow “national emergence” or “security” context, the topics chosen were perhaps the best he could do and do not collide with any constitutional notion of the type of issue that would be a proper topic. And the portion of the referendum law that Chen relied upon does not collide with any constitutional norm that referenda should come from below. But that is a minor point about the way that international legal norms concerning domestic democracy resonate in the referendum flap.
Another more important matter related to principles of democracy is that democracy links us to the question of self-determination of peoples, and self-determination is, in turn, linked to referenda and is itself a major principle of post-war and, more broadly, the last century of international law. Self-determination is a principle that Taiwan has not pushed so hard in the debate over Taiwan’s status, partly because it is not clear under international law that self-determination gets you very much. It entitles a “people” to something, but it does not necessarily entitle them to their own state. It entitles them to a full state if they are an ex-colony being de-colonized. This idea had some currency with independence wing of the DPP’s argument from some years ago that said that when Japanese authorities left Taiwan at the end of World War II, Taiwan went into a post-colonial limbo, its status to be determined later. This is actually very close to what the U.S. says in its decades-old but still-most-recent official statement on Taiwan’s actual status.
So-called “blue-water” decolonization-the dismantling of an overseas empire-tends to be seen as giving a right to separate statehood, and Japanese decolonization of Taiwan would seem to fit this model. On the other hand, where a people seeks to to break away from a bigger, continguous state, which is how the PRC and some others would characterize Taiwan’s “leaving” China, international law says that maybe some kind of autonomy regime within an undivided state will be enough satisfy the right to self-determination. So pushing the self-determination question is problematic as a strategy for Taiwan for that reason.
It is also problematic because self-determination is a right of “peoples” and it is not quite clear that the people of Taiwan are a “people” in the relevant sense.On the one hand, they are arguably at least partly Chinese. On the other hand they are internally divided between “mainlanders” from families who arrived in 1949 and Taiwan people whose ancestors came across the Strait much earlier.
But the most intractable problem with respect to self-determiniation is that the preferred way for exercising any right to self-determination is a plebiscite— a referendum— on the issue of whether the people of a territory want to be their own state.
As is well known,China will not stand for that, and the opinion polls on Taiwan (which show support for the ambiguous status quo) are obviously operating in the shadow of what China would do if the people of Taiwan said what they thought about self-determination issues. The point here that the current referendum issue politically resonates with the referendum as an international legal means for addressing questions of self-determination— questions that are highly volatile in the cross-Strait context and that obviously have implications for whether Taiwan is a part of China, a separate state or something else.
In all of the ways that I have described, the referenda, along with the issue of constitutional reform, in Taiwan evokes and implicates myriad international legal questions and the volatile politics of Taiwan’s status.
Lest you think that I am suggesting that Taiwan alone is responsible for making the trouble here, I want briefly to address the PRC half of the set of international law problems that help to create a context that has increasingly squeezed Taiwan’s international “space” in recent years and against which Chen, and Lee Teng-hui before him, and others on Taiwan have reacted.
Remember the PRC position on the question of sovereignty over Taiwan. Taiwan is part of China, full stop. It is just like Sichuan province. That is the PRC’s abundantly clear position on the international legal question of Taiwan’s status. The PRC’s position on how Taiwan got to that status is interestingly murky. In first year torts, we teach students that when they become lawyers, they need to be prepared to argue simultaneously that my client never borrowed your now-broken kettle, that your kettle was fine when my client returned it, and that it was already broken when my client borrowed it.
Well, China does something like that when it addresses the question of Taiwan’s status. It says Taiwan never left China, in effect that Taiwan never could have left China, that China is unbreakable, so the “unequal” treaty nominally ceding Taiwan to Japan 1895 did not have and could not have had any effect. China also says that maybe Taiwan left in 1895, but that the treaty granting it to Japan became void when Japan invaded China in 1937, thereby breaching the terms of the 1895 peace treaty. Alternatively, Taiwan came back to China in 1945 when Japanese troops on Taiwan surrendered to the ROC regime, the rights of which the PRC later inherited, or Taiwan came back some time around the end of World War II, when the Potsdam and Cairo declarations, which declared the Allies’ intent to restore Taiwan and other stolen territories to China, somehow ripened into reality.
But, in any event, the PRC’s claim is that Taiwan is part of China. There is no international legal act needed to return it. The PRC holds that the U.S. is obliged to accept that situation by the three Communiques, and the U.S. violates that obligation with the TRA which continues to accord Taiwan state-like status and to underpin the sale of arms. That is the Chinese position, and it is very hard line.
What is important for the purposes of understanding the implications of the referendum law and constitutional reform on Taiwan is that there is a Chinese domestic law corollary to this PRC position on the international legal issue. One of the implications of saying that Taiwan is and always has been, or is clearly now, part of China is that China can pretty much do what it wants in dealing with Taiwan. China could not bind itself, even if wanted to, under Chinese theories of sovereignty to anybody else about how it will exercise its sovereignty over Taiwan.
The Joint Declaration with respect to Hong Kong illustrates the PRC perspective on this crucial question. Closely read, it is remarkably free of anything that China accepts as a clear, internationally binding legal obligation. The domestic Chinese law corollary of the lack of international legal obligation is that, as a matter of domestic Chinese notions of how to exercise sovereignty, the National People’s Congress, which we all know takes orders from the party, cannot do anything more than pass a law that says “one country, two systems,” and remain completely free to change that through subsequent legislation. Indeed, the NPC is free to change the constitution.
So what you have here is a very intractable problem. The PRC position on sovereignty over Taiwan at international law and the exercise of sovereignty in domestic law does not give much room to provide anything that legally really promises Taiwan anything. This, of course, only exacerbates political suspicions on Taiwan and elsewhere about the promised guarantee of “one country, two systems.”
The question of Taiwan’s status, itself in significant part an international legal question, thus, remains inescapably at center stage, with the referendum and constitutional reform debates throwing the newest spotlights on old problems. Attempts to use international law to find a way around the status question have, like the referendum and constitutional reform questions, offered no way out and often raised the temperature. Models or proposals of different, blended, or half-way-house sovereignty arrangements— special autonomy region, federalism, confederation, divided states, the German or Korean or EU models— all of those ultimately provoke more disagreement than agreement, simply because they cannot get out of a simple trap: either they are talking about two countries that may be coming together, or one country that may be coming apart.
And the PRC and Taiwan are on opposite sides of that fundamental divide.
You all know the political and economic and military factors that have been squeezing Taiwan. I have tried to supplement those with a related legal dimension. Under these circumstances, it is hardly surprising that Taiwan’s first lawyer president is following the old lawyer’s adage that says when the facts are against you (in this context, facts such as a deteriorating security situation and an asymmetrical pattern of economic dependence), pound the law. When the law may not be with you (as it may not be, given international law’s permeability to international politics and the weakness of some of Taiwan’s legal claims), pound the table.