Study on the Issue of Taiwan’s Participation in the International Space 9811944679, 9789811944673

This book points out the legal roots of the alignment of Cross-Strait political relations and the issues of Taiwan'

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Table of contents :
Introduction
Significance of the Study
Study Paradigm: The “Strategy-Oriented” Study Paradigm
Study Method: The Method of Theoretical Construction
Contents
1 Origin: The Issue of Chinese Representation in Making Peace with Japan
1 Outline of Historical Facts of the Chinese Representation Issue in Making Peace with Japan
2 Explanatory Framework for the Issue of Chinese Representation
2.1 Status-and-Order Theory: “Chinese Status” in the “Principle of Chinese World Order”
2.2 Comparison and Integration of Status-and-Order Theory and the Discourse of Contemporary International Law
3 Causal Relationship Between the “Undetermined Status of Taiwan” and the Chinese Representation Issue: Rivalry Between the United States and Taiwan
3.1 The United States: Advocates Shelving the Chinese Representation Issue Due to the “Undetermined Status of Taiwan”
3.2 Taiwan: Forced to Accept the “Undetermined Status of Taiwan” Due to the Need for “Chinese Representation”
4 Asymmetrical Interests and Asymmetrical Rivalry: The United Kingdom, Japan, and the United States
4.1 Asymmetrical Rivalry Between the United States and the United Kingdom: Reconsideration of the United Kingdom’s Role
4.2 The “Japan-Taiwan Treaty” Under American Dominance: Japan as a Medium
5 Discordant Echoes: Treaty of Peace with Japan, “Japan–Taiwan Treaty”, China–Japan Peace and Friendship Treaty, etc.
2 Attack and Defense: Cross-Strait “Diplomatic Battle” and “Truce” Around the Issue of Taiwan’s Participation in the International Space
1 Cause of the Cross-Strait “Diplomatic Battle”: “Recognition Dispute”
1.1 Source of “Recognition Dispute”: “One-China Dispute”
1.2 Derivation of the “One-China Dispute” and the “Recognition Dispute”
1.3 Manifestation of the “Recognition Dispute” on the International Level
2 Cross-Strait “Diplomatic Battle”: Attack and Defense Across the Strait Regarding Taiwan’s Participation in the International Space
2.1 Establishment of the “Attack-Defense” Paradigm
2.2 Cross-Strait Attack and Defense During the “Irreconcilability” Period
2.3 Cross-Strait Attack and Defense During the “All-Out Diplomacy” Period
2.4 Cross-Strait Attack and Defense During the “Pragmatic Diplomacy” Period
2.5 Cross-Strait Attack and Defense During the “Post-pragmatic Diplomacy” Period
3 “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm
3.1 Negative Impacts of Cross-Strait “Diplomatic Battle”
3.2 Proposal of “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm
3.3 Resumption of Battle After “Diplomatic Truce”
3 Base: Alignment of Cross-Strait Political Relations
1 Description of Policies and Laws in the Alignment of Cross-Strait Political Relations
1.1 Description of Policies in Alignment of Cross-Strait Political Relations
1.2 Description of Laws in Alignment of Cross-Strait Political Relations
2 Epistemological Foundation and Political Prerequisite for Aligning Cross-Strait Political Relations
2.1 Epistemological Foundation: “Political Confrontation Theory”
2.2 Political Prerequisite: The “1992 Consensus”
2.3 Methodology of the “1992 Consensus”: Negotiation in the Spirit of “Expanding Common Ground and Setting Aside Differences”
3 Proposition of the “Two Sides” Mode and Its Connotations
3.1 The Cross-Strait Power System and Its Impact on Aligning Political Relations
3.2 “Two Sides”: Transformation from a Geographic to a Political Concept
3.3 Present Stage Feasibility of the “Two Sides” Alignment Model of Political Relations
4 The “Two Sides” Mode Under Comparative Viewpoints
4.1 Internal Comparison of the “Two Sides” Model
4.2 External Comparison of the “Two Sides” Model
4 Change: Means of Existence of the Taiwan Region in the International Space
1 Means of Existing as a “Nation”
2 Means of Existing in Compliance with Rules of International Organizations
2.1 Name Changes
2.2 Functional Names
2.3 Associate Memberships
3 Means of Existing by Maintaining “Substantive Relationships”
4 Judicial Means of Existing
5 Means of Existing Via Non-Governmental Organizations
5 Political Rivalry: Taiwan’s Strategies for Participating in International Organizations and the Mainland’s Response
1 Asymmetrical Rivalry and Strategy-Oriented Paradigm
1.1 Asymmetrical Rivalry and Release of Strategy-Oriented Paradigm
1.2 “Strategies” Summarized by Taiwanese Scholars
2 Taiwan’s Strategies for Participating in International Organizations—Taking Taiwan’s Application for Participation in World Health Organization (WHO)/World Health Assembly (WHA) Activities as an Example
2.1 Entity Strategy: From “One China” to “Two Entities”
2.2 Topic Strategy: From “Power” to “Rights”
2.3 Behavioral Strategy: From “Joining” to “Participating”
3 The Mainland’s Coping Strategies
3.1 Coping with the “Entity Strategy”: Shaping “Chinese Taipei”
3.2 Coping with the “Rights Strategy”: Opening up Institutional Space for Taiwan Compatriots to Safeguard Their Own Interests
3.3 Coping with the “Participation Strategy”: Surpassing the Political Goals of Participation in International Organizations
6 Coordination: Problems with the Co-Existence of Both Sides in the Same International Organizations, and Potential Solutions
1 Attack and Defense of Both Sides Within the World Trade Organization (WTO)
1.1 Different Understandings of the WTO Framework
1.2 Interactions Within the WTO Framework
2 Taiwan’s Status and Mutual Relations Between Both Sides Within the WTO
3 Construction of a Mechanism for Both Sides to Co-exist in the Same International Organization: Experiences and Deficiencies in the WTO
7 Future: Construction of a Mechanism for Taiwan’s Orderly Participation in the International Space
1 Main Problems with Taiwan’s Participation in the International Space
1.1 “Under What Name” Should Taiwan Participate in the International Space?
1.2 Under Which Status Should Taiwan Participate in the International Space?
1.3 To What Extent Should Taiwan Participate in the International Space?
2 International Legal Documents Concerning the Taiwan Region and the Legal Logic Behind Taiwan’s Orderly Participation in the International Space
2.1 Taiwan-Related International Legal Documents Prior to August 15, 1945
2.2 United Nations General Assembly Resolution 2758 (1971)
2.3 Diplomatic Legal Documents Signed Between the People’s Republic of China and the United States or Japan
2.4 Legal Logic Behind Taiwan’s Orderly Participation in the International Space
3 A Mechanism for Taiwan’s Orderly Participation in the International Space Under the Framework of Peaceful Development of Cross-Strait Relations
3.1 Guiding Principle: Various Principles for Constructing a Framework for Peaceful Development of Cross-Strait Relations
3.2 Basic Idea: Integration of Alignment of Cross-Strait Political Relations
3.3 Mode Selection: Participation and Institutional Negotiation Under International Law
3.4 System Design: Based on the Mechanism of Association for Relations Across the Taiwan Straits (ARATS) and Straits Exchange Foundation (SEF) for Negotiations on Specific Issues
References
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Jie Zhu

Study on the Issue of Taiwan’s Participation in the International Space

Study on the Issue of Taiwan’s Participation in the International Space

Jie Zhu

Study on the Issue of Taiwan’s Participation in the International Space

Jie Zhu School of Law Wuhan University Wuhan, Hubei, China

ISBN 978-981-19-4467-3 ISBN 978-981-19-4468-0 (eBook) https://doi.org/10.1007/978-981-19-4468-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Introduction

Taiwanese scholar Wu Yushan has pointed out: “To interpret the process of crossStrait interaction and future development, certainly the first step is to look for general theoretical rules applicable to relations across the Taiwan Strait, and then to analyze cross-Strait relations with the explanatory and predictive ability of the general theoretical rules.”1 Nevertheless, cross-Strait relations are not only about issues and complexes left over by history but also conflicts and disputes brought by reality, compared with which words of theory appear to be pale and weak. Moreover, there is not even a single precedent to compare to cross-Strait relations in world history and reality. Thus, the theoretical models produced based on certain other political structures in comparative politics are flawed when used to interpret and predict cross-Strait relations.2 The complexity of cross-Strait relations has determined the multistructural nature of the analytical method, especially for the issue of Taiwan’s participation in the international space. Sovereignty disputes are the most fundamental contradiction across the Strait.3 To resolve this contradiction, we need to find a path for Taiwan to participate in the international space in an orderly manner, which requires the boldness and courage of political figures as well as the wisdom and assistance of theories. During the 8 years between 2008 and 2016, Taiwan and the mainland gradually resumed and expanded negotiations on specific issues, advancing toward the new structure of “governance across the Strait.”4 In 2012, the public opinion in Taiwan reaffirmed this change and offered time for more in-depth peaceful development of 1 Wu Yushan, Contending Approaches to Cross-Strait Relations, in Contending Approaches to Cross-Strait Relations, ed. Bao Zonghe and Wu Yushan (Wu-Nan Book Inc., 2002), 5. 2 For relevant criticism, see Shaw Chong-hai and Su Houyu, Application of Theories in the Study of Cross-Strait Relations, data source: www3.nccu.edu.tw/~chshaw/xmu_cor_th.doc, the last access time: January 20, 2019. 3 See Chang Ya-chung, Issues of Sovereignty Between Mainland China and Taiwan, Sheng-Chih Book Co., Ltd., 1998, 2. 4 See Zhou Yezhong and Zhu Jie, Cross-Strait Governance: A Structure Being Formed, Law Review 6 (2010).

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cross-Strait relations. Taiwan and the mainland once had sufficient time and opportunities for promoting cross-Strait negotiations to develop from negotiations on specific issues to administrative negotiations and political negotiations, establishing a crossStrait interaction mechanism, and ultimately resolving issues such as the political alignment of Taiwan and the mainland. That was an unusual period of strategic opportunity for the Chinese nation to resolve the issue of national reunification. However, on May 20, 2016, the transition of political power happened again in the Taiwan Region; elected as the leader of Taiwan, Tsai Ing-wen no longer recognized the “1992 Consensus,” which the mainland thought undermined the foundation of political mutual trust across the Strait and brought cross-Strait relations into a political impasse again.5 In terms of external relations, the Tsai Ing-wen authorities have adopted a series of “desinification” measures to open up the international space in a more independent name. The task of this book is to conduct theoretical discussions to resolve the issue of Taiwan’s participation in international space and develop a potential solution with the possibility of realization, hoping to contribute to the resolution of the issue of Taiwan’s participation in international space.

Significance of the Study With emphasis on the summarization of past historical experience, this book also strives to provide a set of general theoretical rules of realistic feasibility for interpreting and predicting the reality and prospect of Taiwan’s participation in the international space through the construction of a theoretical model. The significance of this study mainly includes the following: First, finding the proper resolution of the issue of Taiwan’s participation in the international space and fulfilling Taiwanese people’s wishes for participating in the international community is conducive to cooperation across the Taiwan Strait and protection of the common interests of the Chinese nation in the international community. The participation of the Taiwan Region in the international space can be construed as a means for the Taiwan authorities and Taiwan independence supporters to advocate the so-called “Taiwan’s subjectivity,” but at the same time, Taiwanese people’s subjective wishes and objective needs for participating in the international space can also be recognized. Therefore, finding an appropriate method to properly resolve the issue of Taiwan’s participation in the international space in an orderly manner is of great significance for fulfilling Taiwanese people’s wishes to participate in the international space. How to join hands to protect the overall interests of the Chinese nation through an institutionalized path when the overall interests of the 5

See Zheng Zhenqing, Duan Zhezhe, and Yang Zishen, Political Preference, Economic Interest, and Deterrence Perception—Influencing Factor Analysis of the Standpoint of Taiwanese People on the ‘1992 Consensus’ during the Tsai Ing-wen Administration, Taiwan Research Quarterly 3 (2018).

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Chinese nation represented by maritime interests are being harmed also requires an appropriate path for the Taiwan Region to participate in the international space. Second, the issue of Taiwan’s participation in the international space and the alignment of cross-Strait political relations are two sides of the same coin. Studying them as a whole is inducive to promoting their mutual adaptation and coordinated development and interaction. This book studies the issue of Taiwan’s participation in the international space and the alignment of cross-Strait political relations as a whole. If the alignment of cross-Strait political relations is an internal affair across the Taiwan Strait, then Taiwan’s participation in the international space is an issue created during the interaction of both sides with the outside world. Whether the Taiwan Region can participate in the international space and how it is going to participate depend on the degree of resolution of the alignment of cross-Strait political relations; meanwhile, the issue of Taiwan’s participation in the international space serves as the best observation point in the alignment, which is also one of the motivating powers that promote the continuous deepening of the alignment of cross-Strait political relations. Thus, these two actually constitute “two sides of the same coin,” and there is no need to separate them for discussion. Regarding Taiwan’s participation in the international space and the alignment of cross-Strait political relations as a whole, this book attempts to promote their continuous mutual adaptation and coordinated development by probing into their relations. Third, the Taiwan Region has already been participating in several international organizations in various names. Through this study, an analytical framework and solution will be provided to resolve the issues arising from the coexistence of the mainland and Taiwan in the same international organization. Undeniably, Taiwan’s participation in the international space is already an objective reality, and the possibility of Taiwan participating in the international space in a proper name has also been affirmed by the mainland. General Secretary Xi Jinping once proposed that about the long-standing political differences across the Strait, within the one-China framework, we are willing to have consultations with Taiwan on an equal footing to make fair and reasonable arrangements; whatever ideas there are can be exchanged; many issues in the world cannot be resolved with a one-time effort, but so long as there are conversations, there is hope.6 During the Meeting between Xi Jinping and Ma Ying-jeou (Xi-Ma Meeting) at the end of 2015, Xi Jinping expressed: we understand the thoughts and feelings of Taiwan compatriots about the issue of participation in international activities, and we value and promote the resolution of many related issues; so long as it does not result in “two Chinas” or “one China, one Taiwan,” both sides can make fair and reasonable arrangements through pragmatic consultations.7 At present, the mainland and Taiwan have coexisted in the same international organization in various names under increasingly more circumstances, and their political 6

Xinhuanet, Xi Jinping: Compatriots Across the Strait Should Join Hands to Realize the Chinese Dream Together with a United Resolve, data source: http://www.xinhuanet.com/politics/2014-02/ 18/c_119393683.htm, the last access date: January 18, 2019. 7 Xinhuanet, Meeting Between Xi Jinping and Ma Ying-jeou, data source: http://www.xinhuanet. com//politics/2015-11/07/c_1117071846.htm, the last access date: January 20, 2019.

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differences have been carried over into the activities of international organizations, e.g., disputes between both sides over the translation of the “Chinese Taipei” delegation in 2008 and the attack and defense between both sides in the World Trade Organization (WTO) with regard to trade disputes, which have become an important part of cross-Strait intercourse. Realizing harmonious coexistence of both sides in the same international organization and more effectively achieving their respective goals of participation in international organizations according to the common rules followed by the international community and the constitutions of certain international organizations are of important significance for future intercourse between the mainland and Taiwan in the international community. Fourth, the resolution of the issue of Taiwan’s participation in the international space necessarily requires sufficient theoretical evidence and system construction, which is why it bears positive significance for enriching and perfecting the theoretical systems of subjects, including law, politics, and the study of the Taiwan issue. A mainland scholar once proposed the concept of “Taiwan study”8 “to take dispersed studies of Taiwan-related issues to the research level of ‘Taiwan study’.”9 It is a rather far-sighted problem-oriented thinking to take studies of the Taiwan issue and crossStrait relations to the level of a subject. Undeniably, the Taiwan issue as a problem and the study of cross-Strait relations necessarily involve the application of plenty of knowledge and methods of social sciences. The issue of Taiwan’s participation in the international space is a theoretical growth point of the current Taiwan issue and the study of cross-Strait relations. The resolution of this issue inevitably involves the application of mature knowledge of related subjects as well as innovation and breakthroughs of new theories. Therefore, the driving role played by this book can enrich related subjects and further augment the theoretical system of the Taiwan issue study. In this sense, this study not only provides countermeasures but also has features of dogmatics. In conclusion, the issue of Taiwan’s participation in the international space is one of the cruxes of cross-Strait relations. Responding to, studying, and resolving this key problem and the resultant problem group is of important and far-reaching significance for constructing a framework for the peaceful development of crossStrait relations and promoting harmonious intercourse between the mainland and Taiwan over a long period of time.

Study Paradigm: The “Strategy-Oriented” Study Paradigm The issue of Taiwan’s participation in the international space must be imbedded in the background of cross-Strait relations. Likewise, the study of this issue must also be embedded in the study of cross-Strait relations. Scholars in the mainland and 8

See Chen Kongli, Introduction to Taiwan Study, Boyang Cultural Undertakings Co., Ltd., 2004. Zhang Nianchi, The Study of Taiwan is Additionally, a Science—Comment on Chen Kongli’s Introduction to Taiwan Study, China Review (May 2006).

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Taiwan have already recognized the study of cross-Strait relations as a Xian Xue [popular subject of study].10 Due to the “Xian Xue” effect of the study of crossStrait relations, there have been an immense number of monographs and papers on cross-Strait relations in the mainland and Taiwan. Abundant discussions have been carried out on the abovementioned issue by scholars across the Strait based on their respective positions, and discussions on certain issues will be unfolded in this book during the elaboration of specific issues. In the following, a brief introduction is made to the study paradigm of academia across the Strait and the paradigm to be adopted by this book. The paradigm is a theorized set of coordinates or compasses, the foundation for classifying or planning a certain scope of research. It determines the perspective of researchers and decides which questions are allowed, how to answer the specific questions proposed and the methods and means to resolve these questions.11 The meaning of the “paradigm” concept for resolving the issues involved in this book lies in that the issues involved in the participation of the Taiwan Region in the international space have already formed a “set of phenomena”; the selection of viewpoints and perspectives for a phenomenon determines the degree of understanding of this phenomenon and its essence. A reasonable paradigm will help researchers pinpoint the most appropriate viewpoint and perspective and then grasp the essence of the issue of Taiwan’s participation in the international space more precisely and profoundly while providing theoretical support for the quest for an effective and accurate response. The “position-oriented” paradigm is followed in existing studies within the scope of the mainland and Taiwan, i.e., Based on certain political positions, cross-Strait scholars preconceive results for their theoretical studies and then apply the research method of policy discourse or theoretical construction to obtain preconceived results based on political positions. Take relevant studies in Mainland China as an example. Based on the “one-China” stand, literature in the mainland about the issue of Taiwan’s participation in the international space can be divided into two schools: the first expounds on and discusses the basic viewpoints and policies of the Chinese government about Taiwan’s participation in the international space and endorses the policy discourse of political figures; the second comments on and criticizes the policies, opinions, and practices of Taiwan’s political figures and academia with regard to Taiwan’s participation in the international space. In fact, relevant literature in the Taiwan Region also reflects the “position-oriented” paradigm but is characterized by pluralistic positions due to a diversity of choices. Nevertheless, on the whole, Taiwanese scholars mainly carry out discussions from aspects including highlighting Taiwan’s “subjectivity” and demonstrating the necessity and feasibility of Taiwan’s participation in international space. 10

For the Xian Xue theory of mainland scholars, see An Introduction to Taiwan’s Politics, ed. Liu Guoshen (Jiuzhou Press, 2006), 1; for the Xian Xue theory of Taiwanese scholars, see Between Homelands: Dynamic Opportunities for Developing Cross-Strait Relations, ed. Shih Chih-yu (Hanlu Book Publishing Co., Ltd., 2003), 281. 11 See Hans Poser, Science: What is Science, translated by Li Wenchao, Shanghai SDX Joint Publishing Company, 2002, 118–119.

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The “position-oriented” paradigm has the advantage of academically strengthening the position held in the study and the disadvantage of being still weak in observation, analysis, and interpretation in terms of detailed system construction and strategy selection for the Taiwan Region to participate in the international space. Therefore, the so-called “position-oriented” paradigm is to a large extent a theoretical representation of a certain political position. Again, take relevant studies in Mainland China as an example. The majority of study results have indeed taken a correct political position with regard to the one-China principle; nevertheless, the proposed theoretical models and suggested countermeasures often become scholars’ monologues on policies, which are of limited help for resolving the issue of Taiwan’s participation in the international space. The same is also true for the study results of Taiwanese scholars, which are colored by self-imagination even more due to the pluralistic “positions” taken by Taiwanese scholars. For instance, judging from the cross-Strait reality, the viewpoint of “one China, two states” to settle the issue of cross-Strait political alignment and the viewpoint of “three seats across the Strait” to resolve the issue of Taiwan’s participation in the international space proposed by Chang Ya-chung have practically zero possibility of realization and are therefore merely scholars’ subjective imagination of “one-China” theories. The stand taken by this book on the “position-oriented” paradigm is as follows: considering its relatively mature application in cross-Strait academic circles and the fact that this book is within the one-China framework both in theory and in practice, this paradigm must be upheld as a basic principle, while the “position-oriented” paradigm is the background of the study in this book. However, taking the “positionoriented” paradigm as the study background does not mean that this book will follow the train of thought of existing study results. Instead, the “strategy-oriented” paradigm is adopted. From the perspective of “position realizability,” the “strategy-oriented” paradigm reflects on and explores the question of how to realize a specific position in reality, rather than simply repeating or elucidating this position. The “strategyoriented” paradigm can be understood from two aspects. First, a specific strategy serves a specific position. The “strategy-oriented” paradigm cannot do without the “position-oriented” paradigm; otherwise, the strategy will become water without a source and a tree without the root. Second, the “strategy-oriented” paradigm mainly studies how to convert the political position advocated in the “position-oriented” paradigm from political discourse to legal discourse and technical discourse and how to design a reasonable path for realizing the political position to promote the realization of political position and improve the acceptability of political position at the same time.

Study Method: The Method of Theoretical Construction If we say the research paradigms of scholars across the Strait for the issue of Taiwan’s participation in the international space are basically the same—following the “position-oriented” pattern, then the research methods of cross-Strait scholars

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regarding this issue have shown great differences. Research methods are sorted out on the basis of two observational directions: first, with specific microscopic methods as observation points, observe the application of specific methods, including literature review, comparative study, historical research, and normative research, which is the primary direction for observation; second, with macroscopic methodology and consciousness as observation points, observe the overall thinking, analytical framework, and argumentative structure of the issue of Taiwan’s participation in the international space. The second observational direction has received relatively less attention from scholars across the Strait. More specifically, the second observational direction can be divided into “policy discourse” and “theoretical construction.”12 Based on the classification of “policy discourse” and “theoretical construction,” in the following, the research methods of the literature will be evaluated and analyzed, and the research method of this book will be presented. First, the research method of policy discourse refers to researching cross-Strait relations with the cross-Strait policies of the mainland and Taiwan as well as the crossStrait policies of various countries (mainly the United States, Japan, and Europe) as the research object by analyzing the background of the introduction of these policies and their main content and development direction. The literature with policy discourse as the main research method mostly revolves around speeches of official leaders as well as important policies and legal documents across the Taiwan Strait. Policy discourse is the most commonly used method by mainland scholars. In general, with a series of speeches on developing crossStrait relations given by leaders of the Central Committee of the CPC (including Mao Zedong, Deng Xiaoping, Jiang Zemin, Hu Jintao, Xi Jinping, Zhou Enlai, Ye Jianying, Qian Qichen, Jia Qinglin, and Yu Zhengsheng) as the foundation, mainland scholars analyze the main spirit and development process of these speeches and make them the foundation and basis of research, interpret the cross-Strait policies of Mainland China, comment on relevant policies and viewpoints of the Taiwan Region, or forecast the development of cross-Strait relations. Due to the sensitivity of cross-Strait issues on the mainland, studies of Taiwan have been kept in “secrecy” on a long-term basis. Judging from the results published by mainland scholars, most are limited to the “repetition” of leaders’ propositions, while studies in the true sense are still lacking. For unpublished studies by mainland scholars, due to difficulty in obtaining comprehensive and accurate data, a scientific judgment cannot be made in this book. There are also many results of research on cross-Strait relations with the adoption of the policy discourse method in the Taiwan Region, among which the book Cross-Strait Relations authored by Taiwanese scholar Shaw Chong-hai is a typical representative. Cross-Strait Relations is a comprehensive treatise on cross-Strait relations by Shaw Chong-hai, consisting of 20 chapters, over 500,000 characters in total. Within the length of 500,000 characters, on the basis of speeches of leaders and relevant persons in charge and important statements across the Taiwan Strait, Shaw 12

See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 4 and after.

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Chong-hai conducted a panoramic exposition on the history, present, and future of cross-Strait relations from aspects including policies, negotiations, conflicts, communication, and prospect. Throughout the book, policy discourse is the main method, and thus the analysis of policies constitutes the main body of the book. Amid numerous volumes of literature on cross-Strait relations, Shaw Chong-hai combed out threads by the category of studies of cross-Strait relations, which provides full and accurate data for studies of cross-Strait relations. Meanwhile, despite the adoption of policy discourse as the methodology, the content of Shaw Chong-hai’s research is not limited to the interpretation of polices; instead, it proposes a number of suggestions about the development of cross-Strait relations on the basis of policy interpretation. For instance: discussion on political alignment across the Strait, prospect of signing an agreement to terminate cross-Strait hostilities, feasibility of meeting between crossStrait leaders, possibility of political negotiations across the Strait, and Taiwan’s participation in the international space. Second, theoretical construction is a methodology recently popular in the Taiwan Region for studies of cross-Strait relations. It first establishes a complete set of theoretical models in studies of cross-Strait relations, then analyzes cross-Strait relations with the explanatory power and predictive power of theoretical models, and predicts the development of cross-Strait relations. The above-cited exposition of Wu Yushan about “general theoretical rules” precisely epitomizes the importance of theoretical construction in studies of cross-Strait relations. Regarding the source of theories, the “theories” constructed mostly originate from politics, law, international relations, and economics—especially politics and international relations. The most representative research results include the “ideology of Cross-Strait relations” of Taiwanese scholar Chang Ya-chung and the book Contending Approaches to Cross-Strait Relations coauthored by nine Taiwanese scholars. The three monographs of Chang Ya-chung—Issues of Sovereignty Between Mainland China and Taiwan, On Integration Across the Taiwan Strait, and Globalization and Integration Across the Taiwan Strait, published in 1998, 2000, and 2003, respectively, constitute his “overall ideology” about cross-Strait relations.13 Borrowing the sovereignty theory and the divided state theory, Chang Ya-chung’s first monograph Issues of Sovereignty Between Mainland China and Taiwan proposes the “one China, two states” model for cross-Strait relations, which is the start of his “cross-Strait ideology.”14 Borrowing the theories about integration formed during the process of European integration and German reunification (referred to as “integration theory” by Zhang), his second monograph On Integration Across the Taiwan Strait explores the solution to the issue of cross-Strait relations through the “integration” method, puts forward concepts including “China as a whole,” “a third subject” and “three seats across the Strait,” and preliminarily demonstrates the conception of concluding 13

See Chang Ya-chung, Globalization and Integration Across the Taiwan Strait, Linking Publishing Company, 2003, 23. 14 See Chang Ya-chung, Globalization and Integration Across the Taiwan Strait, Linking Publishing Company, 2003, 23; Chang Ya-chung, Issues of Sovereignty Between Mainland China and Taiwan, Sheng-Chih Book Co., Ltd., 1998, 117.

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a “basic cross-Strait agreement” between the mainland and Taiwan.15 Based on the abovementioned two books, from the perspective of the security and development of the mainland and Taiwan in the context of globalization and utilizing the analytical methods of politics and international relations, his third monograph Globalization and Integration Across the Taiwan Strait proposes the idea of “governance across the Strait” and further reinforces the concepts proposed by Chang Ya-chung, including “China as a whole” and “cross-Strait integration.”16 In fact, Chang Ya-chung’s “ideology of cross-Strait relations” is a theoretical discussion based on the theories and experience during the process of European integration and German reunification, and the origins of most of his concepts can be found in European integration and German reunification. Nevertheless, cross-Strait relations are completely different from the relations between two Germanies, and the European Union model is not entirely applicable to cross-Strait relations. Therefore, the abovementioned opinions of Chang Ya-chung lack the foundation for implementation in the reality of cross-Strait relations. Nevertheless, Chang Ya-chung has proposed a relatively complete theoretical system of cross-Strait relations and offered constructive suggestions targeting the development of cross-Strait relations on the basis of this theoretical system. Thus, his contribution to the study of cross-Strait relations is constructive and positive. The book Contending Approaches to Cross-Strait Relations, which is compiled by nine Taiwanese scholars studying cross-Strait relations, including Bao Zonghe and Wu Yushan,17 introduces theories of cross-Strait relations from different theoretical perspectives. Most of the theoretical viewpoints held in this book stem from theories of international relations, and the title “Contending Approaches to Cross-Strait Relations” also directly comes from the book Contending Approaches to International Relations. In addition to theories of international relations, this book also utilizes political, economic, sociological, and psychological theories, including integration theory, divided state theory, power asymmetry model, vote maximizing model, state and society theory, psychology and game theory, to conduct in-depth discussions on the “cross-Strait interaction dimension,” “domestic politics dimension,” and “international environment dimension” in the study of cross-Strait relations from different perspectives.18 A forest of opinions stands in this book, which is of great reference value to the study of cross-Strait relations, especially the analysis and verification of cross-Strait relations on the theoretical level. The dependency of the Taiwan issue and cross-Strait relations on policy determines the effectiveness of the policy discourse method in the study of cross-Strait relations. However, the study of cross-Strait relations mostly through interpreting 15

See Chang Ya-chung, On Integration Across the Taiwan Strait, Sheng-Chih Book Co., Ltd., 2000. See Chang Ya-chung, Globalization and Integration Across the Taiwan Strait, Linking Publishing Company, 2003. 17 See Bao Zonghe and Wu Yushan ed., Contending Approaches to Cross-Strait Relations, Wu-Nan Book Inc., 1999. 18 The three directions constitute the general framework for the study of cross-relations proposed by Wu Yushan in the first chapter of his book. See Wu Yushan, “Contending Approaches to CrossStrait Relations” in Contending Approaches to Cross-Strait Relations, ed. Bao Zonghe and Wu Yushan (Wu-Nan Book Inc., 1999), 5–25. 16

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policies and repeating leaders’ speeches has at least three shortcomings. First, the resulting confusion of academic discourse with policy discourse obscures the facilitating effect of theory in cross-Strait relations. Second, policy discourse is usually characterized by immediacy. Even though it plays a guiding role in cross-Strait relations over a certain period of time, due to a lack of predictability over the long term, the results of studies conducted with policy discourse are inadequate for the prediction of cross-Strait relations. Third, policy discourse is basically proposed based on a certain political position; therefore, literature with the application of the policy discourse method mostly follows the “position-oriented” paradigm, resulting in the inadequacy of results in adaptability to cross-Strait relations and realizability. In this light, under the premise of adhering to relevant central policy toward Taiwan as the general policy, this book attempts to utilize the method of theoretical construction to overcome the shortcomings of the policy discourse method and form a theoretical model for the alignment of cross-Strait political relations and the study of the issue of Taiwan’s participation in the international space. The general train of thought of this book in utilizing the theoretical construction method is as follows: first, rely on relatively mature theories of politics, law, international relations, etc. to construct a theoretical model, instead of coining groundless “theories” that are “astonishing remarks made on purpose”19 ; second, verify the theoretical model with facts of cross-Strait relations to prove its effectiveness, during which process the verification of theoretical model is supported by the method of policy discourse; in the end, analyze and predict the development trend of crossStrait relations with the verified theoretical model and offer countermeasures and suggestions accordingly.

19

“Astonishing remarks made on purpose” is the comment of Wang Pengling on The Commonwealth of China model proposed by Tao Baichuan, Zhou Yangshan, etc. See Wang Pengling, “Commonwealth Theory and Two States Theory,” Lianhe Zaobao (April 29, 2000).

Contents

1 Origin: The Issue of Chinese Representation in Making Peace with Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Outline of Historical Facts of the Chinese Representation Issue in Making Peace with Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Explanatory Framework for the Issue of Chinese Representation . . . . 2.1 Status-and-Order Theory: “Chinese Status” in the “Principle of Chinese World Order” . . . . . . . . . . . . . . . . . . 2.2 Comparison and Integration of Status-and-Order Theory and the Discourse of Contemporary International Law . . . . . . . . 3 Causal Relationship Between the “Undetermined Status of Taiwan” and the Chinese Representation Issue: Rivalry Between the United States and Taiwan . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 The United States: Advocates Shelving the Chinese Representation Issue Due to the “Undetermined Status of Taiwan” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Taiwan: Forced to Accept the “Undetermined Status of Taiwan” Due to the Need for “Chinese Representation” . . . . 4 Asymmetrical Interests and Asymmetrical Rivalry: The United Kingdom, Japan, and the United States . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Asymmetrical Rivalry Between the United States and the United Kingdom: Reconsideration of the United Kingdom’s Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The “Japan-Taiwan Treaty” Under American Dominance: Japan as a Medium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Discordant Echoes: Treaty of Peace with Japan, “Japan–Taiwan Treaty”, China–Japan Peace and Friendship Treaty, etc. . . . . . . . . . . .

1 1 4 4 6

8

9 12 17

17 21 25

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2 Attack and Defense: Cross-Strait “Diplomatic Battle” and “Truce” Around the Issue of Taiwan’s Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Cause of the Cross-Strait “Diplomatic Battle”: “Recognition Dispute” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Source of “Recognition Dispute”: “One-China Dispute” . . . . . . 1.2 Derivation of the “One-China Dispute” and the “Recognition Dispute” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Manifestation of the “Recognition Dispute” on the International Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Cross-Strait “Diplomatic Battle”: Attack and Defense Across the Strait Regarding Taiwan’s Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Establishment of the “Attack-Defense” Paradigm . . . . . . . . . . . . 2.2 Cross-Strait Attack and Defense During the “Irreconcilability” Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Cross-Strait Attack and Defense During the “All-Out Diplomacy” Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Cross-Strait Attack and Defense During the “Pragmatic Diplomacy” Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Cross-Strait Attack and Defense During the “Post-pragmatic Diplomacy” Period . . . . . . . . . . . . . . . . . . . . 3 “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Negative Impacts of Cross-Strait “Diplomatic Battle” . . . . . . . . . 3.2 Proposal of “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Resumption of Battle After “Diplomatic Truce” . . . . . . . . . . . . .

29 30 31 36 37

42 43 44 47 49 53 56 57 58 60

3 Base: Alignment of Cross-Strait Political Relations . . . . . . . . . . . . . . . . 63 1 Description of Policies and Laws in the Alignment of Cross-Strait Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 1.1 Description of Policies in Alignment of Cross-Strait Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 1.2 Description of Laws in Alignment of Cross-Strait Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 2 Epistemological Foundation and Political Prerequisite for Aligning Cross-Strait Political Relations . . . . . . . . . . . . . . . . . . . . . 86 2.1 Epistemological Foundation: “Political Confrontation Theory” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 2.2 Political Prerequisite: The “1992 Consensus” . . . . . . . . . . . . . . . . 91 2.3 Methodology of the “1992 Consensus”: Negotiation in the Spirit of “Expanding Common Ground and Setting Aside Differences” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 3 Proposition of the “Two Sides” Mode and Its Connotations . . . . . . . . . 102

Contents

3.1 The Cross-Strait Power System and Its Impact on Aligning Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 “Two Sides”: Transformation from a Geographic to a Political Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Present Stage Feasibility of the “Two Sides” Alignment Model of Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The “Two Sides” Mode Under Comparative Viewpoints . . . . . . . . . . . 4.1 Internal Comparison of the “Two Sides” Model . . . . . . . . . . . . . . 4.2 External Comparison of the “Two Sides” Model . . . . . . . . . . . . . 4 Change: Means of Existence of the Taiwan Region in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Means of Existing as a “Nation” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Means of Existing in Compliance with Rules of International Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Name Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Functional Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Associate Memberships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Means of Existing by Maintaining “Substantive Relationships” . . . . . 4 Judicial Means of Existing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Means of Existing Via Non-Governmental Organizations . . . . . . . . . . 5 Political Rivalry: Taiwan’s Strategies for Participating in International Organizations and the Mainland’s Response . . . . . . . 1 Asymmetrical Rivalry and Strategy-Oriented Paradigm . . . . . . . . . . . . 1.1 Asymmetrical Rivalry and Release of Strategy-Oriented Paradigm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 “Strategies” Summarized by Taiwanese Scholars . . . . . . . . . . . . . 2 Taiwan’s Strategies for Participating in International Organizations—Taking Taiwan’s Application for Participation in World Health Organization (WHO)/World Health Assembly (WHA) Activities as an Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Entity Strategy: From “One China” to “Two Entities” . . . . . . . . . 2.2 Topic Strategy: From “Power” to “Rights” . . . . . . . . . . . . . . . . . . 2.3 Behavioral Strategy: From “Joining” to “Participating” . . . . . . . 3 The Mainland’s Coping Strategies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Coping with the “Entity Strategy”: Shaping “Chinese Taipei” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Coping with the “Rights Strategy”: Opening up Institutional Space for Taiwan Compatriots to Safeguard Their Own Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Coping with the “Participation Strategy”: Surpassing the Political Goals of Participation in International Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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102 105 108 111 111 123 137 138 140 141 142 145 147 151 156 161 161 162 166

174 175 182 189 199 200

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Contents

6 Coordination: Problems with the Co-Existence of Both Sides in the Same International Organizations, and Potential Solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Attack and Defense of Both Sides Within the World Trade Organization (WTO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Different Understandings of the WTO Framework . . . . . . . . . . . 1.2 Interactions Within the WTO Framework . . . . . . . . . . . . . . . . . . . 2 Taiwan’s Status and Mutual Relations Between Both Sides Within the WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Construction of a Mechanism for Both Sides to Co-exist in the Same International Organization: Experiences and Deficiencies in the WTO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Future: Construction of a Mechanism for Taiwan’s Orderly Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Main Problems with Taiwan’s Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 “Under What Name” Should Taiwan Participate in the International Space? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Under Which Status Should Taiwan Participate in the International Space? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 To What Extent Should Taiwan Participate in the International Space? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 International Legal Documents Concerning the Taiwan Region and the Legal Logic Behind Taiwan’s Orderly Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Taiwan-Related International Legal Documents Prior to August 15, 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 United Nations General Assembly Resolution 2758 (1971) . . . . 2.3 Diplomatic Legal Documents Signed Between the People’s Republic of China and the United States or Japan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Legal Logic Behind Taiwan’s Orderly Participation in the International Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A Mechanism for Taiwan’s Orderly Participation in the International Space Under the Framework of Peaceful Development of Cross-Strait Relations . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Guiding Principle: Various Principles for Constructing a Framework for Peaceful Development of Cross-Strait Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Basic Idea: Integration of Alignment of Cross-Strait Political Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Mode Selection: Participation and Institutional Negotiation Under International Law . . . . . . . . . . . . . . . . . . . . . . .

215 217 217 218 222

226 231 231 232 233 234

235 237 239

241 243

246

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3.4 System Design: Based on the Mechanism of Association for Relations Across the Taiwan Straits (ARATS) and Straits Exchange Foundation (SEF) for Negotiations on Specific Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

Chapter 1

Origin: The Issue of Chinese Representation in Making Peace with Japan

The issue of Taiwan’s participation in the international space is one left over by the Chinese Civil War yet with a profound international background, which can be traced back to the arrangement made for Taiwan in the Treaty of Shimonoseki. However, according to the arrangement for Taiwan’s international standing before the 1950s, Taiwan had been a part of a certain country and was never regarded as an “independent country.” The origin of the issue of Taiwan’s participation in the international space should date from making peace with Japan in the 1950s.

1 Outline of Historical Facts of the Chinese Representation Issue in Making Peace with Japan After World War II, the conclusion of peace between various allied states and Japan was not only necessary for implementing the gist of all previous declarations to Japan during wartime and clarifying the status of Japan as a nation but also constituted an important event establishing the pattern in the postwar Far East.1 After the establishment of the People’s Republic of China in 1949, different views appeared in the international community as to who was more entitled to represent China to make peace with Japan, i.e., The “Chinese representation” dispute in making peace with Japan. As the pattern of the postwar Far East was not yet formed, the issue of Chinese representation along with the issue of Taiwan’s status became the pivot for the United States to shape the postwar pattern in the Far East. The Chinese representation issue was also among the main political disputes between the mainland and Taiwan (hereinafter referred to as the “two sides”) before 1992. Making peace with Japan is a historical event during which the two sides showed their respective viewpoints, propositions, and strategies about the Chinese representation issue for 1

Shen Zhihua, “Sino-Soviet Alliance, Korean War, and Japanese Peace Treaty—The Trilogy of Cold War Pattern in East Asia and Its Interaction”, Social Sciences in China 5 (2005).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_1

1

2

1 Origin: The Issue of Chinese Representation in Making Peace …

the first time in the international arena and an important opportunity for observing the attitude of each major country toward the Chinese representation issue in the early years of the Cold War. With the help of the main countries involved in the declassification of documents, when discussing the Chinese representation issue in making peace with Japan, academia is no longer confined to discourses made up with ideology but is capable of revealing the original appearance of history more objectively and completely. Since there has been quite a number of works on these historical facts already, this book will not go into the facts in detail but rather make use of literature to give a brief account of the generation, evolution, and shelving of the Chinese representation issue in making peace with Japan as follows: The allied states began to study peace-making with Japan as soon as World War II came to an end, but the issue of Chinese representation did not appear until gradually after the situation of the Chinese Civil War became clear in 1948 and the establishment of the People’s Republic of China on October 1, 1949. Out of consideration for its national interest in the Far East, the United States prevented the People’s Republic of China from participating in making peace with Japan, while both the Soviet Union and the United Kingdom maintained that the People’s Republic of China should be the sole legal government of China to participate in peace making with Japan. After the outbreak of the Korean War, the United States intervened in affairs across the Taiwan Strait again and set forth the “seven principles of making peace with Japan” on September 11, 1950, among which the principle of the “undetermined status of Taiwan” was established. From April 17–23, 1951, the United States and Japan reached a consensus, and Japanese Prime Minister Shigeru Yoshida promised orally that Japan would not sign a peace treaty with the People’s Republic of China. From June 4–14, the “Dulles-Morrison agreement” was reached in London between British and American representatives; the United Kingdom compromised with the United States, agreeing that China will not participate in peace making with Japan, and Japan shall decide its attitude toward China at its sole discretion after the conclusion of treaty. On August 13, on the basis of the “Dulles-Morrison agreement”, the United Kingdom and the United States completed the draft of the peace treaty with Japan. The draft excluding China from participating in peace making with Japan was objected by both sides as well as countries such as the Soviet Union. From September 4–8, 1951, the peace conference was convened in San Francisco, during which the Treaty of Peace with Japan was signed without the presence of Chinese representatives, and the principle of the “undetermined status of Taiwan” was defined. On September 18, on behalf of the Chinese government, Zhou Enlai issued a statement regarding the Treaty of Peace with Japan, making it clear that China refused to accept the Treaty. After the conclusion of the Treaty of Peace with Japan, based on the opinion of the Unites States, Japan chose Taiwan as the object of peace making. On January 16, 1952, Japan and the United States published the “Yoshida Letter” and established the principle of the “Japan-Taiwan Treaty”, which refused to recognize the legitimate rights and interests of the People’s Republic of China and limited the scope of application of the “Japan-Taiwan Treaty” to the Taiwan Region

1 Outline of Historical Facts of the Chinese Representation Issue …

3

under the actual control of the KMT government,2 foreshadowing the splitting of China. On April 28 of the same year, the “Japan-Taiwan Treaty” was signed between Japan and the KMT government. The game played by the great powers, including the United States, the Soviet Union, and the United Kingdom, around the postwar pattern in the Far East and the need for Japan to restore its international status are the main reasons why Chinese representation was eventually laid aside during peace-making with Japan. Nevertheless, during this history, which has already been revealed quite clearly, some questions still remain unexplained: (1) It is understandable that the United States denies the Chinese representation by the People’s Republic of China due to ideological differences, the need for confronting the socialist camp in the Far East, and the outbreak of the Korean War; however, why would it reject Chinese representation by the KMT government as well and arrange for the “Japan-Taiwan Treaty” to be signed between Japan and the KMT government in the end? What is the intention behind such seemingly contradictory behaviors? (2) As a main ally of the United States, why did the United Kingdom disagree with the United States on the issue of Chinese representation to the extent that the dispute between them and its solution even became the proximate cause for laying aside the Chinese representation issue? What was the reason why the United Kingdom supported the People’s Republic of China to represent China? And why did it give up in the end? (3) At the time the KMT government in Taiwan had always advocated its “legitimacy” and “representation” of China, why did it eventually accept the plan of the United States and gave up attending the peace conference in San Francisco? How did it handle the Chinese representation issue when concluding the peace treaty with Japan separately? 4) How can we observe the arrangement of Taiwan’s status in the Treaty of Peace with Japan and the “Japan-Taiwan Treaty” from the perspective of Chinese representation? How much say did Japan have in this issue? And so on. A reasonable explanation of the abovementioned questions is of important theoretical value to understanding crossStrait disputes over Chinese representation and observing the attitude of each great power. After the 1990s, the intention of the Taiwan Region to participate in the international space gradually intensified, and the Treaty of Peace with Japan as well as the “Treaty of Taipei” (hereinafter referred to as the “Japan-Taiwan Treaty”) again became the focus of attention of various parties, while the effect and scope of application of these two documents are associated with the Chinese representation issue at the time. Therefore, the study of the Chinese representation issue in making peace with Japan after World War II is of not only historical significance but also extremely important realistic significance.

2

After retreating to Taiwan, the Kuomintang government still kept the name of the “National Government of the Republic of China.” The academia of the mainland often refers to the “National Government of the Republic of China” after 1949 as the “Taiwan authorities.” However, considering that the issue being discussed in this book is “Chinese representation”, to avoid misunderstanding by readers, in this chapter the “National Government of the Republic of China” is referred to as the “KMT government.” It is hereby noted that this form of address does not constitute a comment on the role of the KMT in cross-Strait relations.

4

1 Origin: The Issue of Chinese Representation in Making Peace …

2 Explanatory Framework for the Issue of Chinese Representation In the literature, the explanatory framework for the Chinese representation issue in making peace with Japan is established based on the constructivist method by most scholars, i.e., Attributing the origin and evolution of the Taiwan issue in making peace with Japan to the constructivist behavior of the United States based on its interests in the Far East. This framework is meaningful in that it explains the power source for the origin and evolution of the Taiwan issue in making peace with Japan relatively good. However, in regard to the specific issue of Chinese representation, even though the American predominance advocated by constructivism remains valid, the game played by the mainland and Taiwan, the United Kingdom and Japan against the United States surrounding the Chinese representation issue—even though such a game is more of an asymmetrical game—also has an impact on the final outcome of the Chinese representation issue. Thus, the constructivist explanatory framework in fact cannot offer a reasonable explanation of the opinions and behaviors of related subjects, including the mainland and Taiwan, the United Kingdom and Japan. Therefore, based on the status-and-order theory of Taiwanese scholar Chang Chi-hsiun, this book attempts to construct an explanatory framework for the Chinese representation issue.

2.1 Status-and-Order Theory: “Chinese Status” in the “Principle of Chinese World Order” The status-and-order theory was proposed by Taiwanese scholar Chang Chi-hsiun in the context of Oriental political culture, which is mainly used to explain the behaviors of the mainland and Taiwan participating in international activities. From the perspective of status-and-order theory, the purpose of the participation of the mainland and Taiwan in international activities is contending for the “legitimate China” status. According to status-and-order theory, the international order principle of the “Empire of China” is based on historical and cultural values with emphasis on the doctrine of the rule of rites. Unlike the Western rule of law—“law checks the development of undesirable situation only after its occurrence”, the rule of rites “prevents the occurrence of undesirable situation.” Therefore, when participating in international activities, the mainland and Taiwan should determine their respective statuses first and then “seek the corresponding ‘ethical boundary’ and the ‘relation between title and fact’ following the statuses.”3 According to the status-and-order theory, under the “principle of Chinese world order”, various different subjects interacting with 3

Chang Chi-hsiung, “Construction of Theories on Cross-Strait Relations—Research Approach of the Status-and-Order Theory” in Revisiting Theories on Cross-Strait Relations, ed. Bao Zonghe, etc. Wu-Nan Book Inc., 2012, 118.

2 Explanatory Framework for the Issue of Chinese …

5

each other should first clearly define the respective “statuses” they are entitled to and then establish an order following the sequence of their “statuses.” Upon the establishment of such an order, various subjects must engage in communicative actions in conformity with the feudal order of seniority of the “World Empire of China” according to their respective “statuses” established. Accordingly, the primary task of the mainland and Taiwan when participating in international activities is to determine their “statuses” as participants of international activities to complete the “rectification of name.”4 This behavioral pattern of “determining status according to the title”, “seeking order based on the status”, and “operating following the order” reflected in operational approach is “to determine status, first rectify name; after rectification of name, status can be determined accordingly; with status determined, order can be established on its basis; when there is order, the state can be rightly governed; the state being rightly governed, the world is made tranquil and happy.”5 The status-and-order theory reveals that the cross-Strait dispute over “Chinese representation” is essentially the contention for the “legitimate China status.” Based on the assumption of the status-and-order theory, “rectification of name” is the first step for the Oriental society to participate in international activities, which constitutes the basis for “status determination” and “order establishment.” With regard to the issue of Chinese representation, the mainland and Taiwan insist on the “name” of the People’s Republic of China and the “Republic of China”, respectively, which makes the problem of “rectification of name” insolvable. According to the status-and-order theory, “after rectification of name, status can be determined accordingly.” Nevertheless, since the “rectification of name” cannot be solved, “determination of status” seems especially important. First, “determination of status” functions to “determine zheng and clarify run” in the “World Empire of China” constituted by “legitimism” and “suzerain-vassal state relationship.” Here, “zheng” refers to the central regime worshiped as the legitimate ruler (suzerainty, center of power, “zhengsuo” [legitimate status]), while “run” refers to another regime existing side by side with the central regime (vassal state, local government, “weichao” [pseudo court]). Since October 1, 1949, the two sides of the Taiwan Strait have been in a state of political antagonism.6 4

Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 5 Chang Chi-hsiung, “Construction of Cross-Strait Relations Theory—The Research Approach of Status-and-Order Theory”, in Revisiting Theories on Cross-Strait Relations, ed. Bao Zonghe, etc. Wu-Nan Book Inc., 2012, 118. 6 During the speech at the gathering to commemorate the 30th anniversary of issuing Message to Compatriots in Taiwan on December 31, 2008, Hu Jintao proposed: “Although the mainland and Taiwan have not yet been reunited since 1949, the circumstances per se do not denote a state of partition of Chinese territory and sovereignty. Rather, it is merely a state of political antagonism that is a legacy—albeit a lingering one—of the Chinese civil war waged in the mid- to late 1940s. Nevertheless, this does not alter the fact that both the mainland and Taiwan belong to one China. For the two sides of the Strait, to return to unity is not the recreation of sovereignty or territory, but an end to political antagonism.” This has been referred to as “political antagonism theory” by the academia. See Hu Jintao, “Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation”, People’s Daily (January 1, 2009), 1.

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Which side represents China in the international community is a problem faced by both the mainland and Taiwan. “Chinese representation” was claimed by both sides in making peace with Japan, which was in fact a reflection of their “competition for legitimacy” in the international community. Second, after the “determination of status”, the “title” can be derived from the “status” reversely. As both sides insisted on the principle of “one China” at the time, once the “legitimate status” is determined, the other side will inevitably be disqualified from representing China, and the ownership of the title “China” shall thus be determined. Since all major powers were involved in making peace with Japan, the conclusion of the Japanese peace treaty was a perfect opportunity for the mainland and Taiwan to strive for the “legitimate China” status since 1949. The propositions and attitudes of both sides with regard to the issue of Chinese representation can all be explained within this framework.

2.2 Comparison and Integration of Status-and-Order Theory and the Discourse of Contemporary International Law The status-and-order theory explains the propositions and attitudes of both sides about Chinese representation but not the propositions and behaviors of major countries, including the United States, the United Kingdom, Japan and the Soviet Union, because in reality, the great powers involved in peace making with Japan were not restrained by the “Chinese world order” but rather abided by the international order based on the discourse of contemporary international law. Therefore, the establishment of an explanatory framework for the interactive relations between both sides of the Strait and various major countries also requires contrasting the status-and-order theory with the discourse of contemporary international law and forming a unified pattern for explaining the Chinese representation issue. The logical starting point of status-and-order theory is as follows: “different international systems have varied international order principles to standardize their international orders and explain their international behaviors.”7 Status-and-order theory attempts to create a theoretical system different from the Western discourse of international law and “reduce the Oriental affairs to the Oriental theories, to elucidate the international order of the Orient, and avoid Western values centralism.”8 Nevertheless, the “Empire of China” has disintegrated since 1840, as a result of which the “principle of Chinese world order” cannot be independent of basic principles of the world order. In addition, several nouns in the status-and-order theory can 7

Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica (Taipei) 66 (December 2009). 8 Chang Chi-hsiung, “Construction of Cross-Strait Relations Theory—The Research Approach of Status-and-Order Theory”, in Revisiting Theories on Cross-Strait Relations, ed. Bao Zonghe, etc. Wu-Nan Book Inc., 2012, 118.

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also be defined with the discourse of contemporary international law. Take as an example the three core concepts of the status-and-order theory—“name” “status” and “order”: “name” refers to the official name used in international activities, such as the names “Chinese Taipei” and “Taiwan, Penghu, Kinmen and Matsu” currently used by the Taiwan Region when participating in international organizations; “status” means the status under a certain name, such as “official member”, “observer”, “local government” and “fishing entity”; and “order” implies the rights and obligations resulting from the “status.” From here, we can see the strong connection between the status-and-order theory and the discourse of contemporary international law. The intention of the mainland and Taiwan to obtain international recognition through Chinese representation is also supported by corresponding theories of contemporary international law. Athure Stinchcombe considers the legitimacy of power as mutual recognition between “rights holders.”9 The “rights holders” here include both internal and external rights holders; the former in a democratic society is embodied by the owners of sovereignty—the people, while the latter mostly refers to important international organizations and major powers. Therefore, participation in international activities, including entry into major international organizations such as the United Nations and recognition by major powers such as the United States and the United Kingdom, has become an important manifestation of the international recognition of a regime. Joseph S. Nye once proposed that the reason for a modern state to take an active part in the international community and participate in international organizations, in addition to striving for national interests, is to take the opportunity to determine the completeness of its sovereignty.10 These viewpoints describe the expanded function of participating in international activities, i.e., International activities have become an important channel and place for a new state or regime to strive for international recognition. Of course, the expanded function of international activities is mostly seen in developing countries and newly independent countries. The main reason is that as the international order established by great powers has already been stable, there is no other way for developing countries and newly independent countries to manifest their independent status in the international community except through the international order established by great powers, while it is unnecessary for the creators of this international order—the great powers—to prove their existence by participating in international activities. The reason for Western sovereign states to participate in international activities is mainly to establish some functional coordination mechanisms for the specific needs between sovereign states; the reason for them to actively participate in international activities is also to take part in the making of international rules and gain profit through international exchanges. Therefore, international recognition is not the goal of Western sovereign states in international activities.

9

Chang Ya-chung, Issues of Sovereignty Between Mainland China and Taiwan, Sheng-Chih Book Co., Ltd., 1998, 22. 10 See Joseph S. Nye, John D. Donahue, Governance in a Globalizing World, (Brookings Institution Press, 2000), 79–80.

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Based on the above understanding, the function of participating in international activities has been expanded from taking part in the making of international rules and safeguarding one’s own interests toward striving for international recognition, which is the new point of view. If constructivism makes the traditional viewpoint above its starting point, with emphasis on explaining the process of pattern construction by the United States in the Far East after the Cold War, then this book attempts to base itself on the new viewpoint mentioned above and centers around the rivalry between each of the main parties and the United States to build an explanatory framework for the Chinese representation issue and study the decision-making and selection process of each subject with the aid of the exposition of historical facts in declassified documentary materials and literature.

3 Causal Relationship Between the “Undetermined Status of Taiwan” and the Chinese Representation Issue: Rivalry Between the United States and Taiwan The status of Taiwan was one of the most important issues under discussion in making peace with Japan. Under the dominance of the United States, the principle of the “undetermined status of Taiwan” was defined in the Treaty of Peace with Japan, which is still not cleared up even today on the level of international law. In previous literature of the mainland and Taiwan, most studies of the issue of Taiwan’s status in making peace with Japan revolve around the theory of the “undetermined status of Taiwan.”11 In these studies, the issue of Chinese representation in making peace with Japan is often covered, but only as a secondary question of the issue of Taiwan’s status, which does not conform to the actual status of the Chinese representation issue in making peace with Japan. The issue of Chinese representation is a question of equal importance as the issue of Taiwan’s status in making peace with Japan. These two constitute the two main subjects under discussion in making peace with Japan. Therefore, there is no differentiation between what is primary and what is secondary. Because the United States and Taiwan had different intentions with regard to making peace with Japan, their understandings of the causal relationship between the “undetermined status of Taiwan” and the Chinese representation issue are also different, which reflects the differences between East and West in understanding the function of participating in international activities.

11

Wang Jianlang, “Distortion of Taiwan’s Legal Status”, Modern Chinese History Studies 1 (2001); Yu Zidao, “Treaty of Peace with Japan, Japan-Chiang Treaty, and the Theory of the ‘Undetermined Status of Taiwan’ of the United States and Japan”, The Journal of Studies of China’s Resistance War Against Japan 4 (2001).

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3.1 The United States: Advocates Shelving the Chinese Representation Issue Due to the “Undetermined Status of Taiwan” In the early period after World War II, the tentative plan of the United States about the pattern in the Fat East was to contain other great powers by supporting China, which obeyed the leadership of the United States, and at the same time eliminated Japan as a possible hotbed of war to maintain stability in Asia.12 Under this plan, China will become a pillar ally of the United States in postwar East Asia, with Taiwan in the hands of a pro-Western Chinese government.13 However, as the situation of the Chinese civil war became clear in 1948, the United States had to reconsider its arrangement in the Far East, including the Taiwan issue of great significance to the U.S. national security.14 Researcher Wang Jianlang raised four options of the United States and the United Kingdom for handling Taiwan’s status after the establishment of the People’s Republic of China: (1) support KMT to resist the attack of the Communist Party of China (CPC) in Taiwan; (2) place Taiwan under the control of the supreme headquarters of the Far Eastern allied forces; (3) place Taiwan under the trusteeship of the United Nations; (4) Taiwan independence.15 In fact, the United States had another option, which is to recognize the People’s Republic of China and that Taiwan is a part of the People’s Republic of China. This is not a pure theory but one of the strategic options of the United States. On March 3, 1949, Harry S. Truman approved Documents NSC34/2 and NSC41 submitted by the State Department and determined the China policy of avoiding interference in China’s internal affairs and sowing discord between the Communist Party of China and the Soviet Union.16 On January 5, 1950, Truman made a statement declaring: “Traditional United States policy toward China called for international respect for the territorial integrity of China. … The United States has no desire to obtain special rights or privileges, or to establish military bases on Formosa at this time. Nor does it intend to utilize its armed forces to interfere with the present situation. The United States Government will not pursue a course which will lead to involvement in the civil

12 Shen Zhihua and Yao Yu, “Reaction of the United States to Sino-Soviet Alliance and Formation of the Cold War Pattern in Asia”, Clio at Beida 17 (Peking University Press, 2012). 13 Wang Jianlang, “Distortion of Taiwan’s Legal Status”, Modern Chinese History Studies 1 (2001). 14 For instance, the CIA proposed in a report in 1949: “If the Chinese communists controls Taiwan, and then there is the prospect of the Soviets entering this island, such strategic implication will be extremely disadvantageous to the security of the United States.” See “Possible Development Trend in Taiwan (No. ORE39-49)”, in Declassified Documents of U.S. Intelligence on China (1948–1976) IV, ed. Shuang Qionghua and Xinhua (Orient Publishing Center, 2009), 302. 15 Wang Jianlang, “Distortion of Taiwan’s Legal Status—Evolution of the Great Britan’s Policy toward Taiwan’s Position and Its Difference with USA, 1949–1951”, Modern Chinese History Studies 1 (2001). 16 Shen Zhihua, and Yao Yu, “Reaction of the United States to Sino-Soviet Alliance and Formation of the Cold War Pattern in Asia”, Clio at Beida 17 (Peking University Press, 2012).

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conflict in China.”17 At this time, Taiwan was excluded from the military obligations undertaken by the United States. As Professor Zhang pointed out, during most of the time in 1949, the U.S. government was confident it could present China from leaning toward the Soviet Union for two reasons: (1) The U.S. government believed that the strong nationalist sentiment of Chinese leaders would prevent China from establishing a close relationship with the Soviet Union (Russia), which had seriously violated the interests of China in history. (2) Due to the close economic tie between China and the United States as well as China’s economic dependency on the United States, the Communist of China will yield to the United States as a result of domestic economic pressure.18 Nevertheless, the People’s Republic of China soon chose the “leaning to one side” foreign policy. The “Nationalist China” and “Yugoslavia of the Far East” imagined by the United States never came true. Instead, a “Socialist China” appeared in the Far East, forging an alliance with the Soviet Union and dispatching troops to directly confront the United States in North Korea. Thus, the Far Eastern arrangement of the United States came to a major turning point, and the importance of Taiwan’s status subsequently emerged. On June 25, 1950, the Korean War broke out, driving the United States to make a significant change in its Taiwan policy. On June 27, Truman made a statement: “In these circumstances the occupation of Formosa by Communist forces would be a direct threat to the security of the Pacific region and to United States forces performing their lawful and necessary functions in that region. Accordingly, I ordered the 7th Fleet to prevent any attack on Formosa. As a corollary of this action, I call upon the Chinese Government on Formosa to cease all air and sea operations against the mainland. … The determination of the future status of Formosa must await the restoration of security in the Pacific, a peace settlement with Japan, or consideration by the United Nations.”19 Even earlier, on June 25, Dean Acheson recommended that the 7th Fleet be sent into the Taiwan Strait “to prevent a Chinese invasion and prevent further Nationalist attacks on the mainland.” Thus, it can be seen that the Taiwan policy of the United States during the outbreak of the Korean War had changed to separating Taiwan from China to provide legality for American military involvement in Taiwan. For this purpose, the theory of the “undetermined status of Taiwan” officially turned up among the “seven principles of making peace with Japan” formulated by the United States on September 11, 1950. When explaining the “seven principles of making peace with Japan” to Gu Weijun (V.K. Wellington Koo)—representative of the KMT government, John Foster Dulles mentioned explicitly: “The intention of the United States is to temporarily freeze the issue of Taiwan’s status. … If the United States also regards Taiwan as

17

Tao Wenzhao, File Set of American Policy Toward China (1949–1972), Vol. 1 (I), World Affairs Press, 2003, 178–179. 18 Zhang Shuguang, U.S. Strategy of Containment and the Origins of the Cold War: A Revisit, Shanghai Foreign Languages Education Press, 2007, 79–80. 19 Tao Wenzhao, File Set of American Policy Toward China (1949–1972, Vol. 2 (I)), World Affairs Press, 2004, 45.

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Chinese territory, not only will the representation issue of your government20 require resolution, the American actions of sending the 7th Fleet to protect Taiwan and seeking leadership to preside over this case will also be without basis.”21 According to the words of Dulles, the “undetermined status of Taiwan” serves as the basis for “sending fleet to protect Taiwan”, the purpose of which is certainly to protect the strategic interests of the United States in the Far East.22 The theory of the “undetermined status of Taiwan” is contradictory to the proposition of the “legally constituted authority” over the “entire China” of the KMT government in Taiwan. After retreating to Taiwan, the KMT government never gave up on its “legally constituted authority” over the “entire China.” Therefore, the KMT government has always claimed Taiwan as a part of Chinese territory, out of not only historical sentiment but also political necessity at present. Apparently, such a proposition of the KMT government is in conflict with the “undetermined status of Taiwan.” Therefore, the United States must deny the “representation” of the KMT government of the “entire China” to ensure the implementation of the theory of the “undetermined status of Taiwan.” On April 24, 1951, in his talk with Gu Weijun, Dulles explained: “Since the KMT government insists that Taiwan is a part of Chinese territory, which coincides with the proposition of the Communist Party of China, this issue has been recognized by all as an internal affair of China. If it is now proclaimed in writing to return Taiwan, then the dispatch of the 7th Fleet by the United States will be without basis, which will only make the Communist Party of China and the Soviet Union condemn the interference from the United States even more. Therefore, at this stage, the United States has to keep the Taiwan issue pending, for the convenience of dealing with the situation.”23 Because the KMT government repeatedly asserted the proposition that “Taiwan is a part of Chinese territory” and compared it to the relationship between South Sakhalin and Kuril Islands and the Soviet Union,24 meanwhile with the attitude of the United Kingdom, Canada and Australia toward 20

The wordings such as “national government”, “your country” and “your government”, etc., used in the official “diplomatic” documents between the United States and Taiwan and between Japan and Taiwan all refer to the KMT government, which will not be explained one by one in this book. 21 Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 6. 22 “Sending fleet to protect Taiwan” is the model used by Dulles in response to the KMT government’s questioning of the “undetermined status of Taiwan.” For example, on December 19, 1950, Dulles proposed: “The Taiwan issue may have to be discussed by the United Nations first, …, otherwise, the American act of sending fleet to protect Taiwan would seem groundless.” Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 11–12, 28–29. 23 Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 28–29. 24 During the talks with Dulles on April 24 and May 29, 1951, Gu Weijun mentioned that if the United States treats this territory issue differently from that of the Soviet Union, it is “slightly discriminatory.” Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 28–29, 30–31.

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the KMT government taken into consideration, the United States had to exclude the KMT government from making peace with Japan to clarify the legal status of the theory of the “undetermined status of Taiwan” in making peace with Japan. For the United States, the “undetermined status of Taiwan” is an important link in the construction of a Far Eastern pattern in its own interest; thus, the subordination of Taiwan to China must be denied. However, at that time, both sides were still insisting on the proposition that “Taiwan is a part of Chinese territory”, so the United States had to exclude both sides from making peace with Japan. For the United States, the theory of the “undetermined status of Taiwan” is why it vigorously advocated shelving the “Chinese representation issue”, and the “Chinese representation issue” being shelved as well as the exclusion of both sides from making peace with Japan are the inevitable results of the “undetermined status of Taiwan.”

3.2 Taiwan: Forced to Accept the “Undetermined Status of Taiwan” Due to the Need for “Chinese Representation” KMT was exhausted after its retreat to Taiwan, with its greatest dependence on the United States for occupying Taiwan Island for self-defense and “counterattacking the Chinese mainland.” In exchange for American support, the KMT government had to accept the arrangement of the United States for Taiwan’s status and peace with Japan. Unlike the United States who chose to shelve the “Chinese representation” issue due to the “undetermined status of Taiwan”, the KMT government was forced to accept arrangements including its exclusion from making peace with Japan, the “undetermined status of Taiwan”, and a separate peace treaty with Japan, which was a helpless choice to maintain the KMT authorities (in the name of “national government”) and their “representation” of China. Before retreating to Taiwan, the KMT government once took an active part in making peace with Japan and even drafted a Japanese peace treaty.25 However, after its defeat in the domestic military struggle, the KMT government obviously had neither will nor power to care about making peace with Japan. After retreating to Taiwan and losing its effective rulership in China, the KMT government had an urgent need to demonstrate its “Chinese representation” through participation in making peace with Japan. However, based on its own strategic interest, the United States denied “Taiwan as a part of Chinese territory” and naturally also refused to accept the KMT government in Taiwan as the “lawful government” of the “entire China.” This denial did not imply recognition of the “Chinese representation” of the People’s Republic of China by the United States but was nonetheless a heavy blow to the KMT government. 25

Asian Century Society, The Japanese Peace Treaty Issue, East Asia Association, Shanghai, 1947, 27–28. Quoted from Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 113.

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When the United States forced the KMT government to accept the “undetermined status of Taiwan”, the security of Taiwan and the “international status” of the KMT government were important bargaining chips. On October 20, 1950, Gu Weijun raised questions about the theory of the “undetermined status of Taiwan”: “The so-called Taiwan issue has been submitted by the United States to the United Nations General Assembly (UNGA) for discussion. What on earth is the intention and expectation of the United States?” In the reply to Gu Weijun, in addition to reiteration of the importance of the “undetermined status of Taiwan” to the strategic interests of the United States, Dulles also responded in a comforting yet threatening manner: “To freeze Taiwan’s status is to maintain the status of the Chinese National Government. … If your country resolutely opposes the American stance in the assembly and argues heatedly, which will unavoidably make it more difficult for the United States, then I’m afraid the United States will not be able to adhere to the tenet of protecting Taiwan and maintaining the international status of your government.”26 As mentioned above, this speech was practically the basic pattern of Dulles’s reply to questions of the KMT government (i.e., The “sending fleet to protect Taiwan” pattern). Till May 29, 1951, when Gu Weijun attempted to clarify the ownership of Taiwan in a final effort, Dulles responded in an extremely menacing language: “If Taiwan and Penghu insist on your principle and decision, the sovereignty of these two islands will be returned to Japan in case your country cannot participate in signing, which is definitely not what your country would wish for.”27 Both Dulles’s comfort and threat had worked. Out of consideration for security, the KMT government was forced to accept the “undetermined status of Taiwan.” On the same day, the draft of the “seven principles of making peace with Japan” was presented by Dulles to Gu Weijun when talking to Tsiang Tingfu (T.F. Tsaing), the KMT Representative to the United Nations, Gu pointed out explicitly: “If we insist on the statement that Taiwan is Chinese territory beyond all doubt, the proposition of the United States in an attempt to prevent Taiwan from falling into the hands of the enemy will be groundless.” “Considering the extremely precarious situation of our representation in the United Nations, we should better be more realistic and concentrate our energy on maintaining the international status of our country (referring to the KMT government, see note).” “If we insist that Taiwan is Chinese territory, …, this is no different from the standpoint of the Communist Party of China and Moscow. This way we will only do damage to the American proposition. In addition, this will lead to a question right away—which side is going to represent China indeed? Peiping or Taipei? Exactly falling into the trap of countries including India and the United Kingdom, who have already recognized the Chinese Communist regime.”28 26

Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 6. 27 Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 30–31. 28 Gu Weijun, Memoirs of Gu Weijun, Vol. 8, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 149–150.

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On October 27, 1950, in his letter to Wang Shijie, Secretary-General of the Presidential Office of the KMT, Gu Weijun stated explicitly: “The international status of our government (referring to the KMT government, see note) is precarious and against all odds. At present, our top priority is (1) maintaining the representation of our government and (2) guaranteeing the security of Taiwan Island, … while all other legal theories are no good for our interests and may be neglected.”29 Based on this standpoint, Gu Weijun recommended that the KMT accept the “undetermined status of Taiwan” in the letter: “Only with the adoption of this standpoint can the United States implement its tenet of protecting Taiwan to maintain the status of our government (referring to the KMT government, see note). Otherwise, as the Communist Party of China insists that Taiwan is Chinese territory, the measures adopted by the United States toward Taiwan will be deemed interference in internal affairs, which will make it difficult for the United States to defend us according to Section Two of the Charter of the United Nations. For this reason, Counselor Du (referring to Dulles, see note) sincerely hopes that we will not insist on standing against the United States, which could result in damage to our common interests.”30 Out of its heavy reliance on the United States, the KMT had to take the American standpoint and Gu Weijun’s recommendation seriously. At first, the KMT government tried to adopt a delaying tactic; however, after the official presentation of the “seven principles of making peace with Japan” by Dulles, under the pressure of security consideration, a decision had to be made to exchange “sovereignty” for “security” and “representation.” On December 19, 1950, Gu Weijun suggested to Dulles, “Japan only needs to renounce all sovereignty of such territory in accordance with the terms of surrender in the Potsdam Proclamation, and leave it to be handled by the Entente countries themselves, rather than to confirm with and return to each country.”31 As a matter of fact, the standpoint of the United States had been tacitly approved. In the first half of 1951, Ye Gongchao (George Kung-chao Yeh), “Foreign Minister” of the KMT government, reported to Gu Weijun in secret: “Even though Chairman of the Committee (Chiang Kai-shek—see note) himself was extremely reluctant, it has been agreed that the signing of a bilateral treaty with Japan after the multilateral treaty is the last resort.”32 At this point, the KMT government had no choice but to 29

Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 31. About the role of Wang Shijie in the Japanese Peace Treaty, see Zuo Shuangwen and Zhu Huaiyuan, “Wang Shijie and Postwar Negotiation Regarding the Japanese Peace Treaty”, The Journal of Studies of China’s Resistance War Against Japan 3 (2007). 30 Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 30–31. 31 Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 11–12. 32 Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 145–146. However, in the proclamation made by Chiang Kai-shek publicly on April 17, 1951, it was demanded that “allies signing the Japanese Peace Treaty should consider the Republic of China a member of the allied states, and the status of the Republic of China as an allied state should not be lost.” By June 18, Chiang Kai-shek again stated: “Since the National Government is the sole legal government recognized by the majority of allied states and the United

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15

swallow the American standpoint with resignation. Despite the protest raised by the KMT government after a consensus was reached between the United States and the United Kingdom on the “Chinese representation” issue,33 such behavior was more of a demonstration of its perseverance in “Chinese representation.” However, by interpreting the theory of the “undetermined status of Taiwan” differently from the standpoint of the United States, the KMT government demonstrated its “representation” of China. A representative interpretation is the viewpoint of Gu Weijun, which can be divided into three types: (1) The United States did not fundamentally deny the “Chinese representation” of the KMT government; the “undetermined status of Taiwan” was only an expedient measure to protect the security of Taiwan. This viewpoint can be found in the abovementioned letter from Gu Weijun to Wang Shijie.34 (2) Taiwan’s status has been settled as a matter of fact, just lacking legal formalities. For instance, on the Position Paper presented to the United States on January 22, 1951, Gu Weijun mentioned: “[Taiwan] is historically, ethnically, legally and matter-of-factly a part of Chinese territory; just need to go through the final formalities.”35 (3) That Taiwan belongs to China is a historical fact that does not require confirmation through any formalities. This viewpoint was mentioned in his talk with Dulles on April 24, 1951,36 which was probably a tactic expression adopted by the KMT government to declare Taiwan’s ownership while knowing it was not going to take any part in the peace treaty. Of course, the KMT government did not receive nothing in return from the United States. In fact, to comfort its “ally” Taiwan, American diplomats also confirmed the “Chinese representation” of the KMT government in good time. On May 18, 1951, which was before the conclusion of the Dulles-Morrison agreement between the United States and the United Kingdom, David Dean Rusk, Assistant Secretary of State for Far Eastern Affairs, suggested, “Peiping could be a colonial government of Russia, … it is not a Chinese government. It lacks the indispensable conditions for an independent government. It is not Chinese. It is not qualified to speak on behalf of Nations, the status [of the People’s Republic of China] with the rights to participate in the Peace Treaty cannot be tolerated absolutely, and this will not change due to objections of any of the allied states or a minority of over fifty allied states declaring war against Japan.” Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), (Party History Committee of the KMT Central Committee, 1981), 713–714. 33 Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), (Party History Committee of the KMT Central Committee, 1981), 715–716. 34 Gu Weijun said: “Moreover, the fact that Taiwan is territory of our country is not denied fundamentally. Considering the complicated international situation at present and the unpredictable prospect, the United States has to use the flimsy excuse of the international law as the basis for its standpoint, to implement its policy of protecting Taiwan. This is also to our advantage.” Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 31. 35 Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 15. 36 Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 68.

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China—the national government of the Republic of China…represents the opinions of the majority of Chinese people more truthfully.”37 The greatest help provided by the United States to the KMT government was to encourage Japan to choose the KMT as the “Chinese representative” to sign the “bilateral treaty.” According to the Dulles-Morrison agreement, after the conclusion of a multilateral Japanese treaty, Japan could decide its attitude toward China at its own discretion. Nevertheless, during his earlier visit to Japan, Dulles had already obtained a verbal promise from Japanese Prime Minister Shigeru Yoshida, who guaranteed to not sign a treaty with the People’s Republic of China.38 Under American domination, before the conclusion of a multilateral treaty, Japan had to choose to sign a “bilateral treaty” with the KMT government. The “bilateral treaty” with Japan was taken very seriously by the KMT government, who considered it as an important opportunity to demonstrate its “Chinese representation” in making peace with Japan and therefore refused to yield even an inch with regard to its “title” and “scope of application” and insisted on the “peace treaty” nature of the “Japan-Taiwan Treaty”, which received partial support from the United States. For instance, when Japan expressed its willingness to contact the People’s Republic of China, the United States helped the KMT government prevent Japan from approaching the People’s Republic of China.39 Nonetheless, American support was quite limited. To ensure the implementation of the “undetermined status of Taiwan” theory, during the period of “negotiation” between the KMT government and Japan, the United States strongly advocated limiting the scope of application of the “Japan-Taiwan Treaty” to “territories now or hereafter under the actual control” of the KMT government.40 It can be said that the return given by the United States to the KMT government was only to recognize it as a regulatory agency of the Taiwan Region, rather than recognition of its “Chinese representation.” The KMT overpaid for its self-consoling “Chinese representation.”

37

Statement of General Douglas MacArthur in Court (1951), 3191–3192. Quoted from Xu Yong, etc., The Source of Problems Left by War—Tokyo Trial and Treaty of Peace with Japan, Heilongjiang People’s Publishing House, 2011, 204. 38 Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 95. 39 Lin Xiaoguang, “Yoshida letter, ‘Japan-Taiwan Treaty’, and Sino-Japanese Relations (1950– 1952)”, The Journal of Studies of China’s Resistance War Against Japan 1 (2001). 40 Foreign Relations of the United States (FRUS), 1951, Vol 6, 1446. All citations from Foreign Relations of the United States (FRUS) in this book come from network database, and can be retrieved from the following website: http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx? type=browse&scope=FRUS.FRUS1 (the last access date: January 20, 2019). Abbreviation is used when cited according to the convention of academia, and the website shall not be indicated every time.

4 Asymmetrical Interests and Asymmetrical Rivalry…

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4 Asymmetrical Interests and Asymmetrical Rivalry: The United Kingdom, Japan, and the United States If the rivalry between both sides and the United States still implies the respective fights of the two sides for “international recognition”, then the rivalry between the United Kingdom and the United States and the rivalry between Japan and the United States with regard to the Chinese representation issue is purely rivalry for the realization of their respective interests. According to status-and-order theory, if the main intention of both sides is “rectification of name” and “determination of status”, then the main intention of the United Kingdom and Japan is protecting their own interests in the Far East through “seeking order.” However, the rivalry between the United Kingdom and the United States and between Japan and the United States is asymmetrical rivalry in the context of asymmetrical interests—on the one hand, the interest demands of the United Kingdom and Japan with regard to Chinese representation are far less than the interest demands of the United States; on the other hand, the disparity is wide between the strength of the United Kingdom and Japan and that of the United States during the early postwar period; therefore, they can only succumb to the interest of the United States.

4.1 Asymmetrical Rivalry Between the United States and the United Kingdom: Reconsideration of the United Kingdom’s Role In the matter of “Chinese representation” in making peace with Japan, the role played by the United Kingdom has been a hot research field.41 Regarding the role of the United Kingdom, there are two entirely different opinions: (1) The United Kingdom followed the United States step by step as an “accomplice” with the United States. This viewpoint is advocated by the majority of popular history reading of the PRC government and Mainland China, especially in some earlier literature.42 (2) It was none other than the British insistence on the representation of the People’s Republic of China that left the United States with no choice but to give up the proposition of Chinese representation by the KMT government, which ultimately resulted in the absence of both sides from the peace conference in San Francisco.43 Such opinions about the role of the United Kingdom are apparently biased. This study believes that 41

Zhao Ailun, “On the Formation of British Policy in Making Peace with Japan”, Journal of Harbin Institute of Technology (Social Science) 2 (2003); Wang Jianlang, “Distortion of Taiwan’s Legal Status”, Modern Chinese History Studies 1 (2001). 42 Xin Zuo, “Divergence and Agreement Between the United States and the United Kingdom on the Japanese Peace Treaty”, World Affairs 28 (1951); Lin Tianmo, “The Utterly Absurd Draft of Peace Treaty Between the United States and the United Kingdom and Japan”, World Affairs 32 (1952). 43 Xu Yong, etc., The Source of Problems Left by War—Tokyo Trial and Treaty of Peace with Japan, Heilongjiang People’s Publishing House, 2011, 205.

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the rivalry between the United States and the United Kingdom is one of the direct reasons for the exclusion of both sides from the Treaty of Peace with Japan; nevertheless, considering the asymmetry between the United Kingdom and the United States in their strength and interests in the Far East, the rivalry between these two is also asymmetrical. Therefore, we should neither regard the United Kingdom as a pure “accomplice” with the United States nor exaggerate the role played by the United Kingdom. The United Kingdom started to pay attention to the Chinese representation issue before the establishment of the People’s Republic of China. Esler Dening, Assistant Under-Secretary of State of the British Foreign Office, mentioned on a Position Paper in August 1949: “Whether to accept the Chinese Communist Party to replace the KMT representative can provide a means of exerting influence in a certain form, so that the new Communist regime may consider our interests in China to a certain extent.” This memo reflected the mainstream thought of the British Foreign Office, i.e., Acceptance of the People’s Republic of China in exchange for returns from other aspects.44 Unlike the dispute between the United States Department of Defense and Department of State,45 the British Foreign Office and Armed Forces had basically the same opinions on the Chinese representation issue. At the meeting of the Chief of the General Staff of the British Army, it was believed, “To toss Taiwan to China will not exert any material influence on the strategic position of the United States or the United Kingdom in the Far East. However, if the United States continues to provide aid to the KMT in Taiwan, this will undoubtedly place Hong Kong in a position vulnerable to attacks of even larger scale, provided that the Communists eventually decide to launch attacks on colonies.”46 This shows the immediate intention of the United Kingdom to recognize and support the right of the People’s Republic of China to represent China is to maintain its interests in China, in particular, the security of its colony Hong Kong. On January 6, 1950, the United Kingdom recognized the People’s Republic of China and broke off all “diplomatic relations” with the KMT government, with just one “consulate” left in Danshui (Tamsui), Taiwan, which only remained in contact with the Taiwan Provincial Government (not the “central organ” of the KMT government), to show the attitude of the United Kingdom regarding the KMT government as only “one of the local governments of China.” In May 1950, at the meeting of the Commonwealth Japanese Treaty Working Party in London, to maintain its status in Hong Kong and protect the interests of British trade in China, the United Kingdom advocated the “right of representation of the Beijing government in the meeting of making peace with Japan.”47 On March 22, 1951, the British cabinet passed a resolution to invite the government of the People’s Republic of China to 44

Wang Jianlang, “Evolution of British Policy about the Chinese Representation Issue in the United Nations During the Early Years of the New China”, Social Sciences in China 3 (2000). 45 Cui Pi, “On the Formation of American Policy of Separate Peace-Making with Japan”, The Chinese Journal of American Studies 2 (1992). 46 Wang Jianlang, “Distortion of Taiwan’s Legal Status”, Modern Chinese History Studies 1 (2001). 47 Zhao Ailun, “On the Formation of British Policy in Making Peace with Japan”, Journal of Harbin Institute of Technology (Social Science) 2 (2003).

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all negotiations for making peace with Japan and instructed the Foreign Office to not discuss plans with the United States, which did not invite the People’s Republic of China to peace-making with Japan. On April 1, the British ambassador to the United States forwarded the decision of the British cabinet to the United States. Gu Weijun also learned the abovementioned information from the United States.48 Until this point, the British attitude toward the representation of China by the People’s Republic of China in making peace with Japan was still clear and firm. The difference between the United States and the United Kingdom with regard to the Chinese representation issue is that the United States advocated implementing the “undetermined status of Taiwan” theory by isolating the People’s Republic of China to construct a pattern in the Far East in the interests of the United States, while the United Kingdom hoped to ensure its interests in the Far East by establishing a friendly (at least not adversarial) relationship with the People’s Republic of China. The British role in making peace with Japan cannot be ignored by the United States: (1) The United Kingdom is the staunchest ally of the United States; seeking British support is an important component of the international strategy of the United States during the Cold War period. (2) At the time, the United Kingdom still had colonies such as Malaya and Hong Kong in Asia, which could not be bypassed during the establishment of a Far Eastern pattern in the American interests. (3) The United Kingdom wielded much influence on other major counties of the world, especially those of the British Commonwealth, while members of the Commonwealth occupied half of the seats in the Far Eastern Commission. According to the rules of the Far Eastern Commission, the Japanese peace treaty must obtain affirmative votes from a 2/3 majority. Therefore, without British support, the United States may lose in making peace with Japan due to procedural issues. To win British support, the United States adopted a series of carrot-and-stick measures. On June 4, 1951, Dulles went to the United Kingdom in person to lobby. British Foreign Secretary Kenneth Younger advised that China did not participate in the peace conference at its beginning—the 14 countries mainly involved in the peace treaty should vote on which side should represent China, and then the side wining a 2/3 majority vote would represent China in the peace conference. Since the majority of countries at the time requested the participation of the People’s Republic of China in making peace with Japan, this plan actually invited the People’s Republic of China to the peace conference.49 Dulles opposed this plan and proposed inviting both sides to participate in the Japanese peace treaty. Younger also raised an objection because he believed the United Kingdom had already recognized the People’s Republic of China. To win support from the United Kingdom, the United States made concessions in issues including Japanese reparations and the recovery of oil interest by Iran from the United Kingdom.50 More importantly, the United States won over French support with the 48

Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 70–71. 49 Gu Weijun, Memoirs of Gu Weijun, Vol. 9, trans. Institute of Modern History CASS, Zhonghua Book Company, 1989, 90. 50 Wu Tingqiu, History of Japan, Nankai University Press, 1994, 867.

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Indo-China issue, which put enormous pressure on the United Kingdom. To prevent the United Kingdom from being excluded from the Far Eastern pattern of interests, the United Kingdom and the United States reached a compromise and concluded the Dulles-Morrison agreement. In this document named “Chinese Participation and Formosa”, both the United Kingdom and the United States decided: (1) The British and American governments had not reached a consensus on who is the lawful and practical authority of China, but this must not delay the signing of the Japanese peace treaty. Therefore, it was decided that China would not be one of the co-signatures of the multilateral peace treaty with Japan. (2) The interest of the Chinese people was covered by the multilateral peace treaty. Japan would voluntarily give up its interests in China, and China shall be entitled to dispose of the Japanese property within its territory. (3) Japan’s attitude toward China should be decided by Japan at its own discretion after restoring its sovereignty and independent status. (4) The multilateral treaty stipulates that Japan should give up islands, including Taiwan, but the treaty itself would not determine the future of these islands.51 At this point, the United Kingdom had given up advocating the People’s Republic of China’s representation of China in making peace with Japan, and the American will was almost entirely reflected. The change in British attitude embodied the asymmetry between the United Kingdom and the United States in their Far Eastern interests and strength. First, with regard to the Far Eastern pattern of interests, the British interests in colonies including Hong Kong and Malaya and the interests of British trade in China were secondary when compared with the security interests advocated by the United States. In addition, the United Kingdom feared the threat of so-called communism in the Far East. When the Chinese civil war was raging in 1949, some British officers also assumed the “trusteeship of Taiwan”, with the purpose of preventing the CPC from winning Taiwan.52 Thus, it can be seen that despite the special interests of the United Kingdom in the Far East, when observed from a more macroscopic perspective, there was consistency between the British and American interests, and this consistency was further enhanced after the Korean War. For even more important interests, the United Kingdom had to give up its established position on Chinese representation to cooperate with the United States. Second, as the United Kingdom suffered serious losses during World War II, its strength was much weaker than that of the United States. As the only country who had militarily occupied Japan among the four major countries of the Far Eastern Commission, the United States already played a dominant part in Japanese affairs. In comparison, the United Kingdom was not only disadvantaged in making peace with Japan but also had much weaker control of the international political pattern than the United States. In some major international issues affecting important British interests, the United Kingdom even needed support from the United States. The United States also utilized its mighty dominance over international politics after World War II to support the British position in issues including Japan’s reparations and postwar status and the oil rights of Iran and was able to win over 51 52

FRUS 1951, Vol 6, 1134. Wang Jianlang, “Distortion of Taiwan’s Legal Status”, Modern Chinese History Studies 1 (2001).

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countries such as France, Australia and the Philippines with its strong power, which put great pressure on the United Kingdom. In an international political pattern where “only strength matters”, the United Kingdom had no choice but to yield to the United States. In short, the rivalry between the United Kingdom and the United States about the Chinese representation issue was asymmetrical, which left the United Kingdom with no other choice but to give up its original stand.

4.2 The “Japan-Taiwan Treaty” Under American Dominance: Japan as a Medium Different from the acquisition of British support through lobbying and exchange of interests, the pressure exerted by the United States on Japan with regard to the Chinese representation issue reflected the total control of the United States over Japan after World War II.53 Even though Japan had recovered sovereignty according to the Treaty of Peace with Japan, in regard to the Chinese representation issue, it was still under American control. Therefore, the “Japan-Taiwan Treaty” signed between Japan and the KMT government was a product of American domination, where Japan only played the role of a medium. Three are two questions about Chinese representation in the “Japan-Taiwan Treaty”: (1) Why did Japan choose the KMT government as the “representative” of China? (2) What is the scope of validity of the “Japan-Taiwan Treaty?” These two questions were closely linked to the Chinese representation issue and the focus of the rivalry between the United States and Japan and between Japan and the KMT government. Regarding the first question, the previous viewpoint is that Japan followed the United States closely and was an accessory to the United States with regard to the issue of the “Japan-Taiwan Treaty.” This viewpoint is correct in terms of the understanding of the accessory position of Japan. Nevertheless, such a position was not by the voluntary choice of Japan, who originally meant to take a wait-and-see attitude and adopt a delaying tactic between both sides but eventually chose the KMT government as the “representative” of China under American pressure. At first, considering the strong national traits of the CPC, Japan had little hostility toward the People’s Republic of China and did not want to worsen its relationship with the People’s Republic of China. For example, on April 8, 1950, Shigeru Yoshida expressed, “The Chinese communism puts China first, and communism second,” and “China will never become a slave of the Soviet Union.”54 Based on this understanding, Shigeru Yoshida was actually trying to retain the possibility of building a relationship between Japan and the People’s Republic of China. Therefore, prior to the signing of the Treaty of Peace with Japan, under the pressure of Dulles, who expected the United 53

[Japanese] Seizaburo Shinobu, History of Japanese Diplomacy, Vol. 2, trans. Institute of Japan Issues, Japan Tianjin Academy of Social Sciences, The Commercial Press, 1980, 718. 54 Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 92.

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States and Japan to remain consistent on the issue of Chinese representation, Shigeru Yoshida was only willing to promise orally not to sign a peace treaty with the People’s Republic of China.55 Nevertheless, the United States was, after all, the only ally who had militarily occupied Japan, and Shigeru Yoshida voluntarily chose the path of political and military dependency on the United States after the war, thus creating the “basic form of Japan’s postwar relationship with the United States.”56 Faced with American pressure, Japan could only bend to the will of the United States. Questioned closely by Dulles time and again, Shigeru Yoshida could only expressly assure Dulles in the letter “The Japanese government has no intention of signing a bilateral treaty with the Communist regime” and planned to dispatch an economic adviser to the Taiwan Region and set up an overseas government agency.57 However, after the conclusion of the Treaty of Peace with Japan, regardless of his promise before the signing of the Treaty of Peace with Japan, Shigeru Yoshida adopted a “delaying tactic” with regard to the Chinese representation issue and kept postponing the negotiation with the KMT government on the “peace treaty.” On October 25, 1951, during talks with Hollington K Tong (Tung Hsien-kuang), Ambassador of the KMT government to Japan, Japanese Chief Cabinet Secretary Katsuo Okazaki declared the attitude of Japan. Different from the belief of some scholars that Japan put off its negotiation with the KMT government out of consideration for the interests of Japanese trade in China,58 Okazaki clearly expressed: “I conjecture that Your Excellency means our country could not sign a bilateral treaty with yours during the recent period due to fear of the Communist Party of China. If my words are correct, I dare to advise Your Excellency that the trade between our country and the Communist Party of China is actually not of much importance and is therefore irrelevant to the question of whether a bilateral treaty can be signed between our country and yours.” Okazaki believed, “What our country has scruples about is: we are deeply afraid that the conclusion of a peace treaty with your country will inevitably lead to the hatred of mainland Chinese citizens toward us. Therefore, we must strive to avoid such circumstances.”59 From this we can see, after the signing of the Treaty of Peace with Japan, to attend to the feelings of the People’s Republic of China remained a main concern of Japan. On October 30, 1951, when questioned by members of the National Diet of Japan, Katsuo Okazaki said, “At present Japan is given the right to choose a side for making peace. However, even with such a right, regarding how to exercise this right, we should still consider the objective environment, the circumstances of China, and its future relationship with Japan. A decision 55

Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 95. 56 Cui Pi, “Study of Japanese Countermeasures for Making Peace”, Journal of Northeast Normal University 4 (1995). 57 FRUS 1951, Vol 6, 1242. 58 Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 168. 59 Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), Party History Committee of the KMT Central Committee, 1981, 756.

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is not to be made lightly. Of course, there is not even the slightest intention of interfering in China’s internal affairs.”60 This speech of Katsuo Okazaki epitomized the “delaying tactic” of the Japanese government. Nevertheless, such an opinion was not received well by the United States. On October 31, 1951, U.S. Ambassador to Taiwan Kark L. Ranking conveyed the attitude of the State Department toward Okazaki’s speech to the KMT government: (1) The U.S. government objects to any attempt by the Japanese government to rope in the Communist Party of China. (2) The U.S. government will continue its efforts to facilitate an early negotiation between the KMT government and Japan for the conclusion of a peace treaty. “This has always been the wish of the U.S. government.”61 December 1951, Dulles revisited Tokyo to exert pressure on Katsuo Okazaki face to face. The promise made by Dulles to Japan was that the conclusion of the “peace treaty” between Japan and the KMT government did not recognize the KMT government as the sole “legitimate government” of China but recognized the fact that it was a “government” governing Taiwan and Penghu.62 Under pressure from the United States, Katsuo Okazaki had to give up the “delaying tactic” and chose the KMT government as the signatory of the “peace treaty.” This result was what the United States had anticipated to achieve: after the signing of the Treaty of Peace with Japan, the implementation of the theory of the “undetermined status of Taiwan” continued. In 1952, an intelligence report of the CIA proposed, even though the “Japan-Taiwan Treaty” failed to fulfil all expectations of the KMT government, at least it recognized the KMT government as the “Chinese government with a legitimate relationship” developed with Japan.63 In fact, the United States did not care about “who represents China”, but whether the KMT government with actual control over Taiwan can obey the arrangement of the United States meekly. Eventually, Japan chose the KMT government as the object of “peace talks”, which constituted an important means for the United States to appease the KMT government and consolidate the “undetermined status of Taiwan.” Regarding the second question, the scope of application of the “Japan-Taiwan Treaty” actually reflected the KMT government’s fight for the “legitimate China” status. Based on the theory of the “undetermined status of Taiwan”, the United States thought that since the KMT government only had effective control over the Taiwan Region, the “Japan-Taiwan Treaty” should only be applicable to the Taiwan Region. Nevertheless, from the perspective of the KMT government, this failed to reflect the 60

Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), Party History Committee of the KMT Central Committee, 1981, 760. 61 Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), Party History Committee of the KMT Central Committee, 1981, 763. 62 Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008), 179. 63 “The Statement of the Nationalist Party of China May Represent Their New Perspective on the Issue of Its International Status](No. IR5964)”, in Declassified Documents of U.S. Intelligence on China (1948–1976) (IV), ed. Shuang Qionghua and Xin Hua, 32.

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“representation” of the “entire China” by the KMT government. On September 22, 1951, the KMT government convened a meeting and proposed two plans with regard to the scope of application of the “Japan-Taiwan Treaty.” Plan A: “This treaty is designed to apply to all territories of the Republic of China. Regarding the region under temporary military occupation by the Communist Party due to the international communist invasion, the Republic of China government promised willingly: once such a region is returned under its effective control, this treaty shall be implemented in such a region immediately. Plan B: “About the side of Republic of China, this treaty shall apply to all territories now and hereafter under the control of the Republic of China government.”64 Plan B was pretty close to the American proposition, but “and” is used in expression, which means if the KMT government succeeded in “counterattacking the mainland”, then the “Japan-Taiwan Treaty” shall apply to the “recovered” mainland region as well. This was unacceptable to the United States because it did not want to see the KMT government “counterattacking the mainland”, which could destabilize the Far Eastern pattern. Based on the American assumption, it was in the best of American interests for the “Japan-Taiwan Treaty” to only apply to the Taiwan Region under the actual control of the KMT government. Therefore, in the “Yoshida Letter” drafted by Dulles, the scope of application of the “JapanTaiwan Treaty” was limited to “territories now or hereafter under the actual control of the Japanese and the Chinese National Government.”65 Compared with the KMT government’s Plan B, “and” was changed to “or” in the draft of the Yoshida Letter, i.e., The “legitimate status” of the KMT government regarding the “entire China” was changed from “certainty” to “probability.” Shigeru Yoshida was very discontented with the draft in his name, thinking that even the expression “or” still hampered the possibility of developing a relationship between Japan and the People’s Republic of China. Based on Shigeru Yoshida’s suggestion, the expression about the scope of application of the “Japan-Taiwan Treaty” in the official text of the “Yoshida Letter” was revised to “Thus far as it concerns the Chinese National Government, the terms of such bilateral treaty shall apply to the territories now or hereafter under its actual control.”66 Thus, Japan was relieved from the dispute over “and/or” and retained the possibility of developing a relationship with the People’s Republic of China. The scope of application of the “Japan-Taiwan Treaty”, i.e., The choice of “and” or “or” in expression of the scope of application became the focus of discussion during the peace talks between Japan and the KMT government. The general attitude of Japan was insisting on “or”, as advocated in the “Yoshida Letter”, while the KMT government maintained that “and” should be used. For this, both parties carried out repeated rounds of negotiations, all of which proved unsuccessful as one party

64

Society of Diplomacy Study of the Republic of China, Relation Between Treaty of Peace with Japan and Sino-Japanese Treaty, Society of Diplomacy Issues of the Republic of China, 1966, 166. 65 FRUS 1951, Vol 6, 1445–1446. 66 FRUS 1951, Vol 6, 1446.

5 Discordant Echoes: Treaty of Peace with Japan, “Japan–Taiwan Treaty”…

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pulled back each time after a consensus was reached.67 Extremely displeased with Japan’s behavior of canceling the treaty twice, the United States exerted pressure on the Japanese government again. Secretary of State Dean Acheson instructed U.S. Ambassador to Japan, William J. Sebald, to ask Japan whether it could sign the “Japan-Taiwan Treaty” before the Treaty of Peace with Japan took effect (i.e., April 28, 1952). Sebald was committed to putting pressure on the Japanese government, and eventually the Japanese government had to reach a compromise with the KMT government with regard to the scope of application: (1) The scope of application is not specified in the text of the “Japan-Taiwan Treaty.” (2) In the form of a “note”, it is stated in Note 1: thus far as it concerns the KMT government, the scope of application of the “Japan-Taiwan Treaty” is “all territories now and hereafter under the control of the Republic of China government.” Nevertheless, (3) in the “consent record”, both parties interpreted “or” as “and.”68 The paradox of this compromise is: in terms of the application of the “Japan-Taiwan Treaty”, to replace “and” with “or” was originally the doing of the United States, and not accepted by Japan at first; however, when Japan insisted on “or” in the “Yoshida Letter”, the United States forced Japan to accept “and” as the interpretation of “or” to facilitate the conclusion of the “JapanTaiwan Treaty.” Here the fickle and inconstant stratagem of the United States, Japan’s imitation of the steps of the United States, and the KMT government’s unavoidable acceptance of the arrangement with resignation were revealed thoroughly.

5 Discordant Echoes: Treaty of Peace with Japan, “Japan–Taiwan Treaty”, China–Japan Peace and Friendship Treaty, etc. At the expense of sacrificing China’s interests, the Treaty of Peace with Japan and the “Japan–Taiwan Treaty” contributed to the theory of the “undetermined status of Taiwan” in the American interests. As the major parties concerned, the People’s Republic of China and the Soviet Union in reality were not involved and became bystanders of the whole event.69 In particular, the absence of the People’s Republic of China led to the formation of the theory of the “undetermined status of Taiwan” in the Treaty of Peace with Japan, which is still casting a negative impact on the relationship between China and Japan and cross-Strait relations today.

67

About the revelation of this process, see Yu Zidao, “Treaty of Peace with Japan, Japan-Chiang Treaty, and the Theory of the ‘Undetermined Status of Taiwan’ of the United States and Japan”, The Journal of Studies of China’s Resistance War Against Japan 4 (2001). 68 Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition—War of Resistance Against Japan, Vol. VII (Post-war China, Four), Party History Committee of the KMT Central Committee, 1981, 1068. 69 Zhang Shengfa, “Co-resistance of China and the Soviet Union to Peace-Making with Japan Led by the United States in the Early 1950s”, World History 2 (2001).

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1 Origin: The Issue of Chinese Representation in Making Peace …

Due to the “leaning to one side” diplomatic strategy, the People’s Republic of China chose to form an alliance with the Soviet Union and dispatched troops to North Korea for the interests of the socialist camp in the Far East as well as its national security. In addition to its huge national sacrifice, China also lost the chance of participating in making peace with Japan and taking part in the construction of a Far Eastern pattern of interests. During the entire process of making peace with Japan, except for raising objections through diplomatic statements and reiterating that the People’s Republic of China is the sole legal government to represent China at a few key moments,70 the People’s Republic of China practically had no substantial impact on the issue of “Chinese representation” in making peace with Japan. The vital interests of the Soviet Union were involved in the ownership issue of South Sakhalin and Kuril Islands in making peace with Japan, but at the time its strategy was centering around Europe instead of the Far East; plus a lack of strength, the Soviet Union was unable to implement any material intervention and could only raise an objection by making a statement when the United States rearmed Japan and promoted the theory of the “undetermined status of Taiwan.” However, out of necessity of maintaining the postwar order and fulfilling the obligations of the Sino– Soviet alliance, whether in negotiations with the United States about making peace with Japan71 or at the peace conference in San Francisco,72 the Soviet Union had always taken a stance in support of the People’s Republic of China with regard to the Taiwan issue and Chinese representation issue. Nevertheless, opinions of the Soviet Union about the Chinese representation issue were not accepted, and eventually, the Soviet Union refused to sign on the Treaty of Peace with Japan. The fact that two important countries involved—the People’s Republic of China and the Soviet Union—did not sign on the Treaty of Peace with Japan seriously affected the legality of this Treaty. The People’s Republic of China government has always refused to accept the legality of this Treaty and denied the legality of the “Japan–Taiwan Treaty” even more. Consequently, the theory of the “undetermined status of Taiwan” formed 70

Statements were made in the name of the government of the People’s Republic of China, respectively by Premier and Foreign Minister Zhou Enlai after the conclusion of the Dulles-Morrison agreement between the United States and the United Kingdom on August 15, 1951 with a draft proposed for the Peace Treaty, the signing of the Treaty of Peace with Japan on September 18, 1951 and the signing of the “Japan-Taiwan Treaty” on May 5, 1952, and by Vice Minister of Foreign Affairs of the People’s Republic of China Zhang Hanfu after the “Yoshida letter” was published on January 23, 1952, to oppose the abovementioned acts that violated Chinese interests. 71 For instance: on October 26, 1950, when delivering the draft of the “seven principles of making peace with Japan” to Yakov Malik, the Soviet ambassador to the United Nations, Dulles once suggested “temporarily freezing the issue of Taiwan’s status”, and Malik responded that “Taiwan issue is a pure domestic affair of China.” Shen Zhihua and Yao Yu, “Reaction of the United States to Sino-Soviet Alliance and Formation of the Cold War Pattern in Asia”, Clio at Beida 17 (Peking University Press, 2012). 72 During the peace conference in San Francisco, the Soviet Union made suggestions for revising the Peace Treaty, such as “recognize the sovereignty of the People’s Republic of China on ‘Manchu’ and Taiwan” and “the People’s Republic of China should be listed as one of the countries to approve the Peace Treaty.” Qin Xiaoyi ed., Important Historical Data of the Republic of China First Edition— War of Resistance Against Japan, Vol. VII (Post-war China, Four), Party History Committee of the KMT Central Committee, 1981, 691.

5 Discordant Echoes: Treaty of Peace with Japan, “Japan–Taiwan Treaty”…

27

by these two treaties and the “Chinese representation” of the KMT government are also denied by the People’s Republic of China. On September 29, 1972, Japanese Prime Minister Kakuei Tanaka visited the People’s Republic of China upon Zhou Enlai’s invitation. Both countries signed the Japan–China Joint Statement and established diplomatic relations, thus realizing the normalization of relations between Japan and the People’s Republic of China. In Article 2 and Article 3 of the Japan–China Joint Statement, the government of Japan recognizes the government of the People’s Republic of China as the sole legal government of China; the government of Japan fully understands and respects the stance of the People’s Republic of China that Taiwan is an inalienable part of the territory of the People’s Republic of China and firmly maintains its stand under Article 8 of the Potsdam Proclamation.73 So to speak, it was not until this point that the Chinese representation issue in making peace with Japan was completely and fairly resolved. On August 12, 1978, the Treaty of Peace and Friendship Between Japan and the People’s Republic of China was signed in Beijing between the government of Japan and the government of the People’s Republic of China, which completed the China–Japan Treaty in the true sense and composed a new movement for the symphony of peace between Japan and China and even in the Far East. Nevertheless, echoes of the Treaty of Peace with Japan and the “Japan–Taiwan Treaty” are still not entirely eliminated, as the theory of the “undetermined status of Taiwan” has become one of the reasons for secessionist forces to advocate “Taiwan independence.” The Far Eastern pattern is still surrounded by the discordant echoes left by the Treaty of Peace with Japan and the “Japan–Taiwan Treaty.” Its source can be traced to the important activities of making peace with Japan, which were sufficient to lay a foundation for the Far Eastern pattern but surprisingly not participated by the largest country in the Far East—China. Even though we can negate the validity of the abovementioned two “treaties” in terms of legality from a certain political stand, the resultant regrets could never be made up.

73

Article 8 of the Potsdam Proclamation is: “The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.”.

Chapter 2

Attack and Defense: Cross-Strait “Diplomatic Battle” and “Truce” Around the Issue of Taiwan’s Participation in the International Space

Regarding the alignment of cross-Strait relations, the Chinese mainland has stressed once and again that the relationship between the two sides is a domestic “political confrontation”, while the Taiwan issue is an internal affair of China and denied the international attribute of the alignment of cross-Strait political relations. However, Taiwan has been attempting to “internationalize” cross-Strait affairs and escalate cross-Strait issues into international issues. On the one hand, the behaviors of Taiwan are attempts to involve foreign powers to counterbalance the power of the mainland through the “internationalization” of cross-Strait affairs and to increase its political capital to “haggle” with the mainland, which in turn affects the state of interaction across the Strait.1 On the other hand, the Taiwan Region attempts to manifest the international attribute of cross-Strait relations by participating in the international space and increasing its exposure in the international space. As mentioned above, in the Oriental political culture, participation in the international space is no longer just an event to seek international interests but also to gain recognition as a “state” or “government.”2 Therefore, the proper resolution of the issue of Taiwan’s participation in the international space is a key concern on the mainland side. Based on the “recognition dispute”, the mainland has been denying the qualification of the Taiwan Region in politically participating in the international space and only allows it to develop unofficial relations with other countries and participate in nongovernmental international organizations, provided that the one-China principle is not affected. Nonetheless, Taiwan has been attempting to demonstrate its “nationhood” and “sovereignty” by virtue of breakthroughs in the international space. Therefore, whether the Taiwan Region can participate in the international space and in which name and to which

1

See Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, PhD diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007), 232. 2 See Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_2

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extent it shall participate in the international space has become a major topic of cross-Strait attack and defense.

1 Cause of the Cross-Strait “Diplomatic Battle”: “Recognition Dispute” Knowing where the question lies is the prerequisite for solving a question. The establishment of a correct understanding of the question is of great importance to question solution. Thus, the question of Taiwan’s participation in the international space constitutes the essential prerequisite for solving this thorniest question across the Strait. A common analytical framework considers the source of the issue of Taiwan’s participation in the international space to be dispute over “sovereignty” and “nationhood” across the Strait. On the policy level, some political figures had proposed ways of solving the issues of “sovereignty” and “nationhood”, such as “one China, two areas”, “one China, two entities” and “one China, two governments”, which were proposed by the Taiwan Region in history. In the speech on May 20, 2012, Ma Ying-jeou put forward the view of “mutual nonrecognition of sovereignty and mutual non-denial of authority to govern”, which is essentially another attempt to solve the alignment issue of Taiwan’s participation in the international space through the relative separation of “sovereignty” and “authority to govern.” However, the traditional analytical framework of “sovereignty” and “state” often falls into the “position-oriented” research paradigm, thus producing the effect of both sides “speaking by themselves respectively.” Thus far, the mainland has still not revealed its stand on the abovementioned opinions proposed on the side of Taiwan clearly, which already proves the limitation of the analytical framework of “sovereignty” and “state.” Therefore, how to reasonably prevent “sovereignty” and “state” from holding up the solution of the issue of Taiwan’s participation in the international space has become the primary issue to be solved in this book. Through observation of the differences between both sides in “sovereignty” and “nation”, it can be seen that the real essence is not denial of one’s “sovereignty” attribute and alignment as a “state”,3 but whether to recognize the “sovereignty attribute” of the other side and its alignment as a “nation.” Therefore, under the “strategy-oriented” paradigm, the key to the solution of the issue of Taiwan’s participation in the international space is not argumentation about the rights and wrongs of “sovereignty” and “state” issues across the Strait but how to solve the “recognition dispute” generated across the Strait surrounding “sovereignty” and “state” issues. This section conducts argumentation on opinions about the “recognition dispute” and

3

Let aside whether the “sovereignty” and “state” thought by each side truly exist, or whether they conform to the general facts recognized by the international community; even though the status quo across the Strait is “the mainland and Taiwan belong to one China”, Taiwan has never denied its “sovereignty” attribute and “state” status.

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introduces the “recognition dispute” from its form of expression on the international level.

1.1 Source of “Recognition Dispute”: “One-China Dispute” Starting from the problem domain of each subject, the understanding of “recognition dispute” varies: from the perspective of politics, “recognition dispute” can be defined as dispute over whether the mainland and Taiwan recognize each other’s “sovereignty” and status as a “state”; from the perspective of law, “recognition dispute” can be defined as dispute over “whether the mainland and Taiwan recognize each other’s fundamental laws and the public power organs established based on such fundamental laws”4 ; from the perspective of international relations, “recognition dispute” can be defined as dispute over whether the mainland and Taiwan recognize each other as a subject of international law and whether the mainland and Taiwan are entitled to engage in international activities for sovereign states only, and so on. Speaking of the source, a “recognition dispute” arises from the “one-China dispute” existing between both sides. It can be said that a “recognition dispute” is a natural derivative of a “one-China dispute.” As the “one-China dispute” is the source of the “recognition dispute” across the Strait, it is necessary to describe and analyze the “one-China dispute” before the discussion of the “recognition dispute.” Basically, even though the “one-China dispute” gives rise to the “recognition dispute”, it is not the nature of the “recognition dispute.” General Secretary Xi Jinping has pointed out: “The fact that both sides belong to one China has never changed and will never change. Both sides are returning to unity, and ending political confrontation, instead of creation of territory and sovereignty.”5 “Political confrontation” in its form is reflected in dispute between the two sides over the issue of “one China.” The “one-China dispute” across the Strait is actually a very general expression, itself including two completely different disputes, i.e., The dispute over “who is China” and the dispute of “two Chinas” or “one China, one Taiwan”, the former based in “China” and the letter in “one.” Dispute about “who is China’s is the original dispute between the two sides. Before 1992, both the mainland and Taiwan claimed themselves to be the “sole legal government of China” and adopted the strategy of “irreconcilability” and “one or the other” internationally. During this stage, the core of the cross-Strait dispute is which is the legal representative of China; therefore, the dispute over “who is China” can also be referred to as the “fight for the legitimate China status.” As the People’s Republic of China resumed its legal seat in the United Nations in 1971, with the establishment 4

See Zhu Jie, “On the Construction of Cross-Strait Cooperation over Maritime Administrative Affairs”, Taiwan Research Quarterly 3 (2010). 5 People.cn, “Xi Jinping’s Opinion on Cross-Strait Relations: It’s the Blood of the Chinese Nation Flowing in the Vessles”, data source: http://cpc.people.com.cn/xuexi/n/2015/1105/c385474-277 81398.html, the last access date: January 18, 2019.

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of Sino-US diplomatic relations in 1979, the Taiwan authorities completely lost the “fight for legitimate status.” Nevertheless, during the early period with Chiang Chingkuo and Lee Teng-hui in office, the Taiwan authorities still insisted that “the Republic of China is the legitimate China.” It was not until after “one China, two governments”, “one China, two areas” and “one China, two entities” were proposed that the Taiwan authorities officially gave up the thought of “fighting for legitimacy.” However, the dispute over “who is China” did not die entirely. In 1992, after the “1992 Consensus” was reached between the mainland and Taiwan through the Association for Relations Across the Taiwan Straits (ARATS) and the Straits Exchange Foundation (SEF) under the premise of “adhering to the one-China principle”, the political connotation of “one China” was expressed by the two sides respectively. On the basis of the “1992 Consensus”, both sides were freed from the dispute over “who is China”, and the discussion about “one China” also changed from “dispute over legitimacy” to “respective expressions.” The dispute between the two sides over “who is China” is still occasionally mentioned, but it is no longer the central theme of cross-Strait relations. The loosening of identification with the national symbol of “China” is the key to the transformation of the “one-China dispute” between two sides from “who is China” to “one China, one Taiwan.” Between the late 1980s and the 1990s, after the lifting of martial law and the beginning of constitutional reform in the Taiwan Region, the “national identification” with China gradually gave way to the identification with “Taiwan”, which was accompanied by the transformative process of “Taiwanization of the Republic of China.” After 1990, people in Taiwan began to deconstruct the right to rule the mainland claimed by the “Republic of China” and gradually dispelled the “representativeness” of the “Republic of China” in relation to “China.” Over consecutive terms, leaders of the Taiwan Region also revised the “Republic of China to Taiwan” to the “Republic of China in Taiwan” and the “Republic of China is Taiwan” successively. At the same time, the Taiwan authorities actively promoted the so-called “constitutional reform” and adopted measures including determining the “free area” status, “simplifying” the organizational system at the provincial level of Taiwan through the direct election of “public representatives” and “president”, establishing the referendum system, and recognizing the “constitutional” status and rights of aborigines of the Taiwan Region, which realized the “Taiwanization of the Republic of China” on the level of fundamental law. What ensued was the complete dying out of regime identification. Even the “Republic of China”, such a symbol of regime, was transformed into a “survival strategy.” In Taiwan, quite a few people hold such an opinion: “we” (or just “Taiwan”) are a “state”, whose name, according to the “Constitution”, is the “Republic of China.”6 People holding this so-called “Type B Taiwan independence” view are not necessarily supporters of Taiwan independence—they also include a part of people supporting reunification. The reason 6

This viewpoint was first seen in the “Resolution on Taiwan’s Future” by the Democratic Progressive Party (1999), and later also advocated by some pan-blues. See Yen Chueh-an, “Constitutional Regime and the Dilemma of Language”, in Yen Chueh-an, Constitutional State of a Different Model, Angle Publishing Co., Ltd., 2005, 152.

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for the same phrasing to be used by supporters of independence and reunification at the same time is that the “Republic of China” here is no longer a symbol of regime for “China” but has already been reduced to a strategy for “Taiwan” to survive as a “state.” The “Republic of China” surviving in the “Constitution of the Republic of China” has become a “way of existence” of Taiwan as a “state.” Some Taiwanese scholars have pointed out even more incisively that the “Republic of China” has died, with only the “Constitution of the Republic of China” lingering on with one last breath.7 In 1999, according to Lee Teng-hui’s “Two-State” Theory, “the 1991 Constitutional Amendments have framed cross-Strait relations as a normal state-to-state relationship or at least a special state-to-state relationship.”8 In 2002, Chen Shui-bian made a point: “With Taiwan and China on each side of the Taiwan Strait, each side is a country.” These two points are representative speeches of a certain group of people in Taiwan attempting to change the identification with the “China” symbol, which indicates that the “national identity” of the Taiwan Region has undergone a process from fission to variation. Marked by the “Taiwan independence clause” of the Democratic Progressive Party (DPP),9 the unanimous recognition of the “China” symbol was transformed into a situation of division where a part of the people identifies with the “China” symbol while another identifies with the “Taiwan” symbol. After 2000, the Taiwan authorities controlled by supporters of Taiwan independence further accelerated the variation of this situation of division. The “referendum on United Nations membership applications” held in 2008 to a certain extent represented the wishes of a certain group of Taiwanese people for breaking through the “China” symbol. In August 2012, disputes among various circles of the Taiwan Region surrounding the “two shores, one China” viewpoint proposed by Jia Qinglin once again demonstrated the divided and twisted “national identification” of the Taiwanese society.10 In 2016, during the inaugural address of Tsai Ing-wen as the new leader of the Taiwan Region, Tsai not only avoided mentioning the “1992 Consensus” but also 7

Yen Chueh-an, “Constitutional Regime and the Dilemma of Language”, in Yen Chueh-an, Constitutional State of a Different Model, Angle Publishing Co., Ltd., 2005, 155. 8 “Full Text of Question and Answers in Interview of Lee Teng-hui with Deutsche Welle”, data source: http://www.cass.net.cn/zhuanti/taiwan_1/comments/german.htm, the last access date: January 20, 2019. 9 By December 2011, the Democratic Progressive Party has 3 iconic “Taiwan independence” Party programs, which are “April 17 Resolution” passed on April 17, 1988, “October 7 Resolution” passed on October 7, 1990, and “Resolution on Taiwan’s Future” passed on May 8, 1999. In addition to there is also the “Basic Program of Establishing the Republic of Taiwan of Independent Sovereignty” passed in 1991, but its influence is slightly inferior to that of the above three programs. The abovementioned programs are collectively referred to as the “Taiwan independence” Party program. At present, the basic viewpoint of the Democratic Progressive Party about the “mainland issue” is still fundamentally based on “Resolution on Taiwan’s Future.” 10 See Taiwan Poll 114 (August 1–5, 2012). Taiwan Poll are the internal reference materials compiled by Mr. Wang Zhong, permanent member of the Central Committee of Taiwan Democratic SelfGovernment League (Taimeng), and member of Taimeng Shanghai. Thanks to Mr. Wang Zhong of Taimeng Shanghai for sending these materials, which will not be explained once and again when quoted hereafter.

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claimed that it is her responsibility to safeguard the “sovereignty and territory of the Republic of China.”11 On January 2, 2019, Tsai Ing-wen responded to the speech made by Xi Jinping at the gathering to commemorate the 40th anniversary of issuing Message to Compatriots in Taiwan, claiming that Taiwan “has never accepted the ‘1992 Consensus’ and absolutely will not accept ‘one country, two systems’”; the DPP also issued a statement requesting that the mainland “must face up to the fact that Taiwan is a nation with independent sovereignty, named the Republic of China.”12 This reflects the severity of the current situation where the Taiwan authorities vigorously advocate “Taiwan independence” and guides the public opinion of Taiwan toward “independence” under the DPP administration. At the same time, the mainland has also gradually given up tangling with the Taiwan Region over the issue of “who is China.” Regarding the political connotation of “one China”, it has adopted the pragmatic strategy of continuous expansion to accommodate different opinions. In Continuing to Strive Toward the Reunification of China (hereinafter referred to as “Jiang Zemin’s eight-point proposal”) issued in January 1995, Jiang Zemin did not equate “China” with the “People’s Republic of China” explicitly.13 In January 1998, Qian Qichen expressed the one-China principle as “There is only one China in the world; Taiwan is a part of China; China’s sovereignty and territorial integrity are indivisible” [One-China Syllogism (II)],14 · ,15 where the “People’s Republic of China” was replaced by the more abstractive and inclusive word “China”, thereby elevating the level of identification from regime to state. Nevertheless, the expression “Taiwan is a part of China” still implies that the mainland is the main body; therefore, at this time, the cross-Strait policy of the mainland still bears traces of regime identification. In November 2002, the expression “There is but one China in the world; both the mainland and Taiwan belong to one China; China’s sovereignty and territorial integrity brook no division” [One-China Syllogism (III)] was officially adopted in the report at the 16th National Congress 11

Tsai Ing-wen, “Speech at the 2016 Inauguration Ceremony” (2016). Huang Shunjie, “Tsai Ing-wen: Never Accepted the ‘1992 Consensus’; Absolutely Will Not Accept ‘One Country, Two Systems’”, data source: http://www.zaobao.com/realtime/China/story2 0190102-920596, the last access date: January 8, 2019. 13 See Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995). 14 See Qian Qichen, Speech Commemorating the 3rd Anniversary of Publishing Jiang Zemin’s Eight-point Proposal (1998). 15 The core of the mainland’s Taiwan policy is often expressed with three interconnected sentences independent of each other, which is referred to as “One-China Syllogism” in the academia. By March 2009, the mainland has formed three “One-China Syllogisms”, which are indicated as I, II, and III in this book. One-China Syllogism (I): it is officially confirmed by the Chinese government in 1993 in the White Paper on the Taiwan Question and Reunification of China that “there is only one China in the world; the People’s Republic of China is the sole legal government of China; Taiwan is a part of China.” One-China Syllogism (II): former Vice Premier Qian Qichen proposed in 1998: “There is only one China in the world; Taiwan is a part of China; China’s sovereignty and territorial integrity are indivisible.” One-China Syllogism (III): in 2002 it was put forward in the report at the 16th CPC National Congress that “There is but one China in the world; both the mainland and Taiwan belong to one China; China’s sovereignty and territorial integrity brook no division.” 12

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of the CPC, with the traces of regime identification in “One-China Syllogism (II)” removed completely, thereby officially establishing the cross-Strait policy based on national identification. In March 2005, the Anti-Secession Law without the prefix of the “People’s Republic of China” (regime symbol) was passed by the mainland, establishing the fact that “both the mainland and Taiwan belong to one China” in the form of law, which further plays down the issue of “who is China.” In October 2007, in the report at the 17th National Congress of the CPC, in addition to the continuous affirmation of the expression “both the mainland and Taiwan belong to one China”, Hu Jintao for the first time proposed “China is the common homeland for the compatriots on both sides of the Strait and who have every reason to join hands to safeguard and develop this homeland” (“homeland” theory) and “The 1.3 billion people on the mainland and the 23 million people in Taiwan are of the same blood and share a common destiny” (“community of common destiny” theory), and elevated the Taiwan issue to the height of “safarding the fundamental interests of the Chinese nation.” The “homeland” theory and the “community of common destiny” theory played down the significance of “China” as a national symbol, but highlighted its meaning as an ethnic symbol even more. In December 2008, in “Hu Jintao’s six-point proposal”, the resolution of the Taiwan issue was once again elevated to the height of the development of the whole nation, with the peaceful development of cross-Strait relations being the prerequisite for “seeking rejuvenation for the Chinese nation” (“rejuvenation for the Chinese nation” theory).16 In November 2012, General Secretary Xi Jinping pointed out in the report at the 18th CPC National Congress: peaceful unification is in the best interests of the Chinese nation, including our compatriots in Taiwan; to achieve peaceful reunification, we must, above everything else, ensure the peaceful growth of relations between the two sides of the Taiwan Strait.17 Thus, the “peaceful growth of relations between the two sides” has been elevated to the essential prerequisite for “peaceful reunification” by the national leader. In October 2017, in the report at the 19th CPC National Congress, Xi Jinping pointed out that resolving the Taiwan question to realize China’s complete reunification is the shared aspiration of all Chinese people and is in the fundamental interests of the Chinese nation.18 On January 2, 2019, during the speech commemorating the 40th anniversary of issuing Message to Compatriots in Taiwan, Xi Jinping restated: the formation and evolution of the Taiwan question is bound together with the destiny of the Chinese

16

See Hu Jintao, Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan—Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation (2008). 17 “Full Text of Xi Jinping’s Report at the 18th CPC National Congress”, data source: http://bbs1. people.com.cn/post/2/1/2/164995138.html, the last access date: January 18, 2019. 18 People.cn, “Xi Jinping’s Report at the 19th National Congress of the Communist Party of China”, data source: http://cpc.people.com.cn/n1/2017/1028/c64094-29613660.html, the last access date: January 18, 2019.

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nation since modern times; the Taiwan question originated from national weakness and disorder and will definitely end with national rejuvenation.19 As Taiwan’s “national identification” becomes increasingly varied and twisted, with the pragmatic countermeasures gradually adopted by the Chinese mainland, the dispute between the two sides over “One China” has been substantially crystalized into the dispute over “two Chinas” or “one China, one Taiwan.”

1.2 Derivation of the “One-China Dispute” and the “Recognition Dispute” The “recognition dispute” between the two sides is directly triggered and reinforced by the dispute over “who is China”, and then continues to exist in the dispute over “two Chinas” or “One China, one Taiwan.” After October 1949, under the leadership of the Communist Party of China, the Chinese people won the war of liberation in Mainland China and established a regime with the title of the People’s Republic of China and a constitution of socialist nature. The KMT retreated to Taiwan and maintained the “state title” of the “Republic of China” and the “Constitution” established in 1946 (hereinafter referred to as the “1946 Constitution”, while the “Constitution” currently effective in the Taiwan Region is referred to as the current “Constitution” of the Taiwan Region). Before 1987, the mainland and Taiwan were in a state of confrontation without any exchanges. As a continuation of civil war thinking, both sides considered each other as an “insurgent organization”, which made it impossible for them to recognize each other’s status. Before 1987, both sides maintained that itself was the sole legal government representing China, i.e., “Legitimate” China, which naturally gave rise to the policy direction of denial or nonrecognition of each other. During this historical period of political antagonism, military confrontation and stagnation of intercourse, the state of mutual nonrecognition across the Strait was reinforced and amplified and gradually became an impenetrable barrier between both sides. Between the late 1980s and 1990s, the “period of mobilization for the suppression of Communist rebellion” ended in the Taiwan Region, and constitutional reform began. The Taiwan authorities represented by Lee Teng-hui gradually gave up the proposition of “who is China” and began limited recognition of the Chinese mainland. Proposals including “one China, two areas”, “one China, two entities” and “one China, two entities” reflected the opinion of “divide and rule” and partially recognized the objective existence and status of Mainland China and its public power organ. Meanwhile, relevant departments across the Strait carried out communication and consultation in an appropriate name through special channels. During such communication and consultation, the sensitive question of mutual recognition was 19

Gov.cn, “Xi Jinping Attended the Gathering to Commemorate the 40th Anniversary of Issuing Message to Compatriots in Taiwan and Delivered an Important Speech”, http://www.gov.cn/xin wen/2019-01/02/content_5354209.htm, the last access date: January 18, 2019.

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not mentioned by either side; instead, a pragmatic strategy was adopted in an attempt to avoid a “recognition dispute.” After 1990, under the situation that the source of “recognition dispute” (dispute over “who is China”) is no longer the core of dispute, both sides continue to exist for the following reasons: first, having given up on tangling over “who is China”, the mainland still adheres to the one-China principle and does not approve “two Chinas” or “one China, one Taiwan”, and of course denies the Taiwan authorities advocating “independence” and “subjectivity”; second, despite Taiwan’s attempt to demonstrate that it is losing the “validity” of international recognition through construction of “divided sovereignty and separate governance” and consolidation of internal democratic legitimacy, the recognition of “who is China” still continues habitually. In addition, long-term isolation from the mainland has contributed to various misunderstandings about the mainland. As a result, the Taiwan authorities and its people generally do not understand and mistrust the public power organ and people of the mainland, hence the continuation of nonrecognition of the mainland. In addition, not only that, since Taiwan’s limited recognition of the mainland is also based on “two Chinas” or “one China, one Taiwan”, and even bears traces of the “Republic of China”, such recognition is unlikely to be recognized by the mainland. A “recognition dispute” is the result of a “one-China dispute” being triggered, reinforced and developed during different historical periods. Whatever the crux of the “one-China dispute” is, so long as “one-China dispute” still exists across the Strait, the “recognition dispute” between the two sides will continue to exist. The so-called “limit”, “tacit consent”, etc., is only remission and variation of “recognition dispute” to a certain extent, which will not change the objective existence of the “recognition dispute.”

1.3 Manifestation of the “Recognition Dispute” on the International Level The intercourse between the mainland and Taiwan in the international community best illustrates the “recognition dispute” between both sides. The reason that the “recognition dispute” is best illustrated in international intercourse is closely associated with the concept of sovereignty in Chinese cultural traditions. The modern sovereignty concept has been developing from mere indication of ownership of the supreme power of a state toward diversified functions. Among a diversity of sovereignty theories, one connects sovereignty with legitimacy, while legitimacy implies mutual recognition between power holders. According to this view, a power or regime, with the support of other powers, is valid and legitimate.20 The view

20

See Chang Ya-chung, Issues of Sovereignty Between Mainland China and Taiwan, Sheng-Chih Book Co., Ltd., 1998, 22.

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connecting sovereignty with recognition by “power holders” conforms to the cognition of the legitimacy of power in traditional Chinese culture. The established legitimacy of power in traditional Chinese culture is often rooted in confirmation or conferred by an external subject rather than recognition by the people governed by this power. Based on such cognition, recognition by the international community for both sides is no longer just a simple question of participating in the international space but more about the legitimacy of one’s own regime. The most typical example is the Taiwan Region before 1971: due to confirmation by “external power holders”, including the United States and Japan, and the fact that it occupied a seat in the United Nations, recognition by “external power holders” was sufficient to support the “legitimacy” of its government; therefore, the “legally constituted authority” brought from the mainland continued within the island, including maintaining the first “National Assembly” elected on the mainland and refusing to open up election of public representatives of the “central” level. However, after being expelled from the United Nations in 1971, the “legitimacy” established by the Taiwan authorities through “external recognition” collapsed, and the Taiwan authorities could only turn to its people to seek consent. Consequently, after 1971, the Taiwan authorities gradually opened up the election of additional public representatives of the “central” level and local elections. This process occurred again after 1990 but in the reverse order. Starting from 1990, the Taiwan authorities reinforced its internal “representation” through three “constitutional reforms” in an attempt to solve the “legally constituted authority” crisis after the lifting of martial law and the termination of the system of “mobilization for the suppression of Communist rebellion.”21 Such as ending the “eternal National Assembly”, completely opening up election of public representatives of the “central” level, direct election of leaders of the Taiwan Region by its people, and opening up direct election of administrative heads of Taiwan Province and “direct-controlled municipalities.” After the first direct election of leaders of the Taiwan Region was completed in 1996, the Taiwan authorities believed the reinforcement of its “internal legitimacy” had already been achieved, and started to establish its “external legitimacy.” The fourth “constitutional reform” started in 1997 was aimed at the reinforcement of external “representation.” First, simplify organizational system at the provincial level, to strengthen the awareness of Taiwan, and further clarify the dividing line of Taiwan Province and the “Republic of China” in terms of external “representation.” Second, conduct direct election of leaders of the Taiwan Region, construct a two-headed executive system with leaders as the core, strengthen the authority of leaders, and make leaders the symbol of the “sovereignty” of Taiwan.22 Participation in the international space, for both sides, is not only a fight for interests in the international community but also, more importantly, about recognition

21 See Yeh Jiunn-rong, “The Rise and Fall of Constitution: Alignment and Trend after Six Rounds of Constitutional Revision”, Chengchi Law Review 69 (2002). 22 See Yeh Jiunn-rong, “The Rise and Fall of Constitution: Alignment and Trend after Six Rounds of Constitutional Revision”, Chengchi Law Review 69 (2002).

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of the legal names and titles of both sides by the international community.23 In this sense, about the issue of Taiwan’s participation in international intercourse, what the mainland cares more about is not the influence on its practical interests after the Taiwan Region enters the international space but whether this behavior will produce the effect of “international recognition” of Taiwan. The focus of the Taiwan Region is also more on whether it can demonstrate its “sovereignty” and “recognition” by external power holders through participation in international intercourse. Cross-Strait attack and defense is the most typical manifestation of the “recognition dispute” between both sides and the form of expression most familiar to the general public. First, the mainland only consents to the development of economic and trade relations, cultural relations and nongovernmental exchanges between foreign countries and Taiwan and only allows Taiwan to participate in international organizations for non-sovereignty entities. At present, the international community has formed a consensus: The People’s Republic of China is the only legal government representing China. This consensus is not only a concept but is already embodied in various practices in the international community. For instance, the People’s Republic of China represents China and is a member state of the United Nations, as well as a permanent member of its Security Council; the majority of countries in the world, especially the “great powers” with an important impact on the world, such as the United States, Russia, the United Kingdom, France, Japan, and Germany, have all established formal diplomatic relations with China. In traditional Chinese culture, such practices create the evident effect of “external recognition.” Looking back at the Taiwan Region, the United Nations has been rejected by an overwhelming majority of Taiwan’s multiple applications for membership as well as the proposals submitted by its “diplomatic allies” for Taiwan to join the United Nations, and Taiwan cannot participate in major international organizations in the name of the “Republic of China” or “Taiwan.” It can only participate in the International Olympic Committee (IOC) in the name of “Chinese Taipei”, the World Health Assembly (WHA) in the name of “Chinese Taipei” as an observer, and the World Trade Organization (WTO) in the name of “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.” With regard to “diplomatic relations” with “foreign countries”, by the end of January 2019, the Taiwan Region has only 16 “diplomatic allies”, most of which are mini island countries maintained through cash relations or “microstates” with little influence in the international community. The mainland’s attitude toward Taiwan’s participation in international organizations and the establishment of “diplomatic relations” between Taiwan and other countries can be divided into two types. First, withdrawal from all international organizations accepting the Taiwan Region as a “country”, which mainly occurred before 1971; severance of ties with all countries with “diplomatic relations” with the Taiwan Region. For instance, the Marshall Islands, a Pacific island country that once served as a nuclear test site of the United States, after gaining independence in 1986, once established diplomatic relations with the People’s Republic of China; 23

Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009).

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however, after it established “diplomatic relations” with the Taiwan Region in 1998, the People’s Republic of China severed all ties with the Marshall Islands. Second, as for the development of non-political economic and trade relations and cultural relations between the Taiwan Region and other countries and the participation of the Taiwan Region in international organizations for non-sovereignty entities in a proper name, the mainland has no objections. Regarding this issue, many important documents (laws) on the mainland side have given explanations or made stipulations explicitly. In the second point of “Jiang Zemin’s eight-point proposal” it is stated that “We do not have objections to the development of nongovernmental economic and cultural ties between Taiwan and other countries.”24 Among the three issues that can be discussed across the Strait, which are put forward in the report at the 16th CPC National Congress, one is “the international space in which the Taiwan Region may conduct economic, cultural and social activities compatible with its status.” Item 5 of Clause 2, Article 7 of the Anti-Secession Law stipulates, the two sides of the Taiwan Strait may consult and negotiate on “the Taiwan Region’s room of international operation that is compatible with its status.” In “Hu Jintao’s six-point proposal”, Hu Jintao inherited and developed the abovementioned opinion by putting forward that “further consultations can be conducted, as needed, on the prospect of Taiwan’s people-to-people economic and cultural interactions with other countries” and “regarding the issue of Taiwan’s participation in the activities of international organizations, fair and reasonable arrangements can be effected through pragmatic consultation between the two sides, provided that this does not create a situation of “two Chinas” or “one China, one Taiwan.”25 At the end of 2015, Xi Jinping expressed during the “Xi-Ma Meeting”: we understand the thoughts and feelings of Taiwan compatriots about the issue of participating in international activities, and we value and promote the resolution of many related issues; so long as it does not result in “two Chinas” and “one China, one Taiwan”, both sides can make fair and reasonable arrangements through pragmatic consultations.26 The policy discourse above indicates that the mainland fully respects the desires and expectations of Taiwanese people for participation in the international space; under the premise of not violating the one-China principle, the Taiwan Region can participate in the international space in a proper name and develop nongovernmental relations with other countries and international organizations. Second, within the same international organization, there have been multiple cases of disputes and friction over the “one China” issue between the two sides of the Strait. Both sides have been participating in some international organizations together. Such organizations mostly have constitutional standards for the Taiwan Region to participate under a proper name and status. The Taiwan Region sometimes participates as 24

See Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995). Hu Jintao, Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan—Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation (2008). See Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995). 26 Xinhuanet, “Meeting between Xi Jinping and Ma Ying-jeou”, data source: http://www.xinhua net.com//politics/2015-11/07/c_1117071846.htm, the last access date: January 20, 2019. 25

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an official member and sometimes as an observer or associate member. According to the standards of relevant international organizations, the Taiwan Region enjoys rights and obligations compatible with its status. Since the purpose of Taiwan’s participation in international organizations—in addition to obtaining corresponding benefits from international organizations—is to demonstrate the existence of the Taiwan Region in the international community, disputes between the mainland and Taiwan over the “one China” issue are inevitable. Such friction occurs most frequently in the WTO. For instance, in 2002, when carrying out an anti-dumping investigation on the steel products and PVC imported from Taiwan, the Chinese delegation to the WTO did not notify the competent department of the Taiwan authorities but informed the office of the Taiwan Region to the WTO of related matters in the form of “notification.” In the “notification”, Taiwan was addressed as “Chinese Taipei” instead of the “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, which means that such notification is not an official document distributed within the WTO framework but one with a “cross-Strait attribute.”27 Not only that, the Chinese delegation to the WTO referred to the office of the Taiwan Region to the WTO as the “Office of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, instead of the “delegation” named by the Taiwan Region itself.28 Friction between both sides also occurs frequently at the IOC and the Olympic Games it held. The Taiwan Region became an official member of the IOC under the name of “Chinese Taipei”, and friction was triggered by the different opinions of both sides regarding the translation of “Chinese Taipei.” The mainland translated “Chinese Taipei” into “zhong guo tai bei”, while Taiwan insisted on “zhong hua tai bei” to avoid the implication of “zhong guo [China].” During the 2008 Beijing Olympic Games, it led to friction between the delegations of both sides. Once again, during the 2012 London Olympic Games, the flag of “blue sky, white sun and a wholly red earth” hung by the host raised strong concerns from the two sides.29 Third, there have been incongruities in jointly safeguarding the overall interests of the Chinese nation. Both the mainland and Taiwan belong to the Chinese nation and share extensive common interests in international affairs. In general, both sides have reached a consensus in joining hands to safeguard the overall interests of the Chinese nation and have carried out cooperation to a certain extent. It is also pointed out in “Hu Jintao’s six-point proposal” that “Our (the mainland’s) overseas embassies and consulates should strengthen their ties with our Taiwan compatriots and sincerely aid them in solving their practical difficulties.”30 The Chinese mainland naval fleet escorting the Taiwanese fleet is a typical example of both sides safeguarding the 27

See Li Meng-rung, “The WTO Dispute Settlement Mechanism Under the Structure of Cross-Strait Economic Interactions”, Master’s thesis, National Dong Hwa University, (2004), 79. 28 See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the TWO”, Soochow Journal of Political Science 19 (2004). 29 See “‘National Flag of the Republic of China’ in Downtown London to Welcome the Olympics, Removed Three Days later”, data source: http://news.China.com/taiwan/11068155/20120725/173 36637.html, the last access date: January 20, 2019. 30 Hu Jintao, Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan—Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and

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overall interests of the Chinese nation. Nevertheless, the two sides do not always share the same views or act in unison on all matters concerning the overall interests of the Chinese nation. In 2012, when China’s inherent territories the Nanshan Islands and Diaoyu Islands suffered from frequent foreign invasions, the mainland proposed that to safeguard the territorial integrity and sovereignty of the motherland is the common aspiration of compatriots across the Strait,31 expressing its aspiration for both sides to jointly safeguard the overall interests of the Chinese nation. Nevertheless, Taiwan expressed that it will not cooperate with the mainland on issues concerning the South China Sea and Diaoyu Islands.32 Due to a lack of mechanism for both sides to jointly safeguard the overall interests of the Chinese nation, when they were supposed to join hands to resist foreign aggression, instead the mainland and Taiwan were in conflict with each other and sticking to their own points of view. In addition to international political considerations, the reason for that mainly lies in a sense of mistrust existing between the two sides. In short, the “recognition dispute” has penetrated every aspect of both sides in the international space, with a huge impact on cross-Strait relations. In regard to the issue of Taiwan’s participation in the international space, the first question to be resolved is how both sides should respond to “recognition dispute.” Note that “recognition dispute” is an objective phenomenon existing in cross-Strait relations; so long as the political confrontation between both sides still exists, or to say both sides still haven’t found a solution to the “state” and “sovereignty” question that is acceptable to both, “recognition dispute” will continue. Therefore, the impact of the “recognition dispute” on Taiwan’s participation in the international space is persistent, and eliminating the “recognition dispute” between both sides is impossible under the current circumstances.

2 Cross-Strait “Diplomatic Battle”: Attack and Defense Across the Strait Regarding Taiwan’s Participation in the International Space Cross-Strait “diplomatic battle” is a manifestation of the political confrontation between the mainland and Taiwan in the international space. Most mainland literature on cross-Strait “diplomatic battle” can be divided into two schools. The first straightens out and reviews the entire history of cross-Strait “diplomatic battle”, Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation (2008). See Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995). 31 “Ministry of Foreign Affairs: To Safeguard the Territorial Integrity of the Motherland is the Common Aspiration Across the Strait”, data source: http://news.sina.com.cn/c/2012-07-05/175924 719591.shtml, the last access date: January 20, 2019. 32 “Taiwan Authorities: No Cooperation with the Mainland on Issues Concerning the South China Sea”, data source: http://news.21cn.com/domestic/yaowen/2012/05/04/11714382.shtml, the last access date: January 20, 2019.

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such as An Introduction to Taiwan’s Politics compiled by Professor Liu Guoshen and the “external policy” in Chap. 7. The second extracts a fragment of history for description, such as the discussions conducted by many scholars on cross-Strait relations during the restoration of China’s lawful seat in the UN. It is also basically the same for the literature of the Taiwan Region, except for the study of specific policies of Taiwan’s leaders in the context of the cross-Strait “diplomatic battle” because leaders of the Taiwan Region have put forward policies about handling the affairs of the Taiwan Region in the international space one after another. Nevertheless, on the whole, the literature on the “diplomatic battle” across the Strait is mostly repetition of historical facts and lacks interpretation of these facts from the height of theory. Since the historical review of cross-Strait “diplomatic battle” has been quite complete and sufficient in the pertinent literature and that the main task of this book is not to sort out the historical facts again, it will not go into unnecessary details of the history of cross-Strait “diplomatic battle.” Nevertheless, as this book starts from exploration and analysis of the connection between the alignment of cross-Strait political relations and Taiwan’s participation in the international space, it is imperative to conduct necessary discussion of the interactive relationship between both sides in “diplomatic battle.” For this purpose, the “attack-defense” paradigm is put forward in this book to analyze the interactive relationship between both sides in “diplomatic battle.”

2.1 Establishment of the “Attack-Defense” Paradigm “Attack and defense” is a vivid description of the interactive relationship between both sides in the international space. The so-called “attack” refers to the act of active expansion of the international space by one of the two sides, while the socalled “defense” refers to the response of the “non-attack” side to the active expansion of the international space by the other side. Describing the interaction between both sides with “attack” and “defense” can vividly and objectively summarize and define the interactive relationship between both sides in the international space and be related to words such as “battle” and “truce.” The “attack-defense” paradigm describes the interaction between both sides in the international space as one side actively expanding the international space while the other side actively copes with the active expansion of the international space and tries to close off the expanding side’s participation in the international space. This paradigm breaks through the limit of describing cross-Strait “diplomatic battle” with policy discourse and historical review and describes the interactive relationship between both sides more clearly against the great backdrop of cross-Strait relations. In the cross-Strait “diplomatic battle”, “attack” and “defense” are not unchangeable. Based on their respective actual statuses in the international community and the situation of the other side’s participation in the international space, both the mainland and Taiwan are constantly changing between “attack” and “defense.” In general, before the restoration of China’s legal seat in the United Nations in 1971, most of the time the mainland was the attacker, with Taiwan on the defense side;

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after 1971, with the People’s Republic of China universally acknowledged as the sole legal government representing China by various countries in the world and various international organizations, the attack and defense relationship between both sides in the “diplomatic battle” was also reversed, with Taiwan on the attack side and the mainland on the defensive. Considering that Taiwan’s policy for participation in the international space often changes along with the change of its leadership, while the mainland has always remained relatively stable, when describing the attack and defense relationship between both sides with regard to Taiwan’s participation in the international space, with the external polices put forward on the side of Taiwan as the main thread, it is divided into the “irreconcilability” period, “all-out diplomacy” period, “pragmatic diplomacy” period, and “post-pragmatic diplomacy” period.

2.2 Cross-Strait Attack and Defense During the “Irreconcilability” Period After the KMT retreated to Taiwan in 1949, it still maintained the “legally constituted authority” and “state title” of the “Republic of China.” Since at the time the majority of countries in the world had not accepted the establishment of the People’s Republic of China, plus the nonrecognition of the People’s Republic of China by the United States, the “Republic of China” still maintained “diplomatic relations” with the majority of countries and occupied the “China seat” in the majority of international organizations, including the permanent member seat in the Security Council of the United Nations. The Taiwan authorities had three considerations when maintaining its status in the international space: First, the KMT had lost its actual rulership in Mainland China, but at the same time, it must advertise its “legitimate” status as China, which requires the recognition of “external power holders” to maintain diplomatic relations with the majority of countries in the world (especially its “diplomatic” relations with great powers such as the United States) and occupy a seat in major international organizations, which is apparently an important symbol of recognition by “external power holders.” Second, compared with the strength of Mainland China, Taiwan was apparently at a disadvantage; therefore, maintaining its existence in the international space is of great importance for it to cope with the political and military pressure from the mainland with the help of external forces. In fact, it was precisely because of the American military intervention in the Taiwan Strait in the 1950s that China’s goal of national reunification was not completely achieved. Third, Taiwan is a narrow island with scarce resources, and the millions of officials, troops and their families brought by the KMT further aggravated the tension on resource allocation in the Taiwan Region. To solve this issue and restore Taiwan’s economy, the Taiwanese authorities also had to rely on the aid of external forces. On the other hand, the Chinese mainland appeared cautious with regard to its expansion of the international space. The newly established People’s Republic of China adopted foreign guidelines, including “leaning to one side”, “starting anew”

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and “putting the house in order before inviting guests”, did not recognize or inherit the diplomatic relations between the “Republic of China” and other countries, and leaned toward countries of the socialist camp, such as the Soviet Union, and newly independent countries under the guidance of foreign policies. Article 56 of the Common Program of The Chinese People’s Political Consultative Conference, which served as the provisional constitution in 1949, stipulates: “The Central People’s Government of the People’s Republic of China may, on the basis of equality, mutual benefit and mutual respect for territory and sovereignty, negotiate with foreign governments, which have severed relations with the Kuomintang reactionary clique and adopted a friendly attitude toward the People’s Republic of China, and may establish diplomatic relations with them.” Zhou Enlai, who played a leading role in China’s foreign affairs at the time, once said: “In any international organizations, international conferences and international activities, if there are ‘two Chinas’, i.e., Another ‘China” besides the People’s Republic of China, whether in the name of the “Republic of China”, ‘Taiwan China’, ‘Taiwan Government’, ‘Taiwan authorities’ or any other names, we would rather not participate.”33 However, the discretion on the mainland side cannot be interpreted as “passivity.” The mainland also spared no effort in expanding the international space and advertising the existence of the new regime in the international community. In the early days of the People’s Republic of China, on November 15, 1949, Zhou Enlai wrote to Trygve Halvdan Lie, then Secretary-General of the United Nations, and proposed: “Only the Central People’s Government of the People’s Republic of China is the legal government to represent all people of the People’s Republic of China”; “on behalf of the People’s Republic of China, I officially request the United Nations, in accordance with the principles and spirit of the United Nations Charter, immediately cancel all rights of the delegation of the Republic of China to continue to represent the Chinese people in the United Nations, to conform to the wishes of the Chinese people.”34 The mainland also actively sought to establish diplomatic relations with various countries in the world, including Western countries. The number of countries with diplomatic relations with the People’s Republic of China went from a dozen between 1949 and the early 1950s (mostly countries of the socialist camp) to over 50 before 1970, including Western countries such as Sweden (1950), Denmark (1950), Norway (1954), France (1964), Italy (1970) and Canada (1970). At the same time, the People’s Republic of China took an active part in the activities of international organizations, e.g., in 1952, the Red Cross Society of China restored its lawful seat in the International Committee of the Red Cross, which manifested the existence of the new China in the international community. Faced with the diplomatic attack from the mainland side, Taiwan took a defensive position. On the one hand, Taiwan roped in great Western powers, including the United States, the United Kingdom and Japan, and occupied a permanent member

33

See Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 230. Quoted from Li Hongmei, “Cross-Strait Conflict on Issues Concerning the United Nations”, Master’s thesis, Capital Normal University, 2012, 7.

34

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seat in the Security Council of the United Nations via the special geopolitical environment during the Cold War period. To speak, against the special political backdrop of the Cold War, this strategy of the Taiwan Region proved effective. Until 1971, the Taiwan authorities still occupied a permanent member seat in the Security Council of the United Nations as well as the “China seat” in the majority of intergovernmental international organizations and maintained “diplomatic relations” with most European and American countries. On the other hand, Taiwan actively lobbied the international community in an attempt to maintain its “status” in the international space and avoid its “degradation” in the international community as a result of its “de facto status.” The so-called “rectification of name” of the Taiwan authorities in the IOC in the 1960s is a concrete manifestation of such an act. In November 1956, the Chinese Olympic Committee on the mainland announced that it would not participate in the 16th Olympic Games because of the IOC’s attempt to maintain the status of the Taiwan Region in the IOC and its sheer plot to create “two Chinas”, thereby suspending the relations only just resumed with the IOC. After the Chinese Olympic Committee announced its withdrawal from the IOC, the Taiwan authorities decided to return to the IOC. However, the IOC Charter stipulated that a unit to attend the international Olympic Movement must be a “de facto controlled athletic area”; accordingly, the IOC decided that the “Chinese Olympic Committee” in Taipei could not continue to be recognized under that name since it was not in control of the Chinese sports, and its name should be removed from the official list. Regarding this, Taiwan reapplied for membership in the name of the “Republic of China Olympic Committee”, still considering itself to be the “sole legal representative of China”, and requested rectification of its name in the IOC. In 1964, the delegation of the Taiwan Region participated in the Tokyo Olympic Games under the name of the “Republic of China (Taiwan)” and was allowed to use the initials “ROC”, thus realizing the so-called “rectification of name” with a compromise.35 In short, during the “irreconcilability” period, the mainland played offense to obtain international recognition, while the Taiwan Region played a defensive role to maintain its international space. Despite their mutual nonrecognition, the one-China principle was still insisted on by both sides. Therefore, during this period, attack and defense aside, it did not result in “two Chinas” in the international community. However, such “irreconcilability” is a zero-sum game of “diplomatic battle” between both sides. During this period, the overall interests of the Chinese nation became a tool and even fell prey to the geopolitics in the Cold War, which is apparently unfavorable to safeguarding the overall interests of the Chinese nation.

35

See Chang Chi-hsiung, “‘De Jure’ vs. ‘De Facto’ Discourse: Battle over ROC Membership with IOC”, Taiwan Historical Research Vol. 17 2 (June 2010).

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2.3 Cross-Strait Attack and Defense During the “All-Out Diplomacy” Period After 1970, due to the development and change of the international political situation, the tension between China and the United States began to ease up, while Taiwan’s international space started to shrink considerably. On October 25, 1971, the lawful seat of the People’s Republic of China was restored in the United Nations. According to the United Nations General Assembly Resolution 2758, the Taiwan authorities in the name of the “representatives of Chiang Kai-shek” were expelled from the place that they unlawfully occupied at the United Nations and in all the organizations related to it. In February 1972, President Richard Nixon of the United States visited China, and joint communiqués were issued by the United States of America and the People’s Republic of China, determining the “ultimate goal of withdrawing all U.S. forces and military installations from Taiwan.” The restoration of the lawful seat of the People’s Republic of China in the United Nations and the attitude of the United States toward the Taiwan Region resulted in the “legally constituted authority crisis” in the Taiwan Region due to “diplomatic problems.” During this period, the Taiwan authorities were expelled from the majority of intergovernmental international organizations, and most of the countries in the world, including the majority of developed Western countries, severed “diplomatic relations” with it. In the “diplomatic battle” across the strait, the mainland gradually changed from defensive to attacking and began to restore its legal existence in the international community. To cope with the attack, the Taiwan Region developed the “all-out diplomacy” policy to confront the mainland, attempting to guard its last remaining international space and alleviate the “diplomatic crisis” through the arrangement of “all-out diplomacy.” In June 1972, Chiang Ching-kuo took office as President of the Executive Yuan and put forward the external policy of “all-out diplomacy.” Chiang proposed that the external policy of the Taiwan authorities should be oriented toward the basic direction of “seeking comprehensive implementation of all-out diplomacy in the principle of independence, equality and reciprocity.” According to Chiang Ching-kuo, the aim of “all-out diplomacy” is “with domestic affairs as the backing, give play to the capability of all-out diplomacy, reinforce friendly relations with foreign countries, and confront the international unified front of the mainland.”36 “All-out diplomacy” is “irreconcilability” mended on the basis of inheritance. In terms of inheritance, “all-out diplomacy” still adhered to the principle of “one China” and avoided the situation of “two Chinas” or “one China, one Taiwan” in the international community. Even in the late 1980s, under the guidance of the “all-out diplomacy” policy, the Taiwanese authorities still adopted the measures of “no withdrawing, no attending, no accepting” to cope with the mainland’s participation in the international space. In terms of mending, “all-out diplomacy” is mainly reflected in three aspects. First, due to the establishment of diplomatic relations between China and the United States, the “external policy” with the U.S.-Taiwan relationship as the main axle declared 36

Quoted from Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 233.

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bankruptcy, and Taiwan was in urgent need of new support. For this reason, while maintaining its “substantial relationship” with the United States, Taiwan turned to advocate “multidimensional diplomacy” based on its own strength and established “diplomatic relations” with as many countries as possible to preserve the international space for its survival. In this respect, the Taiwan authorities shifted the focus of “diplomatic relations” from major countries to small countries, especially the newly independent countries and less developed countries in the South Pacific, Caribbean and South Africa. Second, the Taiwan authorities began to pay attention to the important role played by civil organizations of the Taiwan Region in the international space and encouraged civil organizations and the masses to participate in various international activities under the title of “Chinese Taipei” or as individuals.37 Then, the Minister of Finance of the Taiwan authorities Kuo Wang-jung even attended the annual meeting of the Asian Development Bank held in Beijing in May 1989. Third, the Taiwan authorities began to seek the establishment of a “substantial relationship” with various major countries, hoping to preserve the possibility for Taiwan to participate in the international space through the maintenance of a “substantial relationship.” In fact, many former “diplomatic” and “consular” organs of some great powers in Taiwan were preserved in the disguise of “representative offices” or “exchange associations”; the United States even passed the Taiwan Relations Act to maintain its “official relationship” with Taiwan. In 1986, the Taiwan authorities made requests to “institutionalize” and “legalize” the “bilateral relationship” between Taiwan and the United States, claiming that the ultimate aim of a “substantial relationship” is to “establish or reestablish bilateral political relations, and set up offices, preferably of official or semiofficial status.”38 “All-out diplomacy” is the beginning of the switch between attack and defense of both sides in the “diplomatic battle.” Taking the opportunity of the restoration of its legal seat in the United Nations and the easing up of Sino-U.S. relations, the mainland energetically expanded the international space and at the same time guarded against measures in violation of “one China” that might be taken by the Taiwan Region to maintain its international space. Vigorously maintaining its international space, Taiwan deliberated on how to respond to the mainland’s “diplomatic attack”, but at the same time, under the banner of “all-out diplomacy”, it actively expanded new international space or maintained its existing international space with a new method. It can be said that during the “all-out diplomacy” period, both sides were on attack and defense interchangeably. The “ADB model” is an example of the attack-defense relationship between the two sides during the “all-out diplomacy” period. The various behaviors and opinions of the mainland and Taiwan in the “ABD model” are listed below in the “attack-defense” paradigm (Table 1)39 :

37 See Fan Xizhou, “Analysis of Taiwan’s All-out Diplomacy Since 1979”, in Study of Politics in Contemporary Taiwan, ed. Zhu Tianshun, Xiamen University Press, 1990, 270. 38 See Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 234. 39 Based on Wang Jianmin’s “The Status Quo of Taiwan’s Participation in Intergovernmental International Organizations and Cross-Strait Contest.” See Wang Jianmin, “The Status Quo of Taiwan’s

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Table 1 Attack and defense of both sides in the “ABD Model” (This table was prepared by the author) Attack The Mainland In 1986, then Foreign Minister Wu Xueqian wrote to the ADB President, requesting to participate in the Asian Development Bank

Taiwan

Unable to change the fact that the mainland had become a member of the ADB and itself was renamed “Chinese Taipei”, Taiwan adopted the strategy of “no withdrawing and no attending”, and at the same time participated in ADB activities under nongovernmental status or through nongovernmental figures, to maintain its actual existence in the ADB

Defense Process: (1) Requested to expel the Taiwan authorities; (2) Agreed that the Taiwan Region can be renamed “Chinese Taipei” and degraded to “associate member”; (3) Agreed on not degrading Taiwan, but Taiwan must be renamed “Chinese Taipei” and the corresponding adjustment must be made by the Asian Development Bank Absolutely refused to make concessions, and utilized the ADB rule of “no expelling members” and the role of the United States as a major shareholder to thwart the mainland’s plan to participate in the ADB. After the mainland joined the ADB, implemented “no accepting” toward the renaming by the ADB

2.4 Cross-Strait Attack and Defense During the “Pragmatic Diplomacy” Period In 1998, Taiwan’s leadership changed, and native Taiwanese Lee Teng-hui became the leader of the Taiwan Region when Taiwan’s international space was in jeopardy. First, at that time, having recognized the People’s Republic of China as the sole legal government to represent China, the majority of countries in the world severed “diplomatic relations” with the Taiwan Region and then established diplomatic relations with the People’s Republic of China. In 1988, the only 22 countries that still maintained “diplomatic relations” with the Taiwan Region basically had little impact on the international community. Second, following the spirit of the United Nations General Assembly Resolution 2758, the majority of intergovernmental international organizations canceled the seat of the Taiwan Region. To retrieve the hopeless situation in the “diplomatic battle”, Lee Teng-hui proposed the new “external policy” of socalled “pragmatic diplomacy” to break through the mainland’s blockage of Taiwan’s “international space for survival” to achieve the goal of developing and maintaining

Participation in Intergovernmental International Organizations and Cross-Strait Contest”, Asia & Africa Review 4 (2007).

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the international status of the Taiwan Region.40 In February 1988, when Lee Tenghui put forward “pragmatic diplomacy” at a press conference after just taking office and emphasized the “new concept and new approach” of “handling external relations with a more flexible and more resilient attitude.” Regarding the specific way of “returning to the international community”, Lee Teng-hui proposed to “never impose limitations on oneself”, “launch an all-round attack”, “make breakthroughs at key points”, “improve and break through the current diplomatic relations mainly based on substantial relationships”, and “about first-line international organizations, we can participate if we can maintain national interests.”41 In 1990, the Taiwan authorities explicitly declared that the period of “irreconcilability” was over, and henceforth Taiwan would “compete peacefully and coexist equally” with the mainland. In June of the same year, Lee Teng-hui officially put forward “all-directional pragmatic diplomacy.”42 According to the summary by Taiwanese scholars, “pragmatic diplomacy” mainly includes six aspects. First, break through the “diplomatic predicament” with the principle of making steady progress: do not talk about “high-level and idealized flexible diplomacy”, but “take a step and discuss further”. Second, admit the “fact” of a “divided China”: the “fact” of “divided sovereignty and separate governance” had always been denied by the authorities across the Strait, but Lee Teng-hui believed that such a “status quo” should be “admitted pragmatically” to explore external relations under the premise of one China. Third, give up the rules of the “zero-sum” game: the Taiwan Region no longer took the stand of rejecting the Communist Party of China but hoped for mutual respect between Taiwan and the mainland and their participation in international organizations and activities together; therefore, any countries developing relations with Taiwan will not be asked about their relations with the Communist Party of China by Taiwan. Fourth, the “presence is existence” strategy: so long as Taiwan can participate in international activities and maintain the same rights and dignity as other countries, Taiwan can stop arguing about its name. Fifth, stop insistence on ideology, and develop relations with various countries: any countries willing to develop “equal, reciprocal and mutually beneficial relations” with the Taiwan Region are acceptable, so long as there is no hostility. Sixth, in line with the spirit of “independence” and the principle of “equality and reciprocity”, Taiwan should explore external relations and then assist friendly developing countries to make joint efforts to contribute to international peace and prosperity.43 “Pragmatic diplomacy” is the key policy for the Taiwan Region to change from “attack” to “defense” in the cross-Strait “diplomatic battle.” In terms of its aim, “pragmatic diplomacy” is not fundamentally different from “irreconcilability” and 40

See Tsai Cheng-wen, “The Concepts, Achievements and Assessments of Pragmatic Diplomacy of the R.O.C.”, Political Science Review 6 (May 1995). 41 See Fan Xizhou, “Basic Characteristics and Development Trend of Taiwan’s External Policy at the Present Stage”, in Study of Politics in Contemporary Taiwan, ed. Zhu Tianshun, Xiamen University Press, 1990, 281. 42 See Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 235. 43 See Tsai Cheng-wen, “The Concepts, Achievements and Assessments of Pragmatic Diplomacy of the R.O.C.”, Political Science Review 6 (May 1995).

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“all-out diplomacy.” Both are to maintain the existence of Taiwan or the “Republic of China” in the international community, but with different means. They stress the ambiguity of external policies for the convenience of safeguarding and fighting for interests and ensuring security in the international community through the utilization of flexible means. “Pragmatic diplomacy” is characterized by its “de-ideologization” operation to avoid the recurrence of external polices that drew a line of demarcation during the “irreconcilability” period.44 “Pragmatic diplomacy” was not ineffective. After 1989, the Taiwan Region established or restored “diplomatic” relations with over 20 countries. Considering that some countries that used to have “diplomatic” relations with the Taiwan Region have established diplomatic relations with the People’s Republic of China, at present, there are 25 countries that have maintained “diplomatic relations” with Taiwan. According to Shaw Chong-hai, this increase in number indicates the “traces of efforts” of “pragmatic diplomacy.”45 In addition, the Taiwan Region has also participated in some international organizations in various names. What is of more indicative significance is that Taiwan has begun to seek or restore participation in the United Nations. In 1993, the “diplomacy report” of the Taiwan Region listed “return to the United Nations” as the primary goal of its “diplomatic” policy. It was also from 1993 that the “diplomatic allies” of the Taiwan Region began to submit Taiwan-related proposals to the United Nations General Assembly with joint signature. In 1994 and 1996, Taiwan issued the “Position Paper on Entry into the United Nations” twice and expounded on relevant propositions and opinions about its intention of joining the United Nations. Even though none of these propositions of the Taiwan authorities were realized, due to the actions of its “diplomatic allies”, the Taiwan Region obviously increased its exposure in the United Nations and the international community. Although such a result has no practical significance, it might just be the intended effect of “pragmatic diplomacy.” Faced with the “attack” of Taiwan’s “pragmatic diplomacy”, the mainland went on the defensive. The main objective of the mainland was to reduce the international space occupied by the Taiwan Region under the status of “sovereign state” and prevent the situation of “two Chinas” or “one China, one Taiwan” in the international community. To this end, an entire chapter in the White Paper on the Taiwan Question and Reunification of China was dedicated to explaining several Taiwan-related questions in international affairs, which specifically indicated a firm attitude against “pragmatic diplomacy.” According to the White Paper on the Taiwan Question and Reunification of China, all countries that have established diplomatic relations with the People’s Republic of China should promise not to establish any official relations with Taiwan; Taiwan cannot participate in all organizations of the UN system and, in principle, cannot participate in other intergovernmental international organizations; even for international organizations of nongovernmental nature, the Taiwan Region can only join such organizations in a proper name after an agreement or understanding is reached between the corresponding organization of the People’s 44

See Tsai Cheng-wen, “The Concepts, Achievements and Assessments of Pragmatic Diplomacy of the R.O.C.”, Political Science Review 6 (May 1995). 45 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 454.

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Republic of China and the party concerned, and after the national organization of the People’s Republic of China has already joined such an international organization.46 After this, the abovementioned opinions have been reiterated repeatedly in “Jiang Zemin’s eight-point proposal” and the White Paper on the One-China Principle and the Taiwan Question, with the nature of “pragmatic diplomacy” determined as acts of creating “two Chinas” and “one China, one Taiwan.” To contain the attack from the Taiwan Region, on the one hand, the mainland fought with Taiwan for “diplomatic allies”; on the other hand, the mainland utilized its tremendous international impact to prevent intergovernmental international organizations from accepting the Taiwan Region as their members or requested international organizations to follow the mainland’s arrangements. Regarding the former, some countries became the focus of fight between both sides, and some even established “diplomatic relations” with the mainland and Taiwan repeatedly within a few years. Taking Liberia as an example, after establishing diplomatic relations with the People’s Republic of China in 1977, Liberia established “diplomatic relations” twice with the Taiwan Region in 1989 and 1997 and then established diplomatic relations with the People’s Republic of China in 1993 and 2003, respectively, and consequently “severed diplomatic relations” with the Taiwan Region. Such repetitions also occurred in countries including Lesotho, Guinea-Bissau, Niger, Central Africa and Nicaragua,47 which showed the intensity of attack and defense in the cross-Strait “diplomatic battle.” About the latter, the mainland had thwarted the Taiwan-related proposals submitted by some “diplomatic allies” of the Taiwan Region for years on end, voted down relevant proposals of Taiwan attempting to join the World Health Organization in succession, and formed a model in the international community for the Taiwan Region to participate in international organizations with “Chinese Taipei” as the representative. Nevertheless, the mainland did not entirely deny the possibility of Taiwan’s participation in the international space. Different from the “irreconcilability” period when Zhou Enlai proposed that the Taiwan Region could not participate in the international space in any name, “Jiang Zemin’s eight-point proposal” affirmed the model of Taiwan’s participation in the Asian Development Bank and the Asia–Pacific Economic Cooperation in the name of “Chinese Taipei” and emphasized that the mainland had no objections to the development of nongovernmental economic and cultural ties between Taiwan and other countries. Therefore, during the “pragmatic diplomacy” period, the mainland’s defense was rather a “pragmatic defense.”

46 47

See White Paper on the Taiwan Question and Reunification of China (1993). See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 477.

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2.5 Cross-Strait Attack and Defense During the “Post-pragmatic Diplomacy” Period In May 2000, a “turnover of political power” took place in the Taiwan Region, and the DPP candidate Chen Shui-bian was elected as Taiwan’s leader. The external policy of Chen Shui-bian is an amendment on the basis of the “pragmatic diplomacy” policy. Nevertheless, as “pragmatic diplomacy” still had “one China” as a cover-up, Chen Shui-bian’s “pragmatic diplomacy” policy made a conspicuous show of the goals of “state sovereignty” and “international presence”, with slogans such as “pursuing one China” from the Lee Teng-hui period no longer in existence. As early as his election campaign, Chen Shui-bian proposed three principles of foreign policy in the “White Paper on Foreign Policy for the 21st Century”: Taiwan’s “new international role” based on “new internationalism”; normalized “diplomatic relationships” prioritizing “independent sovereignty” with “national security and economic security” as the common core; and “pluralist diplomacy” as the starting point of comprehensive participation in the international community. After being elected as leader of the Taiwan Region, under the premise that “the Republic of China is an independent sovereign state”, with “safeguarding the sovereignty and dignity of the Republic of China, ensuring the survival and development of the nation, and guaranteeing the safety and well-being to which the Taiwanese people are entitled in the international community” as the goals of his foreign policy, Chen Shui-bian expressed that Taiwan “should not remain an island of diplomatic isolation and restrict itself to the world of the Republic of China, but must go out and be the Republic of China of the world.” He believed that with Taiwan’s “political democracy” and “economic development”, it “ought to establish normal diplomatic relations with other countries in the international community, join various international organizations, and participate in various international activities extensively.”48 On the surface, the external policy of the DPP government is identical to the “pragmatic diplomacy” of Lee Teng-hui—actually, these two indeed have something in common with regard to expanding Taiwan’s international space, stopping bothering about the name of the Taiwan Region during its participation in the international space, and emphasizing issues such as “nongovernmental diplomacy.” Nevertheless, the Democratic Progressive Party is after all a party originated from street politics, and the aggressiveness formed in street politics had an influence on the DPP’s external policy. Compared with “pragmatic diplomacy”, the external policy during the DPP government period is more aggressive, with more distinct features with respect to “attack.” In July 2002, Chiou I-jen, then Secretary-General of the Presidential Office of the Taiwan authorities, directly came up with the expression of “offensive diplomacy”, as a summary of the new “foreign policy” of the DPP.49 At the instigation of “offensive diplomacy”, the Taiwan authorities’ attack was once again upgraded in the “diplomatic battle”, which was mainly reflected in 48

Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 238. See Li Jiantao and Ji Yajun, “Characteristics of the Recent ‘Offensive Diplomacy’ of the Taiwan Authorities”, Forum of World Economics and Politics 6 (2003). 49

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aspects including the emergence of “new diplomatic thinking” one after another, focus on maintaining Taiwan’s substantial relationships with the United States and Japan, and seeking substantial participation in international organizations. First, Chen Shui-bian advocated “new thinking for diplomacy”, explored the international space under various names, and carried out “diplomatic activities.” Names used by the Taiwanese authorities for “diplomatic” purposes include “humanitarian diplomacy”, “anti-terrorist diplomacy”, “democratic diplomacy”, “congressional diplomacy”, “party-to-party diplomacy”, “private diplomacy”, “transit diplomacy”, and “economic aid diplomacy”. In all kinds of names, various forces of the Taiwan authorities frequently visited its “diplomatic allies” or visited countries without “diplomatic” relations with Taiwan under nongovernmental status to increase its exposure in the international community and demonstrate its international presence. Second, during Chen Shui-bian’s term in office, the “Taiwan independence” atmosphere was heightened within the island, which increased instability in the Taiwan Strait region; for this reason, the Taiwan authorities placed a great deal of emphasis on roping in the United States and Japan with traditional relations with Taiwan and further developing its substantial relationships with the United States and Japan and even attempted to “upgrade” such substantial relationships. Many high-ranking figures of the Taiwan Region visited the United States and Japan in various names and through various channels, and many senior officials of the United States and Japan also attended and participated in relevant activities carried out in cooperation with Taiwan. In 2001, Chen Shui-bian once hoped that the United States could incorporate Taiwan into the U.S. Theater Missile Defense (TMD) system.50 In 2002, some so-called “civil organizations” of the United States, Japan and Taiwan jointly initiated the “U.S.Japan-Taiwan strategic dialog mechanism”, which the Taiwanese authorities hoped could promote military exchanges and security cooperation among the United States, Japan and Taiwan.51 Third, similar to Lee Teng-hui, Chen Shui-bian also sought to participate in international organizations. To achieve this goal, the Taiwan authorities gradually began to seek “substantial participation”, rather than participation in the name of “government.” For instance, to achieve the goal of participation in the WHO/WHA, the Taiwan authorities submitted the “observer” proposal instead of the “membership” proposal, and in 2003, they created the concept of “health authority”, which did not exist in the constitutional documents of the WHO/WHA.52 In addition, during this period, “people-to-people diplomacy” was also quite active in the Taiwan Region. The Taiwan authorities encouraged civil organizations to participate in nongovernmental organizations to the extent that they specifically established some “civil organizations” for the purpose of participating in nongovernmental organizations. The external policy of the Taiwan Region during Chen Shui-bian’s term in

50

Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 240. See Li Jiantao and Ji Yajun, “Characteristics of the Recent ‘Offensive Diplomacy’ of the Taiwan Authorities”, Forum of World Economics and Politics 6 (2003). 52 See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 51

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office was a full-on “attack.” Even though the various measures taken during the socalled “post-pragmatic diplomacy” period received very little effect with resistance from the mainland side and under the international political pattern unfavorable to Taiwan, its “attack” at least contributed to increasing the exposure of the Taiwan Region in the international space to a certain extent. Faced with Taiwan’s attack during the “post-pragmatic diplomacy” period, the mainland still maintained a certain stability in its “defensive” position. During this stage, the mainland’s attitude toward Taiwan’s participation in the international space can be divided into three parts. First, continue to adhere to the one-China principle and firmly deny the participation of the Taiwan Region in the international space as a “sovereign state”, which is the bottom line of the mainland in handling the issue of Taiwan’s participation in the international space. Taking the “entry into the United Nations” instigated by the DPP government as an example, the mainland once and again denied the Taiwan authorities’ qualification for joining United Nations organizations and utilized its influence in the international community to prevent the United Nations General Assembly from passing Taiwan-related proposals with every effort. Likewise, regarding the issue of the participation of both sides in the WTO, the mainland also insisted that Taiwan must join the WTO after the mainland, without violating the one-China principle. Second, convert the issue of Taiwan’s participation in the international space partially into issues that “can be discussed.” To cope with the “offensive diplomacy” of the Taiwan Region, the mainland adopted a relatively flexible approach, i.e., To convert the issue of Taiwan’s participation in the international space into a topic for discussion between both sides. Among the three issues that “can be discussed” put forward at the 16th CPC National Congress, one is “the international space in which the Taiwan Region may conduct economic, cultural and social activities compatible with its status.” In March 2005, Hu Jintao issued “Hu Jintao’s four-point proposal”, in which it was mentioned that as long as the Taiwan authorities recognize the “1992 Consensus”, the mainland and Taiwan could discuss issues including “the international space in which the Taiwan Region may conduct activities compatible with its status.” Item 5 of Article 7 of the Anti-Secession Law passed in March of the same year stipulates: both sides can discuss “the international space in which the Taiwan Region may conduct activities compatible with its status.” The “issue for discussion” approach indicated that the mainland attempted to involve both sides in the resolution of this issue through consultation and negotiation to prevent unilateral moves taken by Taiwan. Of course, this approach was more like a declaration of attitude toward Taiwan, and it was difficult to realize its practical effects during the “post-pragmatic diplomacy” period with Chen Shui-bian in office. Third, within the scope allowed by rules of international organizations, open up the possibility of Taiwan’s participation in the international space through fair and reasonable arrangements. When taking up a defensive position under the “attack” of the Taiwan authorities, the mainland did not entirely block all possibilities of Taiwan’s participation in the international space. Since the Taiwanese people took the issue of Taiwan’s participation in the international space seriously and considered it as an important indicator of the mainland’s sincerity and attitude toward Taiwan, the mainland adopted a relatively pragmatic strategy for this issue under the premise

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of adhering to the one-China principle. Without violating the one-China principle and within the scope allowed by the rules of international organizations, the mainland opened up the possibility of Taiwan’s participation in the international space. For example, in 2001, the Taiwan Region became an official member of the WTO together with the mainland in the name of “Separate Customs Territory” allowed by the rules of the WTO, which is a concrete manifestation of the mainland’s pragmatic strategy. In short, during the period with Chen Shui-bian as the leader of the Taiwan Region, cross-Strait relations dropped to the freezing point, with Taiwan’s participation in the international space as the main battlefield. It was obvious that during the “diplomatic battle” between both sides, the “defense” of the mainland was significantly more effective than that of Taiwan’s “attack.” However, both sides overpaid for the “diplomatic battle”, which grievously injured the overall interests of the Chinese nation and undermined the already brittle trust and intimacy between the mainland and Taiwan. According to findings of the judicial organ of Taiwan, in the so-called “economic aid diplomacy” carried out by the Taiwan authorities, a considerable portion of “economic aid” money went into the pockets of leaders and senior officials of the Taiwan Region. This shows, regardless of the “attack” and “defense” in the crossStrait “diplomatic battle”, in the end what’s hurt is the interests of the people across the Strait.

3 “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm The “attack-defense” paradigm is a theoretical paradigm with cross-Strait “diplomatic battle” as the object of study. Considering the mainland’s positive response to the idea of “cross-Strait diplomatic truce” proposed by Ma Ying-jeou after May 20, 2008, the study of the “attack and defense” between both sides in the international space includes not only cross-Strait “diplomatic battle” but also “diplomatic truce.” Nevertheless, the interaction between both sides in the “diplomatic battle” is significantly different from that in the “diplomatic truce.” Accordingly, necessary revision is conducted of the “attack-defense” paradigm based on the practical characters of cross-Strait “diplomatic truce.” Of course, the “attack-defense” paradigm still implies that the “hostility” between both sides in the international space was still not ended completely even after entering the state of “diplomatic truce”, as the cause of “diplomatic battle”. the “recognition dispute”, was still not solved. In this sense, the cross-Strait “diplomatic truce” was just an expedient measure taken by both sides, as the issue of Taiwan’s participation in the international space remained unresolved. On May 20, 2016, Tsai Ing-wen took office as the leader of the Taiwan Region. Since then, Tsai abandoned the external policy of “diplomatic truce” during the Ma Ying-jeou administration and instead carried out “steadfast diplomacy” with “pragmatism, steadfastness and functionality” as the principle to promote “invisible

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Taiwan independence” in a low-key, pragmatic, and flexible gesture, resulting in the resumption of cross-Strait “diplomatic battle.”

3.1 Negative Impacts of Cross-Strait “Diplomatic Battle” The cross-Strait “diplomatic battle” resulted in many negative impacts on both sides, and the overall interests of the Chinese nation suffered from immense damage as a consequence. First, the cross-Strait “diplomatic battle” led to the prevalence of “dollar diplomacy”, for which both sides paid a heavy price. Some underdeveloped small countries claimed an enormous sum of financial aid from the mainland or Taiwan under the pretense of establishing relations with one of the two sides. In unconfirmed cases, in July 1989, at the cost of a loan of USD 150–200 million dollars, the Taiwan authorities established “diplomatic relations” with Liberia; in the same month, Belize also received 10 million dollars of aid from the Taiwan authorities upon establishment of “diplomatic relations.”53 Senegal’s switch of allegiance in 2005 even more directly revealed the monetary cost paid by the Taiwan authorities to maintain “diplomatic” relations. Since Senegal renewed diplomatic relations with the People’s Republic of China and then “severed diplomatic ties” with Taiwan, out of anger, Chen Shui-bian disclosed in an election campaign that it cost as high as NTD 5 billion dollars to maintain “diplomatic relations” with Senegal.54 Second, with regard to the issue of Taiwan’s participation in intergovernmental international organizations, both sides conducted long-winded debates and speeches in some international organizations, which pestered relevant international organizations beyond endurance and seriously affected the image of China in the international community. As intergovernmental international organizations are the main battlefield for the “attack and defense” of both sides, in order to participate in intergovernmental international organizations, each time the Taiwan Region would instigate some “diplomatic allies” to submit Taiwan-related proposals, resulting in long and tedious debates and speeches regarding whether these Taiwan-related proposals should be reviewed and accepted. Such debates and speeches did not necessarily have material meaning, and most of the so-called “Taiwan-related proposals” did not end up on the official agenda. Nevertheless, they increased the opportunities of Taiwan’s exposure, and the Taiwan authorities were keen on them. However, discussions on Taiwan-related proposals took these international organizations too much time and energy to the extent that the normal operations of these international organizations were impacted. According to statistics by Taiwanese scholars, since the Taiwan authorities began to seek membership in the World Health Organization, each year the WHO/WHA would spend a large amount of time handling Taiwan-related proposals, which took up the time

53 54

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 463. See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 464.

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for discussions on other items on the official agenda of the WHO/WHA.55 Such behaviors resulted in rather negative influences on the international community and seriously damaged the international image of the Chinese nation. Third, due to the “diplomatic battle”, both sides did not trust each other in external affairs, so they could not cooperate with a common effort in international affairs or make joint efforts to safeguard the overall interests of the Chinese nation. As the saying goes, “when the snipe and the clam grapple, the fisherman profits.” The cross-Strait “diplomatic battle” resulted in damage to both sides. This time, the fine tradition of “dissolving internal disunity at the threat of external invasion” of the Chinese nation was not embodied during the historical period of “diplomatic battle.”

3.2 Proposal of “Diplomatic Truce” and Revision of the “Attack-Defense” Paradigm People of insight across the Strait criticized the cross-Strait “diplomatic battle.” On May 20, 2008, during his inaugural address as the leader of the Taiwan Region, Ma Ying-jeou advocated cross-Strait “diplomatic truce”, which received positive comments from both sides unanimously. Ma Ying-jeou proposed: “Here I would like to call upon the two sides to pursue reconciliation and truce in both cross-Strait and international arenas. We should help and respect each other in international organizations and activities. As we belong to the same Chinese nation, people on both sides should do their utmost and go hand in hand to jointly contribute to the international community without engaging in vicious competition, resulting in a waste of resources. I firmly believe that Taiwan and Mainland China are open minded enough to find a way to attain peace and co-prosperity.”56 In 2012, based on the external policy achievements of the Taiwan Region between 2008 and 2012, Ma Ying-jeou named his foreign policy “viable diplomacy” or “decent diplomacy”, in sharp contrast with the “scorched earth diplomacy” proposed by Chen Shui-bian. Ma Ying-jeou’s “diplomatic truce” proposition can be understood from three aspects. First, the purpose of Ma Ying-jeou’s “diplomatic truce” was still to promote Taiwan’s participation in the international space. Despite the positive significance of the proposition of “diplomatic truce”, it could not be recognized as a mitigation or cancellation of Taiwan’s “attack” with regard to the issue of its participation in the international space. In contrast, in the same address, Ma Ying-jeou also proposed, “Taiwan doesn’t just want security and prosperity. It wants dignity.” “Only when Taiwan is no longer isolated in the international arena can cross-Strait relations move forward with confidence.”57 Thus, it can be seen that the goal of Ma Yingjeou’s “diplomatic truce” proposition was still to promote Taiwan’s participation in 55

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 56 Ma Ying-jeou, “Speech at the 2008 Inauguration Ceremony” (2008). 57 Ma Ying-jeou, “Speech at the 2008 Inauguration Ceremony” (2008).

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international space. Second, Ma Ying-jeou expounded on “diplomatic truce” from the height of the overall interests of the Chinese nation and thus avoided the issue of “national identity” in this topic. Ma Ying-jeou said “we belong to the same Chinese nation” instead of “we belong to the same China.” By replacing “China” with “Chinese nation”, Ma Ying-jeou attempted to build the issue of Taiwan’s participation in the international space on the foundation of national identity. Other expressions, such as “do their utmost and go hand in hand” and “without engaging in vicious competition and resulting in a waste of resources”, indicated that Ma Ying-jeou attempted to safeguard the overall interests of the Chinee nation. Therefore, it was not the retreat of the Taiwan authorities by themselves in the international space. Third, Ma Yingjeou proposed solving the issue of the coexistence of Taiwan and the mainland in the international space through cross-Strait cooperation, which was the opinion of the greatest positive value in Ma Ying-jeou’s “diplomatic truce” proposition. Ma Yingjeou proposed to “attain peace and co-prosperity” across the Strait with the wisdom of the Chinese nation, which opened up the space for cross-Strait cooperation and provided the necessary policy condition for both sides to carry out negotiations with regard to Taiwan’s participation in the international space. The “diplomatic truce” proposed by Ma Ying-jeou resulted in revision of the “attack-defense” paradigm of cross-Strait “diplomatic battle”, i.e., Transformation from unilateral and international-oriented “attack and defense” toward bilateral and domestic-oriented “attack and defense.” The so-called unilateral and internationaloriented “attack and defense” means that the previous “attack and defense” of both sides in the “diplomatic battle” were unilateral policy monologues or actions, and the “attack and defense” measures taken by both sides were mainly applied in the international space beyond the Taiwan Strait. Even though the mainland had proposed to discuss the topic of Taiwan’s participation in the international space, both sides did not and were impossible to carry out communication and negotiations regarding this issue in the true sense. The proposition of “diplomatic truce” brought changes to the “attack-defense paradigm” featuring the “zero-sum game.” The mainland and Taiwan began to solve the issue of Taiwan’s participation in the international space through prior communication and negotiations increasingly more, i.e., The new bilateral and domestic-oriented “attack and defense” paradigm. The so-called bilateral and domestic-oriented “attack and defense” means that in the affairs of Taiwan’s participation in the international space, both sides focus on solving relevant issues through bilateral communication and negotiations, with their opinions mainly expressed between themselves. The bilateral and domestic-oriented “attack and defense” was still “attack and defense”—just that such “attack and defense” was shifted from beyond the Taiwan Strait to across the Strait, with the “zero-sum game” converted into “communication on issues.”

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3.3 Resumption of Battle After “Diplomatic Truce” On May 20, 2016, Tsai Ing-wen was elected as leader of the Taiwan Region, and the “diplomatic truce” policy of the Taiwan authorities began to reverse. During the inauguration ceremony, Tsai Ing-wen proposed bringing Taiwan closer to the world and bringing the world closer to Taiwan. The “steadfast diplomacy” actively advocated by Tsai Ing-wen includes the following aspects: first, to build lasting partnerships with other countries through governmental interaction, business investment and peopleto-people collaboration; second, to join the alliance of shared values and concerns for global issues and deepen relationships with friendly democracies, including the United States, Japan and Europe, to advance multifaceted cooperation on the basis of shared values; third, to proactively participate in international economic and trade cooperation and rule-making and integrate into important regional trade and commercial architecture; fourth, the Tsai government will support and participate in international cooperation on emerging global issues, including humanitarian aid, medical assistance, disease prevention and research, anti-terrorism cooperation and jointly tackling transnational crime, to make Taiwan an indispensable partner of the international community.58 Due to a lack of political foundation (the “1992 Consensus”), the negotiations and communication between both sides also went into trouble, and the diplomatic “attack and defense” became resurgent. In the resurgent “diplomatic battle” during this new period, the Tsai Ing-wen authorities seemed to be “attacking”, but the fact was actually to the contrary. In the external work facing Asia, the “new southbound policy” proposed by Tsai Ing-wen facing Southeast Asia and South Asia produced very little effect, and the main reason is that the Tsai government denied the “1992 Consensus”, and the communication of public power across the Strait went into deep water, resulting in the wait-and-see attitude of Southeast Asian countries toward the “new southbound policy.” In addition, factors such as complex religious issues and frequent occurrence of interregional conflicts in Southeast Asia also increased difficulty in implementing this policy. In the external work facing Europe and America, the Taiwan authorities continued their customary practice of “remaining close to the United States and remaining friendly with Japan” and devoted itself to improving its relations with the United States and Japan, hoping for improvement of Taiwan’s international status. Nevertheless, within approximately two years after Tsai Ingwen took office, Taiwan broke off diplomatic relations with five countries, which was sufficient to prove that the “steadfast diplomacy” actually hadn’t worked. So long as cross-Strait relations still remain unstable, the interests of people on both sides will eventually suffer from the “diplomatic battle.” On the whole, national reunification is the best way to end the “diplomatic battle.” At present, cross-Strait relations have gone from rivalry between two parties of equal strength to one of unequal strength, and it is also the same for the “diplomatic” rivalry. However, despite its weak position, Taiwan still has bargaining power under certain rules and systems, e.g., Taiwan still has 17 “diplomatic allies”, which the Tsai government can leverage 58

Tsai Ing-wen, “Speech at the 2016 Inauguration Ceremony” (2016).

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for personal gains. Since the Democratic Progressive Party came into power, the political mutual trust between both sides has dropped to the freezing point, and the external policy of the Taiwan Region also maintains the goal of “desinification.” To seek communication and exchange between the mainland and Taiwan is no longer sufficient for solving the “attack and defense” issue of both sides in “diplomacy.” The “diplomatic battle” must be ended under the premise of the dissolution of “separatist” forces.

Chapter 3

Base: Alignment of Cross-Strait Political Relations

The alignment of the political relations between the mainland and Taiwan is also referred to as the “cross-Strait interaction model”, which is used to present the concept of how the mainland and Taiwan regard the political status of each other and how they look upon the political relations between each other. The alignment of the political relations between the mainland and Taiwan is a prerequisite question that must be solved for the further development of cross-Strait relations. The issue of Taiwan’s participation in the international space is a projection of the alignment of cross-Strait political relations in the international space, and therefore the alignment of crossStrait political relations constitutes the base of the issue of Taiwan’s participation in the international space, while the resolution of the issue of Taiwan’s participation in the international space also depends on the proper resolution of the alignment of cross-Strait political relations in the international space. The alignment of crossStrait political relations has two levels: first, the alignment of geographic areas, i.e., How the mainland looks upon the land of Taiwan and how Taiwan looks upon the Chinese mainland; second, the alignment of public power organs, i.e., How the mainland looks upon the public power organ of Taiwan, and how Taiwan looks upon the public power organ of the mainland. This chapter analyzes the alignment of the political relations between the mainland and Taiwan from the aspects of the description of the alignment of political relations, the epistemological foundation and the political prerequisite, proposes a ‘cross-Strait” model feasible at the present stage and conducts a comparative study to lay a foundation for discovering the predicament of the alignment of cross-Strait political relations and offering a train of thought and an appropriate model for solving this predicament.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_3

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1 Description of Policies and Laws in the Alignment of Cross-Strait Political Relations The description of the alignment of cross-Strait political relations is a method to study the alignment of political relations across the Strait; its study object includes relevant speeches and reports of leaders of the mainland and Taiwan on cross-Strait relations, related proclamations and laws published on both sides, political relations during the actual intercourse across the Strait, etc. Describing the policy choices and legal provisions of the mainland and Taiwan in the alignment of cross-Strait political relations not only helps to sort out the development process of cross-Strait political relations but also provides corresponding practical materials for the theoretical explanation of the alignment of cross-Strait political relations.

1.1 Description of Policies in Alignment of Cross-Strait Political Relations Policy plays a key role in the alignment of cross-Strait political relations because mutual policies across the Strait directly determine the realistic condition of the alignment of political relations. Therefore, to grasp cross-Strait political relations, policies about the alignment of cross-Strait political relations must first be described. (1) The Mainland’s Description The land of Taiwan has always been regarded by the mainland as a “province” or “territory” of China. After the “simplification and refinement of the government of Taiwan Province” in 1997,1 the mainland has generally stopped referring to Taiwan as a “province” and used “territory” instead, except for the “delegation of Taiwan Province” in the National People’s Congress. The mainland’s alignment of Taiwan’s public power organ (the Taiwan authorities) has undergone three stages from “insurgent body”, “local government”, to “avoidance of specific alignment.” Between 1949 and 1979, the mainland’s basic alignment of the Taiwan authorities was an “insurgent body.” In February 1949, the Central Committee of the CPC issued instructions to abolish the “Six Codes” and announced the complete abolishment of the “legally constituted authority” of the “Republic of China.”2 In October of the same year, the People’s Republic of China was established, which replaced the “Republic of China” as the sole legal government of China. It is generally acknowledged on the mainland that the establishment of the People’s Republic of China on October 1, 1949 marks the annihilation of the “Republic of China” as a lawful 1

About the “simplification and refinement of the government of Taiwan Province”, see Zhou Yezhong and Zhu Jie, A Study of Constitutional Reform in the Taiwan Region, Hong Kong Social Science Publishing House, 2007, 38. 2 See Li Long and Liu Liantai, “Review and Reflection on Abolishing the ‘Six Codes’”, Journal of Henan Administrative Institute of Politics and Law 5 (2003).

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regime.3 According to this saying, the “National Government” of the “Republic of China” that retreated to Taiwan has lost its “legality”, ceased to be a lawful “government”, and transformed itself into an “insurgent body.” Therefore, the main axle of the mainland’s policy toward Taiwan is the “liberation of Taiwan.” The alignment of the Taiwan authorities as an “insurgent body” somehow became less resolute approximately 1959, when the mainland acknowledged the KMT government’s jurisdiction over Taiwan to a certain extent. At a meeting of the Political Bureau of the Central Committee, Mao Zedong pointed out, “We would rather see Taiwan falling into the hands of Chiang Kai-Shek and his son than the Americans.” The “one guiding principle and four policies” proposed by Zhou Enlai also indicated that after the return of Taiwan, except for foreign affairs, the KMT government shall be entitled to manage all internal affairs of Taiwan. Based on the interpretation of Taiwanese scholars, starting from the “one guiding principle and four policies”, the mainland has actually regarded the Taiwan authorities as a “local government.”4 Nevertheless, due to the influence of the “Great Cultural Revolution”, before long the mainland’s policy toward the alignment of Taiwan returned to “insurgent body.” The mainland’s position received general recognition from the majority of Chinese people and the international community. Therefore, when referring to the “representatives” of the Taiwan authorities to the United Nations, the United Nations General Assembly Resolution 2758 used “representatives of Chiang Kai-Shek” instead of “representatives of the Taiwan government” or “representatives of the Republic of China government.” Between 1979 and 2002, the mainland basically regarded the Taiwan authorities as a “local government.” On January 1, 1979, the Standing Committee of the National People’s Congress issued Message to Compatriots in Taiwan, which advocated respecting the status quo in Taiwan, placing hopes on the Taiwan authorities and ending military confrontation, appealed for “discussion between the Government of the People’s Republic of China and the Taiwan authorities”, and indicated the official transformation of the mainland’s alignment of the Taiwan authorities as an “insurgent body” to a “local government.” On September 30, 1981, Ye Jianying proposed “Ye Jianying’s nine principles”, among which the third principle states that after the nation is reunified, Taiwan can be a special administrative region; the fifth proposes that people in authority and representative personages of various circles in Taiwan can take up posts of leadership in national political bodies; and the sixth mentions that when Taiwan’s local finance is in difficulty, the central government may subsidize it as is fit for the circumstances. Based on the understanding of “Ye Jianying’s nine principles” of cross-Strait relations, Taiwan has already been regarded as a local government of the People’s Republic of China; just the concept of “local government” has not appeared officially. In June 1983, when meeting Yang Liyu, 3

See Zhang Xianwen, An Outline History of the Republic of China, Henan People’s Press, 1986, 763. 4 See Cheng Chang-hsiung, “The Analyzing from Nation Sovereignty to the Mode of Integration Across the Taiwan Strait”, Master’s thesis, Nanhua University Institute of Administration and Policy, 2003, 122.

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the guest from the United States, Deng Xiaoping proposed his famous “six conceptions”, including “the central government acknowledges that the local government of Taiwan can have its own separate set of policies for its domestic affairs”, and after the return of Taiwan, “as a special administrative region, Taiwan can enjoy privileges, which other provinces and autonomous regions may not share.”5 “Deng Xiaoping’s six conceptions” explicitly proposes that Taiwan is a “local government”, which laid a foundation for the alignment of cross-Strait political relations for approximately 20 years later. In 1993, the mainland issued the White Paper on the Taiwan Question and Reunification of China and officially proposed “One-China Syllogism” (I) as an official document, thereby confirming the status of Taiwan as a “local government.” In 1995, in “Jiang Zemin’s eight-point proposal”, in terms of wording, Jiang Zemin replaced the “People’s Republic of China” with the more inclusive “China” and revised the expression “Taiwan is a part of the People’s Republic of China” to “Taiwan is a part of China.” In January 1998, Qian Qichen proceeded to put forward “OneChina Syllogism” (II), which dropped the expression that “the People’s Republic of China is the sole legal government of China” but still emphasized the subordination of Taiwan to China by explaining that “Taiwan is a part of China.” The mainland’s alignment of the Taiwan authorities as a “local government” remained unchanged until 2002. In November 2002, the 16th National Congress of the Communist Party of China adjusted the “One-China Syllogism” again by putting forward “One-China Syllogism” (III), which revised “Taiwan is a part of China” to “both the mainland and Taiwan belong to the same China”, thereby playing down the subordination of Taiwan to China. At the same time, where the public power organ of the Taiwan Region is involved, the mainland no longer refers to it as a “local government” but uses the ambiguous term “Taiwan authorities” without exception. In a manner of speaking, after “One-China Syllogism” (III) was proposed at the 16th National Congress of the Communist Party of China, the mainland adopted an evasive strategy with regard to the specific alignment of the public power organ of the Taiwan Region. It neither recognized its legality nor denied the fact of its effective control over the Taiwan Region and, to a certain extent, adjusted the alignment of political relations that “Taiwan belongs to the mainland.” In December 2008, in “Hu Jintao’s six-point proposal”, it was proposed that “the two sides can start discussion about political relations under the special condition before reunification in a pragmatic manner”,6 thereby declaring the mainland’s “issue for discussion” attitude toward the alignment of cross-Strait political relations. On July 28, 2012, Jia Qinglin, Member of the Politburo Standing Committee and Chairman of the National Committee of the People’s Political Consultative Conference, put forward the idea of “one country on the two sides of the Strait” during his speech at the opening of the 8th Cross-Strait Economic, Trade and Culture Forum. Jia 5

Selected Works of Deng Xiaoping, Vol. 3, People’s Publishing House, 1993, 30. See Hu Jintao, Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan—Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation (2008).

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Qinglin proposed: “To improve political mutual trust, we must now maintain, protect and strengthen the framework of one China. Both sides of the Strait are not unified, yet China’s territory and sovereignty are not divided. The core of the one-China framework is that the mainland and Taiwan belong to the same country, and cross-Strait relations are not relations between two countries. Starting from their current stipulations, both sides confirm this objective fact and reach a common understanding, thus establishing, maintaining and strengthening the one-China framework.”7 Compared with the abovementioned “One-China Syllogism” (III), “one country on the two sides of the Strait” has at least three changes. First, referring to “one China” as a framework rather than a “principle”, from “prerequisite” and “principle” to “framework”, “one China” becomes more abstractive and inclusive.8 Second, revising “the mainland and Taiwan belong to one China” to “the mainland and Taiwan belong to one country”; the removal of the “national symbol” of “China”, which may spark controversy, is more in line with the status quo of cross-Strait relations. Third, the proposal of the method of “establishing, maintaining and strengthening the one-China framework” unequivocally affirms the important function and key role of constitution and law during the confirmation of the “one-China framework” and therefore has implications echoing the “constitutional one China” in the Taiwan Region. “One country on the two sides of the Strait” is the latest statement of the mainland about the alignment of cross-Strait political relations and the latest achievement in the understanding and cognition of the one-China principle. It is foreseeable that within a period of time in the future, “one country on the two sides of the Strait” will serve as a guide for the formulation of the mainland’s policy toward Taiwan. In November 2012, in the report at the 18th CPC National Congress, it was proposed that the two sides of the Taiwan Strait should uphold the common stand of opposing Taiwan independence and of following the “1992 Consensus”, increase their common commitment to upholding the one-China framework and, on this basis, expand common ground and set aside differences. We are ready to conduct exchanges, dialog and cooperation with any political party in Taiwan as long as it does not seek Taiwan independence and recognizes the one-China principle.9 In November 2015, General Secretary Xi Jinping emphasized during the “Xi-Ma Meeting” that the two sides across the Strait should adhere to the “1992 Consensus”, consolidate the common political foundation, continue down the path of peaceful development, deepen cross-Strait exchanges and cooperation, deliver more benefits to compatriots on both sides, and pursue the great rejuvenation of the Chinese nation.10 In October 2017, in the report at the 19th CPC National Congress, it was reiterated: “The one-China principle is the political foundation of cross-Strait relations. The ‘1992 7

Jia Qinglin, “Speech at the Opening of the Eighth Cross-Strait Economic, Trade and Culture Forum”, Taiwan Poll 113 (July 26–31, 2012). 8 See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, after 64. 9 “Full Text of the Report at the 18th CPC National Congress”, data source: http://bbs1.people.com. cn/post/2/1/2/164995138.html, the last access date: January 18, 2019. 10 “Meeting between Xi Jinping and Ma Ying-jeou”, data source: http://www.xinhuanet.com//pol itics/2015-11/07/c_1117071846.htm, the last access date: January 22, 2019.

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Consensus’ embodies the one-China principle and defines the fundamental nature of cross-Strait relations; it thus holds the key to the peaceful development of relations between the two sides of the Taiwan Strait. Recognize the historical fact of the ‘1992 Consensus’ and that the two sides both belong to one China, and then our two sides can conduct dialog to address through discussion the concerns of the people of both sides, and no political party or group in Taiwan will have any difficulty conducting exchanges with the mainland.” At the beginning of 2019, during the important speech commemorating the 40th anniversary of issuing Message to Compatriots in Taiwan, General Secretary Xi Jinping clearly pointed out: the historical and legal facts that Taiwan is part of China and the two sides across the Taiwan Strait belong to one and the same China can never be altered by anyone or any force.11 One China and the “1992 Consensus” have always been the “stability anchor” of cross-Strait relations; only on the basis of adhering to this point can various exchanges across the Strait be conducted smoothly. Based on the policy review above, the mainland’s alignment of the Taiwan Region and the Taiwan authorities, on the policy level, can be expressed as follows: the mainland regards Taiwan as a region (sometimes province) of China (but not necessarily the People’s Republic of China), acknowledges the effective control of the Taiwan authorities over the Taiwan Region, but still fundamentally denies the “legality” of the Taiwan authorities through the denial of the current “Constitution” of the Taiwan Region. Therefore, at the present stage, the mainland’s attitude toward the Taiwan authorities is no express recognition and no direct contact. (2) Taiwan’s Description The Taiwan authorities’ political alignment of the mainland can also be discussed on the two levels of geographical region and public power organ: in the political alignment of geographical region, the Taiwan authorities adopted models including “enemy-occupied area”, “bandit-occupied area”, “mainland region”, “peer entity” and “China” successively for the alignment of the mainland; in the alignment of public power organ, the Taiwan authorities adopted models including “insurgent body”, “peer government” and “Chinese government” successively for the alignment of the government of the People’s Republic of China. Prior to 1987, the Taiwanese authorities defined the mainland in a geographical sense as an “enemy-occupied area” and a “bandit-occupied area” and defined the government of the People’s Republic of China as an “insurgent body”, with the socalled “mobilization for the suppression of Communist rebellion” implemented “all over China” (including the mainland and Taiwan) in name. After its retreat to Taiwan in 1949, the KMT government led by Chiang Kai-Shek and Chiang Ching-Kuo had never given up on the goal of national reunification. Prior to 1979, the KMT government advocated “counterattacking the mainland” to realize the so-called “opposition against Communism and restoration of national power” by subverting the people’s 11

See Gov.cn, “Xi Jinping Attended the Gathering to Commemorate the 40th Anniversary of Issuing Message to Compatriots in Taiwan and Delivered an Important Speech”, http://www.gov. cn/xinwen/2019-01/02/content_5354209.htm, the last access date: January 16, 2019.

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power on the mainland through force and political means. Under the guidance of policies including “counterattacking the mainland” and “opposition against Communism and restoration of national power”, with the mainland regarded as “enemy-occupied area” and “bandit-occupied area” and the government of the People’s Republic of China regarded as “insurgent body”, the “Temporary Provisions Against the Communist Rebellion” (hereinafter referred to as the “Temporary Provisions”) formulated on the mainland were still effective in Taiwan. After 1979, Chiang Ching-kuo gradually changed the policy of “counterattacking the mainland” and replaced it with the proposition of “reunifying China with the Three Principles of the People.” On June 10, 1982, at a seminar, the President of the Executive Yuan of the Taiwan authorities Sun Yun-suan, for the first time, neither referred to the mainland as the “bandit region” nor the Communist Party of China as the “Communist bandit”, which indicated the loosening of the Taiwan authorities’ political alignment with the mainland. The Taiwan authorities maintained their “three nos” policy until 1987 and vigorously attacked the goodwill released by the mainland, in the belief that the mainland’s “one country, two systems” is an attempt to “provincialize the Republic of China” and that “all proposals of the CPC places the government of the Republic of China in an unequal position as a local government.”12 After 1987, the Taiwan authorities lifted the Order of Material Law and the ban on mainland visits, which indicated that the Taiwan authorities no longer regarded the mainland as an “enemy-occupied area” and “bandit-occupied area” and adopted the model regarding the Government of the People’s Republic of China as an “insurgent body.” After 1989, the Taiwan authorities put forward concepts including “one China, two governments”, “one China, two areas” and “one China, two entities” and changed the attitude of nonrecognition toward the mainland. The “one China” in “one China, two governments”, “one China, two areas” and “one China, two entities” before 1994 implies the “Republic of China.” After 1994, according to the “Specifications on Cross-Strait Relations” published by the Taiwan authorities, “one China” refers to “China in terms of history, geography, culture and blood relationship”, “two areas” refers to “mainland area” and “free area” (the Taiwan Region), “two governments” refers to the Government of the People’s Republic of China and the “Government” of the “Republic of China”, and “two entities” refers to the two “peer” entities of the People’s Republic of China and the Republic of China. The core concept of “one China, two governments”, “one China, two areas” and “one China, two entities” is “both sides on an equal footing”, which is intended to prevent the “provincialization” and “dwarfing” of Taiwan by the mainland through the construction of “both sides on an equal footing.” In February 1991, the “National Unification Council” of the Taiwan authorities promulgated the “Guidelines for National Unification”, including propositions such as “both the mainland and Taiwan are parts of Chinese territory”, and both sides “would not deny each other as a political entity in reciprocity”, which affirmed the abovementioned political alignment of the mainland in legal form. 12 Shaw Chong-hai, “Cross-Strait Relations: Changes, Alignment, and Strategies”, Symposium on Cross-Strait Relations: Changes, Alignment, and Strategies held by Department of Political Science, National Taiwan University (2002).

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Since 1994, the Taiwanese authorities have gradually given up on defining the political relations between the mainland and Taiwan under the one-China framework and have changed to the “two states” theory. In April 1994, the “Ministry of Foreign Affairs” of the Taiwan authorities claimed in the “Position Paper on Entry into the United Nations” that “in 1949 China was divided again due to the civil war, so two political entities on an equal footing and without any subordination relations—the Republic of China on Taiwan and the People’s Republic of China on the mainland— coexist at the same time within the Chinese territory” and expressed that it “will not challenge the seat of the Communist Party of China in the United Nations.”13 The view in this “Position Paper” is similar to the saying of the “two states” theory several years later. In June 1995, Lee Teng-hui delivered a speech at Cornell University of the United States, during which he came up with the proposition of “the Republic of China on Taiwan” and deliberately created “two Chinas.” In April 1995, Lee Teng-hui announced his “six points”, according to which “since the 38th year of the Republic of China, Taiwan and the mainland has been governed by two political entities not affiliated to each other, and formed the situation of ‘divided sovereignty and separate governance’, hence the national unification issue, …., only when this fact is treated objectively can the two sides achieve more consensus regarding the implications of ‘one China’ as soon as possible.” It seemed that Lee Teng-hui had returned to the standpoint of defining cross-Strait relations under the one-China framework. However, upon close scrutiny, Lee Teng-hui was just promoting the socalled “two Chinas” in the name of “one China.” According to the exposition of Lee Teng-hui, his so-called “Chinese reunification” was based on the premise of the “fact of separate governance across the Strait.” In May 1996, when interviewed by American media, Lee Teng-hui claimed, “For there to be one China, China must be reunified. Without unification, there is no such so-called one China.”14 From the opinion of Lee Teng-hui above, it can be seen that at this point, his alignment of the political relations between the mainland and Taiwan was no longer under the oneChina framework. In July 1999, Lee Teng-hui formally put forward the “two states” theory, which defines the political relations between the mainland and Taiwan as “a state-to-state relationship, or at least a special state-to-state relationship.” In his explanation of the “two states” theory, Lee Teng-hui believed that the “two states” theory “explains the alignment of the political relations between the mainland and Taiwan more clearly from realistic, legal and historical perspectives, and announces the fact about sovereignty.” The main content of the “two states” theory about the alignment of the political relations between the mainland and Taiwan is: First, “one China” is after the reunification of China; at present the mainland and Taiwan are “two states”, and therefore not be affiliated to each other. Second, the “state-to-state

13

See Cheng Chang-hsiung, “The Analyzing from Nation Sovereignty to the Mode of Integration Across the taiwan Strait”, Master’s thesis, Nanhua University Institute of Administration and Policy, 2003, 114. 14 About the historical materials, see Liu Dejiu and Wei Xiutang, Interpretation of Taiwan, Jiuzhou Press, 1999, 395–396.

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relationship” between the mainland and Taiwan is special, not a common “state-tostate relationship” or central-local relationship; different from “internal affairs”, “the two sides are defined as two states in terms of external relations, but do not refer to each other as a foreign country, or consider their relations as internal affairs.”15 After Chen Shui-bian was elected leader of the Taiwan Region in 2000, the “two states” theory was transformed into the “one country on each side” theory more inclined toward “Taiwan independence.” According to Chen Shui-bian’s explanation of the “one country on each side” theory, the so-called “one country on each side” means “Taiwan is our country, …, not a part of others, not a local government of others, or a province of others; Taiwan won’t be the second Hong Kong or Macau, because Taiwan is an independent sovereign state.” In terms of language system, Chen Shuibian’s “one country on each side” theory has completely abandoned the “Republic of China” structure; by saying that “Taiwan is an independent sovereign state, and is called the Republic of China according to the current Constitution”, Chen Shui-bian further transformed “the Republic of China on Taiwan” in the “two states” theory into “the Republic of China is Taiwan”, defined the mainland as “China” and the Government of the People’s Republic of China as the “Chinese Government”, and deliberately differentiated between China and “Taiwan”, to result in the situation of “one country on each side” across the Strait. After Ma Ying-jeou was elected the leader of the Taiwan Region in 2008, the “two states” theory and the “one country on each side” theory somehow subsided. While avoiding such topics as much as possible, former leaders of the Taiwan Region, including Ma Ying-jeou, made comments such as “the mainland is part of the territory of the Republic of China according to the Constitution” again on some occasions. On March 23, 2012, Honorary Chairman of the Kuomintang Wu Po-hsiung met with Hu Jintao in Beijing and proposed that “one China, two areas” is the “legal basis” for Taiwan to deal with cross-Strait relations, and the relationship between the two sides is “not a state-to-state relationship, but a special relationship.”16 On March 28, 2012, then leader of the Taiwan Region Ma Ying-jeou echoed the abovementioned opinion of Wu Po-hsiung on the Central Standing Committee of the Kuomintang. According to a report from the Taiwan media, Ma Ying-jeou suggested that “free area” and “mainland area” have been mentioned in the “Amendment of the Constitution” as early as 1992, and the “Act Governing Relations between the People of the Taiwan Area and the Mainland Area” also have relevant regulations on the relations between the Taiwan Region and the mainland. Ma Ying-jeou also reviewed the opinion of Huang Kun-huei (Minister of the “Mainland Affairs Council” in 1992) and stated that “our mainland policy consists of one China, two areas and three stages; however, at

15

Cheng Chang-hsiung, “The Analyzing from Nation Sovereignty to the Mode of Integration Across the taiwan Strait”, Master’s thesis, Nanhua University Institute of Administration and Policy, 2003, 116. 16 “Hu Jintao Met with Wu Po-hsiung; Wu Po-hsiung Mentioned ‘One China, Two Areas’”, data source: http://news.sina.com.cn/c/2012-03-23/075624161927.shtml, the last access date: January 20, 2019.

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present our governing power is confined to Taiwan, Penghu, Kinmen and Matsu.”17 On May 20, 2012, Ma Ying-jeou once again stated during his second inaugural ceremony: “According to our Constitution, the sovereign territory of the Republic of China includes Taiwan and the mainland. At present, the ROC government has authority to govern only in Taiwan, Penghu, Kinmen and Matsu. In order words, over the past two decades, the two sides of the Taiwan Strait have been defined as ‘one Republic of China, two areas.’ This status has remained unchanged throughout the administrations of the past three presidents.”18 During the “Xi-Ma Meeting” at the end of 2015, Ma Ying-jeou expressed: “The ‘1992 Consensus’ is the common political foundation for realizing the peaceful development of cross-Strait relations. Both sides should consolidate the ‘1992 Consensus’, expand and deepen exchanges and cooperation, promote mutual benefit and win–win situation, and shorten the psychological distance between both sides.”19 During this period, the Ma Ying-jeou administration was willing to develop cross-Strait relations under the framework of “one China.” The abovementioned opinion to a certain extent implies that Ma Yingjeou and the Taiwan administration returned to the one-China framework to some extent and defined the political relations between the mainland and Taiwan on the basis of “one China, two areas.” After Tsai Ing-wen was elected leader of the Taiwan Region in 2016, she denied the “1992 Consensus” that embodies the one-China principle. During the inaugural address, Tsai declared that she would “maintain the status quo across the Strait”, respect the “historical fact” of the “1992 talks” and handle cross-Strait affairs according to the “Constitution of the Republic of China”, the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” and other laws but made no mention of the “1992 Consensus” or the one-China principle.20 In Taiwan, Tsai’s government not only misinterpreted the “1992 Consensus” but also carried out a series of “desinification” policies, including “cultural Taiwan independence”, “educational Taiwan independence” and “jurisprudential Taiwan independence”, which led to a dramatic deterioration of cross-Strait relations. On January 2, 2019, after the release of Xi Jinping’s important speech in commemoration of the 40th anniversary of issuing Message to Compatriots in Taiwan, the Tsai Ingwen administration responded quickly that Taiwan “has never accepted the ‘1992 Consensus,’ and absolutely will not accept ‘one country, two systems.’”.21

17

“Ma Ying-jeou Claims ‘One China, Two Areas’ Remains Unchanged for 20 Years”, data source: http://www.China.com.cn/news/tw/2012-03/29/content_25016659.htm, the last access date: September 12, 2012. 18 Ma Ying-jeou’s speech at the 2012 inaugural ceremony (2012). 19 “Meeting between Xi Jinping and Ma Ying-jeou”, data source: http://www.xinhuanet.com//pol itics/2015-11/07/c_1117071846.htm, the last access date: January 20, 2019. 20 “How Are Tsai Ing-wen’s Cross-Strait Policies So Dissatisfactory”, data source: http://taiwan. huanqiu.com/roll/2017-11/11344856.html, the last access date: January 20, 2019. 21 “Tsai Denied ‘1992 Consensus’ and Refused One Country Two Systems”, date source: https:// www.chinatimes.com/cn/newspapers/20190103000110-260301, the last access date: January 20, 2019.

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1.2 Description of Laws in Alignment of Cross-Strait Political Relations The alignment of cross-Strait political relations is first of all a political issue, and relevant policies of the mainland and Taiwan constitute the main content of the alignment of political relations. Therefore, during the review of the alignment of political relations, most scholars take the alignment of cross-Strait political relations on the policy level as the argument and the alignment of cross-Strait political relations on the legal level as the grounds.22 However, separating the legal level from the policy level of the alignment of cross-Strait political relations and describing them separately has important significance. First, scholars have pointed out a long time ago that the Taiwan issue is a political issue as well as a legal issue. Analyzing the alignment of cross-Strait political relations from the legal level is a necessary element of the study of cross-Strait relations with the application of legal thinking.23 Second, even though law is a normative statement of policy, law itself is of relative stability. As a result, the development of cross-Strait relations on the legal level often falls behind that on the policy level. According to the principle of rule of law recognized by both sides, only the legal provisions on the alignment of cross-Strait political relations are the model officially adopted by both sides for the alignment of political relations. Therefore, analyzing the alignment of cross-Strait political relations on the legal level is a more direct approach to grasping the alignment of political relations between the mainland and Taiwan. Third, “jurisprudential Taiwanese independence” is an important form of “Taiwan independence.” As separatist forces supporting “Taiwan independence” assert the so-called “de facto independence of Taiwan”, legal provisions on the alignment of cross-Strait political relations often happen to be an important goal of separatist forces seeking “Taiwan independence.” Likewise, confirmation of the fact of “jurisprudential unification” through law by the mainland and Taiwan is also an important form of the complete unification of the motherland. Therefore, the present situation of the alignment of cross-Strait political relations can be understood and grasped more effectively through a description of the alignment of cross-Strait political relations on the legal level than a description on the policy level. (1) The Mainland’s Description The mainland’s alignment of cross-Strait political relations through law dates back to the Common Program in 1949. According to Article 2 of the Common Program, “The Central People’s Government of the People’s Republic of China must undertake to wage the people’s war of liberation to the very end, to liberate all the territory

22

See Shaw Chong-hai, “Cross-Strait Relations: Changes, Alignment, and Strategies”, Symposium on Cross-Strait Relations: Changes, Alignment, and Strategies held by Department of Political Science, National Taiwan University (2002). 23 See Zhou Yezhong, “Constitutional Perspectives on the Taiwan Issue”, Legal Science Monthly 6 (2007).

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of China, and to achieve the unification of China.” Even though the very word “Taiwan” does not appear in this article, which also applies to objects other than Taiwan as far as the historical background at that time is concerned, Taiwan is obviously included in “all the territory of China”, and the realization of the unification of the mainland and Taiwan is a part of the “unification of China.” Considering words such as “liberation” in Article 2, it can be said that in the Common Program, in terms of the alignment of cross-Strait political relations, the KMT government that has retreated to Taiwan is regarded as an “insurgent body.” However, it must be noted that Article 2 of the Common Program is not a direct provision on the alignment of cross-Strait political relations; the abovementioned analysis of this article is a conclusion reached with the standard analytical method. So to speak, the Common Program only indirectly stipulates the alignment of cross-Strait political relations. Similarly, the 1954 Constitution and the 1975 Constitution also lack direct provisions on the alignment of cross-Strait political relations. Therefore, the alignment of cross-Strait political relations in these two constitutions can only be deduced from clauses about “safeguarding national unification.” The 1978 Constitution is the first time that the new China made provisions on the alignment of cross-Strait political relations in the form of the fundamental law of a nation. The seventh paragraph of the Preamble of the 1978 Constitution stipulates: “Taiwan is China’s sacred territory. We are determined to liberate Taiwan and accomplish the great cause of unifying our motherland.” Obviously, the alignment of the Taiwan authorities in this provision is still confined to the “insurgent body” model. Between 1979 and 1982, despite the mainland’s major adjustment to the alignment of cross-Strait political relations, the seventh paragraph of the 1978 Constitution was not revised through the constitutional amendment process. Therefore, there was a temporary gap in the mainland’s political alignment of Taiwan on both the policy and legal levels. In line with the spirit of “Ye Jianying’s nine principles” and “one country, two systems”, the 1982 Constitution made provisions on the alignment of cross-Strait political relations in the Preamble and Article 31, respectively. According to the ninth paragraph of the Preamble of the 1982 Constitution, “Taiwan is part of the sacred territory of the People’s Republic of China. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of unifying the motherland.” A comparison between the same provision in the 1982 Constitution and the 1978 Constitution reveals that the word “liberation” is deleted, and at the same time, a provision on the nation and its people’s duty to accomplish national unification is added.24 Through comparison it can be found that the 1982 Constitution puts Taiwan in a much different position, which is mainly reflected as: first, the deletion of “liberation” indicates the political status given by the mainland to the Taiwan authorities is changed from “insurgent body” toward more possibilities, which, however, still include the possibility of “insurgent body”, because the word “accomplish” implies either “reunification by force” or “peaceful reunification”; second, the effect of the 24

See Zhou Yezhong, “Constitutional Perspectives on the Taiwan Issue”, Legal Science Monthly 6 (2007).

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1982 Constitution is confined to the Taiwan Region, which in law is a “local government” of the People’s Republic of China”, or a “Special Administrative Region” at most (depends the special regulation of the Standing Committee of the National People’s Congress); third, the 1982 Constitution establishes an obligation of the “entire Chinese people including our compatriots in Taiwan” to reunite Taiwan with the motherland, which embodies the spirit of “pinning hopes on the Taiwanese people” of “Ye Jianying’s nine principles” but also indicates that, from the perspective of the framers of the 1982 Constitution, the scope of application of the 1982 Constitution includes Taiwan, because from the angle of constitutional interpretation this regulation has crossed the Taiwan Strait to establish a constitutional obligation for the Taiwanese people outside of the jurisdiction of the mainland.25 On the basis of the above changes, through re-examination of Article 31 of the 1982 Constitution about the establishment of special administrative regions,26 with the regulation about administrative division in Article 30 of the 1982 Constitution taken into consideration, it can be seen that in accordance with Article 31 of the 1982 Constitution, the National People’s Congress may establish special administrative regions when necessary, which can implement political systems different from those of the mainland according to the law designated by the National People’s Congress. Article 31 of the Constitution is often interpreted as the constitutional basis for “one country, two systems”; nevertheless, from the understanding of its “one China” nature, on its basis, an analysis can also be conducted of how the 1982 Constitution defines the political relations between the mainland and Taiwan. Article 31 of the Constitution stipulates the three essential conditions for establishing the Special Administrative Region of Taiwan and implementing “one country, two systems” in Taiwan: first, it is the National People’s Congress who establishes special administrative regions; second, special administrative regions are established “when necessary”, and it is up to the National People’s Congress to decide when it is “necessary”; third, the establishment of special administrative regions and the systems to be implemented in such regions are stipulated in legal form by the National People’s Congress. This shows that the National People’s Congress based in mainland China has full powers in establishing the Special Administrative Region of Taiwan and implementing “one country, two systems” in Taiwan. Additionally, according to Article 30 of the Constitution, before Taiwan is established as a special administrative region, it is still a province of the People’s Republic of China. Thus, it can be seen that the 1982 Constitution regards the relationship between the mainland and Taiwan as a “central-local” one, i.e., The Government of the People’s Republic of China on the mainland is the central government, and the Taiwan authorities are the “local government” of Taiwan, with the relationship between the mainland and Taiwan 25

Even though the Common Program, the 1954 Constitution and the 1975 Constitution also intended so, it was only explicitly stated in the 1982 Constitution. 26 It is generally believed in the field of constitutional law circles on the mainland that Article 31 of the 1982 Constitution is designed for the resolution of the Taiwan issue; even though it is applied to Hong Kong and Macao first, the possibility of its application to the Taiwan issue is still not ruled out. See Zhou Yezhongh ed., Constitution (Second Edition), (Peking University Press, Higher Education Press, 2005), 246.

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being a central-local relationship. At the time, the position of the 1982 Constitution was also consistent with that of the mainland on cross-Strait political relations.27 Later, after four amendments to the 1982 Constitution, the abovementioned position on cross-Strait relations remained unchanged. The Anti-Secession Law enacted in 2005 is currently the basic law for the mainland to deal with the Taiwan Issue, and its status is only next to the Constitution in the legal system toward Taiwan.28 According to the Explanation of the Anti-Secession Law (Draft) made by Wang Zhaoguo, Vice Chairperson of the National People’s Congress Standing Committee, the Anti-Secession Law was formulated under the guidance of the report at the 16th National Congress,29 and the complete formulation about the alignment of the political relations between the mainland and Taiwan in the report at the 16th National Congress is also included in Article 2 of this law. Therefore, the alignment of cross-Strait political relations in the Anti-Secession Law is completely consistent with that in the One-China Syllogism (III). What is worth deliberating is several expressions in the Anti-Secession Law; by analyzing these expressions, we can grasp the subtle attitude of the Anti-Secession Law toward the alignment of political relations between the mainland and Taiwan. First, the title of the Anti-Secession Law does not include the “People’s Republic of China”, which is the only case among laws enacted by the mainland, for the purpose of reflecting the spirit of the One-China Syllogism (III) to elevate cross-Strait identity to the national level. Second, Article 1 of the Anti-Secession Law takes the 1982 Constitution as its legislative basis30 ; from the perspective of textual analysis only, the Anti-Secession Law still recognizes the position of the 1982 Constitution on the alignment of political relations between the mainland and Taiwan, and Article 2 and 4 of this law also continue the regulation in the 9th paragraph of the Preamble of the 1982 Constitution, establishing an obligation of the “entire Chinese people including our compatriots in Taiwan” to reunite Taiwan with the motherland.”31 Third, as the first sentence of Article 7 of the Anti-Secession Law says, “The state stands for the achievement of peaceful reunification through consultation and negotiations on an equal footing between the two sides of the Taiwan Strait”, the status of the “state” is higher than that of the “two sides of the Taiwan Strait”; thus the “two sides of 27 “The Taiwan authorities is a local government” is contained in the Message to Compatriots in Taiwan issued by the Standing Committee of the People’s Congress in 1979, “Ye Jianying’s nine principles”, and a series of important speeches delivered by Deng Xiaoping. 28 Zhou Yezhong, “On Constructing a Legal Mechanism for the Peaceful Development of CrossStrait Relations”, Law Review 3 (2008). 29 Wang Zhaoguo, Explanation of the Anti-Secession Law (Draft) (2005). 30 Wang Zhaoguo also pointed out explicitly in the Explanation of the Anti-Secession Law (Draft) that the 9th paragraph of the Preamble of the 1982 Constitution is the constitutional basis for the formulation of the Anti-Secession Law. See Wang Zhaoguo, Explanation of the Anti-Secession Law (Draft) (2005). 31 The latter half of the first section of Article 2 of the Anti-Secession Law stipulates: “Safeguarding China’s sovereignty and territorial integrity is the common obligation of all Chinese people, the Taiwan compatriots included.” Article 4 stipulates: “Accomplishing the great task of reunifying the motherland is the sacred duty of all Chinese people, the Taiwan compatriots included.”

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the Taiwan Strait” are “two sides within the framework of the state.” In view of the statement that “the mainland and Taiwan belong to one China” in the One-China Syllogism (III), and the regulation in Section 3, Article 5 of the same law,32 the position of the Anti-Secession Law on the alignment of political relations between the mainland and Taiwan is based on the 1982 Constitution, yet with new development: the Anti-Secession Law evades the subordination of Taiwan to the mainland, and does not explicitly define the political relationship between the mainland and Taiwan as a central-local relationship.33 This position is consistent with the attitude of the mainland’s policy during the same period. To sum up the analysis of the above three points, based on identification on the national level, the Anti-Secession Law echoes regulations on the policy level and defines the political relations between the mainland and Taiwan as “cross-Strait” relations under “one China.” The alignment of political relations between the mainland and Taiwan in the Anti-Secession Law reflects the pragmatic feature of the mainland’s cross-Strait policy. In addition to the 1982 Constitution and the Anti-Secession Law, other normative documents of the mainland, including laws, regulations and judicial interpretations, also embody the alignment of political relations between the mainland and Taiwan. Since this issue involves a multitude of normative documents, it is only illustrated here with the example of the system for the recognition and implementation of verdicts on civil cases. In accordance with the Provisions of the Supreme People’s Court on the People’s Court’s Recognition of the Verdicts on Civil Cases Made by Courts of Taiwan Province (hereinafter referred to as the “1998 Provisions”), one of the “conditions” for the mainland to recognize and implement verdicts on civil cases made by courts of the Taiwan Region is no violation of the one-China principle. According to Article 4 of the “1998 Provisions”, when applying for recognition of a civil verdict made by a court of the Taiwan Region, an applicant should submit the application together with the original or verified copy of the civil verdict made by a court in Taiwan under no violation to the one-China principle and/or other testifying documents. Some scholars believe that the one-China principle stipulated in this Article is the most fundamental principle of the “1998 Provisions.”34 This shows that the alignment of political relations between the mainland and Taiwan 32

Section 3 of Article 5 of the Anti-Secession Law stipulates: “After the country is reunified peacefully, Taiwan may practice systems different from those on the mainland and enjoy a high degree of autonomy. 33 Some scholars propose the 1982 Constitution should be revised based on the mainland’s latest Taiwan policy and the Anti-Secession Law. See Peter Qiu, “After the Anti-Secession Law: Beijing Should Additionally, Consider Constitutional Amendment”, data source: http://blog.ifeng.com/art icle/7925.html, the last access date: January 20, 2019. 34 Song Xixiang, “On the Methods and Ways of Judicial Assistance to Civil and Commercial Cases Across the Strait”, in Collected Papers of 2004 Annual Conference of China Society of Private International Law, ed. Wuhan University (2004). According to personages in the practical field of Taiwan-related legal system, for verdicts to be approved and executed by the mainland, district courts of Taiwan often remove the line indicating the “Republic of China” from their verdicts. Such statement was made by a representative of the practical field at the “Seminar on Experience of Taiwan-related Legal System” (held by the Taiwan-related Legal System Research Center of the Standing Committee of the People’s Congress of Fujian Province in 2007) attended by the author.

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in the “1998 Provisions” is limited recognition of some public power organs of the Taiwan Region on the basis of the one-China principle. In addition to the limitation of the one-China principle, such limited recognition also includes the following: first, the “1998 Provisions” is only about the recognition and implementation of verdicts and does not involve the recognition of courts of the Taiwan Region; second, the purpose of recognizing and implementing verdicts on civil cases made by courts of the Taiwan Region is to safeguard the civil rights and interests and litigation rights of the party concerned, instead of implementing relevant “laws” of the Taiwan Region.35 The “1998 Provisions” is an epitome of the mainland’s alignment of cross-Strait relations in addition to its Constitution and the Anti-Secession Law. Out of realistic consideration, those nonpolitical normative documents have evaded the influence of sensitive political alignment in cross-Strait exchanges on specific affairs with the adoption of a more flexible and pragmatic method, thus laying a foundation for the smooth conduction of exchanges on specific affairs across the Strait. (2) Taiwan’s Description In comparison with the mainland, the Taiwanese authorities attach more importance to the alignment of political relations between the mainland and Taiwan through the “Constitution” and laws, and the “jurisprudential independence of Taiwan” has already become an important way of “Taiwan independence.” According to relevant analyses of the “jurisprudential independence of Taiwan” by mainland scholars, the “jurisprudential independence of Taiwan” has taken on a multilayered structure of diversity; it not only pursues the dominant result of “Taiwan independence” but also promotes recessive “Taiwan independence” through methods including “constitutional amendment”, “constitutional interpretation” and “law amendment”—even a law or verdict can become the carrier of the “jurisprudential independence of Taiwan.”36 Therefore, the description of the Taiwanese authorities’ alignment of political relations between the mainland and Taiwan from the perspective of the legal system is of great significance for grasping the Taiwanese authorities’ alignment of cross-Strait political relations. The current “Constitution” of the Taiwan Region is the fundamental basis for the Taiwan authorities to align the political relations between the mainland and Taiwan. Currently, the “Constitution” of Taiwan actually consists of two parts: the 1946 “Constitution” formulated on the mainland and the “Amendment to the Constitution” passed after the “constitutional reform” in 1990. The “constitutional reform” claims “constitutional amendment”, which is in fact “constitutional formulation” in disguise, with its purpose being transforming the 1946 “Constitution” into the

35

Article 1 of the “1998 Provisions” stipulates: “This set of regulations is formulated with a view to safeguarding the interests and litigation rights of related persons and parties of Taiwan Province and other provinces, autonomous regions, and municipalities that are under the direct jurisdiction of the Central Government in civil proceedings.” 36 See Zhou Yezhong, “On Constructing a Legal Mechanism for the Peaceful Development of Cross-Strait Relations”, Law Review 3 (2008).

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“Constitution of Taiwan.”37 According to the statement of “Taiwan independence” supporters themselves, “constitutional reform” actually promotes Taiwan “from de facto independence to the stage of legal independence.”38 Nevertheless, as far as the text itself is concerned, the current “Constitution” of the Taiwan Region in nature supports “one China”, which serves as the jurisprudential basis for the pan-blues’ proposition of “constitutional one China.”39 The alignment of the political relations between the mainland and Taiwan in the current “Constitution” of the Taiwan Region is mainly reflected in the following aspects: First, the current “Constitution” of the Taiwan Region has neither abolished the “state title” of the “Republic of China” nor denied its perseverance in “reunification”. After 1990, the Taiwan Authorities staged a total of seven “constitutional reforms”, each of which abolished a large number of provisions of the 1946 “Constitution”, yet still kept content such as “Republic of China”, “state title” and “existing national boundaries.” In addition, it is declared in the Preamble of the “Amendment to the Constitution” that the purpose of the “amendment” to the “Constitution” is to “cope with the needs before national reunification”, which is why the persevere in “reunification” is not negated on the legal level. According to the seventh “Amendment to the Constitution” passed in 2005 and relevant provisions of the “Referendum Act”, the change of “state title” is subject to the “referendum process.” Based on the political practice of the Taiwan Region, the possibility of abolishing the “state title” of the “Republic of China” through “constitutional amendment” is very little. Second, the current “Constitution” of the Taiwan Region regards the mainland and Taiwan as two “equal entities”, which in specific norms is reflected as “one China, two areas.” The first “Amendment to the Constitution” passed in May 1991 divides the “Republic of China” into the so-called “mainland area” and “free area” and defines the political relations between the mainland and Taiwan as “one China, two areas”, which remains in use in the following six “constitutional reforms” and still exists in the seventh “constitutional reform” passed in 2005 (effective). Third, in terms of specific systems, the current “Constitution” of the Taiwan Region transfers the “legally constituted authority” of the “Republic of China” from “China as a whole” to “Taiwan.” According to relevant provisions of the seventh “Amendment to the Constitution” of Taiwan, the “president” and “national” representatives should all be elected from the “free area”, important matters of the “Republic of China” should be decided through the “referendum” in the “free area”, and the organizational system of the Taiwan Province is “simplified and refined”, with the 37

Zhou Yezhong and Zhu Jie, Study on “Constitutional Reform” in the Taiwan Region, Hong Kong Social Science Publishing House, 2007, 64. 38 Democratic Progressive Party, “White Paper on Constitutional Policies” (1999). 39 See Du Lifu, “‘Constitutional One China’ and the Mainland’s Policy with the Kuomintang in Power”, Taiwan Research Quarterly 1 (2007). Nevertheless, this book holds a reserved attitude about Professor Du Lifu’s reference to the current “Constitution” of the Taiwan Region as “Constitution of one China.” As for the comparison of “one China” in the fundamental laws across the Strait, see Zhou Yezhong and Zhu Jie, “‘Constitution of One China and ‘Constitutional One China’: Comparative Study of ‘One China’ in the Fundamental Laws Across the Strait”, in Research Reports on the Politics of Contemporary China, Social Sciences Academic Press (China), 2012.

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“Constitutional” status of the native Taiwanese people affirmed. Of course, the “Taiwanization” of the 1946 “Constitution” by the Taiwan authorities was to bring the “Constitution” in line with the status quo of the Taiwan Region; nevertheless, to a certain extent it erased the “mainland traces” from the “Republic of China” to “reconstruct” the “legally constituted authority” in “Taiwan”, or even make up the “legally constituted authority” in “Taiwan.” Based on the analysis above, the alignment of the political relations between the mainland and Taiwan in the current “Constitution” of the Taiwan Region is basically similar to “one China, two governments”, “one China, two entities” and “one China, two areas”; it regards the Government of the People’s Republic of China as another government of the Taiwan authorities, the “mainland area” as another area of the “Republic of China” as the “free area” and the People’s Republic of China as a “political entity” equal to the “Republic of China”, and no longer advocates representation of the mainland by the “Government of the Republic of China”, to realize the transfer of the “legally constituted authority” of the “Republic of China” to “Taiwan.” According to the last article of the “Amendment to the Constitution”,40 the “Legislative Yuan” of the Taiwan Authorities establishes the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area”, which shall serve as the legal basis for the Taiwan Region to adjust the relations between the people across the Strait. Based on the current “Constitution” of the Taiwan Region, the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” seems to stand for “one China, two areas” regarding the alignment of the political relations between the mainland and Taiwan; however, in regard to specific content, the alignment of political relations between the mainland and Taiwan in the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” is no different from a “state-to-state relationship.”41 Some scholars believe that people from the mainland “can be categorized as foreigners different from general foreigners or foreigners with special identity.”42 The amendment to the “Immigration Act” and the “Nationality Act” of the Taiwan Region indicates the Taiwan authorities’ secessionist intention. On May 21, 1999, the Taiwan authorities amended the “Immigration Act”, among which Article 3 defines “nationals” as those “who reside in the Taiwan Area and have their permanent residence registered at a household registry or reside abroad but have the nationality of 40

The last article of the “Amendment to the Constitution” of the Taiwan Region is “Rights and obligations between the people of the Chinese mainland area and those of the free area, and the disposition of other related affairs may be specified by law.” This is Article 10 in the first three “Amendments to the Constitution”, but Article 11 since the fourth “Amendment to the Constitution.” 41 According to the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area”, the political relations between the mainland and Taiwan are defined as “relations between the Taiwan Area and the Mainland Area” (Article 1); people across the Strait have household registrations in the Taiwan Area and the Mainland Area, respectively (Article 2); no people of the Mainland Area may enter into the Taiwan Area without permission of the competent authorities, and vice versa (Article 9 and 10); people of the Mainland Area have restricted rights in Taiwan, etc. 42 Li Chen-shan, Pluralism, Tolerance, and Protection of Human Rights: Centering Around the Protection of Rights Unlisted in the Constitution, Angle Publishing Co., Ltd., 2005, after 3, and 9.

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the Republic of China.” Apparently, the definition of “nationals” in the “Immigration Act” excludes the “people from the mainland area” in the “Amendment” to the current “Constitution” of the Taiwan Region from the concept of “nationals.” In April 2000, the Taiwan authorities amended the “Nationality Act”, with all expressions of “China” in Article 1 replaced by the “Republic of China.” Judging from the amendment to the two acts, it is obvious that the Taiwan authorities no longer regard the “people from the mainland area” as “nationals of the Republic of China” or consider the “people from the mainland area” to have “nationality of the Republic of China.” The amendment to the two acts mentioned above connects the “Republic of China” with “Taiwan”, which implies “Taiwanization of the Republic of China.”43 The “interpretations of the Constitutional Court” regarding cross-Strait relations made by the Constitutional Court of the “Judicial Yuan” of Taiwan are also an important source of law of the Taiwan authorities’ alignment of cross-Strait political relations. By the end of January 2019, a total of 20 interpretations were made by the “Judicial Yuan” of Taiwan regarding cross-Strait relations, among which the 15 interpretations made after 1990 can be divided into three types—“legally constituted authority”, “rights” and “system.” The basic information about the 15 interpretations is listed in the following (Table 1)44 : In the 15 interpretations listed above, the Constitutional Court of the “Judicial Yuan” of Taiwan holds three different attitudes toward the alignment of political relations between the mainland and Taiwan: First, there was no alignment. Interpretations without alignment of cross-Strait political relations are represented by “Interpretation No. 328.” In March 1993, during the budget investigation of departments of the “Executive Yuan”, including the “Mainland Affairs Council” and the “Mongolian and Tibetan Affairs Commission”, some “legislators”, including Stella Chen, requested the Constitutional Court to interpret whether Mainland China and Outer Mongolia fall within the “existing national boundaries” referred to in Article 4 of the 1946 “Constitution.”45 In the “interim proposal” for “constitutional interpretation”, Stella Chen, etc., made blatant statements including “Mainland China is not territory of the Republic of China” and “currently the territorial sovereignty of the Republic of China lies in the Free Area (i.e., Taiwan, Penghu, Kinmen and Matsu)”,46 directly challenging the bottom line of cross-Strait relations. In November 1993, regarding the “application for constitutional interpretation” by Stella Chen, etc., “Interpretation NO.328” was made by the Constitutional Court of the “Judicial Yuan,” according to which “how to delimit the national territory is a purely political question …… not subject to judicial review” and 43

See Zhu Songling, Study of the Constitutional Issue of National Reunification, Hong Kong Social Sciences Press, 2011, 50. 44 See Zhou Yezhong and Zhu Jie, “Method Adopted by Chief Justice in the ‘Court of Justice’ in China’s Taiwan to Interpret the Relations Between Taiwan and the Mainland”, Modern Law Science 1 (2008). 45 See the Application for “Constitutional Interpretation” by 18 people including “legislator” Stella Chen of “Interpretation No. 328.” 46 See the Application for “Constitutional Interpretation” by 18 people including “legislator” Stella Chen of “Interpretation No. 328.”

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Table 1 Interpretations by the Constitutional Court of Judicial Yuan of Taiwan concerning crossStrait relations (Since 1990) (This table was prepared by the author) Time

No.

Type

Applicant

Cause

Concurring opinion

Dissenting opinion

June 21, 1990

261

“Legally constituted authority”

“Legislative Yuan”

Term of the 0 “eternal National Assembly”

1

October 5, 1990

265

Rights

People

Restrictions on entry into the country against people from mainland China

0

0

November 26, 1993

328

System

One third of “legislators”

Boundaries of “national territory”

0

0

December 24, 1993

329

System

One third of “legislators”

Nature of the agreement at the “Wang-Koo Talks”

0

4

October 22, 1998

467

System

One third of “legislators”

Status of the Taiwan Province

3

2

January 29, 1999

475

Rights

Judge

Creditor rights of 0 bonds issued before 1949

0

April 1, 1999

479

Rights

People

Renaming 0 “Chinese Society of Comparative Law”

1

April 16, 1999

481

System

One third of “legislators”

Status of “Fujian Province”

0

1

December 3, 1999

497

Rights

People

People from mainland China who apply for entry into the Taiwan area

0

0

April 18, 2003

558

Rights

“Taiwan High Court”

Dispute over conditions for “returning to the homeland”

0

2

November 3, 2006

618

Rights

“Taipei High Administrative Court”

Conditions for people from mainland China to hold office in Taiwan

0

0

(continued)

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Table 1 (continued) Time

No.

Type

Applicant

Cause

Concurring opinion

Dissenting opinion

June 20, 2008

644

Rights

People

Whether the associations that advocate the “partition of national territory” “constitutional”?

2.5

0.5

November 4, 2011

692

Rights

People

Tax exemption 3 for Taiwanese children studying in mainland China

1

July 5, 2013

710

Rights

People

Mandatory deportation and detention of people from the Mainland Area

4.5

October 4, 2013

712

Rights

People

Adoption of 4 children from the Mainland Area by Taiwanese people

4.5

2

According to “Interpretation No. 317” of Constitutional Court, “Judicial Yuan” of the Taiwan Region, the applicant for “constitutional interpretation” has to be a judge

“the delimitation of national territory is a significant political question and shall not be interpreted by the organ of constitutional interpretation exercising judicial power.”47 Based on the above, the application for interpretation was denied according to the theory of “no examination of political questions.”48 With this theory, Justices of the “Judicial Yuan” of the Taiwan Region evaded interpretations of “existing national boundaries” and the alignment of cross-Strait relations. Second, equating “Taiwan” with “state.” “Interpretation No. 261” and “Interpretation No. 479” are typical examples of such interpretations. In “Interpretation No. 261”, Justices put an end to the illusory “legally constituted authority” maintained by the Taiwan authorities through the “National Assembly” and stipulate that the organ of “national” representatives shall be elected from the “Free Area” only, thus completing the transfer of the “legally constituted authority” of the “Republic of China” and partitioning “one China” as a whole. “Interpretation No. 479” originates from the dispute over renaming “Chinese Society of Comparative Law” as “Taiwan Law Society”, which involves questions including “whether Taiwan 47

See the Reasoning of “Interpretation No. 328.” See the Holding of “Interpretation No. 328” of Constitutional Court, “Judicial Yuan” of the Taiwan Region.

48

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implies a national title.”49 Regarding this, Justices evaded the substantive issue and supported the renaming of the “Chinese Society of Comparative Law” for the reason of “freedom of association”, thus providing a legal basis for the “desinification” movement of the Taiwan authorities. Third, defining the political relations between the mainland and Taiwan as “one China, two entities” and “one China, two areas”, which is the attitude held by the rest of the interpretations except for the few interpretations mentioned above. Nevertheless, this attitude is further divided into two types: leaning toward “one China” or “one China, two entities/areas.” For instance, “Interpretation No. 329” and “Interpretation No. 481” are examples of the former type, both denying the viewpoint that the mainland and Taiwan are “two states” and insisting on “one China” in terms of the alignment of political relations between the mainland and Taiwan, which is of positive significance. The majority of the latter type are mostly interpretations of rights, which believe the restrictions on the rights of people from the mainland are to “ensure the security of the Taiwan Region and the well-being of its people” and conform to the “proportionality” in “Constitutional” provisions, thus treating people of the mainland and Taiwan differently on the basis of “two entities” or “two areas.” In conclusion, Taiwan’s alignment of the political relations between the mainland and Taiwan on the legal level is full of contradictions: on the one hand, out of consideration for various factors, to this day, the Taiwan authorities still have not given up on “one China” in the “Constitution” and law and describe the status quo of the political relations between the mainland and Taiwan at least with phrases such as “one China, two entities” and “one China, two areas”; on the other hand, through various channels, the Taiwan authorities consciously make a difference between the mainland and Taiwan in an attempt to transform the political relations between the mainland and Taiwan into “state-to-state” relations to achieve the “jurisprudential independence of Taiwan.” However, generally speaking, the Taiwan authorities are more temperate in the alignment of the political relations between the mainland and Taiwan on the legal level than on the policy level and are still able to insist on the one-China principle, which provides favorable legal conditions for carrying out negotiations and exchanges across the Strait. The attitude of Taiwan’s judiciary organ toward the alignment of the political relations between the mainland and Taiwan has also become increasingly vague and gradually leans toward the position of “one China, two entities.” In conclusion, the typical cases of Taiwan’s judiciary organ concerning cross-Strait relations can be summed up into the following three types: First, the meaning of “counterattacking the mainland” in civil law. During the period of “mobilization for the suppression of Communist rebellion”, it was stipulated in a contract of lease that “the contract shall be implemented until counterattacking the mainland”, and there had been a dispute in the “Supreme Court” of the Taiwan Region over whether this is an attached “condition” or the “deadline” of this contract. When interpreted as “condition”, it means “counterattacking the mainland” will 49

See the Dissenting Opinion of Justice Tung Hsiang-fei, Liu Tieh-cheng and Hwang Tueh-chin of “Interpretation No. 479.”

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not necessarily happen; however, when interpreted as “deadline”, it indicates that “counterattacking the mainland” is just a matter of time and will definitely happen. In the two verdicts reached in 1958 and 1973, respectively, the “Supreme Court” of Taiwan interpreted contracts containing the words that “the contract shall be implemented until counterattacking the mainland” as “contract of lease of indefinite term”, rather than “contract with attached condition”, which indicates the mainstream “unification” ideology of Taiwan’s judicial organ at that time. Nevertheless, both the 1958 and 1973 verdicts were annulled in 2000 and 2003, respectively50 ; the attitude of Taiwan’s judicial organ can be seen accordingly. Second, judicial jurisdiction and scope of application of law. Because judicial jurisdiction and scope of application of law are closely related to “sovereignty”, whether the judicial jurisdiction of Taiwan’s judicial organ covers the mainland and whether the scope of application of relevant laws of the Taiwan Region includes the mainland have become important indicators of the attitude of Taiwan’s judicial organ in the alignment of political relations across the Strait. In the “Supreme Court Verdict No. 6403” reached in 1997, the “Supreme Court” of the Taiwan Region proposes: “The ‘fact’ column of the original verdict only states that the appellant is the ‘owner of the shipping vessel Yuan Feng, which is not identified as a vessel of the ‘Republic of China’; the ‘reason’ column states that Yuan Feng is a ‘Chinese’ vessel, but it still remains unclear as to whether it belongs to the ‘People’s Republic of China’ in the Mainland Region or the ‘Republic of China’ in the Taiwan Region.” In the “Year 88 Yi Zi Criminal Verdict No. 357”, in response to the question of whether the criminal law of the Taiwan Region applies to the criminal act of resident with household registration in Taiwan that is conducted in Fuzhou City, Fujian Province of the mainland, the “Supreme Court” of the Taiwan Region proposes: “Even though in fact Taiwan claims sovereignty over the Mainland Region, according to the international situation it cannot be denied that this region is ruled by another entity—the ‘People’s Republic of China’, and as a matter of fact it does not fall within the sovereign territory of the Republic of China; therefore, crime committed in the Mainland Region should be considered as crime committed outside of the territory of Taiwan.”51 Third, question of whether the administrative unit of the Mainland Region falls within the “existing national boundaries of the Republic of China.” Some verdicts follow the will of “Interpretation No. 328” to explain whether the “Mainland Region” falls within the “existing national boundaries of the Republic of China.” In a verdict reached on April 9, 1999, the “Supreme Court” of Taiwan proposes: “The existing national boundaries of the Republic of China are proclaimed in writing in Article 4 of the Constitution. Whereas the Mainland Region refers to territory of the Republic of China outside of the Taiwan Region, ……, upon investigation it is determined that the party involved in this case……resides in Sichuan Province, which is within 50

See Huang Mingrui, “On Political Explanations in Civil Law from the Conclusion and Abolition of Two Legal Precedents of ‘Counterattacking the Mainland’”, National Taiwan University Law Journal Vol. 34 4 (2005). 51 See Zhu Songling, Study of the Constitutional Issue of National Reunification, Hong Kong Social Sciences Press, 2011, 48–49.

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the existing national boundaries of the Republic of China, and that is a well-known fact, ……” and so on.52

2 Epistemological Foundation and Political Prerequisite for Aligning Cross-Strait Political Relations The alignment of political relations itself is a question of a high degree of value judgment and value selection. The selection of a certain ideology or political preference will result in opinions about the alignment of political relations. Nevertheless, due to the great differences between the mainland and Taiwan in ideology and the absolute opposition between opinions advocating reunification or “independence” within the island, political figures should determine the alignment of political relations across the Strait on the basis of the accurate alignment of objective facts and the correct understanding of reality, instead of just a certain ideology or political preference. Without a correct understanding of objective historical facts, it would be impossible to understand the nature and possible future development of the present cross-Strait relations, and the various modes for alignment proposed would probably be reduced to the self-imagination of political figures and scholars. In addition, despite the crossStrait dispute over specific formulations in the “1992 Consensus” (i.e., The situation of “one consensus with separate interpretations” still exists), there is no dispute between the two sides in terms of adhering to the “1992 Consensus.” However, the “1992 Consensus” still needs further clarification despite the word “consensus” in its name. The analysis of the reason for differentiation of understanding and identification with the “1992 Consensus” from its structure (rather than political stand) lies in the fact that the “1992 Consensus” itself is not an independent thesis but a dual structure of ontology and methodology. In ontology, the “1992 Consensus” is manifested as recognition of a certain political consensus, i.e., The political principle of “one China.” In methodology, with the process of its conclusion, the “1992 Consensus” clarifies the procedures and methods for the two sides to form a consensus. The dual structure of the “1992 Consensus” serves as a good analytical framework for understanding the “1992 Consensus” as the prerequisite for the alignment of crossStrait political relations. In this sense, the basic thinking method of the alignment of cross-Strait political relations and the pursuit of a reasonable mode for the alignment of political relations must be based on correct determination of the nature of objective historical facts and the status quo of cross-Strait relations, with the ontological and methodological deconstruction of the “1992 Consensus”, to deduce the basic thinking method of the alignment of cross-Strait political relations.

52

See Zhu Songling, Study of the Constitutional Issue of National Reunification, Hong Kong Social Sciences Press, 2011, 49.

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87

2.1 Epistemological Foundation: “Political Confrontation Theory” In fact, leaders across the Strait have relatively clear understandings of objective historical facts. On April 13, 2008, during his visit to the mainland, Mr. Siew Wanchang proposed the “sixteen-character phrase” of “squarely face reality, open up to the future, shelve disputes and pursue a win–win situation”, which was later recognized and mentioned repeatedly by then leader of the Taiwan Region Ma Ying-jeou.53 The mainland, however, prefers to demonstrate the blood relationship between the two sides from historical origins to check “Taiwan independence” and consolidate the historical foundation for the peaceful development of cross-Strait relations. Nevertheless, there still exists a certain disparity between the clarity of expositions of “objective historical facts” by leaders across the Strait. Even though Taiwanese politicians have proposed to “squarely face reality”, out of consideration for factors including sentiments within the island and feelings on the mainland side, its “realistic” implication remains unclear. However, observation from the mainland perspective shows to “squarely face reality” seems to require the mainland to “squarely face” the “reality” of “divided sovereignty and separate governance” across the Strait and that Taiwan has already become an “independent entity.” Of course, considering political strategies, Taiwanese politicians can also strike a balance between political forces within the island and the mainland with “one reality with separate interpretations”. Such balance satisfies certain political needs but of no benefit to clarifying the “objective historical facts” across the Strait. In contrast, the mainland has expounded on the “objective historical facts” of cross-Strait relations quite clearly. On December 31, 2008, at the gathering to commemorate the 30th anniversary of the NPC Standing Committee issuing “Message to Compatriots in Taiwan”, Hu Jintao came up with the viewpoint that the nature of cross-Strait relations is a state of “political antagonism”, which conveys the determination of the nature of “objective historical facts” on the mainland side. The “political antagonism theory” is the mainland’s latest proposition in the alignment of political relations, and its main content is54 : Although the mainland and Taiwan have not yet been reunited since 1949, the circumstances per se do not denote a state of partition of Chinese territory and sovereignty. Rather, it is merely a state of political antagonism that is a legacy—albeit a lingering one—of the Chinese civil war waged in the mid- to late 1940s. Nevertheless, this does not alter the fact that both

53

For instance, Ma Ying-jeou reiterated the “sixteen-character phrase” during his speech on May 20, 2008, and again on October 10, 2011 at his speech commemorating the 100th anniversary of the 1911 Revolution proposed that “people of the two sides both belong to the Chinese nation; on the basis of facing reality, hope the two sides can seek common ground while reserving differences, help and cooperate with each other, and establish an institutionalized peaceful relationship.” 54 See Hu Jintao, “Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan”, People’s Daily (January 1, 2009).

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3 Base: Alignment of Cross-Strait Political Relations the mainland and Taiwan belong to one China. For the two sides of the Strait, to return to unity is not the recreation of sovereignty or territory, but an end to political antagonism.

The basic position of the “political antagonism theory” on the alignment of the political relations between the mainland and Taiwan can be summarized as follows: the political relations between the mainland and Taiwan are in nature a relationship of political antagonism within a state, and the political relations between the mainland and Taiwan should be aligned to end such political antagonism; as to which mode is to be adopted to align the political relations between the mainland and Taiwan, it should be decided by the two sides through pragmatic explorations. The “political antagonism theory” is proposed under a distinct historical background; it reflects the result of the mainland’s comprehensive reflections on the evolution of cross-Strait relations since 2000 and even 1990 and presents the mainland’s expectations for the peaceful development of cross-Strait relations after changes in the political situation of the Taiwan Region. In terms of the alignment of cross-Strait political relations, the connotations of the mainland’s “political antagonism theory” can be understood from the following four aspects: First, we retrieve the historical relevance between the two sides, which has already been blurred and severed by separatists advocating “Taiwan independence.” Since 1990, amid the commotion of “constitutional reform”, with the aid of “localization” and “democratization”, “Taiwan independence” separatists have gradually developed into a political force strong enough to sway Taiwan’s political situation. During this period, representative figures of “Taiwan independence” separatists, including Lee Teng-hui and Chen Shui-bian, came up with “Taiwan independence” propositions, including the “two states” theory and “one country on each side”, successively, thus changing the one-China position upheld by the Taiwanese authorities prior to 1990. Objectively speaking, the “Taiwan independence” opinions advocated by “Taiwan independence” separatists are accompanied by a whole set of “Taiwan independence” theories, which are quite inflammatory for some Taiwanese people. Among all kinds of “Taiwan independence” theories, some theories work by rewording and distorting the history across the Strait, such as “Taiwan’s nation-state identity theory”, “external regime theory” and “political resistance culture theory.”55 Through the reinterpretation of historical facts, these “Taiwan independence” theories have blurred and severed the historical relevance between the two sides to a considerable extent, and under the operation of representative figures of “Taiwan independence”, such theories have been transformed from a purely academic view into a discourse system with certain political connotations. The “political antagonism theory” has accurately summarized the immediate cause for the status quo across the Strait and retrieved the historical facts shadowed by “Taiwan independence” theories in an attempt to figure out the close ties between the two sides in history by facing the relationship of “political antagonism” squarely, thus providing a necessary framework for describing and expounding on the facts in the alignment of cross-Strait political relations. 55

See Zhu Jie, “Analysis of Taiwan’s Nation-state Identification”, in Zhou Yezhong and Zhu Jie, Legal Reflections on Cross-Strait Relations, Hong Kong Social Science Publishing House, 2010.

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Second, define the boundaries of identification on the national level and cultivate identification with the state following the path of national identification. On May 20, 2008, as the newly elected leader of the Taiwan Region, Ma Ying-jeou proposed “people across the Strait belong to the same Chinese nation” (the “same belongingness” theory) during his inauguration ceremony, which is a thinking method for the alignment of cross-Strait relations. The “same belongingness” theory of positive significance indicates that the new leader of Taiwan has changed the complete and absolute “Taiwan nation-state” stand in the past and recognized the national symbol of the “Chinese nation”, which also provides another choice for building the foundation for the peaceful development of cross-Strait relations. Nevertheless, the “same belongingness” theory is still recognized at the national level and does not reject separation at the state level. For instance, during the Cold War period, the Federal Republic of Germany constructed a framework for its relationship with the German Democratic Republic according to the “nation-state” structure of “one nation, two states.” The “two Germanies” mode was once held up by some Taiwanese politicians and scholars as a classic mode for resolving the alignment of political relations within a divided state. Therefore, if we do not specify the boundaries of national identification, the alignment of cross-Strait political relations may slide toward “two states” under the symbol of the “Chinese nation.” In terms of political strategy, the “political antagonism” theory can be interpreted as a response to the “same belongingness” theory. By explicitly pointing out that the nature of cross-Strait relations is political antagonism instead of a state of partition of Chinese territory and sovereignty, the “political antagonism” theory thus delimits national identification with “undivided territory and sovereignty.” Under the “political antagonism” theory, by means of the discourse of Taiwan’s leader on national identification, the two sides can gradually place “nation” and “state” within the same discourse framework to cultivate common identification with the state symbol of “China” across the Strait. Third, the ice-breaking of cross-Strait negotiations on specific affairs lay the necessary groundwork for political negotiations. In March 2008, the political situation of the Taiwan Region changed in favor of cross-Strait relations; under the joint efforts of cross-Strait leaders, the ARATS and the SEF resumed negotiations on specific affairs that had been suspended for a decade, with milestones achieved. By virtue of the cumulative effect of cooperation on specific affairs and the promotion by political figures across the Strait, negotiations on specific affairs will definitely “overflow” into political negotiations.56 Even though the framework for peaceful development of cross-Strait relations follows the path “from economy to politics, from easy to difficult”, shortly after the ice-breaking of cross-Strait negotiations on specific affairs, the discussion on political negotiations is only of theoretical and publicity significance; however, to lay the necessary groundwork for political negotiations is still imperative. The alignment of political relations across the Strait is the thorniest

56

The expression of “overflowing” is based on the relatively mature theory of neo-functionalism in the European integration. See Zhou Yezhong and Zhu Jie, “On the Implication of the Framework for Peaceful Development of Cross-Strait Relations”, Present Day Law Science 1 (2009).

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issue in cross-Strait political negotiations except for the one-China principle.57 The “political antagonism theory” clearly states the mainland’s viewpoint on the alignment of cross-Strait political relations, and, unlike customary political discourse that expounds on the right and wrong in the Chinese civil war, it describes the lingering consequences of the civil war between the KMT and the CPC with relatively neutral words such as “political antagonism.” Within the discourse framework of “political antagonism theory”, since highly sensitive topics including “sovereignty”, “territory” and “state” have been replaced by “political antagonism”, both sides are endowed with the discourse prerequisite to “sit down and talk.” Therefore, the “political antagonism theory” actually enables the two sides to conduct political negotiations in a relatively loose political environment through the mainland’s relatively neutral determination of the objective history. In a manner of speaking, the “political antagonism theory” has provided the preliminary thinking direction for resolving the main problem in cross-Strait political negotiations and even provided topics for discussion in political negotiations across the Strait on the alignment of poetical relations. Fourth, bind cross-Strait relations to the KMT-CPC relations in the expectation that the Kuomintang can make a positive response. As mentioned above, “two parties” used to be the basic mode for the alignment of cross-Strait relations. Resolving the national unification issue through the third KMT-CPC cooperation was also one of the options for the mainland to resolve the Taiwan issue. With the development of party politics in the Taiwan Region and the rotation of ruling parties in 2000, the “two parties” mode lost its foundation. Perhaps the “two parties” mode for the alignment of cross-Strait relations will die out with changes in the political situation across the Strait; however, the “two parties” mode as a mechanism for interaction will not necessarily exert a positive influence on the alignment of cross-Strait political relations. In fact, during negotiations on specific matters, the Kuomintang and the Communist Party of China played an important yet special role through the interparty interaction mechanism. In 2008, the Kuomintang came back to power in Taiwan, which provided a historical opportunity for the mainland to launch political negotiations with the interparty interaction mechanism between the Kuomintang and the Communist Party of China. For this purpose, in the “political antagonism theory”, the mainland binds cross-Strait relations to the KMT and the CPC as the two sides of the civil war with the expression of “a state of political antagonism that is a legacy—albeit a lingering one—of the Chinese civil war waged in the mid- to late 1940s”, thereby bringing cross-Strait relations back to the age when the KMT and the CPC played a leading role, after 8 years with the Democratic Progressive Party in office. In a relatively esoteric manner, the “political antagonism theory” expresses the mainland’s expectations for the Kuomintang. The application of this strategy provides a new option for alleviating the cross-Strait contention about their political relations beyond political negotiations across the Strait. Based on the above exploration of connotations of the “political antagonism theory”, it can be seen that from a realistic perspective, the “political antagonism theory” has defined the “objective historical facts” of cross-Strait relations in a quite 57

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 343.

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neutral manner, with the elucidation of and hints for the prospect and method of the alignment of cross-Strait political relations. The “political antagonism theory” has provided an epistemological foundation for this study to discuss the alignment of cross-Strait political relations, and it will continue the train of thought of the “political antagonism theory” to propose and demonstrate the thinking method for the alignment of cross-Strait political relations, following the logic set by this theory.

2.2 Political Prerequisite: The “1992 Consensus” The reason for the conclusion of the “1992 Consensus” is that regarding the issue of how to regard the political status of each other after the two sides resumed exchanges, a prerequisite framework must be formed across the Strait. Since 1987, the Taiwan authorities have lifted the ban on family visits to the mainland, and the exchanges between the mainland and Taiwan have thus been resumed. The earliest contact between the two sides occurred between functional organizations. In 1989, the sports organizations across the Strait reached a consensus on under which title should Taiwan participate in international sports events, and it was agreed that Taiwan could join the International Olympic Committee and various sports events in the name of “Chinese Taipei.” In September 1990, the Red Cross organizations from both sides of the Strait conducted negotiations in Kinmen on the repatriation of illegal immigrants and concluded the Agreement Signed in Kinmen by Red Cross Organizations Across the Strait Concerning Repatriation Via Sea Routes, which is the first agreement on specific affairs signed between the mainland and Taiwan.58 Such contacts and agreements were exchanges conducted by functional organizations across the Strait. After 1990, the Association for Relations Across the Taiwan Straits (ARATS) and the Straits Exchange Foundation (SEF) were established in Taiwan and the Mainland successively, and preparation was made for comprehensive and all-round negotiations on specific affairs across the Strait. This view is demonstrated in the text of the Agreement of Wang-Koo Talks. Due to the long-term isolation and opposition between the two sides, the mainland and Taiwan have different understandings as to how to regard the political status of the other side. Simply put, the civil war thinking is continued, with the other party recognized as an “insurgent body.” This political alignment is apparently of no help to conduct comprehensive and all-round negotiations on specific affairs across the Strait. Therefore, the formation of a discourse on how the two sides regard the political status of each other that is acceptable to both and the shelving of some sensitive political issues provide prerequisites for the negotiations on specific affairs about to be initiated across the Strait. Since the fundamental dispute across the Strait at that time does not lie in “one China”, but “who is China”, the one-China principle has become the greatest common ground 58

Zhang Huiling, “Comparison Between the Integrative Negotiation Process of the EU’s ‘Common Foreign and Security Policy’ and the Experience of Negotiations Across the Taiwan Strait”, PhD diss., The Institute of Mainland China Studies of National Sun Yat-sen University, 2002, 136.

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acceptable to both. As to how the two sides should express the question of “who is China” within the one-China framework, it is among the sensitive issues that can be shelved temporarily. For the mainland, the meaning of “one China” as a specific political term is not fixed and unchangeable. On September 30, 1956, when talking with President Sukarno of Indonesia, Chairman Mao Zedong developed the formulation of “one China” for the first time: “There can only be one China in the United Nations, not ‘two Chinas’, and that China is us.59 In President Mao’s formulation, “one China” means “one People’s Republic of China.” Equating “one China” with “one People’s Republic of China” is confirmed by an official document—the 1982 Constitution. In the 9th paragraph of the Preamble of the 1982 Constitution, it is explicitly stipulated that Taiwan is part of the sacred territory of the People’s Republic of China. The above regulation of the 1982 Constitution also confirms the one-China principle in fundamental law. In the literature on subsequent policies of the mainland toward Taiwan, the equation of “one China” with “one People’s Republic of China” is continued. For instance, during his talks with the American guest Yang Liyu in 1983, Deng Xiaoping mentioned, “Systems can be different, but it can only be the People’s Republic of China that represents China internationally.”60 After the “1992 Consensus” was reached in 1992 across the Strait, the one-China principle was finetuned on the basis of the formulation in the 1982 Constitution. According to the White Paper on the Taiwan Issue and Reunification of China issued by the Chinese government in 1993, the one-China principle was completely expressed as the OneChina Syllogism (I): “there is only one China in the world; the People’s Republic of China is the sole legal government of China; Taiwan is a part of China.” Compared with the 9th paragraph of the 1982 Constitution, in the One-China Syllogism (I), the equation of “one China” with “one People’s Republic of China” is limited to the issue of Chinese representation, which remains consistent with the speech of Deng Xiaoping in 1983, while in the relationship between China and Taiwan, according to the “1992 Consensus”, it is defined as “Taiwan is a part of China”, and the formulation in the 9th paragraph of the 1982 Constitution is not continued. However, despite the fine tuning of the 9th paragraph of the 1982 Constitution by the One-China Syllogism (I), if we connect the second and third clauses for interpretation, it is not difficult to conclude that “Taiwan is a part of the People’s Republic of China.” In “Jiang Zemin’s eight-point proposal” in January 1995, it was not pointed out that the “China” in the one-China principle is the People’s Republic of China. In 1998, at the gathering to commemorate the 3rd anniversary of “Jiang Zemin’s eightpoint proposal”, Qian Qichen proposed the One-China Syllogism (II), “There is only one China in the world; Taiwan is a part of China; China’s sovereignty and territorial integrity are indivisible.” Based on “Jiang Zemin’s eight-point proposal” and the One-China Syllogism (II) formed under its guidance, the symbol of regime is removed from the one-China principle, with insistence on identity construction on the state level. In October 1998, then President of the Association for Relations 59 60

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 303. Selected Works of Deng Xiaoping, Vol. 3, People’s Publishing House, 1993, 30.

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Across the Taiwan Straits Wang Daohan proposed an 86-character explanation of “one China”61 : We hold that there is only one China in the world, and Taiwan is a part of China, which is yet to be reunified. The two sides should make joint efforts to go for negotiations and discussions based on equality on reunification under the one-China principle. A nation’s sovereignty and its territory are inseparable. Taiwan’s political status should be discussed on the basis of the one-China principle.

These 86 characters reveal the mainland’s many viewpoints and new understandings regarding the connotations of “one China” and render its connotations more ambiguous and flexible.62 In September 2000, Qian Qichen proposed the One-China Syllogism (III) to make the connotations of “one China” even more ambiguous, which is recognized by the 16th and 17th CPC National Congress and became the mainland’s official explanation of “one China.” Until 1992, the Taiwan authorities’ understanding of the one-China principle had been largely identical to the mainland’s but with minor differences: “largely identical” because the Taiwan authorities remained consistent with the mainland in the general direction of upholding the one-China principle; “minor differences” refer to that the “one China” according to the Taiwan authorities’ understanding is the “Republic of China” established in 1912. In 1992, in the “Position Paper on Conclusion of the Implications of ‘One China’” by the “National Unification Council” of the Taiwan authorities, “one China” is reexplained with the method of separating “sovereignty” and “governance power.” According to this “Position Paper”, “one China” should refer to the “Republic of China” established in 1912, and “it claims sovereignty over the entire China, but at present its governing power is confined to Taiwan, Penghu, Kinmen and Matsu only.”63 Even so, the “Position Paper on Conclusion of the Implications of ‘One China’” still makes its purpose clear at the very beginning by declaring that “both sides of the Strait uphold the one-China principle.” This shows even though at this point the Taiwan authorities understood the connotations of “one China” differently, they were still able to uphold the one-China principle in terms of the general principle and direction. In 1994, the “Mainland Affairs Council” of the Taiwan authorities issued the “Specifications on Cross-Strait Relations” and began to distort the one-China principle that they repeatedly stated in previous policy documents. In the “Specifications on Cross-Strait Relations”, the Taiwan authorities defines “one China” as “China in terms of history, geography, culture and blood relationship”,64 instead of “China in terms of politics”, thereby erasing the sense of 61

Wang Daohan, “Statement Outline for the Meeting Between Wang Daohan and Koo Chenfu”, data source: http://www.gwytb.gov.cn/lasht/lasht0.asp?last_m_id=236, the last access date: January 20, 2019. Later these “86 characters” were published by the People’s Daily, and became the mainland’s official definition of the implications of “one China” at that time. 62 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 324–326. 63 “National Unification Council” of the Taiwan authorities, “Conclusion of the Implications of ‘One China’” (1992). 64 “National Unification Council” of the Taiwan authorities, “Specifications on Cross-Strait Relations” (1994).

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nation of “one China.” In July 1999, Lee Teng-hui proposed the “special two states theory”, which indicates that the cross-Strait dispute over “one China” has shifted from “dispute over connotation” to “dispute over principle.” At this point, whether “one China” refers to the People’s Republic of China or the “Republic of China” or even “China in the cultural sense” is no longer the center of cross-Strait dispute—the focus of cross-Strait dispute over the “one China” issue has become the recognition of “one China.” Since 2000, Taiwan has stopped mentioning “China”, but gradually shaped the “Republic of China” into a political symbol that can be “interpreted separately” through constant revision of the connotation of the “Republic of China.” The above changes in the attitude of the Taiwan authorities toward “one China” mainly occurred in the policy field; in the legal field, the current “Constitution” of Taiwan still upholds the one-China principle based on the view of separation between “sovereignty” and “governing power”, and therefore provides a precondition for the remaining connection between the two sides in the one-China principle. From the perspective of the alignment of cross-Strait political relations, the oneChina principle has two meanings. First, the one-China principle is the basic principle and political prerequisite that must be upheld in the alignment of cross-Strait political relations. It must be upheld as the basic principle and political prerequisite, and any alignment mode of cross-Strait political relations that may weaken, sway or distort the one-China principle cannot be accepted by both sides of the Strait. It is the bottom line of the one-China principle in the alignment of cross-Strait political relations. Second, the understanding of the one-China principle should be flexible. Under the premise of sticking to the political bottom line, the one-China principle should be understood pragmatically with possibilities of the application of various strategies, and it is allowed to choose a more flexible and changeable alignment mode within the framework of the one-China principle through a phased and functionalized method.65

2.3 Methodology of the “1992 Consensus”: Negotiation in the Spirit of “Expanding Common Ground and Setting Aside Differences” From the process of its formation, the “1992 Consensus” reflects the mainland and Taiwan’s pragmatic attitude of seeking common ground while setting aside differences. Since 1991, it has served as an organizational structure for the two sides to 65

About this part, there are no ready illustrative examples due to the status quo of the development of cross-Strait relations; it may as well be understood with the following example: in 2003, Qian Qichen proposed at the forum held in commemoration of the 8th anniversary of “Jiang Zemin’s eightpoint proposal” that, “The three links are cross-Strait affairs and an economic issue; discussions on the three links are not political negotiations, and may not involve the political implication of one China.” “Continuing to Strive Toward the Reunification of China; Forum in Commemoration of the 8th Anniversary of President Jiang’s Important Speech Held by Various Circles of the Capital”, data source: http://www.gwytb.gov.cn/seek/qft0.asp?zyjh_m_id=630&pge=zyjh, the last access date: January 20, 2019.

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conduct negotiations on specific affairs. Nevertheless, the two sides still have different understandings of the connotations of “one China”, and such disputes constitute the greatest obstacle in cross-Strait negotiations on specific affairs. To resolve this issue, the mainland and Taiwan have carried out multiple rounds of contact. The earliest problem of this kind occurred in November 1991, during the procedural negotiation on joint prevention and control of maritime crimes between the Straits Exchange Foundation of Taiwan and the Taiwan Affairs Office of the State Council PRC. Then, Deputy Director of the Taiwan Affairs Office Tang Shubei hoped to confine cross-Strait cooperation to the provincial level between Fujian and Taiwan under the premise of “one China”, but it was refused by the Taiwan side. Then, Secretary General of the SEF Chen Chang-wen proposed establishing “equality and mutual benefit” under “one China” to establish “equal” relations across the Strait.66 Even though no consensus has been reached on the main subject under discussion during this brief negotiation, “separate interpretations” have begun to take shape across the Strait regarding the one-China principle. The moment of formation of the “1992 Consensus” occurred during the discussion between the two sides on the verification and use of documents and the inquiries about and compensation for indirect registered letters. From the beginning, the SEF had insisted that the one-China principle is irrelevant to “technical affairs”, including the use of documents.67 As a result, no specific agreement was reached during these talks. After the meeting, Standing Deputy Chairman of the ARATS Tang Shubei pointed out: “The one China issue should not plague consultations and negotiations across the Strait. The two sides are yet to be reunited, but we are one nation. We maintain a firm stance on this principle, and we are willing to discuss the form to be taken by this principle.”68 Meanwhile, Tang Shubei also pointed out, “We are not discussing political issues with the SEF. We just need to confirm a fact, which is that there is only one China. Regarding the connotation of one China, we are neither prepared nor planning to discuss it with the SEF.69 On May 19, 1002, the research institute “National Unification Council” of the Taiwan authorities discussed “one China”, believing that “the fact that the two sides have been divided since 1949 cannot be denied, and at the present stage of division, the issue of China’s sovereignty should be suspended or frozen.”70 On August 1, 1992, the resolution of the “implications of ‘one China’” was passed by the “National Unification Council” of the Taiwan authorities. In response, the ARATS pointed out, “In the ‘conclusion’ regarding the implications of ‘one China’ reached by the parties concerned of Taiwan during negotiations with us on agreements on specific affairs, it is confirmed that ‘both sides of the Strait uphold 66

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 306. He Zhenzhong and Yin Naixin, “Proposed Just as Expected; Each with a Different Explanation to Break the Deadlock”, Union Daily News (March 24, 1992). 68 See Xu Shiquan, “The ‘1992 Consensus’: Review and Analysis of SEF and ARATS Negotiations”, Taiwan Studies 4 (2000). 69 See Xu Shiquan, “The ‘1992 Consensus’: Review and Analysis of SEF and ARATS Negotiations”, Taiwan Studies 4 (2000). 70 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 307. 67

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the one-China principle.’ We believe to clarify this point is of great significance to cross-Strait negotiations on specific affairs, as it indicates that it has become a consensus across the Strait to uphold the one-China principle in negotiations on specific affairs. However, of course, I disagree with the parties concerned of Taiwan on their understanding of ‘one China’, ……, in negotiations on specific affairs, so long as the basic attitude of upholding the one-China principle is made clear, we can avoid discussing the implications of one China.”71 On September 17, 1992 in Hong Kong, Zou Zhekai, Vice Chairman and Secretary General of the ARATS advised the SEF to “seriously consider directly citing the statement that ‘both sides of the Strait uphold the one-China principle.’”72 On October 28, 1992, representatives of ARATS and SEF conducted consultations and negotiations in Hong Kong on the subject of how to overcome cross-Strait differences about the “one China” issue in negotiations on specific affairs. ARATS and SEF proposed five plans of expression in words, and the SEF added three more expressions. See the following table for details (Table 2)73 : However, the negotiation process was extraordinarily arduous, as the two sides failed to reach a consensus on any of the thirteen expressions above, but at least their stances were brought closer. On October 29 and November 2, 1992, the ARATS wrote to the SEF twice, suggesting an evaluation of the negotiation results and further consultations regarding relevant issues in Beijing or Taiwan, Xiamen or Kinmen, with agreements to be signed by the persons in charge of ARATS and SEF. On October 31, 1992, the SEF came up with the third version after revision as mentioned above, and the ARATS expressed by releasing news through the Xinhua News Agency that it was willing to respect and accept the expression of the one-China principle by SEF and ARATS through respective oral statements and suggested further negotiations on the specific content of expression. On the same day, the SEF issued a press release to accept the opinion of the ARATS. On November 16, the ARATS wrote a letter in reply to the SEF to express its respect for and acceptance of the SEF’s suggestion about “expression of the one-China principle through respective oral statements of ARATS and SEF.”74 At this point, the “1992 Consensus” of historical significance was reached. 71

See Xu Shiquan, “The “1992 Consensus”: Review and Analysis of SEF and ARATS Negotiations”, Taiwan Studies 4 (2000). 72 See Xu Shiquan, “The “1992 Consensus”: Review and Analysis of SEF and ARATS Negotiations”, Taiwan Studies 4 (2000). 73 The five versions of the mainland were proposed by the CPC Central Committee in March 1992, and the ARATS was authorized to publish and adopt in due course; the five versions of the Taiwan Region were proposed in April 1992, and the SEF was authorized to adopt with discretion. However, both the ARATS and the SEF proposed them at the meeting in October 1992. Based on the “Historical Truth of ‘One China with Separate Interpretations’” by Zheng Anguo. See Zheng Anguo, “Historical Truth of ‘One China with Separate Interpretations’”, in Su Qi and Zheng Anguo ed., Historical Facts of the Consensus on “One China with Separate Interpretations, Hanlu Book Publishing Co., Ltd., 2003, 9–13. 74 See Zheng Anguo, “Historical Truth of ‘One China with Separate Interpretations’”, in Historical Facts of the Consensus on “One China with Separate Interpretations”, ed. Su Qi and Zheng Anguo (Hanlu Book Publishing Co., Ltd., 2003), 13–15.

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Table 2 Expressions of the one-China principle by ARATS and SEF in 1992 (This table was prepared by the author) Expressions by the ARATS

Expressions by the SEF

The use of documents across the Strait is an internal affair of China

Both sides in line with the principle of “one China, two equal political entities”

The use of documents across the Strait is an affair of China

Both sides in line with the principle of “seeking a democratic and unified China with freedom and equal distribution of wealth, and cross-Strait affair is originally an affair of the Chinese people”

The use of documents across the Strait is an affair of China. Considering the fact that different systems are implemented across the Strait (or to say the nation is not yet completely unified), such affair is special, ……

In view of the long-term state of division across the Strait, during the process of seeking national reunification with joint efforts, both sides believe the issue of the verification of documents (or other matters under negotiation) should be resolved properly

During the process of jointly seeking national reunification, both sides uphold the one-China principle, to solve the problem of the use of notary documents across the Strait (or other affairs under negotiation) properly

Both sides in line with the principle of “seeking a peaceful, democratic and unified China”

The Association for Relations Across the Both sides in line with the principle of Taiwan Straits, the China Notary Association, “seeking peace, democracy and reunification and the Straits Exchange Foundation across the across the Strait” Strait all uphold the consensus on the one-China principle Revised –

In view of the temporary state of division of China, during the process of seeking national reunification with joint efforts, considering the increasingly more frequent people-to-people exchanges across the Strait, the issue of the verification of documents should be resolved properly by the two sides, to protect the rights of interests of people across the Strait The issue of the verification of documents across the Strait is an affair between Chines people During the process of seeking national reunification with joint efforts, even though both sides uphold the one-China principle, their understandings of its implications are different. In view of the increasingly more frequent people-to-people exchanges across the Strait, the issue of the verification of documents should be resolved properly to protect the rights of interests of people across the Strait

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Thus, it can be seen that during the formation of the “1992 Consensus”, the two sides underwent a process of “separate interpretations of opinions—compromises and revisions—acceptance with concessions.” Both sides had realized that it was impossible for the other to accept its own opinions completely and thus adopted a pragmatic attitude. Generally, the “1992 Consensus” has not only established the oneChina principle ontologically but also provided the most basic spirit of negotiation for the two sides to conduct negotiations on specific affairs and possibly political negotiations methodologically. First, the prerequisite for negotiations is upholding the basic political principle. Even though the “1992 Consensus” reflects a pragmatic spirit of seeking common ground while setting aside differences, it does not mean negotiations have no bottom line. In contrast, negotiations surrounding the “1992 Consensus” have a clear political bottom line, i.e., The one-China principle. Therefore, the “1992 Consensus” on the one hand recognizes the reality of “one China” on the basis of objective historical facts, and on the other hand shows relatively great value, i.e., The “1992 Consensus” is a consensus with value orientation toward the one-China principle. The “spirit of seeking common ground while setting aside differences” and the “pragmatic attitude” are not absolutely value-neutral but with methods and strategies of obvious value preferences. Without the one-China principle, the “spirit of seeking common ground while setting aside differences” and the “pragmatic attitude” reflected in negotiations surrounding the “1992 Consensus” will be “a tree without roots and water without a source”, and therefore meaningless. Second, the key to negotiations is looking for the greatest common ground across the Strait. Starting from considerations for one’s own interests, maximizing one’s own interests and striving to achieve the policy goal predetermined by oneself is naturally the main purpose for the two sides to conduct consultations and negotiations. However, if both sides stubbornly persist in their own opinions during negotiations, a consensus will never be reached. As previously mentioned, in 1991, the disparity between the opinions of the two sides on joint prevention and control of maritime crimes were so great that no consensus could be reached at all, and this issue had to be dropped. Therefore, the key to negotiations across the Strait is looking for the greatest common ground between the two sides and expressing it in a manner that is acceptable to both to accumulate the foundation and discourse resources for a consensus to be reached between the two sides. The key to the conclusion of the “1992 Consensus” is that despite the differences and disputes across the Strait regarding the exact meaning of “China”, the two sides did not object to the one-China principle itself. If the research institute “National Unification Council” of the Taiwan authorities believed it was not the negation of the one-China principle that made it appropriate to incorporate “one China” in negotiations on specific affairs, but rather “no consensus would be reached in the short run on the recognition of the meaning of ‘one China’ across the Strait, ……”, etc.75 It was exactly the greatest common ground of “one China” that promoted the smooth conduction of negotiations surrounding the “1992 Consensus.” 75

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 307.

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Third, the important work of negotiations is to figure out cross-Strait divergences. Specifically, after determining the greatest common ground across the Strait, we put the issues related to the greatest common ground in order with this common ground as the backbone and figure out the differences across the Strait behind those issues. Considering the different interests of the mainland and Taiwan, divergences naturally exist across the Strait over the important issue of “one China.” How are the divergences related to the one-China principle, to what degree are they related, and what is the role played by such divergences in the general context of cross-Strait relations are all issues requiring attention during negotiations. Therefore, to figure out crossStrait divergences is not a simple enumeration of such divergences but a systematic arrangement and interpretation of cross-Strait divergences through the explanatory power of theory within a predetermined framework of the greatest common ground to provide necessary materials for the final treatment of these divergences and the formation of a consensus on the basis of the greatest common ground. Fourth, the method of negotiation lies in the main purpose of negotiation to analyze whether specific divergences are within the acceptable scope in the context of the main purpose or whether such divergences can be digested with an appropriate method. The existence of divergences can be considered the greatest obstructive element hindering the conclusion of a consensus. Therefore, the purpose of negotiation is to overcome or evade such divergences as much as possible. Actually, the greatest divergence across the Strait over “one China” is about the implications of “one China”, which is understood differently by the two sides. It is worth mentioning that if we observe “one China” (the greatest common ground) and its important meaning in isolation, the different understandings of the implications of “one China” across the Strait will not be easily excluded, at least not logically possible. Therefore, the “1992 Consensus” is quite successful in that it imbedded the topic of “one China” in the general context of cross-Strait negotiations on specific affairs, which lifted the important status of “one China” and at the same time promoted the resolution of cross-Strait divergences with cross-Strait negotiations on specific affairs as the impetus. Since cross-Strait negotiations on specific affairs do not involve specific political issues, it is totally unnecessary for the two sides to obsess about “one China”; therefore, this issue can be taken off the table for now to be resolved through the method of “separate interpretations.” Since 2013, the connotations of the “1992 Consensus” have been interpreted and developed by General Secretary Xi Jinping to keep abreast of the times. At the “Xi-Ma Meeting” in November 2015, General Secretary Xi Jinping pointed out that the two sides across the Strait should adhere to the “1992 Consensus”, consolidate the common political foundation, continue down the path of peaceful development, deepen cross-Strait exchanges and cooperation, deliver more benefits to compatriots on both sides, and pursue the great rejuvenation of the Chinese nation.76 In October 2017, at the report at the 19th National Congress of the CPC, Xi Jinping pointed out, “The ‘1992 Consensus’ embodies the one-China principle and defines 76

“Xi Jinping Met with Ma Ying-jeou”, data source: http://www.xinhuanet.com//politics/2015-11/ 07/c_1117071846.htm, the last access date: January 22, 2019.

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the fundamental nature of cross-Strait relations; it thus holds the key to the peaceful development of relations between the two sides of the Taiwan Strait. Recognize the historical fact of the ‘1992 Consensus’ and that the two sides both belong to one China, and then our two sides can conduct dialog to address through discussion the concerns of the people of both sides, and no political party or group in Taiwan will have any difficulty conducting exchanges with the mainland.”77 Thus, the leading position of the “1992 Consensus” has been further consolidated. During the speech commemorating the 40th anniversary of issuing Message to Compatriots in Taiwan, General Secretary Xi Jinping reiterated: we solemnly propose that the mainland and Taiwan conduct democratic consultations on cross-Strait relations and the future of the nation and establish institutional arrangement for the peaceful development cross-Strait relations; political parties and all sectors on both sides of the Strait may recommend representatives to conduct extensive and in-depth consultations on the basis of the common political foundation of upholding the “1992 Consensus” and opposing “Taiwan independence.”78 In addition, interpreting the “1992 Consensus” from the perspective of methodology can also effectively respond to the misunderstandings of the “1992 Consensus” by some personages of the Taiwan Region. After the formation of the “1992 Consensus”, because of the one-China principle it contains, “Taiwan independence” separatists have long wanted to see its elimination, and coined phrases such as “1992 spirit”, “1996 consensus” and “Taiwan consensus” in an attempt to poach the status of the “1992 Consensus.” In November 2001, Chen Shui-bian stated that “the acceptance of the ‘1992 Consensus of one China’ is equal to the elimination of the Republic of China.” In April 2006, Chen Shui-bian negated the “1992 Consensus” again. In October 2010, when interviewed by former Vice President of the Republic of China Lu Hsiu-lien, Chen Shui-bian once again stated, “the ‘1992 Consensus’ of one China with separate interpretations is the biggest scam in history.” To obliterate the historical status of the “1992 Consensus”, in 2000, Chen Shui-bian coined the phrase “1992 spirit.” According to Chen Shui-bian’s explanation, the so-called “1992 spirit” implies: the “1992 Consensus” is a “consensus without consensus”, as no consensus was reached in 1992 across the Strait, only the “spirit” of “dialogs, exchanges and shelving disputes.”79 Lu Hsiu-lien also once proposed a hypothetical “1996 consensus”, i.e., “After the election of its first president by Taiwanese people, Taiwan has clearly been established as an independent state, without being controlled by another state, because only the people of an independent sovereign state are entitled to elect a president democratically as the leader of their state.” Then, it happens 77

People.cn, “Xi Jinping’s Report at the 19th National Congress of the Communist Party of China”, data source: http://cpc.people.com.cn/n1/2017/1028/c64094-29613660.html, the last access date: January 17, 2019. 78 “Xi Jinping Attended the Gathering to Commemorate the 40th Anniversary of Issuing Message to Compatriots in Taiwan and Delivered an Important Speech”, http://www.gov.cn/xinwen/201901/02/content_5354209.htm, the last access date: January 21, 2019. 79 “Scholar’s Comment on Chen Shui-bian’s So-called ‘1992 Spirit’: Denial of the One-China Principle in Essence”, data source: http://www.China.com.cn/zhuanti2005/txt/2000-08/08/content_5 002698.htm, the last access date: January 20, 2019.

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that during the post-Chen Shui-bian period, President of the Democratic Progressive Party Tsai Ing-wen also denied the “1992 Consensus.” In August 2011, in the “ten-year political platform” for running for office, Tsai Ing-wen came up with the phrase “Taiwan Consensus”, and Tsai’s proposition of “Taiwan consensus” was used as an important slogan during her election campaign for the presidency of Taiwan in 2012. According to Tsai Ing-wen, the “1992 Consensus” is a consensus reached between the Kuomintang and the Communist Party of China, not a consensus across the Strait. Since no consensus has been reached within Taiwan on Mainland China, the Taiwan authorities cannot carry out relevant negotiations; therefore, it is hoped that a consensus can be formed within Taiwan first through “democratic procedures,” which shall serve as the foundation for negotiations with Mainland China. Of course, the so-called “1992 spirit”, “1996 consensus” and “Taiwan consensus” above are just a game of words. In 2016, during her inaugural address as leader of Taiwan, Tsai Ingwen described the “1992 Consensus” as a “historical fact”, which is negation of the “1992 Consensus” in disguised form, and merely proposed that the two sides should “maintain the status quo.” During Tsai’s term in office, the Tsai Ing-wen administration repeatedly declared that the “1992 Consensus” is “one country, two systems” in an attempt to mislead people within the island by mentioning these two in the same breath. After General Secretary Xi Jinping delivered the speech commemorating the 40th anniversary of issuing Message to Compatriots in Taiwan, Tsai Ing-wen even made the radical statement that the “1992 Consensus” would never be accepted. Facts have proven that the “1992 Consensus” has withstood the impact of various fake consensuses, false concepts and negation in disguise. Understanding the “1992 Consensus” from the methodological perspective can not only consolidate the ontological implications of “one China”, but more importantly, it brings us back to the moment of formation of the “1992 Consensus”, so that its connotations can be more consistent with the historical facts of its formation, thus preventing certain Taiwanese personages from distorting and even negating the “1992 Consensus” by exploiting the forming process of the “1992 Consensus.” On the whole, the spirit of negotiation embodied in the “1992 Consensus” is to remain persistent in attitude and seek common ground but also set side differences in method, based on the resolution of problems and its implementability, to avoid unnecessary disputes over concept during the development of cross-Strait relations. This position and the abovementioned strategies also provide beneficial enlightenment for determining the basic ideas for the alignment of cross-Strait political relations.

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3 Proposition of the “Two Sides” Mode and Its Connotations 3.1 The Cross-Strait Power System and Its Impact on Aligning Political Relations (1) “Cross-Strait Power System” and Its Functions When analyzing the reason for the formation of the European Union, Taiwanese scholar Su Hongda has pointed out that since the late Medieval Ages, Europeans have formed the dream of establishing a unified “Europe” on the European continent, while the European Integration movement starting from 1950 was their last hope, i.e., The so-called “European dream” of Europeans. After over 600 years of development, especially after going through the ordeal of the two world wars in the twentieth century, the “European dream” has gradually become a belief system. Nevertheless, based on the self-interest principle, the European countries had been unwilling to transfer their sovereignty for European integration, and the reason for the eventual conclusion of an agreement was that there was no other way to guarantee lasting peace in Europe except for participating in the construction of the European Union.80 In other words, the motivating power for European integration comes from the structural restriction and guidance of the entire European Union. With an obstinate nature of pressure resistance, it forces the construction work to stagnate or temporarily hold it back but eventually pushes it forward, while this support and resistance to pressure comes from the belief system at the very core of European integration, i.e., The “European dream.”81 On its basis, Su Hongda has drawn a conclusion of significance: the motivating power for European Integration lies in its “indisintegratability”; rooted in the European Union, such “indisintegratability” has become a symbol of “peace, reconciliation, cooperation and prosperity” of European, which can further deepen European integration through stimulation when the “existing achievements of the community” are under threat with the fear that the structure of the European Union may be destabilized or even disintegrate.82 This is the European power system. With the above conclusion, Su Hongda has explained the formation process of the European Union and formed a series of general rules, among which the first general rule is of the greatest enlightening significance to the formation of crossStrait consensus. According to Su Hongda’s explanation, European integration is cumulative, with the process of integration directly proportional to time: the longer the process takes, the higher the degree of integration, and the higher resistance of the European Union to pressure. Therefore, the longer the integration takes, the better it 80

Su Hongda, “Interpreting the Development of European Integration with the Concept of ‘Constitutional Sovereignty Construction’”, EurAmerica Vol. 31 4 (December 2001). 81 Su Hongda, “Interpreting the Development of European Integration with the Concept of ‘Constitutional Sovereignty Construction’”, EurAmerica Vol. 31 4 (December 2001). 82 See Hongda, “Interpreting the Development of European Integration with the Concept of ‘Constitutional Sovereignty Construction’”, EurAmerica Vol. 31 4 (December 2001).

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can lead the integration movement, and the lower the impact of other factors. Its route is not straight-line or cyclic but a Hegelian curve of “normal—reverse—conjunction”, similar to the power system of the European Union. Under the promotion of various factors, including history, blood relationships, kinship, interest and peace, the mainland and Taiwan have also formed a cross-Strait power system. The motivating power of the cross-Strait power system mainly originates from the following aspects: first, the “great unification” concept in traditional Chinese culture and the pursuit of the reunification of China formed on its basis constitute the historical motivating power of the cross-Strait power system; second, to maintain stability across the Taiwan Strait and protect the well-being of people across the Strait constitute the realistic motivating power of the cross-Strait power system. Even though both the mainland and Taiwan have attempted to take a position beneficial to themselves according to their respective wishes during the alignment of political relations, considering the possibility of acceptance by the other side, both sides have to adjust their respective positions for the alignment to be accepted by both. The alignment of cross-Strait political relations is under the influence of the cross-Strait power system. Since October 1949, the alignment of political relations between the mainland and Taiwan has undergone five relatively important location moments,83 which are 1955–1963, 1979–1982, 1987–1992, 1995–2002, and 2005 until the present. For the convenience of formulation, in the following, the mainland’s position on the alignment of cross-Strait relations is referred to as the 3normal phase”, Taiwan’s position on the alignment of cross-Strait relations is referred to as the “reversed-phase”, and the result achieved through the cross-Strait power system by the two sides is referred to as the “conjunction.” (2) “Location Moments” in the Alignment of Cross-Strait Political Relations 1955–1963 is the first “location moment” in the ligament of political relations. At that time, the mainland had released the good will of “not ruling out peaceful reunification” (normal phase) in its Taiwan policy, while Taiwan still insisted on “counterattacking the mainland” (reversed-phase) as the main axle of its mainland policy. Under the interaction between the normal phase and the reversed-phase, leaders across the Strait declared on various occasions to not rule out the possibility of resolving the Taiwan issue peacefully. The mainland formed a new Taiwan policy of “one guiding principle and four policies”, while Taiwan also made an adjustment from “military counterattacking” to “political restoration.” Thus, the alignment of political relations between the mainland and Taiwan was transformed from the relatively intense civil war mode characterized by direct military confrontation to the relatively mild civil war mode based on political confrontation (conjunction). 1979–1987 is the second “location moment” in political alignment. At that time, the mainland released its good will by proposing to resolve the Taiwan issue through “one country, two systems (normal phase), while Taiwan still insisted on its “three nos 83

“Alignment moment” is a concept proposed in this book in imitation of the “constitutional moment” proposed by American constitutional law scholar Bruce Ackerman, which refers to the key historical period during the alignment of cross-Strait relations.

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policy” (reversed-phase) and advocated to “reunify China with the Three Principles of the People.” Under the interaction between the normal phase and the reversedphase, the antagonistic atmosphere across the strait was somehow alleviated. In 1982, President Sun Yun-suan of the “Executive Yuan” for the first time did not refer to the mainland as a “bandit-occupied area”, which indicated the loosening of the Taiwan authorities’ position on the mainland. Since then, the Taiwan authorities have gradually given up on the “three nos policy” and resumed contact with the mainland. With the lifting of the ban on family visits to the mainland by the Taiwan authorities in 1987 as the sign, the state of civil war was ended; the mainland and Taiwan no longer took a hostile attitude toward each other and began to resume normal economic and trade exchanges and personnel exchanges (conjunction). 1986–1992 is the third “location moment” in the alignment of political relations. After 1987, the mainland still insisted on the policy of “one country (the People’s Republic of China), two systems” (normal phase), while Taiwan advocated “one China, two governments”, “one China, two areas” and “one China, two entities” (reversed-phase). To conduct normal exchanges on specific affairs, in 1992, the two sides reached the “1992 Consensus”, with at least the one-China principle upheld by both sides, thereby forming a sense of common identity across the Strait on the state level (conjunction). 1999–2002 is the fourth “location moment” in the alignment of political relations. In July 1999, Lee Teng-hui threw out the so-called “two-state theory”, which defines the political relations between the mainland and Taiwan as a “special state-to-state relationship” (reversed-phase). With regard to this situation, the mainland upheld the one-China principle (normal phase) and continued to develop the connotations of “one China” with a pragmatic attitude. In November 2002, the One-China Syllogism (III) was proposed in the report at the 16th National Congress, thereby playing down the subordination of Taiwan to the mainland under the premise of negating the “two-state theory” (conjunction). To date, 2005 is the fifth “location moment” in the alignment of political relations. After 2002, the Chen Shui-bian administration defined cross-Strait relations with “one country on each side”, established the “Referendum Act”, and promoted the “incorporation of referendum into the Constitution” in 2005 (reversed-phase).84 In 2005, the mainland passed the Anti-Secession Law, aligned cross-Strait relations according to the One-China Syllogism (III), and conducted party-to-party exchanges with Taiwan’s main political parties under the premise of upholding the one-China principle. Since April 2005, during the talks with leaders of Taiwan’s political parties and relevant personages, Hu Jintao had used “two sides” as a political concept repeatedly, and in October 2007 officially proposed the strategic conception of constructing a “framework for the peaceful development of cross-Strait relations.” In December 2008, Hu Jintao made it clear in his “six-point proposal” that the essence of the political relations between the mainland and Taiwan is political confrontation, which further strengthened the “two sides” essence of cross-Strait relations. In 2014, when 84

See Zhou Yezhong and Zhu Jie, Study on “Constitutional Reform” in the Taiwan Region, Hong Kong Social Science Publishing House, 2007, 49.

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meeting with the Joint Delegation of Taiwan Peaceful Reunification Association, General Secretary Xi Jinping delivered a speech on the development of cross-Strait relations, during which he restated the one-China structure, and proposed: “The fact that the two sides belong to one China has never changed and will never change. For the two sides of the Strait, to return to unity is not the recreation of sovereignty or territory, but an end to political antagonism.”85 The application of “two sides” as a political concept has also been affirmed by relevant personages in the Taiwan Region and therefore become the best way to replace “one country” at the present stage. Thus, the mainland and Taiwan have formed a consensus on “two sides” in the alignment of political relations (conjunction). All five “location moments” above occurred at important turning points of crossStrait relations. History has proven that the “conjunction” as a result of the interaction between the “normal phase” and the “reversed-phase” has not only pulled the two sides through the key turning points and promoted the development of cross-Strait relations but also placed the political relations between the mainland and Taiwan in a new position. See Table 3. Table 3 describes the curve of “normal—reverse—conjunction” for the alignment of the political relations between the mainland and Taiwan. From the perspective of a cross-strait power system, the release of “two sides” can be interpreted as follows: first, from the formation of the entire cross-strait power system, the release of the category of “two sides” is the result of the continuous cycle of “normal—reverse— conjunction” in the alignment of political relations driven by the cross-strait power system. Second, from the reality of the cross-Strait power system, the release of the category of “two sides” is the result of the interaction between “one China” (normal phase) and “two Chinas” or “one China, one Taiwan” (reversed-phase). Since the category of “two sides” can bridge the discrepancy between the normal phase and the reversed-phase of the alignment of political relations and is acceptable to both the mainland and Taiwan, it is the most realistic choice for cross-Strait relations at the present stage. From this sense, the release of the category of “two sides” is not the contribution of theory but the result of the function of political power. Therefore, theory only functions to interpret the release of the category of “two sides” by political power.

3.2 “Two Sides”: Transformation from a Geographic to a Political Concept When describing the word “Europe”, famous European scholar Fabrice Larat once pointed out: “The evolution of language is like a mirror, through which we can have

85

“Wu Rong-yuan: General Secretary Xi’s Speech Once Again Aligns Cross-Strait Relations Clearly”, data source: http://www.taiwan.cn/xwzx/la/201409/t20140926_7481154.htm, the last access date: January 20, 2019.

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Table 3 The formation of “two sides” for the alignment of the political relations between the Mainland and Taiwan (This table was prepared by the author) “Location moment”

Normal phase

Reverse phase

Conjunction

Result

1955–1963

Peaceful liberation of Taiwan

“Counterattacking the mainland”

Mild civil war mode

Relative stability across the Strait lasting as long as 15 years

1979–1987

“One country (the People’s Republic of China), two systems”

“Three nos policy” “reunifying China with the Three Principles of the People”

Ending the state of “no contact” across the Strait

The Taiwan authorities lifted the ban on family visits to the mainland, and cross-Strait economic and trade relations heated up continuously

1987–1992

“One country (the People’s Republic of China), two systems”

“One country (the “1992 ‘Republic of Consensus” China’), two governments”, “one country (the ‘Republic of China’), two areas” and “one country (the ‘Republic of China’), two entities”

Cross-Strait economic and trade relations heated up continuously, and exchanges on specific affairs such as personnel exchanges became increasingly more active, with a batch of agreements on specific affairs signed across the Strait

1999–2002

One-China syllogism (II)

“Two-state theory”

One-China syllogism (III)

Cross-Strait relations did not go thus far as to fall below the bottom line, peace was maintained across the Taiwan Strait, and cross-Strait economic and trade relations were further promoted

2005-今

One-China syllogism (III)

“One country on each side”

“Two sides”

ARATS and SEF resumed talks, the ban on travel to Taiwan was lifted for mainland residents, and the “three links” were realized

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a thorough grasp of the changes of political order.”86 Similar to the changes of the meaning of “Europe”, the formation of “two sides” is an explanatory note to Larat’s viewpoint. During the past decades, the changes in the semantic meaning of the “two sides” also reflect the development of the alignment of political relations between the mainland and Taiwan. The emergence of the phrase “two sides” itself represents the transformation of cross-Strait relations from the state of “no contact” to “with contact.” Prior to 1987, when the mainland and Taiwan had no contact due to political antagonism, there were only “two parties” and “two sides” within the domain of discourse on the Taiwan issue, but not “both sides.” At that point, “two sides” was not even a geographic concept and did not appear in important statements and speeches of leaders of the mainland and Taiwan. This is because, under the state of no contact, the “mainland” and “Taiwan” had become highly ideological concepts, while highly political words including “two parties” and “two sides” were sufficient to summarize the relationship between the mainland and Taiwan, hence no necessity for and no possibility of the emergence of “both sides.” It was not until 1987 when the two sides resumed contact that “two sides” emerged as a geographic concept and another name of the mainland and Taiwan, as a proper name was needed to facilitate cross-Strait exchanges without interference with any political affairs. With the in-depth development of cross-Strait relations, the phrase “two sides” was gradually transformed from a geographic concept into a political and legal one. In thus far as its formation is concerned, “two sides” is a geographic concept, which is used to describe the mainland and Taiwan located on the two sides of the Taiwan Strait. Nevertheless, when people use the phrase “two sides”, it is often not used as a geographic concept but to refer to a political reality—not only the two sides in the geographic sense but also the “mainland” and “Taiwan” that are yet to be reunified but still belong to “one China.” At this point, “two sides” had been transformed into a political concept. Generally, the phrase “two sides” as a political concept has two usages: first, when used by people as a political concept, technically it does not refer to the area “across the Taiwan Strait”, since the Taiwan Region includes not only the Taiwan Island on one side of the Taiwan Strait but also the three islands of Penghu, Kinmen and Matsu (those three islands are on the mainland’s side geographically, but politically belong to Taiwan); second, “two sides” is used on occasions where it is inconvenient to say “one country”, which makes the geographic concept of “two sides” almost like a political substitute for “one country.” “Two sides” has also been written down in relevant laws of the mainland and Taiwan and become a legal concept. Certainly, “two sides” as a legal concept can only be understood as the political concept of “both sides.” Nevertheless, “two sides” as a legal concept is not entirely the same as the political concept of “both sides.” Even though law is the normative statement of policy, due to the relative stability of law itself, “two sides” as a legal concept often lag behind “two sides” as a political concept in terms of meaning. According to the principle of rule of law, which is 86

[German] Fabrice Larat, “How European Integration Works: Assumption about Analytical Framework”, EurAmerica 2 (2003).

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recognized by both the mainland and Taiwan, only legal provisions on “two sides” can stand for the meaning of “two sides” that is officially recognized by the public power organs of the two sides. Therefore, “two sides” as a legal concept has more reference significance to the alignment of the political relations between the mainland and Taiwan. According to relevant laws of the mainland and Taiwan, “two sides” refers to two areas under the effective jurisdiction of public power organs established pursuant to different fundamental laws (leaving aside the legality of such fundamental law). Thus, it can be seen that within the domain of discourse on the Taiwan issue, “two sides” has gradually become a concept with special implications: as a geographic concept, “two sides” carries people’s understanding of the past of cross-Strait relations; as a political and legal concept, “two sides” embodies people’s reluctance about the status quo of cross-Strait relations and their expectations for the future. Such seemingly contradictory words reflect the profound changes of cross-Strait relations in the past 70 years. In this sense, a mainland scholar has once proposed that the most feasible definition of cross-Strait relations is actually a viewpoint on the relations between “both sides.” According to this scholar, “two sides” is a concept that the two sides have been used to and identified with and a concept of considerable flexibility that conforms to the rule of retaining the “gray zone”; adhering to this definition is the last chance to ensure the stable development of people-to-people and economic and trade exchanges across the Strait.87 In response to the viewpoint of this scholar, Taiwanese scholar Shaw Chong-hai also believes that “two sides” is a neutral and abstract noun, which even implies “equality”, and enjoys a high degree of acceptance in Taipei.88 Obviously, Shaw Chong-hai’s understanding of “two sides” as “equality between both sides” is biased. However, this further proves that the space for the interpretation of “two sides” is large and that the degree of tolerance of “two sides” is high across the strait.89

3.3 Present Stage Feasibility of the “Two Sides” Alignment Model of Political Relations To take “two sides” as the mode for the alignment of political relations at the present station is to define the political relations between the mainland and Taiwan as relations between “two sides” and then to make “two sides” the subject of political exchanges between the mainland and Taiwan. This is not an assumption in this study but a summary of the practice of exchanges between the mainland and Taiwan. After the mainland and Taiwan resumed exchanges, “two sides” have often been used on 87

See Shen Weiping, “How to Align Cross-Strait Relations: Comment on ‘One Country on Each Side’”, China Review 3 (2003). 88 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 374. 89 As to whether the “two sides” mentioned in this book imply “equality across the Strait”, see Chapter IV of this book.

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occasions where it is inconvenient to say “one country” or “two sides.” The relevant agreements concluded between the mainland and Taiwan were also often signed under the name of “both sides.” In the Preamble of the Kinmen Agreement, which is the first agreement between the mainland and Taiwan on specific affairs, it says “representatives of Red Cross organizations across the Strait, …, after adequate exchange of opinions, reached an agreement.”90 Afterwards, some agreements on specific affairs even included “two sides” or “Cross-Strait” in their titles, e.g., Agreement on Using and Checking Notarial Certificates Between the Two Sides of the Taiwan Strait (1993), Cross-Strait Sea Transport Agreement (2008), Cross-Strait Economic Cooperation Framework Agreement (2010), and Cross-Strait Investment Protection and Promotion Agreement (2012). Some activities between the mainland and Taiwan have also included “two sides” or “Cross-Strait” in their names, e.g., Cross-Strait Economic, Trade and Culture Forum,91 and Cross-Strait Legal Forum for Peaceful Development.92 In relevant laws of the mainland and Taiwan, “two sides” has also been used as the name under which negotiations are conducted between the mainland and Taiwan. Article 7 of the Anti-Secession Law stipulates: “The state stands for the achievement of peaceful reunification through consultations and negotiations on an equal footing between the two sides of the Taiwan Strait”, and “The two sides of the Taiwan Strait may consult and negotiate on the following matters, ……”; Article 4-2 of the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” of the Taiwan Region also includes “coordinating the administration of matters related to any agreement making between the Taiwan Area and the Mainland Area.” In the abovementioned usages, “two sides” is not used for the alignment of political relations between the mainland and Taiwan, but as a “title”; nevertheless, since the mainland and Taiwan could not reach a consensus on the alignment of political relations due to their disputes over “state” and “sovereignty”, upgrading this “title” to a “position” might be a viable option. The feasibility of the alignment of the political relations between the mainland and Taiwan with “two sides” at the present stage can mainly be analyzed from the following two aspects: First, the concept of “two sides” accurately summarizes the status quo of the development of cross-Strait relations and is the result of continuous “depoliticization” in the alignment of political relations between the mainland and Taiwan and therefore can be accepted by both sides of the strait. The quintessence of transforming 90

Kinmen Agreement, i.e., The Agreement Signed in Kinmen by Red Cross Organizations Across the Strait Concerning Repatriation Via Sea Routes (1990). The marks of emphasis are added by the author. The text of cross-Strait agreements cited in this book is subject to the text on the website of the Taiwan Affairs Office of the State Council. 91 The “Cross-Strait Economic, Trade and Culture Forum” is a high-level economic, trade and cultural activity held across the Strait based on the consensus reached between CPC and KMT leaders Hu Jintao and Lien Chan in 2005. The first forum was held in Beijing in April 2006. At present, the Cross-Strait Economic, Trade and Culture Forum has become a platform for senior leaders across the Strait to meet and release mutually beneficial policies. 92 The “Cross-Strait Legal Forum for Peaceful Development” is a high-level forum for the law circles across the Strait held by the China Law Society and the Law Association for Relations Across the Taiwan Straits. The first forum was held in Beijing in August 2012.

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the alignment of political relations into a “topic for discussion” is as follows: by “depoliticizing” the highly politically sensitive issue of the alignment of political relations, it allows the mainland and Taiwan to sit down to talk about the alignment of political relations without political burdens. Even though ultimately the alignment of political relations between the mainland and Taiwan must be resolved politically, according to the “topic for discussion” solution, it is pragmatic and feasible to eliminate the interference from political concepts including “state”, “government” and “entity” in the alignment of political relations” by defining cross-Strait political relations with the “depoliticized” concept of “two sides” before the mainland and Taiwan conduct negotiations on the alignment of their political relations. Second, taking “two sides” as the mode for the alignment of political relations between the mainland and Taiwan at the present stage provides conditions for the mainland and Taiwan to conduct consultations and negotiations across the Strait and carry out in-depth negotiations regarding the alignment of political relations. Defining the political relations between the mainland and Taiwan with “two sides” reflects the “phased” solution to the alignment of political relations. Under the premise of the existence of political disputes over “state” and “sovereignty” between the mainland and Taiwan, defining the political relations between the mainland and Taiwan with “two sides” can temporarily shelve sensitive issues, including whether the other side is a political entity and whether the public power organ of the other side is “legitimate”, to avoid the existing political antagonism by touching the sensitive nerves in the alignment of political relations. Therefore, compared with modes including “central vs. local”, “two parties”, “two areas”, “two governments” and “two entities”, the alignment mode of “two sides” is more realistic and operable. Meanwhile, “two sides” is an alignment mode with adequate room for interpretation. Taking “two sides” as the mode for the alignment of political relations between the mainland and Taiwan can provide room for separate interpretations by the mainland and Taiwan to make the strategic transformation from the current “separate interpretations” of “one China” into “separate interpretations” of “two sides”, thus further reducing the sensitivity of the alignment of political relations. Of course, the proposal to take “two sides” as the mode for the alignment of political relations between the mainland and Taiwan at the present stage does not mean the alignment of political relations between the mainland and Taiwan will forever stay with the mode of “two sides.” As mentioned above, “two sides” is the present-stage choice for the alignment of cross-Strait political relations, for the purpose that the mainland and Taiwan can “start the conversation” about political issues including the alignment of political relations under the mode of “two sides.” With regard to the development of “two sides” after serving as the mode for the alignment of political relations, in line with the alignment of relations with “two sides”, the mainland and Taiwan should gradually walk out of the state of political antagonism and conduct even more in-depth dialogs and negotiations through the “ARATS and SEF framework” or public power organs.

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4 The “Two Sides” Mode Under Comparative Viewpoints There has been no lack of creations and imaginations of modes for the alignment of cross-Strait political relations both in history and reality. In the international community, the relationship between the mainland and Taiwan is not a special case; some “divided states” or states with local separatism have had various institutional arrangements for resolving the issue of national unification. From the comparative perspective, conducting internal comparison and external comparison of the “two sides” mode has important theoretical significance and practical significance for deepening the understanding of the characteristics and strengths of the “two sides” mode to further demonstrate the necessity of this mode.

4.1 Internal Comparison of the “Two Sides” Model Internal comparison can be divided into diachronic comparison and synchronic comparison. Diachronic comparison refers to comparison between the “two sides” mode and modes for the alignment of cross-Strait political relations in history. It should be noted that due to the past disputes between the two sides, the modes for the alignment of cross-Strait political relations in history were all proposed based on their respective policy monologues, which reflect the mainland and Taiwan’s thoughts about and expectations for the alignment of political relations when such modes were proposed. It was exactly for this reason that the alignment of political relations between the mainland and Taiwan had never become a mode acceptable to both sides and therefore was never truly implemented across the Strait. This study mainly compares the “two sides” mode with the “lawful government vs. insurgent body” mode, the “central vs. local” mode and the “two parties” mode. Synchronic comparison refers to comparison between the “two sides” mode and the alignment of political relations proposed by the two sides and other modes at present. Through the synchronic comparison of the “two sides” mode, it can be found how tolerant the “two sides” mode is of other modes, hence its important value to demonstrating the feasibility of the “two sides” mode under the current cross-Strait relations. In the alignment of political relations proposed by the two sides at present, the “ARATS and SEF” mode is a framework formed in the practice of cross-Strait exchanges, which is yet to be upgraded to a mode but still an option for the alignment of cross-Strait relations at present. (1) The “Two Sides” Mode and the “Lawful Government vs. Insurgent Body” Mode Prior to 1979, the mode for the alignment of political relations was “lawful government vs. insurgent body” for both the mainland and Taiwan; nevertheless, due to their different positions, the definition of this mode was different across the Strait. The mainland believed that since the establishment of the People’s Republic of China in October 1949, the Central People’s Government of the People’s Republic of China

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had replaced the “National Government” of the “Republic of China” as the sole legal government to represent China, while the “Government” of the “Republic of China” after its retreat to Taiwan had become an insurgent body. This opinion of the mainland was generally acknowledged by the majority of Chinese people and the international community. When referring to the “representatives” of the Taiwan authorities to the United Nations, the United Nations General Assembly Resolution 2758 used “representatives of Chiang Kai-Shek” instead of “representatives of the Taiwan government” or “representatives of the Republic of China government.” For Taiwan, the Kuomintang authorities identified the Communist Party of China as an “insurgent body” in the “Temporary Provisions Against the Communist Rebellion” issued on May 10, 1948, even before the Kuomintang authorities’ escape and retreat to Taiwan. After the Kuomintang authorities escaped and retreated to Taiwan, for a considerably long historical period, Taiwan regarded the mainland as the so-called “enemy-occupied area” and “bandit-occupied area” and the people’s regime under the leadership of the Communist Party of China as an “insurgent body.” On March 11, 1954, the Second Session of the First National Assembly decided to extend the effect of the “Temporary Provisions Against the Communist Rebellion” and subsequently confirmed that after 1949, the People’s Republic of China was still regarded as an “insurgent body” in thus far as the “legally constituted authority” of the Taiwan Region was concerned.93 Prior to 1979, the Taiwan authorities had implemented the so-called “mobilization for the suppression of Communist rebellion” in the “entire China”, including the mainland and Taiwan nominally, claimed its representation of China internationally, and extended the term of the “national” representatives elected on the mainland to demonstrate its “legally constituted authority” in the “entire China.” After 1979, the mainland replaced the alignment mode of “lawful government vs. insurgent body” with the “central vs. local” mode. However, on the basis of its insistence on the “legally constituted authority of the Republic of China”, Taiwan continued the mode of “lawful government vs. insurgent body” prior to 1987. Its “jurisprudential” reflection in the Taiwan Region was that the “legally constituted authority” of the “eternal National Assembly” constructed by the “Interpretation No. 31” made by the “Constitutional Court, Judicial Yuan” had not been dissolved, and the “Temporary Provisions Against the Communist Rebellion” had not been abolished despite multiple revisions to suit the actual situation in the Taiwan Region. It was not until the lifting of the “Order of Material Law” in 1987 and the abolition of the “Temporary Provisions Against the Communist Rebellion” in 1991 that Taiwan officially gave up on the “lawful government vs. insurgent body” mode. The “two sides” mode is fundamentally different from the “lawful government vs. insurgent body” mode. First, the “lawful government vs. insurgent body” mode is war-oriented, while the “two sides” mode aims to maintain the peaceful development of cross-Strait relations. The “lawful government vs. insurgent body” mode is a continuation of civil war thinking and a relatively extreme manifestation of the “recognition dispute.” Under the “lawful government vs. insurgent body” mode, 93

Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 346.

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the only way to resolve the issue of the alignment of cross-Strait political relations is to eliminate the other side by force. Slogans, including the mainland’s “liberating Taiwan” and Taiwan’s “counterattacking the mainland”, are all solutions to this problem proposed by the two sides under the “lawful government vs. insurgent body” alignment mode. In comparison, the “two sides” mode is an alignment mode of political relations oriented toward the peaceful development of cross-Strait relations and an embodiment of the “peaceful development” thinking during the new period in the alignment of cross-Strait political relations. Therefore, under the “two sides” mode, with “two sides” as the greatest common ground, the mainland and Taiwan can put down ideological contention and shelve political disputes to provide room for the two sides to align their political relations as needed by the peaceful development of cross-Strait relations through “transformation into topic for discussion”, “phased solution”, and “consensus building.” Second, the “lawful government vs. insurgent body” mode is an embodiment of the antagonistic values in cross-Strait relations, while the “two sides” mode embodies tolerant and open values. In the “lawful government vs. insurgent body” mode, both the mainland and Taiwan consider themselves to be the “sole legal representative of China” and a “legitimate regime” and therefore call each other the “insurgent body” bluntly. This alignment mode directly turns the two sides against each other and defines the two sides and their relations as “enemy and ourselves”, which embodies antagonistic values. Even though such antagonistic values are not entirely unreasonable on the basis of certain ideologies and specific historic environments, objectively speaking, they are not a positive element for the peaceful development of crossStrait relations. The essence of the “two sides” mode lies in shelving the competing values existing across the Strait, replacing political concepts such as “lawful government” and “insurgent body” with the geographic concept of “two sides”, upholding neutral, open and tolerant values, and providing every possibility for the alignment of cross-Strait political relations. Last but not least, the “lawful government vs. insurgent body” mode further enhances the “political antagonism” across the Strait, while the “two sides” mode aims to resolve the political antagonism across the Strait. As mentioned above, whether such “political antagonism” can be eliminated and to what degree it can contribute to the elimination of “political antagonism” is an important criterion for evaluating the rationality of the alignment of cross-Strait political relations. Apparently, the “lawful government vs. insurgent body” mode directly and clearly negates the “legitimacy” of the existence of the other side and considers the other side as an opposed entity. On the one hand, it consolidates “political antagonism” in the most extreme manner of “opposition between enemy and ourselves”; on the other hand, it deepens the distrust and antagonistic feelings between the two sides. Thus, a “lawful government vs. insurgent body” is of no help in resolving or alleviating the “political antagonism” across the Strait. In contrast, the “two sides” mode aims to resolve the political antagonism between the two sides and is also a plan to play down the political antagonism as much as possible before political negotiations are carried out across the Strait, the expected effect of which is distinctively different from that of the “lawful government vs. insurgent body” mode.

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(2) The “Two Sides” Mode and the “Central vs. Local” Mode The “central vs. local” mode is an alignment mode of cross-Strait political relations adopted by the mainland since the issuing of Message to Compatriots in Taiwan in 1979 until the proposal of “Deng Xiaoping’s six conceptions” in 1983. On January 1, 1979, the NPC Standing Committee issued Message to Compatriots in Taiwan, appealing for “discussion between the Government of the People’s Republic of China and the Taiwan authorities, indicating that the mainland had officially stopped to place the Taiwan authorities in the position of an “insurgent body”, and tacitly regarded the Taiwan authorities as a local government. On September 30, 1981, Ye Jianying came up with “Ye Jianying’s nine principles.” Article 3 stipulates that after reunification, Taiwan will become a “special administrative region” with a “high degree of autonomy”; both a “special administrative region” and a “high degree of autonomy” point to a typical local system. Article 5 suggests that people in authority and representative personages of various circles in Taiwan can take up posts of leadership in “national political bodies”, which clearly regards the Taiwan Region as a part of the “whole nation” and the Taiwan authorities as an entity at a level lower than “national political bodies.” Then, Article 6 mentions that the central government may subsidize Taiwan’s local finance as is fit for the circumstances, which implies the status of Taiwan as a “local region” from the angle of finance. According to “Ye Jianying’s nine principles”, Taiwan is regarded as a local region of the People’s Republic of China, and the Taiwan authorities are regarded as a local government of the People’s Republic of China. Despite the absence of the official concept of “local government” from “Ye Jianying’s nine principles”, the intention of aligning the political relations between the mainland and Taiwan with the “central vs. local” mode was very clear. In June 1983, when meeting the American guest Yang Liyu, Deng Xiaoping clarified the status of the Taiwan authorities as a “local government” by pointing out that “the central government acknowledges that the local government of Taiwan can have its own separate set of policies for its domestic affairs” and after the return of Taiwan, “as a special administrative region, Taiwan can enjoy privileges, which other provinces and autonomous regions may not share.”94 Nevertheless, considering the Taiwan authorities’ acceptability of the “central vs. local” mode, Deng Xiaoping pointed out on the same occasion that “reunification should be realized in an appropriate manner” and suggested “holding talks between the two parties on an equal footing and carrying out the third KMT-CPC cooperation, without mentioning negotiations between the central and the local.”95 After Deng Xiaoping made the statements above, except for a few occasions, the mainland had generally stopped aligning political relations with the “central vs. local” mode. In January 1998, then Director of Taiwan Affairs Office Chen Yunlin clearly expressed that the “central vs.

94

Selected Works of Deng Xiaoping, Vol. 3, People’s Publishing House, 1993, 30. Marks of emphasis are added by the author. 95 Selected Works of Deng Xiaoping, Vol. 3, People’s Publishing House, 1993, 31.

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local” mode had been out of use by proposing through writing: “Cross-Strait negotiations are negotiations on an equal footing on the basis of the one-China principle, not in the name of central vs. local, ……, there is no trap.”96 In fact, even though the “central vs. local” mode had not been the mainland’s official mode for the alignment of cross-Strait relations since “Deng Xiaoping’s six conceptions”, the “central vs. local” thinking had remained in existence for quite a long time. Typical cases are the One-China Syllogism (I) and One-China Syllogism (II), both containing the expression that Taiwan is a part of the People’s Republic of China or China, which implies that in cross-Strait relations Taiwan is subordinate to the mainland. In the White Paper on the Taiwan Issue and Reunification of China issued by the Chinese government in 2000, the Taiwan authorities were still referred to as “local authorities in the territory of China.”97 In the One-China Syllogism (III) proposed at the 19th CPC National Congress in 2002, the expression “Taiwan is a part of China” was changed to “the mainland and Taiwan belong to one China”, which had been used as the official description of the status quo across the Strait by the mainland since 2005 and further abstracted to “the mainland and Taiwan belong to the same nation” in 2012. “Central vs. local” as the mode for the alignment of cross-Strait political relations and as the policy thinking for the mainland to deal with the Taiwan issue was no longer advocated and upheld by the mainland. Of course, Taiwan vigorously opposed the mainland’s “central vs. local” mode. Between the late 1970s and the mid- and late 1980s, Taiwan even gradually shifted the focus of its policy on the alignment of cross-Strait political relations from the alignment of the mainland (the “Communist Party of China”) toward contending with the pressure brought by its status as a “local government” proposed by the mainland.98 In September 1980, Sun Yun-suan, then “President” of the “Executive Yuan” of the Taiwan authorities, proposed, “The peace proposal of the CPC regime has a collateral condition, i.e., To recognize the CPC regime and proclaim it to the central government. To start negotiations with them would mean we are a local government.” The leader of the Taiwan Region Chiang Ching-kuo also believed, “Deng Xiaoping’s six conceptions” was “futile conspiracy to provincialize the Republic of China.” Yu Kuo-hwa, former “President” of the “Executive Yuan” of the Taiwan authorities, even maintained “all proposals of the CPC place the Government the Republic of China in an unequal position as a local government.”99 From 1990 until today, Taiwan has been specifically emphasizing “equality” in all cross-Strait negotiations and formulations concerning the alignment of political relations, exactly for the purpose of avoiding “being dwarfed.” The greatest difference between the “two sides” mode and the “central vs. local” mode is that the “two sides” mode stresses the “equal relationship” between the two sides, while the “central vs. local” mode places the mainland in a position 96

Chen Yunlin, “The Development of Cross-Strait Relations is Our Common Aspiration”, Relations Acorss Taiwan Straits 7 (January 1998). 97 White Paper on the One-China Principle and the Taiwan Issue (2000). 98 Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 349. 99 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 349–350.

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higher than Taiwan. The “central vs. local” mode creates an atmosphere in which “the People’s Republic of China is the central government, and the Taiwan authorities are a local government” and releases goodwill toward “Taiwan” as the central government. The suggestions in “Ye Jianying’s nine principles”, including “establishing a special administrative region” in Taiwan, that Taiwanese personages take up posts in “national political bodies”, and subsidizing Taiwan’s “local finance”, were all proposed on this footing. The reason for the Taiwan authorities to refuse to accept and even resist the “central vs. local” mode also lies in the fact that this mode “dwarfs” Taiwan into a “local administrative unit”, even with a “high degree of autonomy.” While flaunting the “legally constituted authority” of the “Republic of China” over “China as a whole”, the Taiwan authorities bragged about being the “central government” (“National Government”) of the “Republic of China” and did not even hesitate to justify the “legitimacy” of their “legally constituted authority” by indefinitely extending the term of the “National Assembly” elected on the mainland. Therefore, the status as a “local government” was completely unacceptable to the Taiwan authorities. Meanwhile, the “central vs. local” mode is also flawed in terms of jurisprudential logic: if the mainland defines the Taiwan authorities as a “local government”, does it mean that the mainland acknowledges the “legitimacy” of the Taiwan authorities as a “local government”? Such “legitimacy” can be sensed, at least from the formulation itself. Then, the resulting jurisprudential question is: does the establishment of this “local government” and the standardization of the “Constitution of the Republic of China” implemented mean such a “Constitution” is “legitimate”? Otherwise, we cannot understand how a “Constitution” condemned as a “fake constitution” could support a “lawful” “local government.” From here we can see: due to the history and reality of cross-Strait relations, the “central vs. local” mode cannot possibly be accepted by the Taiwan Region; besides, it has failed to consider a series of significant and complicated jurisprudential issues, and therefore for a certainty cannot be accepted by the two sides as an alignment mode of political relations. In addition, similar to the “lawful government vs. insurgent body” mode, the “central vs. local” mode also embodies antagonistic values and intensifies the political antagonism across the Strait and is therefore considerably different from the “two sides” mode. No unnecessary details will be given here. (3) The “Two Sides” Mode and the “Two Parties” Mode The “two parties” mode is a mode for the alignment of cross-Strait political relations advocated by the mainland since the 1950s. To this day, it is still advocated by some personage in the mainland’s political circles and among its people, and its traces can still be found in the “political antagonism theory”. As early as 1956, Mao Zedong proposed the conception of resolving the Taiwan issue through the “third KMT-CPC cooperation.”100 In September 1981, it was proposed in “Ye Jianying’s nine principles” to “hold negotiations between the Communist Party of China and the 100

See Hu Jitang, etc., ed., Study of Contemporary Thoughts on Chinese National Reunification, Wuhan Press, 2007, 165.

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Kuomintang on an equal footing, and carry out the third cooperation, to jointly accomplish the great cause of national reunification.” In June 1983, “Deng Xiaoping’s six conceptions” “suggested holding talks between the two parties on an equal footing, and carrying out the third KMT-CPC cooperation, without mentioning negotiations between the central and the local.”101 Thus, the “two parties” mode officially replaced the “central vs. local” mode by as the mainland’s new proposition for the alignment of political relations. On June 7, 1991, the Taiwan Affairs Office spoke on the Taiwan authorities’ abolition of “Temporary Provisions Against the Communist Rebellion” and ended the period of mobilization for the suppression of Communist rebellion. During the speech, the person in charge of the Taiwan Affairs Office once again suggested that “the Communist Party of China and the Kuomintang send representatives to make contact to create conditions for conducting negotiations on officially ending the state of antagonism across the Strait and gradually realizing peaceful reunification.”102 On July 1, 1991, at the meeting celebrating the 70th anniversary of the founding of the Communist Party of China, Jiang Zemin pointed out: “The Communist Party of China and the Kuomintang shoulder major historic responsibilities for national reunification. The two parties should be responsible for the state and nation and send representatives to make direct contact and conduct negotiations to gradually reach an agreement on the principle for the reunification of the motherland.”103 During this speech, Jiang Zemin also pointed out, “Invite representatives of other parties and associations to participate in negotiations. The issues cared about by the Taiwan authorities, associations of various parties, and personages of all circles can all be proposed for discussion.”104 From the policy expression of the mainland, the “two parties” mode is proposed mainly to resolve the subject issue of political negotiations across the Strait. Nevertheless, considering the special status of the CPC and the KMT in the mainland and Taiwan when the “two parties” mode was proposed, this mode actually constituted an option as a mode for the alignment of cross-Strait political relations. The alignment of the political relations between the mainland and Taiwan with the “two parties” mode must be based on the long-term and stable rule of the CPC and the KMT in the mainland and Taiwan, respectively. Between 1986 and 1987, the Taiwan authorities repealed the “party ban” and lifted the “martial law”, passed the amendment to the “Constitution” in 1991, and implemented Western “party politics” in the Taiwan Region. In 1991, it was proposed in the “Guidelines for National Unification” issued by the Taiwan authorities that “The unification of China should be for the welfare of

101

See Selected Works of Deng Xiaoping, Vol. 3, People’s Publishing House, 1993, 31. See Shaw Chong-hai, Cross-Strait Relations, (Wu-Nan Book Inc., 2006), 628. 103 “Jiang Zemin’s Speech at the Meeting Celebrating the 70th Anniversary of the Founding of the Communist Party of China”, People’s Daily (July 2, 1991). 104 “Jiang Zemin’s Speech at the Meeting Celebrating the 70th Anniversary of the Founding of the Communist Party of China”, People’s Daily (July 2, 1991). 102

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all its people and not be subject to partisan conflict.”105 In 1993, the Taiwan authorities stated in a document, “In the past years, the government had always opposed or ignored the Communist Party of China’s repeated requests for ‘party-to-party negotiations,’ on the grounds that the development of domestic party politics has already got a foundation”, and “the government’s attitude had been such in the past, and will not change in the future.”106 The statement of the Taiwan authorities in this document indicates, due to changes in the political situation within the island, that Taiwan had expressly refused the “two parties” mode. In 2000, the rotation of ruling parties occurred in the Taiwan Region, and the Kuomintang lost its ruling power after ruling Taiwan for as long as 51 years. Thus, the necessary conditions for the “two parties” mode were lost. In 2008, the rotation of ruling parties occurred for the second time in Taiwan. Even though the Kuomintang regained its status as the ruling party, it lost again in the 2016 election eight years later. The three times of rotation of ruling parties have made it even clearer that the rotation of ruling parties in Taiwan will be “normalized” in the future, and no individual political party will “stay in power forever”, hence no more possibility for the alignment of cross-Strait political relations with the “two parties” mode. Meanwhile, the mainland still partly adhered to the “two parties” thinking. Since April 2005, top leaders of the KMT and the CPC have met frequently, with an institutionalized framework formed for the meeting between leaders of these two parties. In “Hu Jintao’s six-point proposal”, the origin of the Taiwan issue was determined to be political antagonism between “KMT and CPC” as a result of the civil war from a historical perspective, which once again highlighted the dominant roles played by these two parties in handling cross-Strait relations and resolving the Taiwan issue. By now, the interparty consensus formed through the institutionalized framework for the meeting between leaders of the KMT and CPC has become a component of diverse consensuses across the Strait.107 Of course, the mainland’s adherence to the “two parties” thinking does not mean it is going back to the age advocating the “third KMT-CPC cooperation.” In contrast, to cope with the development of party politics in the Taiwan Region, the mainland has somehow developed the “two parties” thinking, with the core being opening up the space for other political parties in the Taiwan Region to participate in cross-Strait affairs. In “Hu Jintao’s six-point proposal”, the mainland specially announced to the Democratic Progressive Party, “We hope the Democratic Progressive Party can have a clear understanding of the situation, halt “Taiwan independence” separatist activities, and stop going against the common aspiration of the entire nation. So long as the Democratic Progressive Party changes its “Taiwan independence” separatist position, we are willing to make a positive response.”108 In the afternoon of November 7, 2015, General Secretary Xi Jinping 105

“National Unification Council” of the Taiwan authorities, “Guidelines for National Unification” (1991). 106 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 631. 107 See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 82. 108 Hu Jintao, “Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech

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and then leader of the Taiwan Region Ma Ying-jeou had a historic meeting at the Shangri-La Hotel Singapore. During this meeting, Xi Jinping affirmed the achievements of peaceful development across the Strait in recent years and expressed wishes for the great rejuvenation of the Chinese nation through joint efforts of compatriots across the Strait; Ma Ying-jeou also expressed hopes for rejuvenating the Chinese nation by the two sides jointly.109 Thus, it can be seen that the mainland’s “two parties” thinking has been developing toward the pragmatic direction of “interparty” exchanges across the strait, which is a trend acceptable to Taiwan. In fact, through the platform for cross-Strait “interparty” exchanges, some political parties of the Taiwan Region have made contact with the mainland, including political parties of the panblue coalition, such as the People First Party and the New Party, as well as personages of the Democratic Progressive Party. It can be said that the platform for “interparty” exchanges has effectively promoted exchanges across the strait on various levels and aspects. The “two sides” mode and the “two parties” mode have similarities as well as differences. In terms of their similarities, both the “two sides” mode and the “two parties” mode stress that the mainland and Taiwan should engage in dialogs on an equal footing under appropriate names and at the same time avoid the question of equality between the mainland and Taiwan. This was also Deng Xiaoping’s original intention when he proposed replacing the “central vs. local” mode with the “two parties” mode in “Deng Xiaoping’s six conceptions.” In terms of their differences, the two modes depend on different identities and realistic foundations, hence the different effects of implementation. From the status quo of cross-Strait relations, the “two sides” mode has a more solid realistic foundation; furthermore, with regard to cross-Strait identity, the mainland’s focus has begun to shift from “national identity” (not even “China”) toward “identity of the Chinese nation”, while Taiwan’s identity is also gradually evolving in the same direction. In such a context, the “two sides” mode, which emphasizes that the political symbol has not yet been “externalized”, also conforms to the identity situation across the Strait. For the “two parties” mode, due to changes in the political situation of the Taiwan Region, the realistic foundation of its existence has also changed. Meanwhile, the “two parties” mode stresses dependence on the ideology of the KMT and the CPC, while the identity across the Strait has passed the stage of ideological identity long ago.110 Therefore, the “two parties” mode is outdated as a mode for the alignment of political relations. (4) The “Two Sides” Mode and the “ARATS and SEF” Mode “ARATS and SEF” refer to the nongovernmental organizations “Association for Relations Across the Taiwan Straits” (ARATS) and “Straits Exchange Foundation” (SEF). In November 1990, the SEF was established by the Taiwan authorities “to coordinate Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan”, People’s Daily (January 1, 2009). 109 “A New Chapter in the History of Cross-Strait Relations”, data source: http://sh.people.com.cn/ n/2015/1108/c134768-27044196.html, the last access date: January 20, 2019. 110 See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 41–42.

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and handle affairs concerning people-to-people exchanges between Taiwan and the mainland.”111 In the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area”, the Taiwan authorities authorized the SEF to conduct negotiations with the mainland on specific affairs. In December 1991, the Association for Relations Across the Taiwan Straits was established on the mainland. According to Article 4 of the Articles of Association of the ARATS, the ARATS can be entrusted with negotiations with Taiwan’s relevant departments, authorized associations and personages on relevant issues during cross-Strait exchanges and is authorized to sign agreements. At this point, the mainland and Taiwan have formed the “ARATS and SEF framework” with the ARATS and the SEF as the main axes. The “ARATS and SEF framework” constituted by the ARATS and the SEF is already relatively mature and has been proven in practice as an effective way of cross-Strait negotiations. In the history of negotiations through ARATS and SEF, these two associations have signed important agreements influencing the development of cross-Strait relations and formed a mechanism for talks and contact on various levels, including talks between top leaders. When direct dialogs cannot be carried out between public power organs across the Strait, the “ARATS and SEF framework” provides a channel for cross-Strait negotiations. On account of the outstanding effect it has achieved, the “ARATS and SEF framework” has gradually become irreplaceable in cross-Strait negotiations. Therefore, even though channels for exchanges including interparty exchanges and exchanges between other nongovernmental organizations have been formed between the mainland and Taiwan, such channels can only offer constructive opinions on the development of cross-Strait relations, or serve as platforms for public power organs across the Strait to announce their respective policies to each other, while official consultations and agreements across the Strait must be carried out and reached through the “ARATS and SEF framework.” About this point, leaders and relevant departments across the Strait have made their positions clear repeatedly.112 Due to the effectiveness of the “ARATS and SEF framework” in negotiations on specific affairs across the Strait, proposals to take the “ARATS and SEF” mode as an alternative option for the alignment of cross-Strait political relations have been made accordingly. In fact, even though the ARATS and the SEF are established as “nongovernmental organizations, their official attributes are very obvious. As the mainland’s management system for Taiwan affairs and Taiwan’s management system for mainland affairs, the ARATS and the SEF have functioned as windows. On the mainland, the management system for Taiwan affairs consists of the Central Leading Group for Taiwan Affairs, Taiwan Affairs Office of the State Council and ARATS, which serve as the decision-making agency, implementing agency, and

111

Article 1 of “Articles of Association of Straits Exchange Foundation” (1990). At the fourth Cross-Strait Economic, Trade and Culture Forum held in December 2008, Director Wang Yi of Taiwan Affairs Office proposed specifically that agreements must be signed through the “ARATS and SEF framework”, and the KMT-CPC Forum can only make suggestions.

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window agency of Taiwan affairs, respectively.113 Led by the Central Leading Group for Taiwan Affairs and the Taiwan Affairs Office of the State Council, the ARATS is also highly identical to the Taiwan Affairs Office in terms of personnel makeup. Take the president and vice presidents of the second term of the ARARTS elected in June 2008 as an example: with Chen Yunlin (former Director of the Taiwan Affairs Office) as the President, out of the 7 vice presidents, 5 were concurrently serving or had once served as Vice Director of Taiwan Affairs Office, 1 held a deputy post in another department (Ministry of Commerce) of the State Council and was in charge of Taiwan-related affairs, and 1 had once held an important post at Taiwan Affairs Office.114 In addition, almost all activities of the ARARTS are under the direct command of the Central Committee of the CPC, while the Taiwan Affairs Office is responsible for making contact. Therefore, some Taiwanese scholars believe, “The ARATS is ultimately another form of “nongovernmental organization” established by the Taiwan Affairs Office for cross-Strait negotiations through the people-topeople mode” and “actually still a ‘governmental organization’ in nature.”115 Biased although this viewpoint is, it explains the close relationship between the ARATS and the Taiwan Affairs office. A similar situation can also be seen in Taiwan. Taiwan’s management system for mainland affairs consists of the “Presidential Office” (there used to be a “National Unification Council” under the “Presidential Office”, which was later canceled by Chen Shui-bian, so the decisions concerning mainland affairs are directly made by the “Presidential Office”), “Mainland Affairs Council of Executive Yuan” and the SEF. In terms of the organizational sequence, the SEF is an organization under the “Mainland Affairs Council”; in accordance with the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area”, all its staff members are civil servants and obey relevant laws and occupational disciplines for civil servants. The “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” also stipulates that the parties concerned in Taiwan, “upon sending delegates to the Mainland Area or any other area to handle the entrusted affairs or any relevant important business”, shall apply for approval by and obey the command of the entrusting authorities or relevant institutions, and “promptly provide updated reports”; even agreements signed under such circumstances still need to go through rigorous acceptance procedures.116 From this, we can see that the ARATS and the SEF are essentially semiofficial organizations established as nongovernmental organizations to conduct cross-Strait negotiations when the public power organs of the two sides cannot contact each other. Based on the abovementioned facts, reflecting on the alignment of cross-Strait political relations from the perspective of ARATS and SEF is reasonable to a certain extent. 113

See Yang Kai-huang, “Explanation and Evaluation of the CPC’s ‘Taiwan Policy’: Study of the Orientation of Decision Makers”, Soochow Journal of Political Science 7 (1997). 114 The above information is based on materials available from the Taiwan Affairs Office, Taiwan.cn, website of Ministry of Commerce, and website of Xiamen University. The last access date: January 20, 2019. 115 Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 286. 116 See Article 4 and 5 of the “Act Governing Relations Between the People of the Taiwan Area and the Mainland Area” (2003).

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Nevertheless, despite the effectiveness of the “ARARTS and SEF” mode in crossStrait exchanges and negotiations, it is seriously inadequate as a mode for the alignment of cross-Strait political relations. Apparently, aligning cross-Strait relations with the “ARARTS and SEF” mode confuses the status of the mainland and Taiwan to each other in negotiations with the alignment of their political relations. According to the Articles of Association of the ARATS and the Articles of Association of the SEF, ARATS and SEF are entrusted by relevant departments to conduct negotiations on relevant affairs in cross-Strait exchanges. Therefore, in cross-Strait negotiations on specific affairs, ARATS and SEF are not the main bodies in the true sense but are entrusted by relevant departments with negotiations. In future exchanges across the Strait, upon entrustment, ARATS and SEF may continue to carry out negotiations on specific affairs on behalf of the mainland and Taiwan or even become the main bodies of political negotiations; however, this is still far from the alignment of cross-Strait political relations on the political level. In conclusion, “two sides” and “ARATS and SEF” are two alignment modes of the mainland and Taiwan on different levels: the “two sides” mode aligns the political relations between the mainland and Taiwan, while the “ARATS and SEF” mode aligns the relationship between the mainland and Taiwan in cross-Strait exchanges on specific affairs and future political negotiations. Of course, the “ARATS and SEF” mode has already been proven to be an effective channel of communication across the Strait. Therefore, under the “two sides” mode, the “ARATS and SEF” mode can also serve as a channel of political exchanges between the mainland and Taiwan. As mentioned above, in terms of the alignment of political relations, the mainland and Taiwan have decided to temporarily shelve this issue and turn to conduct exchanges on specific affairs through the two authorized organizations of ARATS and SEF to establish a relationship between ARATS and SEF in cross-Strait exchanges on specific affairs. Thus, it can be seen, on account of the tacit agreement on not involving political issues in exchanges on specific affairs across the Strait, to take “two sides” as the mode for alignment of political relations at the present stage will not affect the relatively mature “ARATS and SEF” mode in exchanges on specific affairs between the mainland and Taiwan. Meanwhile, as the concept of “two sides” evades political content such as “government” and “entity”, when the mainland and Taiwan carry out political exchanges with the “two sides” mode, if direct contact is made between public power organs, a sensitive issue will arise as to whether the two sides recognize the legitimacy of each other’s public power organs. In this case, with the “ARATS and SEF” framework, we can take “ARATS and SEF” as a channel for the mainland and Taiwan to conduct political exchanges under the “two sides” mode and transform the “alignment of political relations” between the mainland and Taiwan during different stages as an issue that can be “discussed” by “ARATS and SEF”, to resolve this issue through negotiations and consultations between “ARATS and SEF.”

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4.2 External Comparison of the “Two Sides” Model External comparison refers to comparison between the “two side” mode and the modes used by other countries to resolve national reunification and handle local separatism. Even though the relationship between the mainland and Taiwan is not a relationship between “two states” and should ultimately be resolved with a method consistent with the one-China principle, the “one state” nature of cross-Strait relations does not reject drawing lessons from the relatively mature and reasonable experience of the international community. Different from mainland scholars who persist in constantly updating the interpretation of cross-Strait relations with concepts such as “sovereignty” and “state”, Taiwanese scholars have been applying relevant theories of international relations in the analysis of cross-Strait relations long ago. If we remove the “international” element in foreign experience and theories of international relations and extract element enlightening for cross-Strait relations, foreign experience and theories of international relations can also be useful to theories and practice of cross-Strait relations. Based on the above understanding, a comparative study is conducted between the “two sides” mode and European integration, the “two Germanies” mode, the “two Koreas” mode and institutional arrangements made by the United Kingdom, Canada and Belgium to deal with local separatism in an attempt to observe features of the “two sides” mode from the perspective of the international community and at the same time enrich the “two sides” mode through external comparison. (1) The “Two Sides” Mode and the European Integration European integration117 refers to the process and result of the gradual integration of various European nation-states into an organic whole (structure) through political, economic, cultural and social cooperation and the corresponding institutional arrangements.118 Among all regions throughout the world, thus far, the degree of integration is the highest in Europe, while Europe integration is also a source and example of regional integration theories. At present, the majority of theories concerning regional integration originate from the practice of European integration, which also provides a place for the generation and examination of regional integration theories. In thus far as historical origin is concerned, the motivating power for European integration originates from the quest of European people for the “European dream”,119 while the immediate cause of European integration is the reconstruction of Europe after the end of World War II. The European integration was launched with the 117

The word “integration” in “European integration” is translated into “一体化”, “整合” or “统合” in Chinese. “一体化” is most frequently used by mainland scholars, while “整合” or “统合” is often used by Taiwanese scholars. This book adopts the mainland translation “一体化”; however, where “ 一体化” is not fit, “整合” is also used. For instance, “一体化” could give rise to misunderstandings when used in “cross-Strait integration [两岸一体化]”, so the expression “两岸整合” is adopted in this study. 118 See Zhu Jie ed., Foreign Constitution, Wuhan University Press, 2010, 250. 119 The “European dream” refers to the Europeans’ pursuit of peaceful coexistence since the Middle Ages when Continental Europe was divided at war. See Su Hongda, “Interpreting the Development of

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“Jean Monnet Plan” and “Schuman Declaration” in 1950. Starting on April 8, 1951, six countries, France, Germany, the Netherlands, Italy, Belgium and Luxembourg, successively constituted three functional organizations, the European Coal and Steel Community, the European Atomic Energy Community and the European Economic Community, which were merged in 1957. On July 1, 1968, member states of the European Community established the Common Market and decided to cancel tariffs and nontariff measures completely and implement a unified tariff system toward countries outside of the European Community. Starting in 1979, member states of the European Community started to coordinate economic and monetary policies. On February 17, 1986, the Single European Act was signed by member states of the European Community, which for the first time added a political element into the European integration in the form of legal document.120 On February 7, 1992, member states of the European Community signed the Maastricht Treaty and announced the founding of the European Union, marking a new stage of European integration. After the establishment of the European Union, the European integration on the one hand further advanced the degree of economic integration (e.g., common currency) and on the other hand promoted Europe to develop toward a higher level of integration and a closer relationship between European countries through the establishment of a constitution. On the theoretical level, the third stage is characterized by federalism, as various EU states attempted to promote the transformation of the European Union from an international organization into a supra-national organization by drawing up a constitution and molding the collective identity of the EU and identification with EU citizenship. The author of this study has applied the knowledge framework formed during European integration to study the connotations of the framework of peaceful development of cross-Strait relations, with the conclusion being that the framework of peaceful development of cross-Strait relations is a new cross-Strait integration mode proposed by the Communist Party of China during the new stage of this century with the theme of cross-Strait relations in its grasp and based on the status quo of crossStrait relations.121 The “two sides” mode is an embodiment of the framework of peaceful development of cross-Strait relations in the alignment of cross-Strait political relations. Undeniably, there is still a considerable gap between the “two sides” mode and European integration, both in terms of the depth and width of integration, but the “two sides” mode has its own features. There are three main differences between the “two sides” mode and European integration. First, European integration is an integration of nation-states, hence the problems of sovereignty transfer and limitation on sovereignty; the “two sides” mode is an alignment mode of political relations between the mainland and Taiwan for the purpose of eliminating domestic European Integration with the Concept of ‘Constitutional Sovereignty Construction’”, EurAmerica Vol. 31 4 (December 2001), 651. 120 See Han Xiuyi, Comparative Regional Integration Studies, China University of Political Science and Law Press, 2002, 187. 121 Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 235.

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political antagonism and therefore does not involve sovereignty. Second, European integration includes the process of an all-round integration in political, security, economic and social affairs of various European countries and is therefore a comprehensive category; the “two sides” mode is mostly a political category and is proposed to avoid the negative influence of political elements in cross-Strait relations to the greatest extent and promote cross-Strait cooperation in political, economic and social aspects. The “two sides” mode is more about the foundation of cooperation in political, economic and social aspects, rather than the cooperation per se. Third, European integration includes the construction of a supranational regulatory agency, while the “two sides” mode does not include such content. During the process of European integration, the European Union maintained the consistency of policies and communication between various member states through intergovernmental negotiations and established a regulatory structure similar to the sovereign state. Unlike the mechanism of other international organizations (such as the organizational mechanism of the United Nations), which is essentially a mechanism for intergovernmental negotiations, the regulatory structure of the European Union is supra-national in nature.122 At present, the regulatory structure of the European Union has already been independent of each member state and has become a material carrier of the right as an independent legal subject within the European Union. The regulatory structure of the European Union consists of two parts: first, a regulatory mechanism similar to the government of a sovereign state, including the EU Council, the European Commission, the European Parliament and the European Court of Justice; second, a new regulatory structure of the European Union featuring governance, which intends to form a “governance system without government”, i.e., The “EU governance.”123 In contrast, there is not a regulatory structure between the mainland and Taiwan that “transcends the two sides”, and under the alignment of political relations with the “two sides” mode, such a regulatory structure is not a target of alignment either. Under the “two sides” mode, the mechanism for negotiations between the mainland and Taiwan is still mainly oriented toward cross-Strait negotiations on specific affairs and interparty exchanges. Regarding the experience of European integration that can be used for the reference of cross-Strait relations, Taiwanese scholars often wrote to appeal for the analysis of cross-Strait relations with theoretical tools formed during the European integration, and some Taiwanese politicians even came up with propositions such as “cross-Strait integration” following the example of European integration. In Chen Shui-bian’s 2001 “New Year Message”, he proposed the so-called “integration theory” and stated that “starting from the ‘integration’ in economy, trade and culture, we should gradually establish mutual trust, and then together seek a new framework for everlasting peace and political integration cross the Strait.”124 Most 122

See Ge Yongping and Sun Jun, Analysis of European Law, Law Press·China, 2008, 33. See Huang Weifeng, “Analysis of the Governance System Taking Shape in the European Union”, EurAmerica Vol. 33 2 (June 2003), 296. 124 “Integration Theory: The Greatest Variable in New Cross-Strait Relations”, Union Daily News (January 15, 2001). 123

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mainland scholars adopt a critical attitude toward the “integration theory” proposed by Taiwanese scholars and politicians, and one of most relatively representative opinions is that “integration theory” is a dynamic and ambiguous concept that emphasizes the process but evades the result of integration and is essentially “Taiwan independence” in practice under the name of integration.125 According to this study, such criticism is justified regarding fake “integration theory” that practices “Taiwan independence” in the name of “integration”; however, this does not erase the significance of European integration in terms of its enlightenment to cross-Strait relations. In contrast, the European integration and the relevant integration theories formed are worth utilizing in the study of cross-Strait relations and during the process of the demonstration, construction and perfection of the “two sides” mode, and their theoretical value should not be negated just because they were first applied to “Taiwan independence” theories. In general, European integration enlightens the “two sides” mode from at least the following three aspects. First, stressing the construction of identity. The construction of the collective identity of Europe and identification with EU citizenship is an important difference between the European integration and other integrations, which plays a key role in furthering the development of European integration. As early as 1951, the collective identity of Europe was confirmed in the Treaty of Paris.126 In the subsequent process of integration, important concepts, including “Europe” and “European citizens”, were constructed and gradually gained recognition among various nation-states in Europe and their people. The establishment of an identity alleviated the nationalistic dilemma resulting from the limitation on sovereignty and sovereignty transfer of each nation state and improved the degree of recognition of European integration among the European people. In fact, with the lapse of time and the “desinification” movement of “Taiwan independence” advocators, the “Chinese” identity has been fading away across the Strait little by little. According to a poll conducted in March 2012 by a Taiwanese institution, as many as 74% of Taiwanese people identified themselves as “Taiwanese”, while only 13% identified themselves as “Chinese”, and younger Taiwanese people were less likely to identify with “Chinese.” Supposedly, since the two sides originate from the same Chinese nation, the conditions and foundation for them to construct a common identity should be more favorable than European integration. Nevertheless, this situation did not improve until 2018, when the percentage of Taiwanese people who identified themselves as Chinese reached 58.3%, hitting a 6-year high, and even more people identified themselves as a part of the Chinese nation—87.3%.127 At present, it is an important subject worth thinking as to how to utilize the favorable identity conditions and reinforce the “two sides” mode through 125

See Li Peng, “I‘ntegration’ Cannot Conceal the ‘Taiwan Independence’ Scheme: On the Theoretical Fallacy, Realistic Predicament, and Policy Essence of Chen Shui-bian’s ‘Integration Theory’”, Journal of Guangdong Institute of Socialism 4 (2001). 126 See Yao Qinghua, Construction of Collective Identity of the European Union, Shanghai Academy of Social Sciences Press, 2003, 32. 127 See Huanqiu.com, “Poll: Chinese Identity Among Taiwanese People Hit 6-Year High”, online data source: http://taiwan.huanqiu.com/article/2018-10/13296926.html, the last access date: January 15, 2019.

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a common identity to further strengthen the identification of Taiwanese people with “one China.” Second, stressing the function of framework and fundamental laws in the process of integration. European integration is a community established on a legal basis, and frameworks and fundamental laws128 have played an important role in the process of European integration. (1) Such framework and fundamental laws fixed the achievements of European integration in the form of constitutional law and continued to improve the level of integration. (2) The process of formulating and passing framework and fundamental laws also became the process of solidifying the European consensus and testing the acceptability of integration achievements among the European people, which can effectively establish the European people’s identification with the European integration. (3) The framework and fundamental laws provided a legal basis for European integration in the constitutional sense so that European integration became a process of legal significance, with the standardization and institutionalization of integration enhanced accordingly. Thus far, over 20 agreements have been reached across the Strait, and the ECFA has also been formed, which in nature serves as a framework. Nevertheless, most of such agreements are about cooperation on specific affairs, and the function of the ECFA as a framework is reflected only in the economic aspect; therefore, they do not share the characteristics of the framework and fundamental laws. The valuable lessons drawn from European integration are conducive to establishing framework laws of normative significance and providing norms, guidance and guarantees for the framework of peaceful development of crossStrait relations. In this sense, the “peace accord” proposed in the report at the 17th CPC National Congress can be used as a basic guideline for promoting the peaceful development of cross-Strait relations.129 Third, stress the construction of organizational mechanisms during the integration process. In terms of organizational settings, the design of regulatory agencies of the European Union, including the EU Council, the European Commission, the European Parliament and the European Court of Justice, is exquisite and meticulous: the characteristics of different branches of power are reflected in compliance with the European traditions of separation of powers, while the overall interests of Europe, the interests of various member states and the interests of European people are represented by various organs through institutional design to provide a strong organizational guarantee for European integration. In contrast, the construction of the organizational mechanism of the framework of peaceful development of cross-Strait relations still maintains at the level of cross-Strait communication and negotiations

128

Framework and fundamental laws refer to forms of legal sources such as treaty and accord of constitutional nature during the process of European integration. Such laws may not necessarily be named “constitution”, but function similarly as the constitution of a sovereign state. For example: Treaty of Paris (1951), Agreement on Establishing the Common Organization for European Communities (1957), Treaty of Maastricht (1992), Treaty of Amsterdam (1997), Treaty of Nice (2003), and Treaty of Lisbon (2007). 129 See Zhou Yezhong, “On Constructing a Legal Mechanism for the Peaceful Development of Cross-Strait Relations”, Law Review 3 (2008).

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through the “ARATS and SEF’ framework. The Cross-Strait Economic Cooperation Committee established in accordance with the ECFA still has some way to go toward becoming a mature and independent organizational mechanism in terms of mechanism function and system construction and at present merely serves as another window for cross-Strait operation on economic affairs. In the long run, the peaceful development of cross-Strait relations requires us to strengthen the construction of relevant organizational mechanisms, look for a cross-Strait power structure suitable for the “two sides” mode, and provide necessary organizational guarantees for the peaceful development of cross-Strait relations. (2) The “Two Sides” Mode and “Divided State” As mentioned earlier, the concept of a “divided state” is used by scholars of international politics to refer to the political phenomenon of an originally unified state later divided into two “regions” or “entities” that are not subordinate to each other due to political reasons. The four major “divided states” universally acknowledged in international academia are the People’s Republic of China and Republic of China; Federal Republic of Germany and German Democratic Republic; South Korea and North Korea; North Vietnam and South Vietnam. By now, the Federal Republic of Germany and the German Democratic Republic have achieved peaceful reunification, and North Vietnam (the Socialist Republic of Vietnam) has liberated South Vietnam by force—these two “divided states” have realized national reunification. Among the “divided states”, the two Germanies’ alignment mode of political relations and measures for handling their relations with each other are of great importance for the eventual reunification of Germany and the resolution of the national reunification issue throughout the world, while the mode adopted by South Korean and North Korea (one of the main “divided states” at present) to handle their relations is also worth learning from. Therefore, even though the relationship between the mainland and Taiwan is not a “divided state” from the viewpoint of “political antagonism”, to draw lessons from the valuable experience and practice of typical “divided states” is still conducive to improving the “two sides” mode. In this study, the “two sides” mode is compared with the “two Germanies” mode and the “two Koreas” mode. a. Comparison Between the “Two Sides” Mode and the “Two Germanies” Mode The Federal Republic of Germany and the German Democratic Republic are the most typical “divided state”, and the majority of “divided state” theories are based on the analysis of two Germanies. As one of the initiators of World War II, upon its defeat, Germany was divided into four occupation zones according to the agreement of the victors. After the beginning of the Cold War, those zones occupied by countries of different camps were formed into two independent states: the “Federal Republic of Germany” established on September 20, 1948 by the United States, the United Kingdom and France in the west, and the “German Democratic Republic” established by the Soviets on October 7, 1949 in the east. Thus, the unified Germany was divided into two states. After its division, the Government of the Federal Republic of Germany had never given up on national reunification and declared its stand on national reunification and the method for realizing national reunification in its basic

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law.130 In contrast, the German Democratic Republic’s position on the reunification of Germany went from persistence in reunification to separatism. In 1967, the German Democratic Republic amended the Law on Citizenship by replacing “citizens of Germany” with “citizens of the German Democratic Republic.” Then, in 1968, the “people of the entire Germany” in the 1949 Constitution was replaced by “people of the German Democratic Republic” as the constituent power. To win international recognition, the Government of the German Democratic Republic gradually lost its stand on “one German nation” and publicly asserted “two German nations”, based on which the 1968 Constitution was amended. In the 1974 Constitution, the Government of the German Democratic Republic created a “socialist German nation”, thus splitting Germany into two states completely on the national level. In 1970, the Willy Brandt Government came to power, and the Federal Republic of Germany began to implement its new eastern policy, which stressed the improvement of its relations with the German Democratic Republic, gradually realized the normalization of the relationship between two Germanies, and effectively promoted exchanges and integration of two Germanies on economic, political, cultural and social aspects, thus laying a realistic foundation for the reunification of Germany. The main content concerning the relations between two Germanies in the “new eastern policy” is ending the political antagonism between two Germanies by closing the gap between two Germanies and normalizing their relations to lay the foundation for the eventual reunification of Germany. One of the measures of the “new eastern policy” is recognition of the German Democratic Republic. However, such recognition is neither recognition in the legal sense, nor regarding the relationship between two Germanies as a relationship between two states, but recognition of the de facto existence of the German Democratic Republic, while the relationship between two Germanies remained “a special relationship within the German nation.”131 The Treaty Concerning the Basis of Relations Between the Federal Republic of Germany and the German Democratic Republic (the “Basic Treaty”) is one of the main achievements of the new eastern policy, its main content including: first, normalization of the relations between two Germanies, and development of friendly relations on an equal footing; second, mutual recognition of sovereignty, territorial integrity and independence between two Germanies; third, no representation of each other internationally, and respect for the independence and autonomy of each other in domestic and foreign affairs; fourth, establishment of “permanent missions” in the capitals of each other. As a result of the Basic Treaty, exchanges and cooperation between two Germanies on political, economic, social and cultural aspects became increasingly more frequent. In 1973, the two Germanies entered the United Nations at the same time, both as full members. The establishment of diplomatic relations between either of the two Germanies and foreign countries was not under the premise of severing 130

See Zhu Jie, “The Basic Law of BRD and the Reunification of Germany”, Wuhan University Journal (Philosophy & Social Sciences) 5 (2010). 131 Huang Zhengbai, “Review of the Development of Relations Between Two Germanies Prior to the Reunification of Germany”, Journal of Huazhong Normal University (Humanities and Social Sciences) 6 (1993).

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diplomatic relations with the other Germany, and it was allowed to establish diplomatic relations with two Germanies at the same time. The two Germanies respected the sovereignty and territorial integrity of each other and even established official relations and realized exchange of visits between leadership. From appearance, the two Germanies had been two independent sovereign states. However, according to the viewpoint of “divided state” theory, the reason that two entities within one “divided state” (such as the German Democratic Republic and the German Democratic Republic) are still referred to as one “divided state” rather than “two states” is that at least one of the entities insists on the goal of reunification.132 Despite the signing of the Basic Treaty, the separatist trend had become increasingly more obvious in the German Democratic Republic, but the German Democratic Republic had never given up on the goal of the reunification of Germany. When examining the Basic Treaty to see if it’s constitutional, the Federal Constitutional Court explicitly confirmed that the Basic Treaty did not affect the “obligation of national reunification” stipulated in the basic law of the Federal Republic of Germany. In fact, the Federal Republic of Germany had never given up on its pursuit of national reunification to the extent that it had never regarded the German Democratic Republic as a foreign country. The “two Germanies” mode is thus far the most successful mode in the international community for resolving the “divided state” issue. It is similar to the “two sides” mode, yet still with many differences. In terms of similarities, the relations between the two Germanies and their respective positions on national reunification are almost identical to the mainland and Taiwan. The mainland had never given up on its pursuit of national reunification, while Taiwan had shown an increasingly stronger separatist stand since 1990. Both the “two Germanies” mode and the “two sides” mode aim for the normalization of relations between two parties and the promotion of peaceful development of bilateral relations. This is where the “two Germanies” mode and the “two sides” mode coincide and what the “two sides” mode should learn from the “two Germanies” mode. However, the “two Germanies” mode is after all a different mode, and the issue between two Germanies and the cross-Strait issue are also poles apart. In the White Paper on the Taiwan Issue and Reunification of China, the Chinese government has pointed out clearly: “The “two Germanies” mode cannot be used to resolve the Taiwan issue.”133 There are three main differences between these two. First, the “two Germanies” mode has already confirmed the clear alignment of political relations between two Germanies, which are defined as a relationship between two states, while the “two sides” mode substitutes political concepts with geographical ones and attempts to render the alignment of political relations ambiguous and “depoliticalized” to avoid cross-Strait disputes over abstract concepts under the current situation. In addition, under the restrictions of the one-China principle, the relationship between the “two sides” cannot be developing toward a relationship between two states. Second, the “two Germanies” mode 132

See Chang Wu-yen, “On the Divided Nation Model”, in Contending Approaches to Cross-Strait Relations, ed. Bao Zonghe and Wu Yushan, Taipei: Wu-Nan Book Inc., 1999. 133 See White Paper on the One-China Principle and the Taiwan Issue (2000).

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requires the two Germanies to recognize the sovereignty and territorial integrity of each other and allow the existence of each other in the international community as a sovereign state. Thus, the success of the “two Germanies” mode is the integration and recreation of the national sovereignty of Germany. Nevertheless, the relationship between the two sides across the Strait is “political antagonism” within “one China”, while China’s sovereignty has never been divided. Therefore, the so-called issue of “reunification of sovereignty” never existed, and this point has been made clear in “Hu Jintao’s six-point proposal.” On this basis, the question of “whether Taiwan is allowed to exist as a sovereign state in the international community” has never existed in cross-Strait relations under the alignment with the “two sides” mode. Third, the “two Germanies” mode is, after all, the result of interference from international political power and an embodiment of the confrontation between the East and the West during the Cold War period in the domestic affairs of Germany, as the will of great powers, including the United States and the Soviet Union, played an important role during the formation of the “two Germanies” mode. In contrast, the issue of cross-Strait relations is an internal affair of China, and the Chinese government has emphasized once and again that the Chinese people shall resolve the national reunification issue by themselves and refuse foreign interference in China’s domestic affairs. Therefore, the “two sides” mode has no intention of introducing foreign interference. Based on the above understanding, the “two sides” mode might as well draw some concrete experience and measures of value from the “two Germanies” mode; however, in thus far as the applicability of the “two Germanies” mode to cross-Strait relations is concerned, these two modes are fundamentally different. b. Comparison Between the “Two Sides” Mode and the “Two Koreas” Mode To this day, South Korea and North Korea still exist as a “divide state.” After the end of World War II, based on their needs for the war against Japan, the United States and the Soviet United divided the Korean Peninsula for occupation. After the Cold War started, two Korean nation-states of ideological confrontation were established by the United States and the Soviet United in their respective occupation zones. In July 1948, a nation with the state title of the “Republic of Korea” was established in the southern Korean Peninsula, and two months later, another nation with the state title of the “Democratic People’s Republic of Korea” was established in the northern Korean Peninsula. In June 1950, the Korean Peninsula was plunged into war, with the 38th parallel north being the armistice line, which also became the demarcation line between North Korea and South Korea. To date, North Korea and South Korea have still not given up on the pursuit of reunifying the Korean nation into one state, yet with different opinions about the path to reunification. South Korea’s position has gone through the three stages from reunification by force (“advancing northward for reunification”), reunification through competition (“overwhelming the North Korea in national comprehensive strength”), to reunification through dialog (“holding dialogs and negotiations”). At present, the so-called “progressive reunification” strategy is implemented by South Korea to seek national reunification through reconciliation between the south and the north, elimination of the intense situation, and promotion of cooperation and

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exchanges.134 In 1993, then President of South Korea Kim Young-sam proposed reunification in “three stages”, his exposition on the alignment of political relations including: stage one, making up a “North–South Confederation” while maintaining two independent governments; stage two, forming a Commonwealth, and implementing one system with one federal government and two local governments, to create de facto reunification; stage three, implementing a unified government and establishing a completely unified state.135 North Korea’s demand for reunification was no less than that of South Korea. After experiencing the period of “revolutionary unification” after the Korean War, North Korea began to consider the path to peaceful reunification. In 1963, Kim II-sung for the first time came up with the reunification mode of “federation.” In 1973, Kim II-sung proposed the idea of the “Democratic Federal Republic of Korea” and systematized and concretized the title of the “Democratic Federal Republic of Korea” in 1980. According to the plan of the “Democratic Federal Republic of Korea” proposed by Kim II-sung, North and South Korea should recognize each other and tolerate the existence of each other’s guiding ideologies and social systems and together constitute a unified federal state while maintaining their respective governments; meanwhile, a “Supreme National Federal Conference” should be formed to lead these two governments, consisting of an equal number of representatives from North and South Korea each. Within the “Democratic Federal Republic of Korea”, neither should impose its ideology and social system on the other side, and both should respect the institutional choices of each other within a relatively long period of time.136 The unification mode of South Korea can be summarized as “one country, one system, and one government”, while the mode of North Korea is “one country, two systems, and two governments.” What these two modes have in common is the foundation for North and South Korea to carry out dialogs and cooperation. In 2000, the North–South Joint Declaration (the “June 15th Declaration”) was signed between leaders of North and South Korea, which specifically mentioned: The North and South believe there is a common element in the South’s plan of a confederation aimed at achieving reunification and the North’s formula for a federation at the initial stage, and both sides will advance the cause of reunification in this direction. On the consensus level, the “two Koreas” mode is embodied as a federal system leaning toward confederation. In this sense, the “two Koreas” mode is considerably different from the “two sides” mode. First, in the “two Koreas” mode, North and South Korea recognize each other as subjects of international law, and both Koreas have participated in international organizations, including the United Nations. In comparison, the “two sides” mode is proposed for the alignment of political relations when the “recognition dispute” exists between the mainland and Taiwan. At least the mainland denies “Taiwan” as a “subject of international law” and refuses the entry 134

See Chen Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 126–128. 135 See Chen Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 133. 136 Wang Yingjin, “Analysis of the Model for Korean Reunification”, International Forum 6 (2003).

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of the Taiwan Region into the United Nations. Second, the “two Koreas” mode has a clear goal and development trend. Even though both Koreas have proposed stage division for the realization of reunification, there are no proposals for making the alignment of political relations between North and South Korea a topic for discussion. In contrast, the “two sides” mode is characterized by stage division as well as the “topic-for-discussion” approach; without an ultimate goal, it relies on cross-Strait consensus on the topic of discussion. (3) Comparative Study Between the “Two Sides” Mode and the Practice of Central Governments of Western Countries to Deal with Local Separatism Due to national and religious issues, associations or regions advocating separatism exist in some countries of the world, and it is an important affair of the central governments of various countries to deal with separatist issues. The central governments of some Western countries have formed a series of characteristic and productive modes and experience in dealing with separatist issues, among which some have even constitutionalized their practice to deal with local separatism and agreements between central governments and local authorities. In cross-Strait relations, the intention of separatist associations to separate themselves from a unified state is also reflected. The fact that the Anti-Secession Law determines the nature of the “anti-independence” fight as “anti-secession” has already revealed the key role of separatism in cross-Strait relations. Even though the “political antagonism theory” makes the alignment with the “central vs. local” mode difficult, the study of the practice of central governments of Western countries to deal with local separatism and the comparison between such practice and the “two sides” mode will further improve the “two sides” mode. Since local separatism is a prevailing issue in a number of countries, this study will focus on analyzing the Northern Ireland issue of the United Kingdom, the Quebec issue of Canada, and the Flemish issue of Belgium. The Northern Ireland issue is a local separatism issue causing the greatest headache to the British government. Both Northern Ireland and the Republic of Ireland are former British colonies, while the King of England also serves as the King of Ireland on a long-term basis. In the early twentieth century, the national independence movement occurred in Ireland; after armed uprising and lawful electoral campaigns, the Irish national independence movement was gradually accepted by the Irish people. In 1918, Irish MPs who won Britain’s parliamentary elections refused to attend the British Parliament in London and instead chose to form a parliament in Ireland. In 1920, the United Kingdom granted permission to 26 counties in southern Ireland to form “Dominions”, while the 6 counties in the north still remained British colonies. In 1948, Ireland separated itself from the British Commonwealth and declared independence. In 1949, the British government recognized the independent status of Ireland but reiterated its sovereignty over Northern Ireland through the Ireland Act. Since Protestant immigrants from the United Kingdom made up the majority of the population of Northern Ireland and traditional Catholics in Ireland did not account for the majority in Northern Ireland, in 1973, Northern Ireland vetoed the proposal for separation from the United Kingdom in a referendum. Nevertheless, the 1973 referendum did not improve the situation in Northern Ireland. The

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major separatist force in Northern Ireland chose to achieve its political goal through armed struggles and even terrorist attacks and initiated a series of violent incidents in Northern Ireland. On April 10, 1998, a peace agreement was signed to end violent conflicts between the British Government, the Irish Government, and the major political faction of Northern Ireland. In the peace agreement, the British Government and the Irish Government stipulated the future and status of Northern Ireland. First, the British Government abolished the Ireland Act, and the Irish government also abolished stipulations in its Constitution about the sovereignty of Northern Ireland and recognized the possibility of Northern Ireland merging with Ireland into one state through a referendum. Second, Northern Ireland could establish an autonomous government, †o which the British government would hand over the right to manage local affairs. When dealing with the Northern Ireland issue, the British Government first involved the Irish Government in the Northern Ireland issue, then recognized the possibility of the separation of Northern Ireland through the referendum, and next respected the right of the autonomous government of Northern Ireland to manage local affairs. In thus far as these two points are concerned, the British Government’s de facto adoption of the “central vs. local” mode to resolve the Northern Ireland issue is quite different from the phased and “topic-for-discussion” alignment thinking of the “two sides” mode. Not only that, the “two sides” mode defines the relationship between the mainland and Taiwan as an internal affair, refuses interference from international power, and negates Taiwan’s practice to change the status quo of crossStrait relations through the so-called “referendum.” Therefore, the “two sides” mode is fundamentally different from the British mode for dealing with Northern Ireland affairs. Quebec is a Canadian province, with the majority of its population being of French descent. Historically, it used to be a French colony in North America. After 1763, the United Kingdom took over Quebec City from France and forced France to cede almost all of its colonies in North America to the United Kingdom. Thus, the Province of Quebec was established. In 1867, as a part of Canada, Quebec gained its independence from British colonial rule and became a province of Canada. Due to the distinct differences between Quebec and other Canadian provinces in terms of ethnicity, culture and language, Quebec sought a more special status within Canada. Nevertheless, other Canadian provinces did not consent to the objective of Quebec. This resulted in even stronger nationalist sentiment, which further evolved into the separatist movement of Quebec Province.137 In 1960, by taking advantage of the Canadian Government’s plan of “expanding provincial powers”, Quebec Province gained more powers and increased its independence among various provinces of Canada.138 In October 1968, the Quebec Party (Parti Québécois) standing for independence was founded, which advocated to achieve the political independence of Quebec in a progressive manner while still maintaining economic relations with Canada through a common market 137

See Chen Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 256. 138 See Chen Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 257.

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mechanism. After 1976, the Quebec Party standing for independence became the ruling party of Quebec Province, which further intensified the separatist movement in Quebec. In 1980 and 1995, led by the Quebec Party, two referendums were held in Quebec as to whether Quebec should gain independence, but this proposal was vetoed both times. Because of the indispensability of Quebec with respect to population, territorial area, resources and economy, the Canadian government would not give up on Quebec easily, and a series of measures had been adopted to cope with the separatist power in Quebec. In 1969, the Canadian Government passed the Official Language Act, which affirmed the status of French as an official language through legislation and responded to the demand of Quebeckers for improving the cultural status of the French language. In 1984, the Canadian government attempted to recognize Quebec as a “special society” in exchange for its support for a unified constitution but had to give up due to the objections of other provinces. In 1996, targeting Quebec’s act of seeking independence through referendum, a new interpretation was adopted by the Canadian government to safeguard national unity. At that time, the Jean Chretien Government made a request to the Supreme Court of Canada for constitutional interpretation, demanding it to explain issues, including whether the Government of Quebec is entitled to unilaterally declare its separation from Canada and whether Quebec has the right to self-determination. In August 1996, the Supreme Court of Canada made an interpretation of historic significance: a province shall not be entitled to unilaterally decide its separation from the Canadian Confederation; neither the constitution of the Canadian Confederation nor the right of its people to self-determination in the Canadian nationality law permits a province to unilaterally decide on independence. However, the special status of Quebec was still recognized by the Canadian government. In 2000, the Canadian Government introduced the Clarity Act aiming to check the trend toward the independence of Quebec, which explicitly stipulates that “no province is entitled to unilaterally declare its separation from the Confederation.” On its basis, the two referendums held in Quebec in 1980 and 1995 were deemed invalid.139 Quebec Province’s act of seeking “independence” through referendum is very similar to the proposal of the Democratic Progressive Party authorities for “referendum” in the Taiwan Region between 2000 and 2008, and the intention of the Supreme Court of Canada’s judgment is also quite the same as the mainland’s viewpoint on “referendum” in the Taiwan Region. The Canadian government defines Quebec as a “special society”, but essentially, it is still maintaining its national unity by conferring more rights of autonomy to Quebec. It can be said that the Canadian government handles its relations with Quebec with the “central vs. local” mode, which is therefore significantly different from the “two sides” mode. Nevertheless, in regard to cross-Strait relations, the mainland can still draw lessons from the Canadian government’s adroit utilization of law to cope with the separatist issue in Quebec through constitutional interpretation of the Supreme Court.

139

See Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 261–262.

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Located in northern Belgium with Dutch as its official language, the Flemish Region is distinctly different from the French-speaking Walloon Region in the south. The differences between the Flemish Region and the Walloon Region in ethnicity and language generated a separatist tendency in the Flemish Region. Before the nineteenth century, Walloon totally overwhelmed the Flemish region in economy, while French was the only official language of Belgium. The overall political, economic and cultural advantages of the Walloons placed the Flemish in a much marginalized position. However, the situation was reversed after the nineteenth century as the Flemish Region gradually occupied an advantageous position with an increasingly stronger political voice, while the Flemish dialect also achieved an equal status with French. Because the economic contribution made by the Flemish Region to Belgium surpassed Walloon, yet the social welfare it enjoyed was far less than the latter, plus the estrangement between the two ethnicity groups in history, some personages in the Flemish Region thus developed a separatist ideological trend and demanded separation between Flemish and Walloon.140 To alleviate the contradiction between these two regions, the Government of Belgium implemented political reform in 1994, which transformed Belgium into a federal state joined by Flemish, Walloon and Brussels, each as a constituent unit of the federation, with separation of the three powers in the administrative systems of the Flemish Government, the Walloon Government and the Government of the Brussels-Capital Region in Belgium. Nevertheless, the federal system of Belgium is somewhat different from the typical federal system represented by the United States, which recognizes the relative independence and autonomy of each constituent unit of the federation and the federal government, but not the status of each constituent unit as a subject of international law or their qualification for membership in international organizations. In comparison, Flemish and Walloon have the right to speak that is independent of Belgium; their representatives can be found independent of Belgium in various international organizations, including the European Union; and all international treaties must be approved by the Government of Belgium as well as local governments before coming into force. Therefore, the Central Government of Belgium has in fact adopted a federal system close to confederation to resolve the separatist issue in the Flemish Region, which is therefore markedly different from the “two sides” mode. First, even though the “two sides” mode recognizes the authority of the Taiwan Region to handle its internal affairs, Taiwan is still not allowed to participate in the international space independently, even if such independent status does not imply “Taiwan independence.” Second, the “two sides” mode is neither federation nor confederation, but a “topic-for-discussion”, phased, and consensus-based approach adopted to resolving the alignment of political relations between the mainland and Taiwan. Third, despite the relatively high degree of autonomy and considerable rights of autonomy of the Flemish Region, the relationship between the Government of Belgium and the Government of the Flemish Region still follows the “central vs. local” mode, while the “two side” mode does not have such implications. 140 See Yunlin ed., Study of Contemporary National Unity and Division, Jiuzhou Press, 2009, 252–254.

Chapter 4

Change: Means of Existence of the Taiwan Region in the International Space

The means of existence of the Taiwan authorities in the international space is a product of two pairs of contradiction. The first pair of contradictions is the contradiction between “attack and defense”, as mentioned in the previous chapter. Taiwan’s expanding its international space and the mainland’s placing restrictions on Taiwan’s international space and Taiwan’s behaviors of expanding its international space make it impossible for the Taiwan Region to participate in the majority of activities in the international space as a “state”, so it can only strive to find another way. The second pair of contradictions is the contradiction between the so-called “national dignity” and “pragmatic diplomacy” of the Taiwan authorities. Starting from the original intention of the Taiwan authorities, participation in the international space as a “state” is the ideal way in conformity with its “national dignity”; nevertheless, in reality, the Taiwan authorities have to adopt the “pragmatic diplomacy” approach to seek existence in the international community under various names to “demonstrate” its “national dignity.” Therefore, unlike the majority of sovereign states of the world, the Taiwan authorities have not emerged in the international space as a “state” unit but have displayed a diversity of forms. The author has once summarized the six means of existence of the Taiwan authorities in the international space in writing, as shown in the table below (Table 1).1 Nevertheless, the above description of the means of existence of the Taiwan Region in the international space is quite superficial: merely a simplistic division according to the objects of participation, which is far from adequate to reveal the pluralistic means of existence of the Taiwan Region in the international space. Therefore, on the basis of the results of the abovementioned study, a more refined analysis will be conducted of Taiwan’s means of existence in the international space.

1

See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 448–449.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_4

137

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Table 1 One the main means of “Existence” of the Taiwan region in the international space (This table was prepared by the author) Name

Place of existence

“Republic of China” (ROC)

“Diplomatic allies”, Asian Productivity Organization (APO), Afro-Asian Rural Reconstruction Organization (AARRO), Central American Bank for Economic Integration (CABEI)2

Taiwan

International Seed Testing Association (ISTA), Egmont Group of Financial Intelligence Units (Egmont Group)

Chinese Taipei

International Olympic Committee (IOC), Asia–Pacific Economic Cooperation (APEC), Asia/Pacific Group on Money Laundering (APGML), World Organization for Animal Health (OIE)

Taipei, China

Asian Bank, International Hospital Federation (IHF), World Economic Forum (WEF), Asian Financial Cooperation Association (ASCA), International Criminal Police Organization (ICPO)3

The Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu

World Trade Organization (WTO)

Fishing Entity

International Convention for the Conservation of Atlantic Tunas (ICCAT), Western and Central Pacific Fishery Commission (WCPFC), etc.4

1 Means of Existing as a “Nation” Within the island, the Taiwan Region has maintained the “state title” and “legallyconstituted authority” of the “Republic of China”, and therefore also intends to exist as a “state” in the international community. Even though the Taiwan authorities have gradually given up on the policy of existing in the international community as a “state” since the “all-out diplomacy” period, to exist as a “state” is still its most ideal option for existing in the international community. According to the exposition by Taiwan’s leader, Taiwan’s participation in the international space concerns the “dignity” of the Taiwan Region, especially during the times of “diplomatic battle” across the Strait, with whether it can exist as a “state” as a substantially important 2

See Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000). 3 About the status of the Taiwan Region in ICPO, see Lin Cheng-yi, Yeh Kuo-hsing and Chang Juimeng, Analysis of Taiwan’s Strategy for Joining International Economic Organizations, Linking Publishing Company, 1990, 18. 4 See Huang Yi, The Force of International Law in the Field of Domestic Law, Angle Publishing Co., Ltd., 2006, 111.

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indicator of whether Taiwan has been “dwarfed.” The existence as a “state” in the international space is not only a means of existence in the international space sought by the Taiwan authorities but also an understanding of the Taiwan authorities. With the mainland “on the defense”, the Taiwan Region can only exist under pluralistic names in the international space. However, regardless of the name under which it exists in the international space, according to the understanding of the Taiwan authorities, Taiwan is always participating in the international space as a “state.” Its existence as a “state” in the international space has two forms. First, existence in the form of the “Republic of China.” The “Republic of China” is the state title stipulated by the current “Constitution” of the Taiwan Region and the “national” symbol that Taiwanese people identify with the most. To exist with the symbol of the “Republic of China” in the international space conforms to the stipulations of the current “Constitution” of the Taiwan Region, which is followed by the Taiwan authorities and accords with the general mentality of Taiwanese people. At present, the international space where Taiwan exists as the “Republic of China” can be divided into three main types: first, “diplomatic allies”, i.e., Countries with “diplomatic” relations with the Taiwan Region, which believe that “Taiwan is an independent sovereign state”, and necessarily also recognize the symbol of the “Republic of China” mentioned in the current “Constitution” of the Taiwan Region; second, some international organizations joined by Taiwan as the “Republic of China”, which mainly include the Asian Productivity Organization (APO), Afro-Asian Rural Reconstruction Organization (AARRO), Food and Fertilizer Technology Center for the Asian and Pacific Region (FFTCAPR), and World Vegetable Center (AVRDC), while the secretariats of the last two are based in Taiwan5 ; third, international organizations joined by public power organs of the Taiwan authorities under the name of the “Republic of China”, such as the Central American Bank for Economic Integration joined by the “Central Bank” of the Taiwan authorities under the name of the “Central Bank of the Republic of China.”6 Second, existence in the form of “Taiwan.” Taiwan is the “national” symbol that some personages in the Taiwan Region identify with. Scholar Chen Lung-chu, who advocates “Taiwan independence”, has proposed that Taiwan could not participate in the international space for the past decade because the Taiwan authorities have been clinging to the “national symbol” of the “Republic of China” since the administrations of Chiang Kai-shek and Chiang Ching-kuo; thus, after countries in the international community recognize the People’s Republic of China as the sole legal government representing China one after another, the “Republic of China” has lost its “international legitimacy.” Then, during the 1990s, the Taiwan authorities “belittled themselves” as a “political entity of China”, which resulted in the failure to form the “national consciousness” of Taiwanese people. Therefore, Chen Lung-chu suggests making Taiwan a “normal state” with its name (the “state title” of Taiwan)

5

See Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000). 6 See Liu Guoshen ed., An Introduction to Taiwan’s Politics, Jiuzhou Press, 2006, 271.

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matching reality to actively participate in the international community.7 Chen Lungchu’s viewpoint was well received in Taiwan and was also accepted or approved by some political figures of the Taiwan authorities. Therefore, participating in the international space with “Taiwan” as the “national” title is also one of its means of existence as a “state” in the international space. First, under the name of “Taiwan”, the Taiwan Region participated in international organizations, including the International Seed Testing Association (ISTA) and the Egmont Group of Financial Intelligence Units. Second, sometimes the Taiwan authorities applied for membership of relatively important international organizations under the name of “Taiwan”; despite their constant failures, such attempts still increased the exposure of “Taiwan.” For example, in 2007, the Democratic Progressive Party authorities applied for full membership of the WHO/WHA under the name of “Taiwan” but failed. Between late 2007 and early 2008, the Democratic Progressive Party authorities then plotted to hold the so-called “referendum on United Nations membership applications”, with “Taiwan” as the subject of “membership applications” it referred to. Next, the Taiwan authorities had the word “TAIWAN” printed on some IDs indicating individual “nationality.” For instance, on January 13, 2002, Chen Shui-bian announced the decision to print the English word “TAIWAN” on the cover of Taiwan’s “Passport”; even though it was temporarily shelved, the new version of “passport” put into use since September 2003 was still printed with “TAIWAN.” Of course, since the “state” attributes of the Taiwan Region are not recognized by the majority of countries and intergovernmental international organizations in the world, Taiwan’s pursuit of existence as a “state” has never been universally acknowledged by the international community and is also vigorously denied and resisted by the mainland.

2 Means of Existing in Compliance with Rules of International Organizations In fact, not all intergovernmental international organizations have shut the door completely to the Taiwan Region. According to the rules and operation of some international organizations, Taiwan has entered some of them under a name that conforms to their rules, and such organizations also include intergovernmental international organizations. During the process of participating in integrational organizations through methods conforming to their rules, the “titles” used by Taiwan have all been handled to avoid harming the one-China principle. On the one hand, it reflects the “defensive position” taken by the mainland facing the “attack” of Taiwan; on the other hand, it is clearly defined in the rules of international organizations to prevent the issue of Taiwan’s “membership” from interfering with the functional operation of such international organizations. Taiwan’s means of existence in the international 7

See Chen Lung-chu, “Taiwan’s International Role in the New Century”, New Century Think Tank Forum 10 (June 2000).

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space in compliance with the rules of international organizations can mainly be divided into three types.

2.1 Name Changes Changing names that are harmful to “one China” (such as the “Republic of China” and “Taiwan”) to be acceptable to the mainland and participating in international organizations through consultations with the mainland within the scope of rules of relevant international organizations is the most common way by which the Taiwan Region exists in the international space in compliance with rules of international organizations. The International Olympic Committee was an important international organization joined by Taiwan through this way at a relatively early time, and the “Olympic mode” also gave rise to the classic name of “Chinese Taipei.” In 1954, the International Olympic Committee accepted the membership application of the Olympic Committee of the People’s Republic of China but at the same time maintained the membership of the “Olympic Committee of the China National Amateur Athletic Federation” of the “Republic of China”, thus forming a situation of “two Chinas” at the International Olympic Committee. Even though the International Olympic Committee once and again declared that its acceptance of representatives has nothing to do with political issues, with a focus on “athletic fields of actual control” only, the People’s Republic of China could still not accept such an arrangement and consequently withdrew from the International Olympic Committee in 1954, after which the Taiwan Region returned to the International Olympic Committee under the name of the “Olympic Committee of the Republic of China” in 1960.8 In 1975, the People’s Republic of China reapplied for membership of the International Olympic Committee and demanded that the representative of the Taiwan Region be expelled, which, however, was refused by the International Olympic Committee. To rejoin the International Olympic Games, the People’s Republic of China changed its strategy in 1979 and stopped demanding the expulsion of Taiwanese representatives. In the same year, the International Olympic Committee passed a resolution in Nagoya to restore the membership of the “Chinese Olympic Committee” of the People’s Republic of China and changed the “Olympic Committee of the Republic of China” representing the Taiwan Region to the “Chinese Taipei Olympic Committee.” In 1980, the International Olympic Committee amended the Olympic Charter to define “country” as “territory or part of territory” and changed symbols with “national” implications such as “national flag” and “national anthem” to “team flag” and “delegation team.” In 1981, the Taiwan authorities accepted the resolution passed in Nagoya by the International Olympic Committee and attended the Los Angeles Olympic Games along with the mainland. In 1989, an agreement was signed between the persons in charge of the 8

See Chang Chi-hsiung, “‘De Jure’ vs. ‘De Facto’ Discourse: Battle over ROC Membership with IOC”, Taiwan Historical Research Vol. 17 2 (June 2010).

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Olympic Committee across the Strait in Hong Kong, which officially confirmed the translation of “Chinese Taipei” in the Olympic Games and various other international sports events.9 Since then, the two sides have participated in the Olympic Games as two delegations under their respective flags. Despite their repeated disputes over issues including the translation of the name and the flag of Taiwan’s sports team, in general, the two sides have agreed on the existence of the Taiwan Region in the International Olympic Games under the name of “Chinese Taipei.” Same as the “Olympic mode” are the “Asian Bank mode” and “APEC mode.” Both Asian Bank and APEC are international organizations that the Taiwan Region is allowed to join under the name of “Chinese Taipei” in compliance with their rules after repeated consultations between the two sides. Considering the strong political attributes of APEC, the status of the Taiwan Region is limited to the “regional economy” in this international organization, similar to Hong Kong, and a memorandum of understanding was formed to incorporate it into the official sources of law of APEC. In previous literature, the “Olympic mode”, “Asian Bank mode” and “APEC mode” are often listed as three different modes. However, these three modes are essentially the same except for the difference in international organizations: all three modes adopt the name (“Chinese Taipei”) acceptable to the mainland and permit Taiwan to participate in the corresponding international organizations within the scope allowed by their rules for the purpose of reflecting the existence of the Taiwan Region in the international space. Even though the mainland had once stated that the “Asian Bank mode” is only a special arrangement for an individual case, which cannot be considered a general mode applicable to other intergovernmental international organizations,10 in fact, the modes represented by the “Olympic mode”, “Asian Bank mode” and “APEC mode” have already become an important form of the existence of the Taiwan Region in international organizations.

2.2 Functional Names Considering the economic status of the Taiwan Region in the world and its special importance in some functional areas, some functional international organizations have created certain functional names to incorporate Taiwan into their systems, thus providing a regular basis for Taiwan’s participation in such international organizations. The participation of Taiwan in some international fishery organizations as a “Fishing Entity” and its participation in the WTO as a “Separate Customs Territory” are typical examples of this type.

9

“Taiwan Affairs Office Made Statement on the Title of Taiwan’s Sports Team During the Olympic Games”, data source: http://news.xinhuanet.com/newscenter/2008-07/23/content_8756 219.htm, the last access date: January 20, 2019. 10 See Wang Jianmin, “The Status Quo of Taiwan’s Participation in International Intergovernmental Organizations and the Contest Across the Strait”, Asia & Africa Review 4 (2007).

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Table 2 Overview of Taiwan’s participation in International Fishery Organizations Name of Organization

Name of Taiwan

Status of Taiwan

Time

Commission for the Conservation of Southern Bluefin Tuna (CCSBT)

Fishing Entity

Member of the Extended Commission

1993

Western and Central Pacific Fisheries Commission (WCPFC)

Fishing Entity

Commission Member

1996

Inter-American Tropical Tuna Commission (IATTC)

Fishing Entity

Observer

1998

International Commission for the Conservation of Atlantic Tunas (ICCAT)

Cooperating Non-Contracting Party

Observer

1972

Indian Ocean Tuna Commission (IOTC)

Invited Expert

Invited Expert

2001

With many of its residents making a living through fishing, the Taiwan Region is an island society, which is among the front-runners in deep-sea fishing in the world. After its withdrawal from the United Nations in 1971, Taiwan has naturally been excluded from the United Nations Convention on the Law of the Sea led by the United Nations. Therefore, in regard to issues related to marine fisheries, Taiwan is not within the same jurisprudential framework as the contracting states of the United Nations Convention on the Law of the Sea led by the United Nations. Nevertheless, due to the actual status of Taiwan in the world’s marine fishery, some international fishery organizations have created the term “Fishing Entity” to release the status-sensitive Taiwan Region from the dilemma. Under the name of “Fishing Entity”, Taiwan is connected with other countries. The term “Fishing Entity” was created in the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks on December 10, 1982, and “Fishing Entity” should enjoy and implement the corresponding rights and obligations.11 Taiwan has joined some international fishery organizations under the name of “Fishing Entity”, which therefore becomes a form of its existence in the international space. However, “Fishing Entity” is a broad concept rather than a representation of status. Not all international fishery organizations joined by Taiwan as the “Fishing Entity” have incorporated Taiwan as a full member; instead, it is handled in different ways. The international fishery organizations joined by the Taiwan Region and its corresponding statuses are shown in the following table (Table 2).12 11

See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007, 14. 12 See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007, 56.

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As shown above, the Taiwan Region is only an official member of the Western and Central Pacific Fisheries Commission (WCPFC). Even so, there is still a great difference between the status of “Fishing Entity” and the status of contracting states: first, the content about dispute settlement mechanism in the WCPFC Convention is not applicable to fishing entities; second, fishing entities must voluntarily give up the right to vote on the draft of the abovementioned Convention.13 In addition to its full membership in the WCPFC, the Taiwan Region is only a “member of the Extended Commission” of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). The so-called “Extended Commission” is in fact an organization established by the CCSBT with the same function as CCSBT to resolve the issue of Taiwan’s membership. As a “member of the Extended Commission”, the Taiwan Region is only participating in the operation of this international fishery organization indirectly. According to the relevant rules of the CCSBT, the “Extended Commission” is not an official commission. Therefore, the Taiwan Region is not necessarily bounded by resolutions made by this international fishery organization, which must go through another procedure with the Extended Commission. Nevertheless, if resolutions are made by the CCSBT to the disadvantage of Taiwan, the Extended Commission shall not be entitled to modify such resolutions, which means that Taiwan could not protect its fishery interest with the rules of this international fishery organization.14 Similar to its important position in the international marine fishery, the Taiwan Region also plays an important role in the world’s economic stage as a quite active economy in international trade. To admit economies such as Taiwan as its members, the WTO has created a type of economy named the “Separate Customs Territory” in its rules as the basis for such economies to enter the WTO. As early as the General Agreement on Tariffs and Trade (GATT) period, the GATT allowed countries and separate customs territories to join the GATT. According to Article XXXIII of the GATT, “A government not party to this Agreement, or a government acting on behalf of a separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, may accede to this Agreement, on its own behalf or on behalf of the territory, ….” The WTO continued relevant regulations of the GATT. According to relevant rules of the WTO, the qualifications for WTO membership are as follows: first, the contracting parties the GATT 1947 and the European Communities, which accept the Agreement Establishing the World Trade Organization and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO; second, according to Section 1 of Article XII 13

The “Convention” here refers to the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. See Jiang Huangchi, “Taiwan’s Participation in International Fisheries Organizations: Weighing the International Status Against the Actual Benefit”, Taiwan International Law Quarterly Vol. 2 1 (March 2005). 14 See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007, 63.

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of the Agreement Establishing the World Trade Organization, any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed upon between it and the WTO.15 On its basis, in 1990, the Taiwan Region applied for membership of the GATT under the name of “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu” but failed. On November 12, 2001, following Mainland China’s entry into the WTO, the Taiwan Region became a full member of the WTO under the name “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.” Taiwan’s entry into the WTO as a “Separate Customs Territory” is a special arrangement made by the WTO. Different from the practice of “Fishing Entity”, which was practically created for the Taiwan Region itself, quite a number of economies have entered the WTO as a “Separate Customs Territory”, including China’s Special Administrative Region of Hong Kong. Therefore, there is no need to overinterpret Taiwan’s full membership of the WTO as “Separate Customs Territory” on the “state” and “sovereignty” levels, which is rather a concrete embodiment of the status of the Taiwan Region in the international economic landscape. Of course, from the perspective of Taiwan, becoming a full member of an important international organization such as the WTO as a “Separate Customs Territory” is one of the important means of its existence in the international space.

2.3 Associate Memberships Some international organizations have invented observers, associate membership, invited experts, etc., to handle the participation of non-state political entities. Thus, participation in international organizations under these names has become one of the options for the Taiwan Region. “Observer” is a common name for unofficial members of international organizations, which is invented for associations or regions that have not officially joined a certain international organization but have to or intend to participate in the activities of such international organizations, such as some colonies that are not yet completely independent, national liberation organizations, and even other related international organizations of equal status as the subject of international law. Observers are not entirely entitled to membership rights in international organizations, and therefore, their status is lower than that of full members, which, however, does not affect their rights to attend meetings and take part in activities. Based on this point and out of realistic considerations, the Taiwan Region has often intended to join specific international organizations as an observer to demonstrate its existence in the international space. Since 1997, Taiwan has sought to enter the WHO/WHA as an “observer” most of the time and eventually succeeded in 2008, which is the best practice of the Taiwan 15

See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (September 2004).

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Region to exist as an “observer” in the international space. Even though there are no regulations about “observers” in constitutional documents of the WHO/WHA, “observers” do exist in the actual operation of operation, mainly in three situations: first, sovereign states that have applied for full membership of the WHO/WHA but still awaiting approval, such as Vatican and Liechtenstein; second, states being formed, such as the Palestine Liberation Organization and the Sovereign Military Order of Malta; third, international organizations related to the WHO/WHA in business, such as the International Committee of the Red Cross (ICRC) and the International Federation of Red Cross and Red Crescent Societies (IFRC).16 In 1997, the Taiwan Region applied for WHO/WHA observership under the name of the “Republic of China (Taiwan)” but did not succeed. Afterwards, Taiwan continued to apply for WHO/WHA observership under various names, including the “Republic of China (Taiwan)”, “Taiwan” and “Health Entity”, for 9 consecutive years from 1998 to 2006 but still failed. In May 2005, the World Health Assembly revised the International Health Regulations, in which Section 3 of Article 3 stipulates, “The implementation of these Regulations shall be guided by the goal of their universal application for the protection of all people of the world from the international spread of disease.” This clause was referred to as the “universal application” clause in the Taiwan Region, which believed that the “universal application” clause could serve as the preliminary jurisprudential basis for the Taiwan Region to “participate” in the International Health Regulations and the international health system. In fact, when countries including the United States vigorously pushed for the inclusion of the “universal application” clause into the International Health Regulations, the original idea was to incorporate the Taiwan Region into the international health system through such clause. However, of course, due to the effective “defense” of Mainland China, such attempts did not succeed. In 2008, after the political situation in the Taiwan Region changed to the advantage of cross-Strait relations, the mainland consciously opened the space for Taiwan to participate in the WHO/WHA. Consequently, since 2009, the Taiwan Region has participated in the World Health Assembly for 8 consecutive years in the name of “Chinese Taipei” as an observer. In 2017, the Democratic Progressive Party authorities damaged cross-Strait relations without scruples, and as a result, the cross-Strait communication system came to a standstill, which made it difficult for Taiwan to sustain even observership. Even though the root cause of Taiwan’s participation in the WHO/WHA is the effect of political power, without the “observership” system, this process will be even more complicated and difficult. Different from the status of “observer”, which is, after all, the existence of the Taiwan Region as a whole in the international space, the “invited expert” status means participation in international organizations as individual experts. As shown in Table 2, Taiwan’s participation in the Indian Ocean Tuna Commission (IOTC) is a typical example of its existence as “invited expert”, with the name of the individual expert invited being Taiwan’s name in such international organization. As an “invited expert”, the Taiwan Region has neither the power of contracting a treaty nor 16

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010).

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the power of decision in the IOTC and is therefore unentitled to participate in the dispute settlement mechanism, with only the right of attendance and the right to make suggestions.17 As for “associate membership”, basically it has not become a means of Taiwan’s existence in the international community. According to the exposition by Lin Wen-cheng, “associate membership” is designed for colonies to participate in such organizations, and the Taiwan Region as a “sovereign state” should not seek participation in international organizations through this channel.18 Of course, participation as an “observer” or “invited expert” in international organizations must be supported by relevant rules or customs of international organizations. For instance, in 2003, the Taiwan authorities proposed the concept of “Health Entity” imitating the term “Fishing Entity” in an attempt to enter the WHO/WHA under the name of such a concept. Nevertheless, the basis for “Fishing Entity” can be found in the relevant rules of international fishery organizations, while “Health Entity” is a concept coined by the Taiwan authorities, which neither has a basis in the WHO/WHA’s constitutional documents nor exists in the operational practice of the WHO/WHA and therefore certainly cannot be accepted by the WHO/WHA. Thus, Taiwan’s efforts at seeking WHO/WHA observership as a “health entity” resulted in failure. This case shows, whichever name is used by the Taiwan Region to exist in international organizations, it must be under the premise of the rules of such international organizations; without the support of corresponding rules, even when Taiwan’s political situation allows, there would still be no possibility of its entry into such international organizations.

3 Means of Existing by Maintaining “Substantive Relationships” Even though the United States, Japan and Europe have severed “diplomatic relations” with the Taiwan Region, due to their friendly relations with Taiwan throughout history, plus Taiwan’s special status in international politics and economy, “substantive” relationships have been maintained between such nations and regions and the Taiwan Region under the premise of the severance of “diplomatic relations.” Regarding this, the People’s Republic of China did not have any objections. For instance, in the Joint Communiqués on the Establishment of Diplomatic Relations Between the United States of America and the People’s Republic of China, the United States declared clearly: “The United States of America recognizes the Government of the People’s Republic of China as the sole legal Government of China”, and “Within this context, the people of the United States will maintain cultural, commercial, and 17

See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007, 118. 18 See Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000).

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other unofficial relations with the people of Taiwan.” In “Jiang Zemin’s eight-point proposal”, it was made clear that the mainland did not object to the development of nongovernment economic and cultural relations between Taiwan and foreign countries. It was also stressed in “Hu Jintao’s six-point proposal” that “Regarding the prospects of Taiwan conducting nongovernmental economic and cultural exchanges with foreign countries, further negotiations may be conducted as needed.” The mainland’s attitude can be summarized into two points: first, to implement the guiding principle of “pinning hopes on the Taiwanese people” and respect the rights of the Taiwanese people to carry out economic, trade and cultural exchanges with the people of foreign countries; second, to make the necessary concessions under the general background of international politics in exchange for the development of official relations between the United States, Japan and Europe and the People’s Republic of China. Thus, the Taiwan authorities were able to retain their traditional relations with some great powers, which were referred to by the Taiwan authorities as “substantive relationships.” Those “substantive relationships” are an important means of Taiwan’s existence in the international space. Although they are less formal than “diplomatic” relations, such “substantive relationships” are a form for maintaining the bond between the Taiwan Region and major powers, so its importance is no less than that of “diplomatic relations.” Despite the severance of “diplomatic relations” between the United States and Taiwan, at the core of Taiwan’s “substantive relationships” are still its relations with the United States, while the United States also attaches great importance to its substantive relationship with Taiwan. The relationship between the Taiwan Region and the United States has therefore become the best practice of the Taiwan Region to exist in the international space through “substantive relationships.” After the establishment of diplomatic relations between the United States and the People’s Republic of China in 1979, the United States passed the Taiwan Relations Act within a rather short time frame and explicitly stipulated the American national commitments to “arm Taiwan” and “provide Taiwan with arms of a defensive character.” With the Taiwan Relations Act as the bond and basis, the United States and Taiwan maintained a rather close substantive relationship. First, the United States and Taiwan maintained rater close cooperation on security issues and military cooperation and even an alliance relationship. The United States sold advanced weaponry to Taiwan in large quantities to maintain the “balance” between the mainland and Taiwan in terms of armed forces. According to the August 17th Communiqué signed between the United States and the People’s Republic of China in 1982, the United States should gradually decrease its sales of arms to Taiwan and eventually resolve this issue. However, the United States hadn’t strictly abided by the Communiqué; instead, it continued to sell advanced weaponry to the Taiwan Region, maintained close interactions with Taiwanese military, and even included Taiwan in its Theater Missile Defense (TMD) system.19 The heads of American and Taiwanese military 19

“China Firmly Opposes the Inclusion of Taiwan in TMD by the United States”, data source: http://www.people.com.cn/GB/shizheng/16/20010119/381978.html, the last access date: January 20, 2019.

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departments have regular exchanges, with a close cooperation mechanism between their armies as well.20 Second, the United States and Taiwan have established representative institutions of official nature between each other. The “Coordination Council for North American Affairs” (CCNAA) has been established by the Taiwan Region in the United States as its representative institution. As an office directly under the “Executive Yuan” of the Taiwan authorities, the level of the CCNAA is so high that its responsible person could be none other than confidants of Taiwan’s leaders. For instance, when promoting “pragmatic diplomacy”, Lee Teng-hui replaced the “Chairperson” of the CCNAA with his confidant Ding Mao; when Ma Ying-jeou adjusted the “Executive Yuan” in 2012, his “head butler” King Pu-tsung, which was referred to as “another Ma Ying-jeou”, was appointed as “Chairperson” of the CCNAA.21 Thus, the importance of the CCNAA and the “Taiwan-U.S. relations” behind it in the mind of the Taiwan authorities is evident. The status of the CCNAA in the United States is also quite special and almost enjoys the same status as an embassy of a sovereign state: according to the Taiwan Relations Act, the CCNAA can be in correspondence with the United States on behalf of the Taiwan authorities; Taiwanese litigants in the United States must be in the name of the CCNAA; the Taiwan authorities can even purchase real estate or become contracting parties in the United States under the name of the CCNAA; some American states even offer special treatment to vehicles and personnel of the CCNAA, etc.22 The United States has also set up a special representative office in Taiwan, which is named the American Institute in Taiwan (AIT). According to the Taiwan Relations Act, even though the AIT is a nonprofit nongovernment institution, it is authorized to handle affairs between the United States and the Taiwan Region. Its functions are basically the same as those of a sovereign state’s embassy. It can issue visas to the United States and provide consular services to Taiwanese citizens in the United States, and its officials and vehicles are entitled to “diplomatic privileges” in Taiwan. Chairman and Managing Director of the AIT is an honored guest to the Taiwan authorities and each political party, whose views on politics might even sway the political situation in the Taiwan Region to a certain extent. Third, executive agreements can be signed between the United States and Taiwan (the “Republic of China”), while the treaties signed between the United States and Taiwan (the “Republic of China”) before the establishment of diplomatic relations between the People’s Republic of China and the United States remain effective. After 1979, the Taiwan Region (the “Republic of China”) could still sign agreements with the United States, such as “Agreement for Cooperation in Electrical Energy” (1983) and “Guidelines for a Cooperative Program in the Environmental Sciences” (1987). According to Fu Kuncheng, the signing of “executive agreements” between 20

See Liu Guoshen ed., An Introduction to Taiwan’s Politics, (Jiuzhou Press, 2006), 249. “Reshuffle of Ma’s Party and Government: Unsurprising ‘Inbreeding’”, Taiwan Poll 124 (September 21–25, 2012). 22 See Fu Kuncheng, “The Status of Taiwan’s Government in British and American Domestic Law”, National Taiwan University Law Journal Vol. 23 2 (1994). 21

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the Taiwan Region and the United States are purely measures adopted to avoid political overstimulation of the Communist Party of China rather than the negation of Taiwan’s right to conclude treaties with the United States.23 In several judicial cases, the United States district courts declared the applicability of the “diplomatic treaties” signed between the Taiwan Region (the “Republic of China”) and the United States before 1979. For example, in a case in 1987, the plaintiff claimed that the “Sino-American Treaty of Friendship, Commerce and Navigation” signed between the “Republic of China” and the United States in 1946 was still effective, and the copyright of Taiwan’s Chinese TV videotapes held by the plaintiff should be protected by the Copyright Law of the United States. This opinion was supported by the United States District Court for the Southern District of New York. Likewise, in a case in 1980, the United States District Courts of Illinois also deemed the “Sino-American Treaty of Friendship, Commerce and Navigation” effective.24 Fourth, the Taiwan Region has maintained a certain degree of official contact with the United States. In 1994, the Clinton administration improved the level of its relations with Taiwan and agreed on regular exchange visits between American and Taiwanese senior officials in charge of economic affairs at the deputy-minister level. Generally, the United States would also permit the personal trips of Taiwan’s leaders or important political figures to the United States. Politicians, including Lee Teng-hui, Chen Shui-bian and Lu Hsiu-lien, former President and Vice President of the Taiwan Region, have all visited the United States as “individuals” through methods including “transit” and “stay” and have carried out activities including making speeches and paying visits. Some members of the United States Congress are biased against the People’s Republic of China, and the Taiwan Region has attached great importance to conducting the so-called “Congress diplomacy” with these congressmen. Taiwan has spent massively to maintain good relationships with American congressmen. Some members of the United States Congress have established the “Taiwan Caucus”, whose members often go back and forth between the United States and the Taiwan Region, acting as Taiwan’s lobbyists in the United States. The role played by American congressmen cannot be ignored behind “Lee Teng-hui’s visit to the United States” and some important cases concerning sales of arms. Under the control of these people, the United States Congress would often pass bills or statements to the advantage of the Taiwan Region, containing the U.S. Government policy toward China. On March 16, 2018, the “Taiwan Travel Act” was signed into law by President Donald Trump of the United States on March 16, 2018, encouraging exchange visits between American and Taiwanese officials at all levels. This Act shows that the United States Congress believes that the Taiwan issue concerns American interests, and the United States shall adopt whatever measures it can to protect Taiwan.25 This Act has not only 23

See Fu Kuncheng, “The Status of Taiwan’s Government in British and American Domestic Law”, National Taiwan University Law Journal Vol. 23 2 (1994). 24 See Fu Kuncheng, “The Status of Taiwan’s Government in British and American Domestic Law”, National Taiwan University Law Journal Vol. 23 2 (1994). 25 See Luo Guoqiang, “Taiwan Travel Act’s Violation of International Law”, Journal of Comparative Law 6 (2018).

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violated the bilateral treaty between the People’s Republic of China and the United States but also damaged the general international consensus of “one China.” The Taiwan Region greatly values its relationship with the United States. Former presidents of the Taiwan Region, such as Lee Teng-hui and Ma Ying-jeou, have all studied in the United States. During Ma Ying-jeou’s two speeches at the 2008 and 2012 inauguration ceremonies, Ma had spoken highly of the relationship between the United States and the Taiwan Region: in 2008, Ma Ying-jeou referred to the United States as “our foremost security ally and trading partner”; in 2012, Ma Ying-jeou referred to the relationship between the Taiwan Region and the United States as the most solid “security and economic partnership” of the past 30 years. In 2016, Tsai Ing-wen stated in her inaugural address that Taiwan would continue to deepen its relationship with the United States and advance multifaceted cooperation on the basis of shared values.26 Not only the United States, the Taiwan Region has also maintained close relationships with Japan and Europe. In addition, Taiwan has also carried out “nondiplomatic” “substantive relationships” with countries of great influence at the international arena to demonstrate its existence. Furthermore, aside from valuing its “substantive relationships” with great powers, the Taiwan Region has also attached great importance to its “substantive status” in various countries throughout the world. Ma Ying-jeou once and again talked with great gusto about the fact that approximately 130 countries (including the United States) grant citizens with “passport” issued by the Taiwan authorities visa-upon-arrival or visa-exempt entry and compared it to the situation of the People’s Republic of China (only over 30 countries grant Chinese citizens visa-upon-arrival or visa-exempt entry), believing that the former is “a recognized state with its people respected.”27 Undeniably, the existence of the Taiwan Region via “substantive relationships” is an important means for it to exist in the international space and a method for Taiwan to circuitously keep in contact with the international community. In thus far as the general background of international politics is concerned, those “substantive relationships” cannot be transformed into “official relationships” within the foreseeable time and space; nevertheless, such relationships are irreplaceable in terms of the role they played in demonstrating Taiwan’s “dignity” and “status” and bringing actual benefits to the Taiwan Region.

4 Judicial Means of Existing The abovementioned three modes are the primary means of existence of the Taiwan Region in the international space, which are also more easily observable. In this book, they are referred to as the “dominant existence” of the Taiwan Region in the international space. In addition to “dominant existence”, some people in the 26

See Tsai Ing-wen, “Speech at the 2016 Inauguration Ceremonry” (2016). Ma Ying-jeou, “Be the Pilot of Chinese Culture: Speech Commemorating the 100th Anniversary of the Founding of the Republic of China” (2011).

27

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Taiwan Region, legal scholars in particular, have been looking for evidence of the recognition of “Taiwan” or the “Republic of China” as a “sovereign state” by judicial organs of these countries. In some individual judicial cases, the Taiwan authorities have often utilized “state immunity”, which shall only be enjoyed by sovereign states, to demonstrate the “state attributes” that they believe Taiwan has. In this book, we refer to this situation as the judicial existence of the Taiwan Region in the international space. Since the majority of mainland scholars and people are not sensitive to Taiwan’s judicial existence in the international space—some even failed to notice the existence of this issue, we may also refer to it as “recessive existence”, as opposed to the “dominant existence” mentioned above. The judicial existence of the Taiwan Region in the international space is easily neglected by the mainland. First, most mainland scholars focusing on Taiwan issue study politics and international relations, while very few scholars specialize in Taiwan-related legal studies. Therefore, relevant study results are far and few between, especially detailed studies of individual judicial cases relating to the Taiwan issue, hence a lack of necessary theoretical preparation for discovering the “judicial existence” of the Taiwan Region in the international space with respect to scientific principles. Second, the mainland authorities have an inadequate understanding of the handling of national reunification, national identity and the demonstration of national existence from the judicial aspect and lack practice in resolving such issues through judicial means. Even regions with more experience in Taiwan-related judicial adjudication are still very careful when handling Taiwan-related cases, let alone their application in the reunification issue. Third, the mainland people have been accustomed to understanding relevant policies of the Taiwan Region through leader’s speeches and policy documents; they are neither sensitive to individual judicial cases nor equipped with the relevant professional knowledge. Fourth, some cases involving the status of the Taiwan Region in the international space are relatively esoteric, and their interpretations by Taiwanese scholars are also filled with legal academic discourses, which are objectively difficult to understand for studies with inadequate legal knowledge, policymakers and the public. However, the actual influence of the judicial existence of the Taiwan Region in the international space is no less than that of the three abovementioned means of dominant existence. First, judicial power is a very important branch of power in the Western world, which is not only independent of legislative power and executive power but also wields actual influence on legislation and administration. Western countries emphasize the division of legislative, executive and judicial powers and stress the assurance of judicial independence. Therefore, judicial power is actually not influenced by legislation and administration. Even though judicial power sometimes leaves cases unsuitable for judicial resolution to legislation and administration to be decided on the grounds of “no examination of political questions”, often “no examination of political questions” is only an excuse for judicial power to shirk its responsibility. Most of the time, judicial adjudication is not under the influence of legislative and executive opinions, so the recognition of the one-China principle by the legislative and executive organs of Western countries does not constitute an actual binding force to judicial power. Second, judicial power is characterized by nobility,

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based on which judges can steer clear of the nation’s mainstream public opinion. After reviewing American democracy, Alexis de Tocqueville proposed that the best way to prevent the “tyranny of the majority” is to introduce the element of “government of the nobility.” According to Tocqueville, the court is the political department of a democratic state with the most element of “government of the nobility”, based on which he proposed the idea of regulating blind actions under democracy with judicial power.28 Meanwhile, the neutrality of judicial power and the institutional guarantee of judges’ treatment have transformed judges into a “aristocratic” group, keeping a certain distance from the public.29 The aristocratic features of judicature and judges have resulted in the relative independence of judicature from the mainstream will of the public, and relevant judicial decisions can be made disregarding the mainstream will of the nation. Third, there are many judicial cases relating to “national unity” in the international community, and it is not rare to handle the issue of “national unity” by judiciary means. A typical example is Germany, as the Federal Constitutional Court played an important role during the reunification of two Germanies. During the period of the coexistence of two Germanies, the Federal Constitutional Court made three important sentences regarding the reunification issue. In the Federal Constitutional Court verdict banning the Communist Party of Germany in 1956, the obligation as to the reunification of Germany was spelled out from the Preamble of the Basic Law.30 In 1972, the Basic Treaty was signed between two Germanies, and whether Article 23 of the Basic Law31 continued to apply became the focus of various parties. According to the Federal Constitutional Court, even though the Basic Treaty changed the national state of Germany, the constitutional obligation of reunification was not affected by the Basic Treaty.32 In 1990, the Reunification Treaty 28 [French] Alexis de Tocqueville, Democracy in America, trans. Dong Guoliang, The Commercial Press, 1997, 309. 29 See Huang Zhaoyuan, “Dispute over Legitimacy of Judicial Review of Constitutionality”, National Taiwan University Law Journal Vol. 32 6 (2003). 30 The Preamble of the Basic Law for Germany stipulates: “The German people still need to continue efforts to achieve the unity and freedom of Germany in free self-determination.” The mainland version of translation is: “All German people still need to achieve the unity and freedom of Germany through free self-determination.” See Jiang Shilin and Chen Wei ed., Encyclopedia of the World’s Constitution, Vol. 1, Open University of China Press, 1989. The Federal Constitutional Court believes this stipulation establishes the constitutional obligation of unify for the nation and its people. See Su Yeong-chin, “The Constitutional Issue in German Reunification”, in Toward Constitutionalism, by Su Yeong-chin (Linking Publishing Company, 1994). 31 The Basic Law for Germany stipulates two approaches to unification; the first is the method of participation stipulated in Article 23, and the second is the uniform constituent method stipulated in Article 146. Article 23 was put into practice, which stipulates: after other regions of Germany join the Federal Republic of Germany, the Basic Law shall also take effect in these regions. In 1956, the State of Saar joined the Federal Republic of Germany according to Article 23 of the Basic Law, and became a state of West Germany. See Jiang Shilin and Chen Wei ed., Encyclopedia of the World’s Constitution, Vol. 1, Open University of China Press, 1989; Su Yeong-chin, “The Constitutional Issue in German Reunification”, in Toward Constitutionalism, by Su Yeong-chin (Linking Publishing Company, 1994). 32 See Su Yeong-chin, “The Constitutional Issue in German Reunification”, in Toward Constitutionalism, by Su Yeong-chin (Linking Publishing Company, 1994).

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was signed between East and West Germany, with arrangements made for politics and law after the merger of two Germanies. On the surface, East Germany dissolved itself into six states and joined the nation to complete the merger, which conforms to the requirements of Article 23 of the Basic Law. Nevertheless, the Reunification Treaty made as many as six direct changes to the Basic Law, and some members of the West Germany parliament even brought a lawsuit arguing that the Reunification Treaty and the Basic Law contradicted each other. Eventually, the Federal Constitutional Court decided that the Reunification Treaty is constitutional, thus clearing the last legal barrier to the reunification of Germany.33 In the resolution of the Quebec issue of Canada, the Supreme Court of Canada also made relevant judgments. Of course, the cases of Germany and Canada are cases of reunification, but they still have important significance of enlightenment: the highly political issue of the “existence of a state” can be packaged as judicial cases and expressed with legal language. In this sense, we must pay close attention to the existence of the Taiwan Region in the international space through judicial means. The majority of cases of †he Taiwan Region striving to declare its existence in the international space are related to the status of the “Republic of China”, the relationship between the “Republic of China” and the People’s Republic of China, or the status of Taiwan’s institutions abroad. The Kokaryo Incident, which occurred in Japan and continues today, is an important case concerning the status of the Taiwan Region. Kokaryo is a five-story building in Kyoto, Japan, which was bought by the Taiwan authorities in 1950 in the name of the “Chinese delegation to Japan” as a dormitory for Taiwanese students in Japan. In 1961, the Taiwan authorities registered Kokaryo as “state property” of the “Republic of China.” In 1966, pro-mainland overseas students Yu Binghuan, etc., who lived there announced their taking over of Kokaryo. In 1967, the Taiwan authorities’ agency in Japan brought a lawsuit to the Kyoto District Court, demanding that Yu Binghuan, etc., be expelled.34 During the period of litigation, Japan established diplomatic relations with the People’s Republic of China and severed its official relations with the Taiwan Region. Therefore, the focus of this case has become whether the Taiwan authorities’ agency in Japan still has capacity to action in this case, whether the property involved in this case should be transferred to the People’s Republic of China, and whether the Taiwan authorities are entitled to assert their ownership of this property. Renowned Japanese jurist Nisuke Ando once served as expert witness during the trial of this case by the Kyoto District Court in 1974, and he believed there were three main issues in dispute in this case: first, whether the Joint Statement issued during the establishment of diplomatic relations between Japan and the People’s Republic of China confers the obligation to deny the “Republic of China” to Japan; second, if the Japanese court recognizes the capacity of the “Republic of China” to litigate, whether it violates the Joint Statement; third, 33

See Zhu Jie, “The Basic Law of BRD and the Reunification of Germany”, Wuhan University Journal (Philosophy & Social Sciences) 5 (2010). 34 See Li Mingjun, “Recognition of Government and Right of Action of Domestic Court: The Kokaryo Incident from the International Law Perspective”, Taiwan International Law Quarterly Vol. 3 3 (September 2006).

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whether the ownership of Kokaryo should be transferred to the People’s Republic of China on account of the Joint Statement.35 Although the three issues above are expressed in legal language, their connotations all point to whether the “Republic of China” is still a “subject of international law” with “state attributes” after the establishment of diplomatic relations between the People’s Republic of China and Japan. For this reason, the two sides have launched a lasting debate on the trial by the Japanese court. The mainland believes that since the establishment of diplomatic relations between the People’s Republic of China and Japan in 1972, for Japan, the “Republic of China” has no longer been in existence, with the Government of the People’s Republic of China being the sole legal government of China; because Kokaryo is China’s state property, in accordance with the requirements of the ChinaJapan Joint Statement, it ought to belong to the People’s Republic of China. Taiwan believes that because the “Republic of China” has been the “owner” of Kokaryo since before the establishment of diplomatic relations between the People’s Republic of China and Japan and the People’s Republic of China has never ruled the Taiwan Region in reality, the ownership of such property should not be transferred due to the establishment of diplomatic relations between the People’s Republic of China and Japan. Five judgments have been made in Japan regarding the Kokaryo case. First, in September 1977, the Kyoto District Court decided that despite the capacity of the “Republic of China” to litigate, considering that Kokaryo is “state property”, its ownership should be transferred to the People’s Republic of China with the establishment of diplomatic relations between Japan and the People’s Republic of China. Second. Second, in April 1982, with regard to the Taiwan authorities’ appeal, the Osaka High Court made a judgment, which continued to affirm the capacity of the “Republic of China” to litigate and decided that Kokaryo should not be transferred with the establishment of diplomatic relations between Japan and the People’s Republic of China. Third, in February 1986, a new judgment was made by the Kyoto District Court, which maintained that even though the Japanese Government no longer recognized the “Government” of the “Republic of China” as the “legitimate government” of China, it did not change the entire situation subjectively: the “Government” of the “Republic of China” had not been eliminated substantially, which is “incomplete succession” in international law, and therefore Kokaryo should still be owned by the “Republic of China.” Fourth, in February 1987, the Osaka High Court upheld the judgment made by the Kyoto District Court in February 1986. Fifth, in March 2007, a judgment was made by the Supreme Court of Japan, which believed that the “Republic of China” as the “state title” of China has ceased to exist since 1972 in Japan; for the Japanese Government, the state title of China has already become the “People’s Republic of China”, and the “Republic of China” has lost its right to represent China as a state. Since the plaintiff of this case should be “China” as a state, the “Republic of China” cannot be a party to this case, and

35

[Japanese] Nisuke Ando, “The Kokaryo Incident and International Law”, trans. Huang Juzheng, Taiwan International Law Quarterly Vol. 3 3 (September, 2006).

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the fact above should be a “fact known to all.”36 Therefore, on its basis, this case was remanded for a new trial. The first four of the five judgments above, despite their differences in the final overcome, all recognize the capacity of the “Republic of China” to litigate and therefore imply the “judicial existence” of the “Republic of China” in the international space for the Taiwan authorities. Among them, the third judgment is particularly explicit, stating that the “Government” of the “Republic of China” had not been eliminated substantially, which is believed to be the most direct expression of the “judicial existence” of the “Republic of China” in the international space. However, the final judgment by the Supreme Court of Japan has overturned the description of the status of the “Republic of China” in the first four judgments as mentioned above, thus negating the “existence” of the “Republic of China” in Japan’s judicial decision. There are many more similar judicial cases. For instance, in the case “Millen Industries, Inc. v. Coordination Council”, the plaintiff was encouraged by the defendant (the “Coordination Council for North American Affairs” set up by the Taiwan authorities in the United States) to invest in the Taiwan Region, but the Taiwan authorities canceled the relevant tax exemption policy afterwards. Therefore, the plaintiff brought a lawsuit before the United States District Court for the District of Columbia, which deemed that this act of the Taiwan authorities is an “act of state” and shall enjoy immunity in accordance with the “Act of State Doctrine.” In view of the above, some Taiwanese scholars have inferred the existence of Taiwan or the “Republic of China” as an “independent sovereign state” from this judgment.

5 Means of Existing Via Non-Governmental Organizations Since the Taiwan Region cannot officially participate in the international space, it has attached particular importance to its nongovernmental organizations in the international space in the hope of promoting interactions between the Taiwan Region and the international community via such organizations. On the one hand, in terms of foreign relations, Taiwan authorities seek participation in the international community—at least increased chances of its exposure in the international community, but the traditional operation mode of foreign relations with public power organs at its core has proven ineffective; therefore, Taiwan authorities strive to participate in the international community via nongovernmental organizations without attributes of public power in the hope of “highlighting the fact that Taiwan is an ineffaceable member of the international society.”37 On the other hand, since the promotion of “constitutional 36 See Li Mingjun, “Recognition of Government and Right of Action of Domestic Court: The Kokaryo Incident from the International Law Perspective”, Taiwan International Law Quarterly Vol. 3 3 (September 2006). 37 Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, 210.

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reform” in the Taiwan Region in 1990, great attention has been given to the construction of a civil society by both the government and the people, and as an important indicator of civil society, nongovernmental organizations have also become important achievements of the construction of civil society. Therefore, Taiwan exists in the international space via nongovernmental organizations to demonstrate its achievements in the construction of a civil society and then to promote the integration of Taiwan’s civil society with the international community with more interactions. Meanwhile, some people in the Taiwan Region also hope to introduce the latest ideas and systems from the international community through nongovernmental organizations so that the Taiwan Region can develop with the world synchronously; therefore, the participation of nongovernmental organizations in the international space is expected to become an important channel for furthering Taiwan’s democratic system and social development.38 At present, the main public power organs of the Taiwan Region to promote the participation of nongovernmental organizations in the international space are the “National Youth Commission” under the “Executive Yuan” and the “Ministry of Foreign Affairs” of the Taiwan authorities. The “National Youth Commission” mainly promotes nongovernmental youth organizations to participate in the international space, to “advance socioeconomic development and develop international youth exchanges” and “promote the internationalization of nonprofit organization, overseas…youth exchanges.” To achieve the abovementioned goals and promote nongovernmental youth organizations of the Taiwan Region to participate in the international space, the “National Youth Commission” has adopted measures in five aspects.39 First, close contact and cooperation with important international organizations should be maintained, and nongovernmental organizations within the island should be encouraged to participate in activities such as regional conferences and annual meetings held by international nongovernmental organizations. Second, nongovernmental organizations within the island should be encouraged to seek membership in important international nongovernmental organizations, and selected outstanding cadres should be dispatched to participate in international activities in a planned way to study international operating methods and share resources. Third, international nongovernmental organizations should be encouraged to set up branches in the Taiwan Region, develop their horizontal ties with Taiwan’s nongovernmental organizations, integrate resources, and promote international exchanges in a systematic and planned way. Fourth, we offer subsidies for Taiwan’s nongovernmental organizations to participate in relevant activities internationally. Fifth, they should cooperate with renowned nongovernmental organizations within and outside Taiwan Island, collect and introduce the latest managerial knowledge of nongovernmental organizations for promotion and application, and 38

See Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, 210. 39 See Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, 158–159.

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improve the quality of services. The “Ministry of Foreign Affairs” is the public power organ of the Taiwan authorities responsible for foreign affairs, and one of its functions is to encourage nongovernmental organizations to participate in the international space. In October 2000, the “Ministry of Foreign Affairs” set up a “NGO Affairs Committee” with “Deputy Minister of Foreign Affairs” as its Chairman and invited a dozen people, including representatives of major nongovernmental organizations, to serve as members charged with special responsibilities for promoting the participation of nongovernmental organizations in the international space. The aim of the business of the so-called “NGO Affairs Committee” is40 first, to assist Taiwan’s nongovernmental organizations in maintaining and improving relations with international nongovernmental organizations; second, to check the assistance or guidance provided by the “Ministry of Foreign Affairs” to Taiwan’s nongovernmental organizations for participation in international organizations and activities; third, to strengthen the cooperation between the “Ministry of Foreign Affairs” and Taiwan’s nongovernmental organizations to together develop relations with international nongovernmental organizations. Taiwanese scholar Chen Lung-chu has once conducted in-depth interviews with eighteen representative nongovernmental organizations of the Taiwan Region engaged in activities of international originations and divided them into advocate organizations and service organizations according to the purpose and nature of their participation in international activities; in addition to these two main types, there are still other nongovernmental organizations of the Taiwan Region participating in the international space. The following is a brief introduction to three types of nongovernmental organizations and typical examples of their participation in the international space from the report delivered by Chen Lung-chu to the “Research, Development and Evaluation Commission” of the Taiwan Region.41 First, advocate organizations, which refer to nongovernmental organizations aiming to advocate a certain type of idea or proposition. Such organizations mostly advocate issues relating to human rights, public welfare and charity and carry out cooperation with various human rights organizations and commonweal organizations in the international community. A typical example of advocate organizations is the “Taiwan Association for Human Rights.” Established on the International Human Rights Day of 1984. The “Taiwan Association for Human Rights” aims to advocate, spread and improve human rights standards and establish, maintain and strengthen the human rights protection mechanism, and its operation mainly relies on donations from society. At present, the international participation of the “Taiwan Association for Human Rights” mainly includes countersigning, supporting and attending international conferences, joining international human rights organizations as members, 40

See Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, 162–163. 41 The following content is all quoted from Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, after 63.

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and carrying out exchanges and cooperation with international human rights organizations. The “Taiwan Association for Human Rights” on the one hand focuses on participating in human rights protection work of the Taiwan Region through the international community and international human rights organizations; on the other hand, it voices support international human rights events, such as supporting Burmese public figure Aung San Suu Kyi and South Korea’s fight to end the National Security Act. The “Taiwan Association for Human Rights” has attended many international conferences about human rights repeatedly, such as the “Asian Human Rights Commission” and the “Education Seminar” held by the United Nations Educational, Scientific and Cultural Organization (UNESCO). Despite differences in the objects being “advocated”, the mode of operation of Taiwan’s advocate organizations is generally the same as that of the “Taiwan Association for Human Rights.” Similar organizations also include the “Chinese Association for Human Rights”, “Green Citizens’ Action Alliance”, and “Foundation of Medical Professionals Alliance” in Taiwan. Second, service organizations refer to nongovernmental organizations aiming to provide specific services for target groups. The majority of service-oriented organizations provide public services, mostly for the purpose of servicing disadvantaged social groups. A typical example of service organizations is the “Field Relief Agency of Taiwan” (hereinafter referred to as the “FRA”). Established in 1996, in the spirit that “education changes the lives of children”, the “FRA” mainly provides humanitarian relief in Cambodia to service disadvantaged groups and those in urgent need of assistance in Cambodia, including street children, orphans, underprivileged children, and people in areas without medical resources. The main funding sources of the “FRA” are private donations and fundraising among its members. With Cambodia as the main service site, the staff of the “FRA” come directly to Cambodia to consult with the local government, carry out negotiations and project cooperation, and set up work sites. The “FRA” has signed agreements with the Ministry of Foreign Affairs and International Cooperation and the Ministry of Social Affairs, Veterans and Youth Rehabilitation of Cambodia, and its agency in Cambodia consists of Cambodian government workers, workers coming from the Taiwan Region to Cambodia, and hired Cambodian laborers. The “FRA” has carried out project cooperation with multiple international organizations, which are mostly service-providing international organizations, such as the Food and Agriculture Organization of the United Nations, the United Nations Children’s Fund, and the International Organization for Migration. The “FRA” also regularly participates in various international conferences held by the Cambodian Government to conduct exchanges with international organizations engaged in similar work in Cambodia on information and work experience. Service organizations are the largest branch of Taiwan’s nongovernmental organizations existing in the international community, most of which work similarly to the “FRA.” In addition to the “FRA”, typical service organizations of the Taiwan Region also include the “Noordhoff Craniofacial Foundation” and the “Taiwan Root Medical Peace Corps.” In addition to the two main types of nongovernmental organizations as mentioned above, some special nongovernmental organizations of the Taiwan Region have also

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been participating in the international space. Different as their aims may be, what such organizations have in common is a certain background with public power organs— there are countless ties between such organizations and Taiwan’s public power organs. This type of nongovernmental organization mostly exists in the form foundations and, of course, in other forms. There are numerous nongovernmental organizations of this type in Taiwan, and the following brief introduction is made with only Taiwan’s “Red Cross Society” and International Cooperation and Development Fund as examples. The earliest “Red Cross Society” of the Taiwan Region can be traced to the “Shanghai Cosmopolitan Red Cross” established in Shanghai in 1904, which at present is not an official member of the International Committee of the Red Cross. Nevertheless, the International Committee of the Red Cross is not completely out of touch with the “Red Cross Society” of the Taiwan Region. Each time Taiwan suffered from major natural disasters, the International Committee of the Red Cross was able to get in touch with the “Red Cross Society” of the Taiwan Region and carry out cooperation on soliciting contributions and providing medical assistance. The “Red Cross Society” of the Taiwan Region has also become one of the portal units for Taiwan to accept international humanitarian aid and medical assistance. Due to the relatively profound public power background of the “Red Cross Society” of the Taiwan Region, a special “Red Cross Society Act” had been established in the Taiwan Region, and the leader of Taiwan naturally serves as the emeritus head of the “Red Cross Society.” The “International Cooperation and Development Fund” (“IDCF”) is a nongovernmental organization established by the Taiwan Region to provide financial assistance to the so-called “friendly nations.” The “Legislative Yuan” of the Taiwan Region has specifically established the “Act for the Establishment of the International Cooperation and Development Fund” to regulate the organization, scope of activities and mode of operation of the “IDCF.” The main funding sources of the “IDCF” are funds allocated by public power organs, interest income, and private donations. The “IDCF” mainly carries out financing plans with economic benefits in Taiwan’s “diplomatic allies” through utilization of existing funds and based on policies of the Taiwan authorities to assist the economic development of aided countries. So to speak, the “IDCF” is in nature a window and implementation unit for the Taiwan authorities to provide economic assistance to foreign countries. The above is the summary of five main means of existence of the Taiwan Region in the international space. Such means stem from the failure to form a mode recognized by both sides for the alignment of political relations; consequently, the issue of Taiwan’s participation in the international space can only be handled by individual cases. The understanding and exploration of the connotations of these means of existence are very beneficial for analyzing how the two sides should cope with and handle Taiwan’s participation in the international space through a reasonable alignment mode of political relations from the perspective of the alignment of crossStrait political relations.

Chapter 5

Political Rivalry: Taiwan’s Strategies for Participating in International Organizations and the Mainland’s Response

Based on a specific position (the one-China principle), the mainland’s academic literature on the participation of the Taiwan Region in international organizations can be divided into two schools: first, to expound on and demonstrate the Chinese government’s basic viewpoints and policies toward Taiwan’s participation in international organizations academically; second, to discuss and criticize Taiwan’s policies, opinions and practice with regard to its participation in international organizations. The adoption of the “position-oriented” study paradigm is of great importance to upholding the one-China principle academically; however, such a paradigm is still weak in the observation, analysis and interpretation of Taiwan’s detailed policies for participating in international organizations. On the basis of upholding the oneChina principle, this book focuses on investigating Taiwan’s policies and changes in its policies for participating in international organizations and analyzing crossStrait interactions and relevant political considerations behind the changes in such policies in an attempt to construct a thinking paradigm for Taiwan’s participation in international organizations on the “strategy-oriented” dimension.

1 Asymmetrical Rivalry and Strategy-Oriented Paradigm The majority of relatively important international organizations at present are organizations established on the foundation of a sovereign state system. For most international organizations, except when their constitutional documents stipulate otherwise, their member states should all be sovereign states. On this basis, membership of specific international organizations has been equated with “state recognition” and “government recognition.”1 Therefore, the authorities, political governments and relevant personages of the Taiwan Region have considered membership of certain 1

See Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 161 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_5

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international organizations as the criteria for judging whether its “sovereignty” or “subjectivity” has obtained “international recognition.” Correspondingly, the Chinese mainland has also deemed the exclusion of the Taiwan Region from international organizations for sovereign states only as an indicator of the international negation of Taiwan’s “sovereignty” and “subjectivity.” This point has already been explained in detail with the “attack-defense” paradigm as mentioned above; hence, there is no need to go into detail here. The mainland and Taiwan have already formed a relationship of political rivalry with each other regarding Taiwan’s participation in the international space. In nature, it is no longer a simple question of whether Taiwan can participate in the international space but constitutes an arena and a test field of cross-Strait relations. The mainland and Taiwan are not in equilibrium in their political rivalry concerning Taiwan’s participation in international organizations; rather, this rivalry displays asymmetrical characteristics, similar to other rivalries between the two sides.2 In reality, the asymmetrical rivalry is reflected as difficulty for the Taiwan Region to participate in international organizations for sovereign states only. Most Chinese mainland literature expounds on asymmetrical rivalry based on the oneChina principle but lacks consideration of the realities of cross-Strait relations and international politics. On the basis of upholding the one-China principle, this book attempts to reveal the important role of strategy in Taiwan’s participation in international organizations on a deeper level by analyzing the international political basis and jurisprudential basis of asymmetrical rivalry from a realistic perspective.

1.1 Asymmetrical Rivalry and Release of Strategy-Oriented Paradigm The asymmetrical rivalry between the Mainland and Taiwan is rooted in the great disparity in their political, military and economic strength. Nevertheless, in the rivalry concerning Taiwan’s participation in international organizations, based on the principle of equality universally acknowledged in international law, such disparity in their political, military and economic strength only constitutes the context of the asymmetrical rivalry. Understanding the asymmetry between cross-Strait political and economic strength as the main content of asymmetrical rivalry is biased and narrow-minded in the understanding of the purpose and value of cross-Strait asymmetrical rivalry being explored in this book. Based on the thinking above, this book observes asymmetrical rivalry mainly from its reflection in the international community. On these grounds, the rivalry between the two sides regarding Taiwan’s participation in international organizations has a profound international political basis and jurisprudential basis. 2

See Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, Ph.D. diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007, 62.

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Table 1 Summary of WHA votes on Taiwan’s “observership/membership” (This table was prepared by the author) Year

Matter

Votes against

Votes in favor

Abstentions

1997

“Observership” case

128

19

5

2004

“Observership” case

133

25

2

2007

“Membership” case

148

7

2

First, the number of countries with diplomatic relations established with the People’s Republic of China is far greater than that with Taiwan, which constitutes the international political basis of asymmetrical rivalry. The recognition of the oneChina principle has been established by the Chinese government as a prerequisite for the establishment of diplomatic relations between the People’s Republic of China and other counties. On this account, all countries establishing diplomatic relations with the People’s Republic of China must sever “diplomatic” relations with Taiwan. At the same time, the international consensus on the one-China principle formed among various countries throughout the world has further reinforced the Chinese government’s principle for establishing diplomatic relations. When added up, these wo effects contributed to the formation of a situation where far more countries have established diplomatic relations with the People’s Republic of China than those with Taiwan. In regard to Taiwan’s participation in international organizations, as a result of the abovementioned situation, the Chinese Government’s proposals against Taiwan’s participation in international organizations are often backed by an “overwhelming majority.” Take the votes on Taiwan’s application for participation in the activities of the World Health Organization as an example: in the three votes held in 1997, 2004 and 2007, the proposals for listing the “membership” issue of the Taiwan Region on the agenda were all vetoed by an “overwhelming majority.” See the table below (Table 1): Second, the United Nations General Assembly Resolution 2758 constitutes the jurisprudential basis of asymmetrical rivalry. The majority of international organizations are established on the legal system based on the constitutional document (charter) and operate with the legal system as the basic foundation. Even an advantageous international political pattern must have a clear and standard jurisprudential basis before it can make a difference. Even though the abovementioned international political pattern can support a situation of asymmetrical rivalry on the realistic dimension of international politics, it cannot provide a jurisprudential basis for asymmetrical rivalry. Therefore, from a realistic perspective, an asymmetrical rivalry must be established on a certain jurisprudential basis. In practice, the United Nations General Assembly Resolution 2758 has provided a jurisprudential basis for asymmetrical rivalry. According to Resolution 2758, various international organizations should redecide on the membership of the Taiwan Region through cancelation or other methods. For instance, in “WHA 25.1”, a resolution of the World Health Organization in 1972, the United Nations General Assembly Resolution 2758 was cited to

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restore the lawful seat of the People’s Republic of China in the World Health Organization. Thus, this Resolution was cited repeatedly by the World Health Organization to reject Taiwan’s application for “observership” or “membership.”3 The international political basis and the jurisprudential basis of the asymmetrical structure are not isolated from each other; combined together, they can effectively explain certain phenomena in Taiwan’s participation in activities of international organizations, which mainly includes two aspects: first, analysis and interpretation of the policies and functions of various countries and related international organizations regarding Taiwan’s participation in international organizations and clarification of the external environment considered by the Taiwan Region when adopting strategies for participating in international organizations; second, pertinent analysis of the strategies adopted by the Taiwan Region to distinguish the target of its strategies. Issues about the two abovementioned aspects will be expatiated later. The paradigm is a theorized set of coordinates or compasses, based on which the range of study can be classified or standardized. It determines the researcher’s starting point, decides which questions are allowed to be raised, and how to answer the specific questions raised as well as the methods and means for resolving such questions.4 The significance of the “paradigm” concept for the resolution of the questions involved in this book lies in the following: the questions involved in Taiwan’s participation in the international space have already formed a “set of phenomena”; the selection of an observation point and thinking method for the phenomena decides the degree of understanding of the phenomena and their nature; a reasonable study approach will help the researcher find an appropriate observation point and thinking method to have a more careful and in-depth grasp of the nature of Taiwan’s participation in the international space and provide theoretical support for seeking an effective and accurate way of response. The “position-oriented” paradigm transforms the political position held by the researcher into the basic tool and main argument for analyzing this issue, and it has two advantages. First, to infiltrate a clear political position into the study is conductive to providing sufficient theoretical support for policies; in fact, studies of the issue of Taiwan’s participation in international organizations by mainland scholars mostly focus on the interpretation and analysis of policies, which makes relevant policies of the mainland more than political decisions and creates a theoretical foundation to a certain extent. Second, the “position-oriented” paradigm reflects the consensus on “one China” in the international community and the common practice of international organizations to deal with Taiwan’s “membership” issue, which integrates the international political basis and jurisprudential basis of the asymmetrical rivalry into the interpretation of preconceived positions, thus contributing to the theoretical description of the basic prospects of asymmetrical rivalry. In terms of methodology, starting from their own positions, researchers may easily find a point of penetration 3

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 4 See [German] Hans Poser, Kexue: Science: What is Science, (Shanghai SDX Joint Publishing Company, 2002), 118–119.

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among various phenomena in Taiwan’s participation in the international space and figure out the logical venation behind. However, the pitfalls of the “position-oriented” paradigm are also quite obvious. First, since the political position held by the researcher is used as the basic tool and main argument for analyzing the issue, the validity of the conclusion is rooted in this political position; once the political position is called into question and negated, the validity of the conclusion will also be called into question and negated. Many Taiwanese scholars criticize the one-China principle in their works, which regard the one-China principle as the greatest obstacle preventing the Taiwan Region from participating in international organizations.5 Therefore, the relevant conclusions deduced on the basis of the one-China principle are also negated. Second, it is true that the “position-oriented” paradigm can describe and analyze various phenomena of Taiwan’s participation in international organizations relatively well. However, due to its macroscopic view, its grasp of details is somewhat inadequate, which makes it difficult for the “position-oriented” paradigm to predict future trends of such phenomena; in addition, the countermeasures it proposed are also centered around “upholding the one-China principle” and are therefore also inadequate in terms of operability and response, with a sense of “circular argument” in methodology. The realistic background of the “position-oriented” paradigm is the enormous disparity between the mainland and Taiwan in political, military and economic strength, which is directly reflected in the international political basis and jurisprudential basis of asymmetrical rivalry. The “position-oriented” paradigm idealized such disparity in theories, i.e., It attempts to explain the international political basis and jurisprudential basis of the asymmetrical rivalry with the discrepancy between the mainland and Taiwan in strength and, at the same time, preconceives the necessary connection between the cross-Strait discrepancy in strength and the one-China principle to link up the international political basis and the jurisprudential basis of the asymmetrical rivalry with the one-China principle to expound on Taiwan’s participation in international organizations with this logical chain. The abovementioned logical chain notices the connection between strength and position in reality but ignores that in the asymmetrical rivalry between the mainland and Taiwan, the enormous disparity between the two sides in political, military and economic strength is not absolute or unavoidable; therefore, the international political basis and the jurisprudential basis of the asymmetrical rivalry are not unbreakable ice. William Habeeb believes there are three types of powers during the rivalry between two states: first, aggregate structural power, which is defined as the “the actor’s aggregate resources and possessions”; second, issue-specific structural power, which is “concerned with an actor’s capabilities and positions vis-à-vis another actor in terms of a specific mutual issue”; third, behavioral power, which is actually the process “by which actors maneuver and use their resources to achieve preferred

5

See Chen Lung-chu, “Taiwan’s International Role in the New Century”, New Century Think Tank Forum 10 (June 2000); Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000).

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outcomes.”6 Taiwanese scholar Chu Gwo-fa believes, the “asymmetry” between the mainland and Taiwan only refers to the asymmetry of “aggregate structural power” but does not include “issue-specific structural power” and “behavioral power”, and Taiwan can make up for and eliminate the imbalance of “aggregate structural power” across the Strait with “issue-specific structural power” and “behavioral power.”7 In the above argumentation, issue-specific structural power and behavioral power are not decided by aggregate structural power; in contrast, when used properly, issuespecific structural power and behavioral power can effectively If we inspect the “position-oriented” paradigm with the exposition above, two conclusions can be reached. First, the rivalry between the two sides regarding Taiwan’s participation in international organizations is asymmetrical, to be sure, but such asymmetry is only in terms of the political, military and economic strength across the Strait and does not necessarily mean the mainland has an overwhelming advantage over Taiwan in this rivalry, i.e., The great discrepancy in strength is not necessarily reflected as an enormous disparity in this rivalry, or, the disparity in the rivalry is not as great as the discrepancy in strength. Second, if the Taiwan Region adopts appropriate strategies and gives full play to issue-specific structural power and behavioral power, it may resolve or avoid the asymmetry of rivalry and even “triumph over a stronger opponent.”8 This means that with specific strategies, the international political basis and jurisprudential basis of asymmetrical rivalry may be resolved. According to Habeeb’s exposition on the three powers, the connection between strength and position is not as necessary and absolute as preconceived. Rather, position serves as the background and bottom line during the asymmetrical rivalry between the two sides, and attention should be given to the function of strategies in detailed investigation into the asymmetrical rivalry. In view of this, this book will establish a “strategy-oriented” paradigm, convert the one-China principle from the basic tool and main argument for analyzing this issue into the background and bottom line, and link up the international political basis and the jurisprudential basis of asymmetrical rivalry with strategies to make a theoretical attempt to analyze Taiwan’s participation in the international space on a deeper level.

1.2 “Strategies” Summarized by Taiwanese Scholars As mainland scholars prefer policy studies, when faced with the realistic pressure of asymmetrical rivalry, Taiwanese scholars have conducted relatively in-depth studies 6

See Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, Ph.D. diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007, 29. 7 See Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, Ph.D. diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007), 13. 8 See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010).

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on the strategies of the Taiwan Region for participating in the international space. An introduction will be made in the following to the most representative viewpoints of Taiwanese scholars to provide theoretical materials for the release of Taiwan’s strategies for participating in the international space in this book. (1) Shaw Chong-hai: Taipei’s Strategies for Diplomatic Breakthrough Taiwanese scholar Shaw Chong-hai analyzes the “diplomatic strategies” adopted in the “diplomatic rivalry” and political wrestling across the Strait and proposes an analytical framework quite similar to the “attack-defense” paradigm in this book, i.e., Referring to Taiwan’s conduct in the “diplomatic rivalry” as a “diplomatic breakthrough.” According to Shaw Chong-hai, under the premise that the mainland will not give up boycotting Taipei’s entry into the international community, Taiwan’s “diplomatic” efforts have not achieved all its goals, with traces of setbacks as well. Therefore, Taiwan has adopted more pragmatic and open strategies, which are mainly as follows9 : First, seek “diplomatic” support with economic or monetary aid. Shaw Chong-hai believes, in order to convince more countries to choose Taipei over Beijing for the “establishment of diplomatic relations”, apparently the Taipei authorities have thrown a straight fastball with economic or monetary aid as bait, striving for an enthusiastic response from these countries. Even though Taipei denies such a method as “dollar diplomacy”, undeniably, when seeking contact with Taipei, those countries have more or less mentioned certain support projects, and Taipei has also been willing to offer relevant assistance. Second, strive for “diplomatic allies” with “dual recognition” measures. According to Shaw Chong-hai, it is a pragmatic practice of Taipei to seek official “diplomatic” relations with countries that have already established official diplomatic relations with the People’s Republic of China, with no thought given to their existing relationships with Beijing. Such “dual recognition” practice is believed to be conducive to Taipei’s “diplomatic breakthrough.” Third, promote “diplomacy” with the concept of “divided sovereignty and separate governance.” According to Shaw Chong-hai, under the premise of pursuing a “unified China”, Taipei hopes to become one of the “political entities” across the Strait for “separate governance” of the presently “divided China” and seek expedient “diplomatic space” for each other. The purpose of the wording “divided sovereignty and separate governance”, Shaw Chong-hai believes, is to distinguish between Taiwan and the mainland and create the possibility for Taiwan’s participation in the international space with expressions such as “Taiwan and the mainland are part of China”, “the Communist Party of China is not equal to China”, and “the Republic of China represents Taiwan.” Fourth, the exposure of Taiwan in the international community should be increased. According to Shaw Chong-hai, striving for “diplomatic allies” or participation in international organizations is still an important goal of Taiwan’s “diplomatic strategies”, but increasing the exposure of Taiwan in the international community 9

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 462–473.

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highlights the “truth behind the diplomatic suppression” of Taiwan by the Communist Party of China, which is referred to as another strategy of Taipei for “diplomatic confrontation” with Beijing. The application of this strategy is especially obvious during the administration of the Democratic Progressive Party. Specifically, the application of this strategy is reflected as Taiwan’s application for membership in relevant international organizations, “transit diplomacy” carried out by Taiwan’s leader or senor officials, and speeches delivered by Taiwan’s political figures and celebrities on important international occasions. Shaw Chong-hai also analyzes the mainland’s specific strategies in response and believes that the strategies adopted by the mainland can be generally divided into four types: first, utilize the one-China principle to “smother” the original intention of many international organizations and countries of accepting both Beijing and Taipei at the same time; second, compete with Taiwan for “diplomatic allies” with economic or monetary aid; third, take the “external” approach, i.e., Utilizing Beijing’s influence in the international community in the hope of “blocking” the Taiwan Region from the international space and cutting off the support for Taipei in the international community to isolate Taipei completely to force Taipei to accept Beijing’s terms or bring Taipei to the negotiating table; fourth, resolving the issue of Taiwan’s space for international activities through negotiation. Shaw Chong-hai’s opinion seems to be based on the analysis of strategies adopted in the cross-Strait “diplomatic battle”, but the specific strategies listed are still based on the policy level and therefore have little microscopic or technical strategic implications, more like an interpretation of the measures adopted by the two sides to implement relevant policies. (2) Lin Wen-cheng: Taiwan’s Countermeasures for Participation in International Organizations After analyzing the difficulties for the Taiwan Region to participate in international organizations, Lin Wen-cheng proposes countermeasures for Taiwan to participate in international organizations. According to Lin Wen-cheng, there are three main reasons for Taiwan’s exclusion from the majority of international organizations: first, very few “diplomatic allies” with little international influence; second, the mainland’s vigorous “suppression”; and third, a lack of resilience in the “diplomatic” policies of the Taiwan authorities. To cope with the difficulties above, Lin Wen-cheng puts forward twelve suggestions. First, we strive to join international organizations of higher difficulty under the official “state name” to demonstrate the status of Taiwan as an “independent sovereign state.” Second, considering the importance of the United States’ position in Taiwan’s application for membership of international organizations, the Taiwan Region should strive for American support through various channels. Third, since specialized agencies of the United Nations and other intergovernmental organizations all require statehood for membership application, which has provided an “excuse” for the mainland to prevent Taiwan from joining such organizations, the Taiwan Region should promote the APEC mode and lobby countries, including the United States and Japan, for amendment to constitutional documents of specialized financial and

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trade agencies to replace “member state” with “economic entity” and find a solution to Taiwan’s entry into such specialized financial and trade agencies. Fourth, as the headquarters and secretariats of international organizations are usually located in Brussels, Paris, Geneva, London, Rome, New York, and Washing D. C., relevant personnel of the Taiwan Region stationed in these cities should engage in interactions and communication with officials of these international organizations. Fifth, the mainland is the greatest obstacle preventing the Taiwan Region from participating in international organizations, and in recent years, the mainland has once and again proposed issues for discussion in cross-Strait political negations, so Taiwan should list its participation in international organizations as one of the issues for discussion in future negotiations with the mainland. Sixth, as for specialized UN agencies with respect to science and technology, the Taiwan Region should make the best use of the international influence of internationally renowned Taiwanese experts with expertise in relevant professional fields or foreign advisers on science and technology employed by the Taiwan Region to lobby representatives of such organizations on behalf of the Taiwan Region and create an atmosphere for Taiwan’s entry into these organizations. In addition, during the process of striving for participation in specialized agencies of the United Nations, the Taiwan authorities should work closely with nongovernmental organizations, on the one hand, to combine all available resources and on the other hand, to achieve consistency in the application of strategies. Seventh, before marching toward any specialized agency, Taiwan authorities should first form an action group and incorporate officials of relevant departments, legal experts and experts in other fields as well as relevant nongovernmental organizations to carefully study and analyze various regulations of the specialized agency, make detailed planning of application strategies, and prepare for a long-term battle as a whole. Eighth, based on the supportive attitude of European and American parliaments and congresses toward Taiwan’s participation in international organizations, in the future, the Taiwan authorities should focus on lobbying parliaments and congresses of Western countries and striving for the support of the European Union through the European Parliament. Ninth, they take an active part in international nongovernmental organizations, especially those with connections with international intergovernmental organizations; the Taiwan authorities should play a role in coordinating relations, giving guidance, providing information and rendering assistance so that Taiwan’s civil organizations can maximize the function of participating in nongovernmental organizations with limited resources and help the Taiwan Region establish relations with international intergovernmental organizations by establishing connections with these international nongovernmental organizations. Tenth invited relevant countries to Taiwan to discuss issues related to the security of the Taiwan Strait and the Asian-Pacific Region. Eleventh, as for international intergovernmental organizations that Taiwan has already joined as a member, the Taiwan Region should further refine operations, encourage academia to conduct in-depth studies of such organizations or key international organizations that Taiwan has been striving to join, and actively cultivate talent with respect to the administrative system. Twelfth, with an adverse external environment for Taiwan to participate in international organizations, the Taiwan Region should seek internal integration: various units of public

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power organs should coordinate their cooperation to establish consensuses and avoid the situation of “each fighting its own battle” as a result of sectionalism.10 In another article, Lin Wen-cheng expounds on the function of overseas Chinese showing a preference for Taiwan (hereinafter referred to as “overseas Chinese”) in Taiwan’s participation in international organizations and proposes the strategy of utilizing “overseas Chinese” resources to assist Taiwan with its participation in international organizations. According to Lin Wen-cheng, overseas Chinese can be an important force striving for Taiwan’s participation in international organizations by playing a role in safeguarding Taiwan’s rights and interests in international organizations, lobbying for and publicizing Taiwan’s position in countries of their residence, and providing logistic support for various activities striving for Taiwan’s participation in international organizations. Lin Wen-cheng proposes that to give play to the function of “overseas Chinese” in Taiwan’s participation in international organizations, Taiwan’s public power organs should promote work contributing to the integration of overseas Chinese associations and striving for the support of “overseas Taiwanese”, establish a “Democratic and Peace Alliance of All Overseas Chinese”, strengthen overseas cultural propaganda mechanisms, promote overseas Chinese education, attract “overseas Taiwanese” to return to and invest in Taiwan, and reinforce services provided to “overseas Taiwanese.” In addition, academia and nongovernmental organizations can all work together in cooperation with public power organs.11 (3) Joanne Jaw-Ling Chang: Taiwan’s Tactics for “Dealing with” the Mainland After studying Taiwan’s strategies for participation in the WHO/WHA, Joanne JawLing Chang has summarized the tactics of the Taiwan Region for dealing with the mainland with regard to the issue of Taiwan’s participation in international organizations. According to Joanne Chang, before the 1970s, the world was dominated by the United States and the Soviet Union—a pair of close rivals opposing each other; under the dominance of two super powers, there are only two possible ways for small countries to achieve their goals: first, gang up with a superpower against their common enemy; second, play one superpower against the other to achieve their own success. Therefore, various countries could only pick a side (the United States or the Soviet Union) to protect their own existence and status in the international community. However, since the 1970s, with the defeat of the United States in Vietnam, the traditional view that the strong or the greatest power shall dominate international politics has been called into question. Scholars have realized that without a strong will and determination, a nation with political, military and economic advantages may still be no match for an opponent in a comparatively weak position but with a strong willpower. Therefore, when “dealing with” the strong, the weak can utilize the corresponding strategies to strengthen its bargaining chips in negotiations. Based 10

See Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000). 11 See Lin Wen-cheng, “The Role, Function, and Challenge of Taiwan Compatriots’ Assistance in China’s Entry into International Organizations”, data source: www.ntnu.edu.tw/deacd/conference/ paper/3-1.pdf, the last access date: October 7, 2012.

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on the understanding above, with Taiwan’s participation in the WHO/WHA as an example, Joanne Chang has analyzed the strategies utilized by the Taiwan Region when “dealing with” the mainland.12 First, the weak is often able to focus on one issue wholeheartedly with all-out efforts and make up through hard work what it lacks in strength. During negotiations, the weak usually goes all out, while the strong is often occupied by other businesses and therefore unable to give undivided attention. Thus, by making up through hard work what it lacks in strength, the weak may realize a relatively advantageous outcome in negotiations. If we understand the asymmetrical rivalry between the two sides concerning Taiwan’s participation in the WHO/WHA as “negotiations” in a broad sense, then the eventual success of the Taiwan Region in 2009 after its persistence in seeking WHO/WHA membership in various names since 1997 is also considered the result of “focusing on one issue” and “making up through hard work what it lacks in strength.” Second, despite limited resources, the weak sometimes can triumph over the strong with strong willpower and determined decisions. In the cross-Strait issue, the Taiwan Region has survived the suppression by its strong component under the title of the “Republic of China” for six decades, which is considered the “best practice” in this respect. Therefore, Joanne Chang suggests that Taiwan should unite the mind of its people, reduce pointless wastes as a result of internal conflicts, and make consensuses within the island as the powerful backing for its negotiations with the mainland. Third, the week can steal the thunder and take the initiative in the negotiation agenda. In principle, the weak’s power has three sources: first, the weak can influence the agenda or put forward an argument to stir up confrontation; second, the weak can make its requests and impose moral restraints on the strong; third, the weak is entitled to agree as much as to refuse an agreement, which may result in the conclusion of negotiations without any real progress. About the first, Taiwan kept coming up with “titles” including the “Republic of China (Taiwan)”, “Taiwan” and “Health Entity” that cannot possibly be accepted by the mainland for Taiwan’s observership and even “full membership” of the WHO/WHA in an attempt to provoke strong reactions on the mainland and incited its “diplomatic allies” to submit Taiwan-related proposals and constantly led the development of agenda to bring “attacks” on the mainland. The strong side though it is, the mainland could only respond to the “attacks” from the Taiwan Region passively. About the second, with the excuse of public health events, Taiwan kept requesting the WHO/WHA to include it in the world health system to ensure the right of Taiwanese people to health, which imposed moral restraints on the mainland and made it imposable to directly turn down Taiwan’s request on the abovementioned ground. Third, Taiwan firmly negated the mainland’s proposition to incorporate Taiwan’s health affairs under the framework of the “People’s Republic of China”, which made it impossible for the mainland’s proposition to come true. Another strategy of the Taiwan Region in terms of the setting of the agenda is to incite its “diplomatic allies” to submit Taiwan-related proposals for years on end, 12

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010).

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which has led to long and tedious activities, including speeches, debates and voting at the WHO/WHA each year, and seriously affected the normal activities of the WHO/WHA. The spokespersons of the WHO/WHA also believe that Taiwan-related proposals have taken up too much time. By prolonging the agenda and interfering with the normal agenda, the Taiwan Region’s strategy with regard to the setting of the agenda has seriously affected the normal operation of the WHO/WHA, which prompts the WHO/WHA to hope for an earlier solution to this issue to “focus on discussion on public health topics in the future.” Thus, even though the Taiwan Region is the weaker side, through the development and setting of the agenda, it has imperceptibly placed pressure on the mainland and left the mainland with no choice but to respond to Taiwan’s expectations. Fourth, the weak can increase its bargaining power by adopting an uncooperative attitude. It is certainly not easy for the weak to convince the strong to achieve its goal; nevertheless, it is not necessarily easier for the strong to persuade the weak to cooperate. Some scholars studying negotiations believe that the greatest bargaining power of the weak is to say “no.” When the strong has a request to make of the weak, the weak can totally turn a deaf ear to the strong or just refuse its request explicitly if the weak believes the conditions are not ideal. Such a noncooperative attitude can prevent the strong from achieving its goal and can even indirectly impel it to make concessions. When the weak has important strategic value or resources, it can also impel the strong to make more concessions during negotiations; in addition, the weak can also resist the demand made by the strong through the pressure of international public opinion. With regard to the mainland’s warning against creating “two Chinas” and “one China, one Taiwan”, the Taiwan Region has turned a deaf ear and stuck to its own way, without giving any positive response. Meanwhile, Taiwan has taken advantage of the mainland’s concern for Taiwan’s “jurisprudential independence” and continued to gain an upper hand in the rivalry across the Strait. Furthermore, the Taiwan Region has contacted and incited pro-Taiwan personages in the United States, Europe and Japan to pass proposals in favor of Taiwan’s participation in the WHO/WHA at the parliaments or congresses of the abovementioned countries and regions, thus imposing pressure on the mainland. Joanne Chang believes that every attempt of the Taiwan authorities to join the WHO/WHA has a strategic background and profound strategic meanings, and the application of these strategies has played a crucial role for Taiwan to achieve its ultimate goal. (4) Chu Gwo-fa: Study of Strategies in Cross-Strait Negotiations In his doctoral dissertation “Cross-Strait Negotiations Under the Asymmetrical Power Structure”, Chu Gwo-fa studies the strategies in negotiations across the Strait with the Koo-Wang Talks as the object of study. Even though Taiwan’s participation in the international space is not the object of Chu Gwo-fa’s study, it is still of reference value to analyze the strategies adopted by the Taiwan authorities during Taiwan’s participation in the international space. According to Chu Gwo-fa, during

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the process of cross-Strait negotiations, the Taiwanese authorities adopted strategies in seven aspects.13 First, Chu Gwo-fa believes the purpose for the Taiwan Region to adopt the “ARATS and SEF” mode for cross-Strait relations is to substantiate the concept of “equal political entities” and implement the “short-term” arrangements of “nongovernmental planning” for cross-Strait relations in the “Guidelines for National Unification.” The acceptance of the mainland’s “Association for Relations Across the Taiwan Straits” as the other party of negotiations is also considered part of the use of “diplomatic” strategies to reduce the influence of Beijing’s “diplomatic suppression” of Taiwan. The second is the “divided state” in negotiations. Chu Gwo-fa believes Taiwan wants the mainland to recognize its status as an “equal political entity”, which is, however, only an ideal status between the two sides. Internationally, Taiwan attempts to achieve the alignment mode of a “divided state” through the public image in cross-Strait relations. Even though there are no concepts or measures adopted in the Koo-Wang Talks that clearly indicate “divided state”, the image and significance presented by the Koo-Wang Talks, in terms of international impressions, naturally highlights Taiwan’s image of “divide state.” Apparently, from the viewpoint of Chu Gwo-fa, “equal entities” and “divided state” are two sides of the same coin, which are connected with each other internally; “equal entities” mainly focus on the description of internal relations across the Strait, while “divided state” is an impression of crossStrait relations that Taiwan is trying to make on the international community. The third is the internationalization of the Taiwan issue. According to Chu Gwo-fa, the selection of negotiation venues has already shown consideration for internationalization of the Taiwan issue on international occasions. As believed by American scholars, the Koo-Wang Talks have no substantive meaning—only a ceremonial practice. Koo Chen-fu also said that “Taiwan has already achieved international exposure and a posture of equal negotiations with the mainland, at least before sitting at the negotiation table” of the Koo-Wang Talks. There is a certain kind of internal consistency between the strategy of internationalization of the Taiwan issue and the abovementioned strategies of “equal entities” and “divided state”, which support and reinforce each other. In other words, before the goal of “equal entities” is achieved, use the “divided state mode” and “internationalization of the Taiwan issue” alternatively across the strait or internationally; the success of the strategies of “divided state” and “internationalization of the Taiwan issue” also means establishment and consolidation of the “political entity” of Taiwan. Fourth, procrastination. According to Chu Gwo-fa, when Taiwan’s comprehensive strength is inferior to that of the mainland and a consensus is lacking within the island on mainland policies, what the Taiwan authorities truly need is a process of negotiation, through which they can publicize the rationality of their own position and procrastinate while waiting for changes. During their procrastination, Taiwan hopes 13

See Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, Ph.D. diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007, 227–242.

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for an international landscape and a cross-Strait situation advantageous to Taiwan, so that it will not only lead the progress of China’s reunification but also successfully achieve the “separation” between Taiwan and the mainland. Therefore, procrastinating in the hope of greater space has become a strategy of Taiwan’s mainland policy. Fifth, soft attacks with “democratization.” According to Chu Gwo-fa, during the interactions across the Strait, Taiwan has always been in a passive position, and one of the methods for it to gain the initiative is to launch active attacks with the “democratization” strategy. The “democratization” strategy utilizes the conception of democracy in Western liberalism to attack peculiarities in the pollical development of socialist states to gain more bargaining power in bilateral negotiations. Chu Gwo-fa believes that the “democratization” strategy is in fact a modern version of the idealistic tradition of the long-standing and well-established “democratic peace theory” in the Western world, which actually makes no contribution to the resolution of cross-Strait relations but only aggregates the situation where neither of the two sides would listen to each other with no interactions whatsoever. Sixth, interlocking traps. According to Chu Gwo-fa, the so-called “interlocking traps” means that Taiwan proposes certain terms as the prerequisite for reaching an agreement or consensus. This strategy includes “interlocking traps on the macroscopic or strategic level” and “interlocking traps of negotiation skills.” The former can be illustrated with the attempt to gain greater political interests by agreeing on discussing the topic of “three links”, such as proposing “giving up military attacks on Taiwan”, “international space for Taiwan” and “equal political entity” as the conditions for the establishment of the “three links”; the latter is mainly reflected in the topics for discussion about specific affairs and clauses of agreements between the ARATS and the SEF. Seventh, other strategies. According to Chu Gwo-fa, in addition to the main strategies above, other strategies have also been adopted by Taiwan in cross-Strait affairs and negotiations, including increasing the resilience of negotiations, seeking the initiative in negotiations by authorization, converting topics for discussion, setting up barriers intentionally, etc.

2 Taiwan’s Strategies for Participating in International Organizations—Taking Taiwan’s Application for Participation in World Health Organization (WHO)/World Health Assembly (WHA) Activities as an Example Since 1997, the Taiwan authorities have been applying for participation in relevant activities of the WHO/WHA and have attended the WHA in the name of “Chinese Taipei” as an observer for 8 consecutive years. Taiwan’s application for participation

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in WHO/WHA activities has become a typical case of Taiwan’s participation in international organizations, which is also taken as an example in this book to analyze and verify Taiwan’s strategies for participation in international organizations. It should be noted that the “international organizations” mentioned in this chapter all refer to international intergovernmental organizations for sovereign states only and do not include international nongovernmental organizations that can be joined by nonsovereign states and nongovernmental organizations. According to its constitutional document, the WHO is a specialized agency of the United Nations, and therefore, its members must be member states of the United Nations. This means that the WHO is an international intergovernmental organization for sovereign states only.

2.1 Entity Strategy: From “One China” to “Two Entities” The “entity” strategy corresponds to Taiwan’s qualification of participating in international organizations. With which external “entity” symbolizes and under which status should Taiwan participate in international organizations is of great concern to the bottom line of the one-China principle and one of the issues attracting the most attention on the mainland. At present, the “state” title (including the “Republic of China” and “Taiwan”) is often mentioned as the symbol of “entity” to participate in international organizations but mostly as an announcement of symbolic meaning and therefore has no substantive meaning. With respect to policy and practice, the Taiwan Region’s entity strategy has achieved the transformation from “one China” to “two entities” while attempting to seek breakthroughs during Taiwan’s participation in the activities of international organizations with the mainland’s expression of “two sides.” (1) Theoretical Implications of the “Entity” Strategy After the United Nations passed Resolution 2758 in 1971, asymmetrical rivalry had already had sufficient jurisprudential basis, while it was difficult for the Taiwan Region to participate in international organizations through its “state” title on its international political basis. Since the 1980s, the one-China principle being upheld by the Taiwan authorities at the time has also been attacked in Taiwan by political parties and groups advocating “Taiwan independence.” Under dual pressures from both inside and outside, the Taiwan authorities have given up on the “irreconcilability” policy with regard to the issue of Taiwan’s participation in international organizations and turned to explain and replace “one China” and make it ambiguous with “two entities” and promoted the gradual formation and implementation of the “two entities” strategy by exploring the connotations of “two entities.” The “two entities” strategy starts from the contradiction between the Taiwan authorities’ factual decision and jurisprudential framework, while the release of the “two entities” strategy is exactly a product of the compromise between the factual decision and jurisprudential framework. When the Taiwan authorities gave up the

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“irreconcilability” policy and decided to “represent the Taiwan Region” in international relations,14 since the current “Constitution” of the Taiwan Region still hasn’t given up on its formulation of “one China”, the abovementioned factual decision of the Taiwan authorities not only cannot be recognized by Mainland China and the international community but also encounters great difficulties under the jurisprudential framework of the Taiwan Region.15 To overcome the contradiction between the factual decision and the jurisprudential framework, explaining “one China” with “two entities” and creating an atmosphere of “ambiguous one China, two entities” has become an inevitable choice of the Taiwan Region for participation in international organizations. The implications of “two entities” can be explained from two aspects. First, on the macroscopic level, in terms of historical origin, the “two entities” strategy stems from “one China, two entities”, which was used by the Taiwan authorities to describe Taiwan’s policy for the alignment of cross-Strait political relations in early 1990.16 In the “Guidelines for National Unification” in 1991, “two entities” are explained as follows: first, both the mainland and Taiwan areas are parts of Chinese territory; second, neither the mainland nor Taiwan denies each other’s existence as a political entity; third, both sides of the Strait should establish official communication channels on an equal footing.17 “Two entities” on the macroscopic level are also affirmed by the “Constitution” and relevant laws of the Taiwan Region as a mode for the alignment of cross-Strait political relations officially recognized by the Taiwan authorities. Second, on the microscopic level. Specifically, “two entities” on the macroscopic level are manifested in a variety of forms, i.e., “Two entities” on the microscopic level. For example, the Taiwan Region participates in international organizations, including the International Olympic Committee, Asia–Pacific Economic Cooperation and World Organization for Animal Health as “Chinese Taipei”, World Trade Organization as “Separate Custom Territory”, international fishery organizations, including the International Commission for the Conservation of Atlantic Tunas and Western and Central Pacific Fisheries Commission as “Fishing Entity”.18 The abovementioned concept of “two entities” on the macroscopic and microscopic levels has different connotations in the strategies of the Taiwan Region for participating in the international space. With “two entities” on the macroscopic level, the Taiwan authorities have officially given up on competing with Mainland China for “Chinese representation”, with the intention of creating a situation of “divided

14

Quote from Chiang Hsiao-yan’s speech at the European Parliament in 1997. See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 467. 15 See Zhou Yezhong and Zhu Jie, Legal Reflections on Cross-Strait Relations, Hong Kong Social Science Publishing House, 2010, 64–69. 16 See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 95. 17 See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 351. 18 Huang Yi, The Force of International Law in the Field of Domestic Law, Angle Publishing Co., Ltd., 2006, 111.

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sovereignty and separate governance” across the Strait to “seek expedient diplomatic space” for the Taiwan Region.19 In a manner of speaking, “two entities” on the macroscopic level are a guiding principle for Taiwan’s participation in international organizations. Nevertheless, from the perspective of operation, “two entities” on the macroscopic level embody the political determination of the Taiwan authorities in participating in international organizations but do not necessarily leave much leeway for operation. In addition, as “one China, two entities” itself is not recognized by the international community, it is indeed difficult for “two entities” on the macroscopic level to shake the international political basis and jurisprudential basis of asymmetrical rivalry. What is of practical meaning is “two entities” on the microscopic level. Even though the connotations of “two entities” are basically the same on the microscopic and macroscopic levels, the former has a wider extension than the latter. If we say “two entities” on the macroscopic level is a political statement of the Taiwan authorities, then “two entities” on the microscopic level is functional discourse. On the microscopic level, with names such as “Chinese Taipei”, “Separate Custom Territory” and “Fishing Entity”, “two entities” make a distinction between the “participating name” (the “Republic of China”) and “jurisprudential title” of the Taiwan Region20 in an attempt to find an appropriate “entity” symbol for Taiwan to participate in international organizations through the branching of the concepts of “sovereignty” and “state.” On the microscopic level, “two entities” fits the functionalism of David Mitrany in methodology. The latter once proposed integrating similar functions of various states to be managed by a technicalized international organization to realize the transfer of state functions from a sovereign state to a functional organization.21 “Two entities” on the microscopic level attempt to deconstruct the concepts of “sovereignty” and “state” within the problem domain of Taiwan’s participation in international organizations through the thinking path of functionalism to resolve or shake the international political basis and jurisprudential basis of asymmetrical rivalry. Meanwhile, as the “two entities” strategy is expressed via the mainland’s formulation of “two sides”, it increases the mainland’s tolerance of Taiwan’s participation in international organizations. If “two entities” on the macroscopic level still have the political implications of “divided sovereignty and separate governance”, then on the microscopic level, “two entities” have already been rather functionalized. The mainland’s formulation of “two sides” is fundamentally different from “two entities” in political implications but not totally incompatible with functionalized “two sides.” In the report at the 16th CPC National Congress in 2002, “the international space in which the Taiwan Region may conduct economic, cultural and social activities compatible with its status” was officially listed as a “topic” that can be discussed 19

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 466. See Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 21 See Huang Weifeng, “Analysis of the Integration Mode of the European Union and the CrossStrait Dispute over Sovereignty”, EurAmerica Vol. 31 1 (2004). 20

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by the two sides. Furthermore, the Anti-Secession Law passed in March 2005 determined “the international space in which the Taiwan Region may conduct activities compatible with its status” as one of the topics for discussion in cross-Strait negotiations in legal form. In 2008, Hu Jintao pointed out again in his “December 31 Speech”: “Regarding the issue of Taiwan’s participation in the activities of international organizations, fair and reasonable arrangements can be effected through pragmatic consultation between the two sides, provided that this does not create a situation of ‘two Chinas’ or ‘one China, one Taiwan.’”22 In 2015, General Secretary Xi Jinping said during the “Xi-Ma Meeting”: “We understand the thoughts and feelings of Taiwan compatriots about the issue of participating in international activities, and we value and promote the resolution of many related issues; so long as it does not result in “two Chinas” and “one China, one Taiwan”, both sides can make fair and reasonable arrangements through pragmatic consultations.”23 On January 31, 2018, at the regular press conference held by the Taiwan Affairs Office of the State Council, regarding the issue of Taiwan’s participation in activities of international organizations, the spokesperson of Taiwan Affairs Office Ma Xiaoguang expressed, the mainland’s position is consistent and clear, which is the one-China principle must be upheld to handle the issue through cross-Strait consultations.24 The important policies above of the mainland indicate that the issue of Taiwan’s participation in international organizations is not necessarily unresolvable, while the key to its resolution lies in an appropriate name and a proper method for the Taiwan Region to participate in international organizations. In thus far as this point is concerned, the mainland’s formulation of “two sides” happens to coincide with “two entities” on the microscopic level: both attempt to evade the issue of “state” and “sovereignty” and replace highly sensitive political issues with less sensitive legal and technical issues. Even though the “two entities” strategy can increase the mainland’s tolerance, its limitations are also quite obvious. First, political limitations: the truly effective “two entities” strategy can only be the explanation and use of “two entities” on the microscopic level, while “two entities” on the macroscopic level has long ago been deemed a violation of the one-China principle by the mainland. Second, jurisprudential limitations: even the use of “two entities” on the microscopic level must have a certain jurisprudential basis, i.e., The Taiwan Region can only participate in international organizations under a functional name when the charters of such international organizations have relevant stipulations. The transformation and selection of the “two entities” strategy by the Taiwanese authorities in the entity strategy indicate that the overall direction of Taiwan’s efforts 22

See Hu Jintao, “Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan”, People’s Daily 1 (January 1, 2009). 23 “Xi Jinping Met with Ma Ying-jeou”, data source: http://cpc.people.com.cn/n/2015/1108/c35 2004-27789749.html, the last access date: January 20, 2019. 24 “Taiwan Affairs Office: Taiwan Must Uphold the One-China Principle in Activities of International Organizations”, data source: https://news.youth.cn/gn/201801/t20180131_11360505.htm, the last access date: January 20, 2019.

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for participation in international organizations has changed from “striving for legitimacy” to “seeking existence” and that the “two entities” strategy has thus affected the selection and decision of topic strategy and behavioral strategy. Thus, the “two entities” strategy is the cornerstone of Taiwan’s various strategies for participation in international organizations. (2) Empirical Analysis of the Effect of Entity Strategy From the number of organizations joined by the Taiwan Region under various names only, the “two entities” strategy has a certain effect. However, such static observation has three drawbacks: first, the dynamic process of the transformation from “one China” strategy to “two entities” strategy cannot be observed; second, despite the use of “two entities” as a microscopic concept on the operational level by the Taiwan authorities, this does not mean it does not intend to achieve the effect of “two entities” as a macroscopic concept, while such effect cannot be simply judged from the number of organizations; third, the effect of the “two entities” strategy with certain international organizations cannot cover up its nature as a strategy with strict limitations, which also cannot be proven with number. In the following, an empirical analysis is conducted of the “entity” selection process of the Taiwan Region when applying for membership of the WHO/WHA, in the hope of a more comprehensive assessment of the effect of the “two entities” strategy and verification of the judgment made in this book about the transformation of Taiwan’s entity strategy. It was not until 1997 when the Taiwan Region applied for membership of the WHO/WHA for the first time; nevertheless, two years earlier, an assessment had been conducted by the administrative department of the Taiwan authorities as to which name should be adopted for Taiwan’s participation in the WHO/WHA. On September 19, 1995, in a report named “Prospects for Taipei’s Return to the WHO”, Shi YawYang, then “Deputy Director of Department of Health” of the Taiwan authorities, proposed “Republic of China in Taiwan” as a “more realistic name” for membership application and believed that “if Taiwan applies for membership as a state, it may be blocked and opposed by the Communist Party of China.”25 In September of the same year, the administrative department of the Taiwan authorities requested various competent departments to “propose international organizations of greater functionality as the priority targets for Taiwan to participate in.”26 Based on the two policy details above, we can tell even before the Taiwan Region applied for WHO/WHA membership, the idea of adopting functional names to evade the “state” title had begun to influence the decisions made by the administrative department of the Taiwan authorities. On March 31, 1997, in a letter to Hiroshi Nakajima, then Director-General of the WHO, then “Minister of Foreign Affairs” of the Taiwan Region Chiang Hsaioyen proposed the intention of becoming a WHO/WHA observer in the name of the “Republic of China (Taiwan)”, without mentioning the representation issue of 25

See “Return to World Health Organization Unlikely”, Min Sheng Bao 21 (April 20, 1995). See Fu Yijie, “Kao Koong-lian: Taipei’s Great Flexibility in Dealing with Cross-Strait Relations”, Union Daily News 4 (September 11, 1995).

26

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the People’s Republic of China, which already revealed the trend of putting the “two entities” strategy still being discussed on the policy level into practice and reflected the abovementioned policy considerations by the Taiwan authorities. Then, it was not until 2001 that the Taiwan authorities applied for participating in relevant activities of the WHO/WHA as an “observer” in the name of the “Republic of China (Taiwan)”, without touching the issue of the status of the People’s Republic of China, and the concept of “two entities” implicitly appeared in the strategies of the Taiwan Region for participation in the WHO/WHA. However, since the “state” title of the “Republic of China” still remained in Taiwan’s application documents, the “two entities” strategy was not utilized to the fullest extent. In 2002, the Taiwan authorities gave up the title of the “Republic of China” and directly applied for WHO/WHA observership under the name of “Taiwan”, which for the first time brought the “two entities” strategy onto the international stage. Nevertheless, “Taiwan” was still a geographical and political symbol with relatively weak functions. Therefore, even though the “two entities” strategy was utilized during Taiwan’s application for WHO/WHA observership under the name of “Taiwan”, it also touched the political boundaries of the “two entities” strategy, i.e., The attempt to confer microscopic connotations to the macroscopic concept of “two entities” to derive its macroscopic connotations from the microscopic ones and achieve the goal of demonstrating Taiwan’s “subjectivity” with WHO/WHA observership. As a result of the limitations of the “two entities” strategy, the attempt of the Taiwan authorities to join the WHO/WHA under the name of “Taiwan” in 2002 ended up in failure. In 2003, the Taiwanese authorities coined the concept “health entity” (or “health authority”) in imitation of the term “fishing entity” for Taiwan’s name in the WHO/WHA as an observer. Compared with “Republic of China (Taiwan)” and “Taiwan”, “health entity” is a completely microscopic functional concept, with no political connotations—at least not literally, which clearly reflects the Taiwan authorities’ change of direction toward the “two entities” strategy in the selection of strategies. However, unlike the “fishing entity”, which can be found in the constitutional documents of relevant international fishery organizations, the “health entity” has no basis in the WHO/WHA’s constitutional documents and is purely created by the Taiwan authorities. Therefore, the Taiwanese authorities met with the jurisprudential limitations of the “two entities” strategy while attempting to bypass its political limitations. This deficiency of “health entity” was also grasped by the mainland. At the World Health Assembly of the same year, China’s Health Minister Zhang Wenkang pointed out: “(The Taiwan authorities) invented the so-called ‘health entity’, …, the World Health Organization is a UN agency for sovereign states only, not an agency consisting of ‘entities.’” Thus, the name of “health entity” proposed by the Taiwan authorities was negated. Between 2004 and 2006, the Taiwanese authorities proposed the title “Taiwan” again and reapplied the “two entities” strategy adopted in 2002 but still failed. In 2007, based on political considerations within the island, the Taiwan authorities proposed applying for full membership of the WHO/WHA in the name of “Taiwan” upon expiration of Chen Shui-bian’s term of office, regardless of the political foundation and jurisprudential basis, which not only touched upon the jurisprudential boundaries of

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the “two entities” strategy but was also on the verge of breaking through its political boundaries. Countries and regions previously in favor of Taiwan’s WHO/WHA observership, including the United States, Canada and the European Union, also voted against this proposal. In 2008, during the transitional period with the “rotation of ruling parties” in the Taiwan Region, the Taiwan authorities led by the Democratic Progressive Party wrote to the WHO/WHA Secretariat on April 17 to keep applying for official membership as a continuation of the application submitted by Taiwan in 2007 and at the same time incited Taiwan’s “diplomatic allies” to submit proposals to “invite Taiwan to become an observer of the WHA” during the WHA session.27 According to James. C. F. Huang, then “Minister of Foreign Affairs” of the Taiwan Region, the simultaneous proposals for full membership and observership maintained the continuity and resilience of Taiwan’s policy and indicated the Taiwan authorities’ understanding of the difficulties in becoming an official member of the WHO/WHA and their intention of seeking observership first. The “simultaneous proposals” to a certain extent manifested the return to the “two entities” policy and the Taiwan authorities’ compromise. In January 2009, the World Health Organization wrote to Taiwan’s Department of Health, requesting the Taiwan authorities to recommend a “contact point in Taipei.” Its reference to the Taiwan Region with “Taipei” instead of the “Republic of China (Taiwan)” or “Taiwan” was recognized by the Taiwan authorities. On April 28 of the same year, Director-General of the World Health Organization Margaret Chan wrote to Yeh Ching-chuan, then Minister of Department of Health of the Taiwan authorities, inviting Taiwan’s Department of Health to attend the World Health Assembly in the name of “Chinese Taipei” as an observer, which was also approved by the Taiwan authorities. Thus, the “two entities” strategy of the Taiwan authorities finally worked under an appropriate symbol of entity. Taking a broad view of the practice of the “two entities” strategy in Taiwan’s participation, one may find that the nature of the “two entities” strategy is to continuously explore and seek the greatest common ground and balance point between the two sides through the selection and use of a name and symbol, while the key to the effectiveness of the “two entities” strategy is to always maintain a thread of connection with “one China” with an appropriate name and symbol under the cover of “two sides” when the Taiwan Region participates in international organizations to reduce the mainland’s objection and resistance and to a certain extent resolve the international political basis and jurisprudential basis of the asymmetrical rivalry. Meanwhile, the “two entities” strategy has two political boundaries that must not be crossed: first, the political boundary, i.e., The application of the “two entities” strategy must not violate the one-China principle or create the situation of “one China, one Taiwan” or “two Chinas”—even suggestive names are not allowed; second, the jurisprudential boundary, which means the application of the “two entities” strategy must be

27

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010).

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consistent with the participation rules stipulated in the constitutional documents of international organizations.

2.2 Topic Strategy: From “Power” to “Rights” “Sovereignty dispute” is a topic for discussion at the core of cross-Strait interactions about the participation of the Taiwan Region in international organizations. The topic strategy corresponds to the reason for Taiwan’s participation in international organizations. The reason for Taiwan to participate in international organizations concerns the “legitimacy” foundation of Taiwan’s authorities’ appeal for participation in international organizations, the support from and recognition by Taiwanese people and the international community, and propaganda resources with respect to confrontation with the Chinese mainland. Especially when the mainland made repeated use of sovereignty discourse to consolidate the international political basis and jurisprudential basis of the asymmetrical rivalry, to adopt a proper topic strategy has both strategic and tactic meaning for the Taiwan Region to participate in international organizations, even though the Taiwan authorities often have to respond to the mainland’s sovereignty discourse with words characterized by “sovereignty” to prevent Taiwan from being “dwarfed.” For example, on May 14, 2007, then “Minister of Foreign Affairs” of the Taiwan Region James. C. F. Huang explained the reason for Taiwan’s application for full membership of the WHO/WHA, with repeated mentioning of words such as preventing Taiwan from being “dwarfed” and becoming “marginalized.”28 However, these words are more like a declaration of one’s political stand, with no obvious tactic significance. In the selection of topics for discussion, the Taiwan authorities have formed a set of strategies to transform “discourse on power” into “appeal for power” with the will of Taiwanese people in an attempt to endorse Taiwan’s participation in international organizations by controlling the wishes of 23 million Taiwanese people and taking advantage of the mainland’s guideline of “pinning hopes on the Taiwanese people.” (1) Theoretical Implications of the “Power” Strategy “Sovereignty” is the greatest obstacle preventing the two sides from reaching a consensus on Taiwan’s participation in international organizations. When coping with Taiwan’s appeal for participation in international organizations, the “discourse on power” used most often by the mainland is centered around sovereignty, which consists of a syllogistic explanation with three progressive layers: first, international intergovernmental organizations are for sovereign states only; second, the Taiwan Region is not a “sovereign state”; third, the Taiwan Region is not entitled to participate in international intergovernmental organizations for sovereign states only. The mainland’s discourse on sovereignty is a product of the political decision of “One-China 28

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010).

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Syllogism”,29 which has a profound international political basis and jurisprudential basis and therefore fits the basic structure of asymmetrical rivalry and objective facts. To block Taiwan’s attempt to participate in international organizations with sovereignty discourse is a basic strategy of the mainland for coping with Taiwan’s participation in international organizations as well as an absolute bottom line. Some responses are made by the Taiwan Region occasionally, but most of them have no substantive meaning. Furthermore, under the premise of an impregnable international political basis and jurisprudential basis of asymmetrical rivalry, as a matter of fact, the Taiwan Region cannot achieve breakthroughs by confronting the mainland’s “sovereignty discourse.” Under such circumstances, bypassing sovereignty discourse and building a new topic about participation in international organizations around “power” will transform Taiwan’s participation in the activities of international organizations from “demonstrating state sovereignty” to “advocating people’s rights” and therefore become an inevitable choice of Taiwan’s topic strategy for participating in international organizations. In fact, the “power” strategy is still one of the products of the reconstruction of “sovereignty identity” within the island by the Taiwan authorities and therefore naturally has a “sovereignty” core. Since its retreat to Taiwan in 1949, the Kuomintang has long insisted on its “legally constituted authority” over the “entire China” and continued its popular will organ elected on the mainland, which gave rise to the situation of “eternal national representatives.” Since the reelection of “national” representatives had been postponed for a long period of time, the “legitimacy” foundation of the Taiwan authorities was actually insufficient within the island. Nevertheless, at the time the Taiwan authorities did not rely on approval by Taiwanese people to achieve “sovereignty identity”, but more on “recognition by external power holders” to create its “external legitimacy.” By occupying a seat in the UN and maintaining “diplomatic relations” with major countries including the United States and Japan, the Taiwan authorities attempted to prove the “fact” of its recognition by international “power holders.” However, with the occurrence of a series of major events including normalization of the relations between the People’s Republic of China and the United States, restoration of China’s lawful seat in the UN, and “severance of diplomatic relations between Taiwan and the United States”, the Taiwan authorities could no longer draw sufficient “legitimacy” from “power holders” outside of Taiwan, with the Taiwan Island being their last resort and source of “legitimacy.” Such trend became even more obvious after the “constitutional reform” since 1990, and the construction of “internal legitimacy” by the Taiwan authorities through “constitutional reform”, even when “faced with the constitutional crisis under the pressure of China’s reunification and reinforcement of external representation”, is still to establish a “symbol of Taiwan’s sovereignty” through opening up the election of “national” representatives,

29

See Zhu Jie, The Peace Agreement of the Both Sides Across the Taiwan Strait, Hong Kong Social Science Publishing House, 2010, 34.

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strengthening the authority of Taiwan’s leader, and simplifying Taiwan’s organizational system at the provincial level.30 For “Taiwan independence” theories, this process is the transformation of “legitimacy” from “power holders” to “sovereign states” by the Taiwan authorities, which indicates the Taiwan authorities’ transfer of their “legitimacy” (or “legally constituted authority”) from the “entire China” to “Taiwan.” The first direct election of Taiwan’s leader in 1996 is believed to be the most direct example of “internal legitimacy.” With their “legitimacy” justified “internally”, the Taiwan authorities began to seek existence in international organizations from the angle of “rights.” In April 1994, the “Ministry of Foreign Affairs” of the Taiwan Region issued the “Position Paper on Entry into the United Nations”, with the subheading of “Fundamental Rights of the Government of the Republic of China and its People to Participate in the United Nations and Other International Organizations”, thus introducing the “rights” strategy into Taiwan’s participation in the activities of international organizations. In this “Position Paper”, the Taiwan authorities proposed that “the promotion of Taiwan’s entry into the United Nations is based on the following three principles and understanding”: “continue to pursue the future reunification of China; do not challenge the Communist Party of China’s seat in the United Nations and accept the fact of divided sovereignty and separate governance across the Strait, and seek legal protection of the fundamental rights of 21 million Taiwanese people in the United Nations with proper representation, which does not involve the dispute over China’s sovereignty.”31 In July 1996, the “Ministry of Foreign Affairs” of the Taiwan Region again proposed “Revisiting the United Nations General Assembly Resolution 2758 (1971)—Fundamental Rights of the Government of the Republic of China in Taiwan and its People to Participate in the United Nations and Other International Organizations”, maintaining that both sides can be “member states” of the United Nations with the “parallel representation” mode, and restating “do not challenge the Communist Party of China’s seat in the United Nations” and “participation in the United Nations is to seek proper representation of the rights of 21.3 million Taiwanese people in the United Nations, which is not aimed at representation of the entire China.”32 These two papers are a clear expression of the Taiwan authorities’ intention of utilizing the “rights” strategy to participate in international organizations including the United Nations, i.e., Through the consolidation of “internal legitimacy”, to transform sovereignty discourse into rights strategy, and change the meaning 30

See Yeh Jiunn-rong, “The Rise and Fall of Constitution: Alignment and Trend after Six Constitutional Amendments”, Chengchi Law Review 69 (2002); also Zhou Yezhong and Zhu Jie, Taiwan diqu “Study on “Constitutional Reform” in the Taiwan Region”, Hong Kong Social Science Publishing House, 2007, 65–68. 31 “Ministry of Foreign Affairs” of the Taiwan Region, “Position Paper on Entry into the United Nations—Fundamental Rights of the Government of the Republic of China and its People to Participate in the United Nations and Other International Organizations” (April 1994). 32 “Ministry of Foreign Affairs” of the Taiwan Region, “Revisiting the United Nations General Assembly Resolution 2758 (1971)—Fundamental Rights of the Government of the Republic of China in Taiwan and its People to Participate in the United Nations and Other International Organizations” (July 1996).

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of participation in international organizations, including the United Nations, from “demonstrating sovereignty” to “advocating rights” to achieve the realization of “external legitimacy” once again. Of course, this “external legitimacy” is no longer the “external legitimacy” of the “Republic of China” for the “entire China’ before the 1970s, but only the “external legitimacy” of “Taiwan.” With the two papers as a landmark, the “rights” strategy for Taiwan’s participation in international organizations is established, which includes the content of the following two aspects: first, the participation of the Taiwan Region in international organizations cannot be ascribed to the exercising of “sovereignty” but rather realization of the rights of Taiwanese people; second, Taiwan’s participation in international organizations is only a process of the realization of the rights of Taiwanese people, which is irrelevant to the status of the mainland in international organizations. As a result, for Taiwan’s participation in international organizations, the “rights” strategy can produce effects of at least the two following aspects. On the one hand, Taiwan’s participation in international organizations does not require demonstration of whether the Taiwan Region has the elements of “sovereignty.” Even when the “sovereignty” elements of the Taiwan Region cannot be justified, the Taiwan authorities can still control the “popular will” and propose to participate in international organizations with discourse on “rights.” Thus, the generation and convergence of “popular will” has replaced the demonstration of “sovereignty” as the key element to Taiwan’s participation in international organizations. The “referendum on United Nations membership applications” instigated by the DPP authorities since 2007 is a process of gathering and obtaining the “popular will” of Taiwanese people for the “United Nations membership.” Meanwhile, with the formulation of “rights” in the “rights” strategy, the Taiwan authorities expect to obtain the sympathy of major countries to resolve the international political basis of the asymmetrical rivalry. On the other hand, according to the wording of the “rights” strategy, Taiwan’s participation in international organizations does not mean competition with the mainland for “representation” but rather “for the proper representation of the rights of Taiwanese people in international organizations” to undermine to a certain extent the mainland’s strategy of blocking Taiwan’s participation in international organizations with sovereignty discourse. Since the mainland has always adhered to the guideline of “pinning hopes on the Taiwanese people” in its Taiwan policy, it must give a positive response to the “rights” strategy adopted by the Taiwan authorities. For instance, in “Hu Jintao’s six-point proposal”, Hu Jintao specifically proposed: “We understand the feelings of Taiwan compatriots toward participation in international activities, and attach importance to the resolution of related issues.”33 This indicates that the mainland must also attach importance to the rights of Taiwanese people to participate in international organizations, rather than just block their rights 33

See Hu Jintao, “Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan”, People’s Daily 1 (January 1, 2009).

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on account of “sovereignty.” This shows that the “rights” strategy can indeed influence the mainland’s decisions in response to Taiwan’s participation in international organizations through the guideline of “pinning hopes on the Taiwanese people.” (2) Empirical Analysis of the Effect of Topic Strategy If Taiwan’s participation in activities of the United Nations is the origin of the “rights” strategy, then the “rights” strategy has been reflected very thoroughly in Taiwan’s participation in the WHO/WHA, which has become the best example of the verification of the utilization and effect of the “rights” strategy. For the observation of this process, we will start from two aspects: first, observe the Taiwan authorities’ timing for utilizing the “rights” strategy and the way of expressing the “popular will” of Taiwanese people; second, observe the measures taken by the mainland to cope with the “rights” strategy of the Taiwan authorities to demonstrate the opinions in this book on the “rights” strategy and its effect through an analysis from the abovementioned two aspects. In terms of Taiwan’s participation in the WHO/WHA, normally the Taiwan authorities make use of public health emergencies and utilize the “rights” strategy with specific formulations of rights such as “health rights” and “health and well-being”, unlike the rather abstract formulations of rights in Taiwan’s applications for United Nations membership. In “(Taiwan’s) Position Paper on Participation in the WHO” issued by the “Ministry of Foreign Affairs” of the Taiwan Region in May 2002, it was mentioned that the outbreak of enteroviruses in the Taiwan Region in 1998 resulted in 1.8 million people infected and 400 people sent for emergency treatment, among which 80 died, and one of the reasons for these “heavy losses” is “(Taiwan’s) exclusion form the World Health Organization, which makes it impossible to acquire important information, technology, and key medical treatment in a timely manner.”34 After the outbreak of SARS in the latter half of 2002, the Taiwan authorities once again ascribed their failure to receive guidance from the international community and the resulting heavy losses to “a delay of six weeks due to China’s interference”,35 and seized the opportune moment to have their “diplomatic allies” submit a proposal for Taiwan to enter the WHO/WHA on the grounds of the “prevention and cure of SARS.” In 2006, in the “Diplomatic Administration Report” submitted by the head of the “Ministry of Foreign Affairs” of the Taiwan authorities to the legislative branch of Taiwan, with the “increasing threat of bird flu” as an excuse, it was proposed to “comprehensively normalize Taiwan’s participation in related mechanisms and meetings of the World Health Organization.”36 In addition, the Taiwan authorities are good at utilizing various methods to gather the will of the people, elevate Taiwan’s entry into the WHO/WHA as the “mainstream opinion” of the Taiwan Region, and then endorse Taiwan’s entry into the WHO/WHA 34

“Ministry of Foreign Affairs” of the Taiwan Region, “Taiwan’s Position Paper on Participation in the WHO” (May 2002). 35 See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 36 “Legislative Yuan” of the Taiwan Region, “Foreign Minister Huang’s Report and Responses to Inquiries on Foreign Policy”, The Legislative Yuan Gazette 11 (2006).

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with the formulation of “mainstream opinion.” On May 14, 2007, during the press conference to explain the name used by Taiwan for application for WHO membership, then “Minister of Foreign Affairs” of the Taiwan Region James. C. F. Huang proposed four principal factors about Taiwan’s application for WHO membership, among which the fourth factor consists of two parts: first, according to a poll, 94% of people in the Taiwan Region were in favor of this proposal; second, the resolution was unanimously passed through Taiwan’s legislative branch by all political parties, supporting Taiwan’s application for full membership of the World Trade Organization.37 These two parts actually correspond to two layers of mechanism for the expression of public will. First, the attitude of Taiwanese people. The support rate as high as 94% shows that Taiwan’s application for WHO/WHA membership has already won the support of the majority of Taiwanese people. Second, the attitude of the representative organ of the public will. The “resolution” made by Taiwan’s only representative organ of public will indicates that the Taiwan Region has already established a consensus among all political parties on this issue. The two points above explain that the formation of the mainstream public will favor participation in the WHO/WHA in the Taiwan Region, which shall not be neglected by the WHO/WHA, the international community or the Chinese mainland. In a report submitted to Taiwan’s legislative branch afterwards by the Ministry of Foreign Affairs of the Taiwan Region, to “concentrate the will of all people”, “comply with the will of the people”, etc., were even listed as the foremost “positive significance” of this application for “full membership” of the WHO.38 Before 2002, the mainland adhered to the one-China principle and blocked Taiwan’s application for WHO/WHA membership with sovereignty discourse; nevertheless, when faced with the “rights” strategy, it still adopted the corresponding formulation in response. The letter from Wang Yingfan (then Permanent Representative of China to the United Nations) to the Secretary-General of the United Nations on July 2, 2001 is a concentrated expression of the mainland’s coping strategies at this stage. The gist of this letter is still to restate the international political basis and jurisprudential basis of the asymmetrical rivalry and utilize the syllogistic exposition of sovereignty discourse to deny the qualification of the Taiwan Region for WHO/WHA membership. However, to propose the formulation that “the People’s Republic of China naturally represents all Chinese people including compatriots in Taiwan in the UN system and all of its specialized agencies including the World Health Organization” under the traditional sovereign discourse is to cope with the “rights” strategy of the Taiwan Region with the formula of “Taiwan compatriots are Chinese people.” Nevertheless, such a formula still has errors in policy and practice,

37

See “Ministry of Foreign Affairs” of the Taiwan Region, “Foreign Minister Huang Holds Press Conference, Elaborating on Using ‘Taiwan’ in Applying for WHO Membership” (May 14, 2007). 38 See “Legislative Yuan” of the Taiwan Region, “Taiwan’s Participation in the WHO 2007: Processes, Reviews and Prospects, a report from Deputy Minister of Foreign Affairs Yang and Deputy Minister of Department of Health”, The Legislative Yuan Gazette 50 (2007).

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which the mainland has also got to know.39 In 2003, due to the needs of coping with “SARS”, the Chinese mainland agreed to the WHO dispatching personnel to Taiwan. This indicates that the mainland has actually made appropriate changes to some of its opinions in the 2001 letter and at least recognized the necessity for the WHO to dispatch personnel to Taiwan, rather than evading the issue of Taiwanese people’s “rights to health” on the grounds that “Taiwan compatriots are Chinese people”, which also indicates the mainland’s opinion and attitude toward the “health and well-being” of the people in the Taiwan Region. Even though the mainland has given up on the use of sovereignty discourse to cope with Taiwan’s “rights” strategy since “SARS”, it still makes a strict differentiation between the “rights to health” and “health and well-being” of Taiwanese people and political issues to “depoliticize” the “rights” strategy of the Taiwan Region and resolve the effect produced by the “rights” strategy. A most representative document is the letter from Wang Guangya (then Permanent Representative of China to the United Nations) to Secretary-General of the United Nations on August 7, 2003. In this letter, the mainland expressed two layers of meaning clearly: first, with the statement that “Taiwanese people are our compatriots of the same flesh and blood, and no one cares more about their health and security than us”, it expresses its care and respect for the Taiwanese people’s “rights to health”, as a positive response to the “rights” strategy of the Taiwan Region; second, by indicating that “the Taiwan authorities have other intentions in instigating a few countries to make political issues out of SARS”, it points out that the “rights” strategy of the Taiwan Region is in nature a political strategy, which is “neither ethical nor wise”, thus expressing the mainland’s proposal to “depoliticize” the “rights to health” of Taiwanese people.40 After 2005, under the guideline of “pinning hopes on the Taiwanese people”, the Chinese mainland had an objective understanding of the will of Taiwanese people and made a positive response to Taiwan’s mainstream public opinion in favor of application for WHO/WHA membership. The press statement issued after the meeting between Hu Jintao and Soong Chu-yu in May of the same year presented a positive exposition of the opinions on Taiwan’s participation in international organizations and specifically proposed to “prioritize discussions on Taiwan’s participation in WHO activities.”41 In March 2009, Wen Jiabao expressed at the routine press conference of “ARATS and SEF” that regarding Taiwan’s participation in international organizations that concern the interests of compatriots in Taiwan, the mainland

39

For the full text of Wang Yingfan’s letter in 2001, see Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 40 For the full text of Wang Guangya’s letter in 2003, see Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 41 See “Communiqué on the Talks between General Secretary Hu Jintao of the Communist Party of China and Chairman Soong Chu-yu of the People’s First Party”, data source, http://www.chinat aiwan.org/wxzl/zhgzhywx/200509/t20050903_199004.htm, the last access date: January 20, 2019.

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is willing to make fair and reasonable arrangements through consultation and specifically mentioned the “World Health Organization.”42 The declaration of the mainland leader’s position indicated changes in the mainland’s policy guideline. In fact, the application of the “rights strategy” also provided the mainland with an opportunity to give free rein to the Taiwan Region’s participation in the WHO/WHA. In fact, the admission of the Taiwan Region into operations of the International Health Regulations in January 2009 has been understood by the Taiwan Affairs Office of the State Council as a reflection of the mainland’s “wholehearted” efforts in resolving the health issue cared about by compatriots in Taiwan. Based on the basic situation of Taiwan’s application of the “rights” strategy and the mainland’s response above, it can be found that the application of the “rights” strategy is in nature a strategy to completely change the international political foundation and jurisprudential basis of asymmetrical rivalry. With regard to the “rights” strategy, the Taiwan authorities did not intend to change the international political foundation and jurisprudential basis; instead, the Taiwan authorities “extracted the firewood from under the cauldron” by “pulling out” the “sovereignty” element from these two bases to replace it with the “rights” element more appropriate for the practical situation of the Taiwan Region and better accepted by the international community and then strengthening the foundation for Taiwan’s participation in international organizations with values of more universal significance such as “human rights” and “humanity.” Meanwhile, by taking advantage of the mainland’s guideline of “pinning hopes on the Taiwanese people”, the “rights” strategy actually forced the mainland to change its traditional strategy of blocking the Taiwan Region from the international space with sovereignty discourse; when faced with the “rights” strategy, the mainland could only make a positive response but could not refute it directly, which even required “rights” discourse to a certain extent. In this sense, undeniably, the “rights” strategy did receive a certain effect as expected in terms of making a topic out of Taiwan’s participation in international organizations.

2.3 Behavioral Strategy: From “Joining” to “Participating” As a result of the international political basis and jurisprudential basis of the asymmetrical rivalry, the Taiwan Region lacks the identity for “full membership.” The behavioral strategy corresponds to the question of how the Taiwan Region could participate in activities of international organizations without “full membership.” Even though the Taiwan authorities had once sought “full membership” of certain international organizations, such measures were more like a declaration of attitude and “determination”, rather than a rational political decision. Considering the difficulty in “joining” international organizations as a full member, in practice, the Taiwan 42

“Wen Jiabao: Ready for Negotiations on Taiwan’s Entry into the World Health Organization”, data source: http://news.sohu.com/20090313/n262779171.shtml, the last access date: January 20, 2019.

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authorities had been more inclined to utilize charters of international organizations and regulations of important conventions in an attempt to choose an appropriate identity for substantive “participation” in the operations of international organizations, at least to strive for more exposure in the international community to demonstrate its “existence” in the international community.43 (1) Theoretical Implications of the “Participation” Strategy International organizations are products of the Western sovereign state system. Originally, international organizations existed so that sovereign states could safeguard or strive for more national interests through the rules or decision-making process of international organizations.44 Currently, in addition to striving for national interests, the purpose for modern states to take an active part in the international space and participate in international organizations is to determine the completeness of their sovereignty.45 The most typical examples are sovereign states in non-Western systems, such as emerging national independent states. For the two sides, striving for recognition by external power holders has become a common strategy for justifying “legitimacy.” This is true for not only the Taiwanese authorities under the current situation but also the Chinese mainland prior to 1971. For the mainland and Taiwan, participation in international organizations is not only about taking part in the making of international rules but also, more importantly, involves the cognition of their respective jurisprudential names and titles in the international community.46 In this sense, with regard to Taiwan’s participation in international organizations, what concerns the mainland is not the influence on the mainland’s realistic interests after Taiwan’s participation in international organizations but whether this act will produce the effect of “international recognition” of Taiwan. What concerns the Taiwan Region is mostly whether it can gain the “full membership” of international organizations to demonstrate its “sovereignty” and “recognition” by external rights holders. Since the mainland has equated Taiwan’s participation in international organizations with the “international recognition” of “Taiwan” epistemologically, it spares no efforts in dispelling the possibility of the Taiwan Region becoming a “full member” of international organizations with the aid of the international political basis and jurisprudential basis of the asymmetrical rivalry. Therefore, despite their insistence on the goal of achieving “full membership”, the Taiwanese authorities have adopted the strategy of dividing their goal by stages, i.e., First seek “participation” in international organizations for substantive involvement in their activities, then accumulate quantitative changes for qualitative changes and earn more space 43

See Shaw Chong-hai, Cross-Strait Relations, Wu-Nan Book Inc., 2006, 468. See Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 45 See Joseph S Nye and John D. Donahue, Governance in a Globalizing World, Brookings Institution Press, 2000, 79–80. 46 Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 44

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by waiting, and eventually achieve “full membership” when the opportunity presents itself. The “participation” in the “participation” strategy means involvement in relevant activities of international organizations not as a “full member” but through other identities or methods. The so-called “other identities” refer to unofficial identities such as “observership” and “associate membership”, under which Taiwan is not entitled to the complete rights of official members but can still exercise certain rights. “Other identities” are different from the “subject titles” mentioned in the “two entities” strategy, such as “Chinese Taipei”, “Separate Customs Territory” and “Fishing Entity”, the latter already being an “official member”, while the “methods” mentioned in the “participation” strategy refer to methods including technical cooperation, attending conferences, and information exchange and sharing. Such methods cannot confer specific identity symbols on the Taiwan Region but can still involve it in a variety of activities of international organizations in a substantive way. The “participation strategy” is not directly aimed at the “full membership” of international organizations. For the Taiwan Region, it implies “self-degradation” and therefore reflects the Taiwan authorities’ policy of “pragmatic diplomacy.” From the 1950s until before the mid-1980s, on the basis of the one-China principle, the Taiwan authorities adopted “irreconcilability” and “all-out diplomacy” in external policies, i.e., Severing ties with all countries with diplomatic relations established with the People’s Republic of China and withdrawing from all international organizations with the People’s Republic of China as an official member. The “irreconcilability” and “allout diplomacy” policies fit in with the international political basis and jurisprudential basis of asymmetrical rivalry and have almost resulted in the complete withdrawal of the Taiwan Region from the international space. Such policies received rather negative reviews from Taiwanese scholars, who believe that the resultant situation of the almost complete withdrawal of the Taiwan Region from the international space actually isolated Taiwan even more by “binding Taiwan’s hands and feet and smothering its vitality.”47 After the mid-1980s, the Taiwan authorities gradually shifted to the policy of “flexible diplomacy”, and during the Lee Teng-hui administration upgraded the “flexible diplomacy” policy to “pragmatic diplomacy” policy. Regarding the issue of Taiwan’s participation in international organizations, the “pragmatic diplomacy” policy proposes to “adopt flexible practice to seek substantive involvement”,48 which provides a policy foundation for the release of the “participation” strategy. Afterwards, despite certain changes in specific measures, the Taiwan authorities continued Lee Teng-hui’s opinions in basic thinking, hence the policy impetus and support for the continuation of the “participation” strategy in the Taiwan Region. The “participation” strategy has to a certain extent bypassed the international political basis and jurisprudential basis of the asymmetrical rivalry and therefore received more international support than the “membership” strategy. First, “observership” and 47 See Xiao Quanzheng, “Political Democratization and Taiwan’s External Policy”, Political Science Review 7 (May 1996). 48 See Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000).

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“associate membership” are sometimes created by international organizations partly for the purpose of offering an opportunity for specific subjects to participate in their activities. Therefore, if the Taiwan Region participates in the activities of international organizations as an “observer” or “associate member”, it is not recognition of the “sovereignty” of the Taiwan Region from the perspective of some countries. Second, technical cooperation, attending conferences, and information exchange and sharing are mostly technical activities with relatively few political implications, and some countries can also evade topics about sovereignty with “technicality” as an excuse. Third, the risk of supporting the Taiwan Region’s “participation” in international organizations is apparently less than that of supporting its “membership”, while supporting the Taiwan Region’s “participation” in international organizations involves fewer issues of international law and bypasses the sensitive “sovereignty” issue and is therefore accepted by some countries. Fourth, the “participation” strategy is often applied together with the “rights” strategy to endorse Taiwan’s “participation” in international organizations with the “appeal for rights”, which also further reinforces the effect of the “participation” strategy in this respect. Since the international political basis and jurisprudential basis of asymmetrical rivalry mainly prevent the Taiwan Region from becoming an “official member” of international organizations, with relatively weak restrictions on Taiwan’s participation in the activities of international organizations, this provides an environment for Taiwan to put the application of the “participation” strategy into practice. Of course, the application of the “participation” strategy must have a certain jurisprudential basis. there must be regulations about the participation of “observers”, “associate members” and unofficial members in activities in constitutional documents, important conventions or practice of the international organizations selected by the Taiwan authorities. In this sense, without the corresponding normative basis, the “participation” strategy will be useless. However, since the Taiwan authorities can promote the amendment to constitutional documents or important conventions of international organizations through their international supporters, jurisprudential restrictions do not constitute a material factor preventing the use of the “participation” strategy by the Taiwan authorities. Before 2000, the mainland hadn’t given much positive response to Taiwan’s proposition of “participation” in activities of international organizations but instead blocked it off with its consistent discourse formed with the international political basis and jurisprudential basis of the asymmetrical rivalry. In January 2000, then Vice Premier Qian Qichen proposed five discussable issues, including “Taiwan’s international space for economic, cultural and social activities compatible with its status.”49 Two years later, this issue was included in the report at the 16th CPC National Congress as one the “three discussable issues”; after another three years, it appeared in Article 7 of the Anti-Secession Law as an expanded formulation of “Taiwan’s international

49

See “The Fifth Anniversary of President Jiang’s Important Speech Toward Taiwan Solemnly Marked in Capital”, data source: http://www.people.com.cn/GB/channel1/10/20000705/130670. html, the last access date: January 20, 2019.

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space for activities compatible with its status.”50 In 2005, in the press statement issued after the meeting between Hu Jintao and Soong Chu-yu, a positive and affirmative response was made to Taiwan’s participation in international organizations, which was further confirmed and explained in “Hu Jintao’s six-point proposal.” In particular, the explicit statement about “making fair and reasonable arrangements” clarified even more the mainland’s affirmative attitude toward the “participation” of the Taiwan Region in international organizations with an appropriate identity and method. Xi Jinping also expressed during the Xi-Ma Meeting that we understand the thoughts and feelings of Taiwanese compatriots about the issue of participating in international activities, and we value and promote the resolution of many related issues; so long as it does not result in “two Chinas” and “one China, one Taiwan”, both sides can make fair and reasonable arrangements through pragmatic consultations.51 In view of the Chinese mainland’s tolerance toward the “participation” of the Taiwan Region in international organizations, there is relatively large space for the application of the “participation” strategy regarding the issue of Taiwan’s participation in international organizations. (2) Empirical Analysis of the Effect of Behavioural Strategy Among the proposals about Taiwan’s participation in the WHO/WHA, except for the word “attend” used in 199752 and the phrase “membership application in” used in 2007, the expression “participate in” is used in every other proposal,53 which indicates that “participation” is the leading behavioral strategy of the Taiwan Region for its participation in the WHO/WHA. Attending the World Health Assembly as an “observer” and its incorporation into the framework of the International Health Regulations has therefore become a classic case of Taiwan’s behavioral strategy around “participation.” The confirmatory analysis of the International Health Regulations and Taiwan’s “participation” strategy can be unfolded from the following three aspects.

50

In Qian Qichen’s “five discussable issues” and the report at the 16th National Congress, the “activity space” for the Taiwan Region was strictly limited to economic, cultural and social fields, not including the political field. Nevertheless, the Anti-Secession Law has apparently lifted such restriction, and expanded the scope indicated above. For analysis of the implications of Qian Qichen’s “five discussable issues” and the report at the 16th National Congress, see Chen Kongli, “CrossStrait Observations: Interpretation of the ‘Three Discussable Issues’ by Expert on the Taiwan Issue”, data source: http://www.people.com.cn/GB/shizheng/18/20/20030107/902353.html, the last access date: January 20, 2019. 51 “Xi Jinping Met with Ma Ying-jeou”, data source: http://www.xinhuanet.com//politics/2015-11/ 07/c_1117071846.htm, the last access date: January 20, 2019. 52 The complete title of the 1997 proposal is “Inviting the Republic of China (Taiwan) to Attend the World Health Assembly in the Capacity of Observer”, i.e., The purpose of “attending” is still the “capacity of observer”, rather than the “membership” demanded in the 2007 proposal. 53 See Yeh Ching-chuan, “Project Report of the Department of Health of Executive Yuan on the Plan for Participation in the World Health Organization in 2009”, in Project Report of the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan Stage 7 Session 3 (“Legislative Yuan” of the Taiwan Region, 2009).

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First, observation of various specific measures taken by the Taiwan authorities to build an atmosphere for “participation”, create conditions for “participation” and implement behaviors of “participation.” Unlike the proposition or demand that equates “membership” with “sovereignty” or “rights”, “participation” is often functional. In other words, Taiwan’s “participation” in specific international organizations is to meet the demands of certain functions but not to advocate “sovereignty” or “rights.” For instance, when the Health Department of the Taiwan Region circulated a notice of Taiwan’s inclusion in the International Health Regulations, it used the expression “officially joined the Global Outbreak Report and Prevention System”,54 without mentioning “sovereignty” or “rights”, which reflected the difference between “membership” and “participation” in terms of the logical starting point. Therefore, the premise of Taiwan’s application of the “participation” strategy in the WHO/WHA issue is to create an atmosphere that serves the “participation” strategy and demonstrate that the Taiwan Region is indeed an important link of the international health system. For this reason, the Taiwan Region proposed that the international health system had a gap in the Taiwan Region and demonstrated the necessity for the inclusion of Taiwan into the international health system to create a premise for the application of its “participation” strategy. In May 2002, the “Ministry of Foreign Affairs” of the Taiwan Region issued a position paper stating that the outbreak of enteroviruses in 1998 was the result of “(Taiwan’s) exclusion from the World Health Organization, which makes it impossible to acquire important information, technology, and key medical treatment in a timely manner… resulting in heavy losses” and proposing that the international epidemic prevention system had a “gap” in the Taiwan Region.55 In this position paper and the position paper issued in May 2004, the Taiwan authorities explained in detail the central position of the Taiwan Region in the Asia–Pacific and international shipping industry, proposing that as an international transport hub, Taiwan should be an important constituent part of the world’s disease control and prevention system.56 After the outbreak of “SARS” in 2003, with the prevention and control of “SARS” as an excuse, the Taiwan authorities appealed to the WHO for help and blamed the WHO’s delay in dispatching experts to Taiwan on Taiwan’s exclusion from the international epidemic prevention system. After the revision of the International Health Regulations in 2005, the Taiwan authorities again proposed to “take an active part in the global mechanism for the prevention and control of infectious diseases established by the World Health Organization, to achieve the goal of ‘no gap’ in epidemic prevention as mentioned by Lee Jong-wook, Director-General of the World Health

54

See “Department of Health” of the Taiwan Region, “WHO Notifies Taiwan’s Inclusion to the IHR System” (January 22, 2009). 55 See “Ministry of Foreign Affairs” of the Taiwan Region, “Taiwan’s Position Paper on Participation in the World Health Organization (WHO)” (May 2002). 56 See “Ministry of Foreign Affairs” of the Taiwan Region, “Taiwan’s Position Paper on Participation in the World Health Organization (WHO)” (May 2002); “Ministry of Foreign Affairs” of the Taiwan Region, “Promoting Taiwan’s Participation in the WHO: Concept Papers” (May 2004).

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Organization.”57 Since the abovementioned opinions of the Taiwan authorities are mostly based on public health emergencies of the time, they were quite convincing to the WHO/WHA and irrefutable to the mainland—so much so that even a positive response was needed. With “gap” as an excuse, the Taiwanese authorities provided a premise for applying the “participation” strategy. Nevertheless, as stated above, the application of the “participation” strategy requires a certain jurisprudential basis, i.e., There must be a normative basis in the charters and important conventions of the WHO/WHA for the “participation” of the Taiwan Region.58 However, there are no special regulations on “observership” in the charters of the WHO/WHA. Despite some cases of “observership” in practice, such cases have not become a normative system and are aimed at special countries (e.g., Vatican in 1953 and the Sovereign Military Order of Malta in 1963), countries being formed (e.g., the Palestine Liberation Organization), or international organizations (e.g., the ICRC and the IFRC). Apparently, it does not apply to the Taiwan Region. Therefore, the revision of charters of the WHO/WHA and other important conventions and the inclusion of norms that serve the “participation” of the Taiwan Region in the WHO/WHA are the conditions for the applicability of the “participation” strategy. Deeply aware of the above, in addition to actively seeking “observership” through the traditional practice of invitation, the Taiwan authorities have also been promoting the revision of relevant international conventions through “diplomatic allies” and “friendly states.” In terms of specific operations, the Taiwan authorities have chosen the International Health Regulations. Since March 2004, on multiple occasions, such as revision working group meetings, the Taiwan authorities have been vigorously promoting the inclusion of expressions to the advantage of Taiwan into the International Health Regulations by utilizing the influence of public health emergencies. In May 2005, the World Health Assembly revised the International Health Regulations and stipulated in Section 3 of Article 3 that “The implementation of these Regulations shall be guided by the goal of their universal application for the protection of all people from the international spread of disease.” This clause is referred to as the “universal application” clause in the Taiwan Region, which believes that the “universal application” clause can serve as the preliminary jurisprudential basis for the Taiwan Region to “participate” in the International Health Regulations and the international health system and attempts to resolve the jurisprudential basis of the asymmetrical rivalry with the “universal application” clause. The creation of “gap” and the inclusion of the “universal application” clause have provided a logical starting point and jurisprudential basis for the application of the “participation” strategy. By taking advantage of public health emergencies at the time, the Taiwan authorities not only began to “participate” in WHO/WHA 57

“Ministry of Foreign Affairs” of the Taiwan Region, “MOFA Welcomes the Passage of IHR Revision at the 58th WHA” (May 23, 2005). 58 The translation of the “constitution” of the WHO on its official Chinese website is “组织 法[organization law].” Nevertheless, judging from its content, it is a constitutional document. Therefore, it is translated into “宪章[constitution]” in this book.

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activities but also continued to deepen the degree and improve the grade of “participation” and eventually became an “observer” at the WHO/WHA through continued efforts. During the outbreak of “SARS” in 2003, on the grounds of “epidemic prevention”, the Taiwan authorities asked the WHO/WHA to dispatch officials to Taiwan to provide guidance. Between May and July of the same year, the WHO/WHA sent a total of 5 officials to grasp the situation in Taiwan. In June 2003, the Taiwan authorities even sent health officials and experts to attend the international conference held in Malaysia for “SARS” prevention. Seizing the opportunity of “SARS”, the Taiwan authorities established a connection with the WHO/WHA and started to dispatch health officials and experts to participate in technical activities of the WHO/WHA frequently. Nevertheless, what the Taiwan authorities demanded is not “technical involvement” but “comprehensive normalization of Taiwan’s participation in relevant mechanisms and meetings of the World Health Organization.”59 For this reason, in January 2006, the Taiwan authorities incited Taiwan’s “diplomatic allies” to submit proposals to the WHO/WHA to promote the “meaningful participation” of the Taiwan Region. In May 2006, the Taiwan authorities asked the Director-General of the WHO/WHAT to arrange for Taiwan’s participation in relevant meetings, hoping to become an “official member” of the “Global Outbreak Alert and Response Network.” On May 14, 2006, with Taiwan still excluded from the International Health Regulations, the Taiwan authorities announced the early implementation of the International Health Regulations by themselves and automatically fulfilled various obligations stipulated in the Regulations in an attempt to establish the “fait accompli” of Taiwan’s inclusion in the International Health Regulations through “early implementation” and to fabricate public opinions favorable to their “participation” strategy. Meanwhile, the Taiwan authorities also took the initiative to keep the WHO/WHA informed of relevant health events in the Taiwan Region. For instance, in 2009, the Health Department of the Taiwan authorities reported the melamine investigation results to the WHO/WHA on their own initiative seven times.60 Not all of those acts received a response from the WHO/WHA, but they still contributed to the participation of the Taiwanese authorities in the WHO/WHA by expanding their influence and accumulating conditions. In 2009, the Taiwan Region joined the WHO/WHA as a “member”, which is fundamentally a result of beneficial interactions across the Strait and, to a great extent, a natural product of Taiwan’s continuous and accumulated efforts to penetrate the WHO/WHA for over a decade. Second, we conduct a comparative analysis of the different attitudes of major countries toward Taiwan’s “membership” and “participation” to observe the effect of using the “participation” strategy to resolve the international political basis of the asymmetrical rivalry. 59

“Legislative Yuan” of the Taiwan Region, “Foreign Minister Huang’s Report and Responses to Inquiries on Foreign Policy”, The Legislative Yuan Gazette 11 (2006). 60 Yeh Ching-chuan, “Project Report of the Department of Health of Executive Yuan on the Plan for Participation in the World Health Organization in 2009”, in Project Report of the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan Stage 7 Session 3 (“Legislative Yuan” of the Taiwan Region, 2009).

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From the international perspective, the effect of the “participation” strategy is very obvious. At the agitation of the “participation” strategy, some countries who previously refused to support Taiwan’s WHO/WHA “membership” out of consideration for the international political basis and jurisprudential basis of the asymmetrical rivalry now express their support for Taiwan’s demand for “participation.” The United States, Japan, Canada and various European Union states generally express their support for Taiwan’s “participation” in the WHO/WHA through governmental declarations, speeches by governmental heads, resolutions passed by parliaments/congresses, etc. Even though the United States insisted on its stand against Taiwan’s full membership at the WHO/WHA, it also declared its support for Taiwan’s WHO/WHA observership. In 2001, the United States Congress officially requested that the government take active measures to promote the Taiwan Region to become an “observer” of the WHO/WHA through legislation and extended the applicable period of the law repeatedly. During the “SARS” outbreak in 2003, the responsible person of the United States Department of Health stated on multiple occasions that the WHO/WHA should include all countries and regions affected by “SARS” (including the Taiwan Region) in relevant plans and activities of the WHO/WHA.61 In May 2004, the United States voted in favor of the proposal for the Taiwan Region to become an “observer” at the WHO/WHA.62 In May 2005, the United States supported the inclusion of the “universal application” expression to the advantage of the Taiwan Region into the International Health Regulations. During the “SARS” outbreak in 2003, on the grounds of the geographical proximity of the Taiwan Region, Japan proposed that “regional problems may quickly spread to and affect surrounding areas, and it is impossible for us to exclude any part of the world” and then requested to include the Taiwan Region in the WHO/WHA.63 It should be noted that on most occasions, the United States, Japan, Canada and various European Union states voted against proposals for Taiwan’s participation in the WHO/WHA but then supported Taiwan’s “meaningful participation” in WHO/WHA activities in explanatory statements concerning voting, which reflected the obvious effect of the “participation” strategy in winning the support of various major countries. In addition to various major countries, the “participation” strategy also proved effective with other countries. The following table shows the changes in the number of countries voting in favor of the proposals for Taiwan’s participation in the WHO/WHA in 1997, 2004 and 2007. From this, we can see that the number of votes in favor of the “observership” proposals in 1997 and 2004 is significantly higher than the number of votes in

61

See “Legislative Yuan” of the Taiwan Region, “Review of Taiwan’s Participation in the WHO, a report from Deputy Minister of Foreign Affairs Michael Kau and Deputy Minister of Department of Health Long-teng Lee”, The Legislative Yuan Gazette 36 (2003). 62 See “Legislative Yuan” of the Taiwan Region, “Taiwan’s Participation in the 2004 WHA Meeting: Processes, Reviews and Prospects, a report from Deputy Minister of Foreign Affairs Michael Kau”, The Legislative Yuan Gazette 34. 63 See “Legislative Yuan” of the Taiwan Region, “Review of Taiwan’s Participation in the WHO, a report from Deputy Minister of Foreign Affairs Michael Kau and Deputy Minister of Department of Health Long-teng Lee”, The Legislative Yuan Gazette 36 (2003).

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Table 2 Changes in the Number of Countries Voting in Favor of the Proposals for Taiwan’s Participation in the WHO/WHA (This table was prepared by the author)

favor of the “membership” proposal in 2007, which reflects the effect of the “participation” strategy in resolving the international political basis of asymmetrical rivalry from a side view (Table 2). Third, we observe the mainland’s attitude and response to the “participation” strategy and analyze the effect of this strategy in the attack and defense across the strait concerning Taiwan’s participation in the WHO/WHA. Due to the influence of a series of public health events during the particular stage, the Chinese mainland faced pressure from the international community demanding to include the Taiwan Region in the international health system and therefore gradually opened up Taiwan’s space for “participation” in WHO/WHA activities, which showed the impact of the “participation” strategy on the mainland’s decision-making. During the “SARS” outbreak in 2003, then Vice Premier of the State Council and Minister of Health Wu Yi expressed, the Chinese Government agreed to the World Health Organization sending experts to Taiwan, as well as Taiwan’s medical experts attending the international conference held in Malaysia, which reflected the mainland’s response strategy of opening up Taiwan’s space for “technical involvement.” In May 2004, then Deputy Minister of Health Gao Qiang made four basic propositions for Taiwan’s “participation” in the WHO activities at the World Health Assembly, indicating the mainland’s attitude toward Taiwan’s “participation” strategy64 : First, the Taiwan Region could only “participate” in WHO/WHA activities with the permission of the Chinese Government within the one-China framework; second, even so, the Taiwan Region could only be “technically involved” in WHO/WHA activities. On April 13, 2005, the spokesperson of the Taiwan Affairs Office revealed that the Chinese mainland would consult with the Secretariat of the World Health Organization to study the specific ways for Taiwan’s “technical involvement” in WHO/WHA activities.65 Meanwhile, the mainland also notified Taiwan of the outbreaks of some diseases on the mainland, e.g., in 2005, the party concerned on the mainland notified 64

About the “four basic propositions” raised by Gao Qiang, see “The 57th World Health Assembly Rejected the 8th Taiwan-related Proposal”, data source: http://news.sina.com.cn/c/2004-05-18/072 52556900s.shtml, the last access date: January 20, 2019. 65 See “Record of Press Conference of the Taiwan Affairs Office of the State Council” (April 13, 2005), data source: http://www.gwytb.gov.cn/xwfbh/201101/t20110106_1679242.htm, the last access date: January 20, 2019.

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Taiwan of the situation of epidemic meningitis in Anhui Province.66 The mainland’s tolerance and promotion of Taiwan’s “technical involvement” in WHO/WHA activities on the one hand was based on consideration for gaining the initiative in the attack and defense across the Strait; on the other hand, it indicated that the “participation” strategy was indeed effective to a certain extent.

3 The Mainland’s Coping Strategies Through the case analysis above of Taiwan’s participation in the WHO/WHA, the “two entities” strategy, “rights” strategy and “participation” strategy as well as the practical effect of various strategies proposed in this book have all been justified, and so has the “strategy-oriented” study paradigm with asymmetrical rivalry as the theoretical background. Observation with the “strategy-oriented” paradigm shows that despite the differences in specific forms of Taiwan’s participation in international organizations with the application of various strategies, the overall path is the same: first, replace highly sensitive political expressions with less sensitive legal or technical terms; second, bypass the international political basis and jurisprudential basis of the asymmetrical rivalry with legal or technical substitutes; third, find commonality with the substitute legal or technical terms within the mainland’s policies and expressions and continue to accumulate and enrich the implications to eventually achieve the goal of participating in international organizations. Of course, the mainland has pointed out in many unclassified documents that the two sides should “communicate in good faith” during negotiations and carry out sincere cooperation. Former Deputy Chairman of the Straits Exchange Foundation Hsu Hui-you once proposed, cross-Strait negotiations should have “more sincerity and trust, fewer tactics and strategies”; Taiwanese scholar Shih Chih-yu had even pointed out directly that the “mainstream study in the current academia (of Taiwan) on the CPC’s strategies and style of negotiations may contribute little to the future studies on negotiations and will probably be considered as obstacles to future negotiations.”67 To apply tactics and strategies to cross-Strait affairs and attempt to obstruct the development of related affairs across the Strait by controlling the topics is not conducive to reaching a consensus through negotiations across the Strait or the peaceful development of cross-Strait relations. However, strategy is not to be neglected as a link of the rivalry across the Strait. We must note that the strategies applied by the Taiwan Region are not purely legal or technically but still specific measures and means adopted based on a certain position. The “strategy-oriented” paradigm is not a political decision behind ambiguous 66

See “Record of Press Conference of the Taiwan Affairs Office of the State Council” (April 13, 2005), data source: http://www.gwytb.gov.cn/xwfbh/201101/t20110106_1679242.htm, the last access date: January 20, 2019. 67 Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, Ph.D. diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007, 262.

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measures and means; in contrast, compared with the “position-oriented” paradigm with the one-China principle as the main discourse, the “strategy-oriented” paradigm can discover the nature of the methods and means applied and the views expressed by the Taiwan Region for its participation in international organizations more accurately and targetedly and therefore provide theoretical support for the mainland to develop coping strategies. The mainland’s coping strategies can be unfolded in the sequence of “entity”, “rights” and “participation” strategies adopted by the Taiwan Region.

3.1 Coping with the “Entity Strategy”: Shaping “Chinese Taipei” To cope with the “two entities” strategy, the basic thinking here is as follows: have a correct understanding of Taiwan’s application for participation in international organizations on the basis of charters of international organizations or regulations of important conventions, change the policy of position-based categorical negation, and look for proper evidence from charters of international organizations and important conventions as the basis of countermeasures; when no evidence can be found for countermeasures, open up Taiwan’s space for its participation in activities of international organizations compatible with its status according to the realistic needs of the Taiwan Region and the degree of recognition by the international community to cope with the “two entities” strategy by “unleashing” rather than “blocking.” In terms of specific operations, the title “Chinese Taipei”, which has already been widely used in the Taiwan Region and accepted by the mainland, can be finalized institutionally so that it can become the “jurisprudential title” for Taiwan’s participation in international organizations. The original motivation behind Taiwan’s release of the “two entities” strategy is to alleviate the passive situation with the title of the “Republic of China” or “Taiwan” blocked by the one-China principle as a result of asymmetrical rivalry. It follows that Taiwan’s “two entities” strategy is aimed at forming a proper “title” that is suitable for the Taiwan Region. A proper “title”, from the perspective of Taiwan’s participation in international organizations, should have two elements: first, the “title” selected must not “dwarf Taiwan”, i.e., Titles that form a relationship of dependence or subordination between Taiwan and China must not be used, such as “Taiwan Province” and “Taiwan, China”; second, the “title” selected must not violate the one-China principle, or result in the situation of “two Chinas” or “one China, one Taiwan”; of course, after multiple extensive interpretations of the one-China principle by the mainland, “not violate” here can also be interpreted as “not directly against” or “not actively violate”, and it is also acceptable to the mainland to evade the one-China principle with appropriate expressions. Under the influence of the second element, titles including “Taiwan” and the “Republic of China” have been vetoed. However, of course, the above elements that decide whether a “title” is appropriate cannot be absolutized. For example, according to the first element, titles including “Taiwan

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Province” and “Taiwan, China” are not appropriate enough; nevertheless, due to the needs of the realistic interests of the Taiwan Region, sometimes it would rather choose “titles” that are “self-dwarfing.” Taiwan’s tuna fishing and catch yield in the Indian Ocean has always come out on top in this region, hence enormous fishery interests. To protect its fishery interests in these waters, the Taiwan Region has exceptionally lowered its status for participation by giving up on “titles”, including “Taiwan” and “Chinese Taipei”, and instead participating in the activities of this organization under the “title” of “Taiwan Province, China.”68 However, in terms of the overall situation and the balance between the Taiwan authorities’ subjective opinions and objective realities, the two elements above are of universal significance. When determining an appropriate “title” for Taiwan’s participation in international organizations, what should also be figured out is the relationship between “jurisprudential title” and “factual title.” To discuss and explore the qualification and status of the Taiwan Region for its participation in international organizations with the distinction between “jurisprudential title” and “factual title” is a theoretical approach commonly adopted by Taiwanese scholars, the basic viewpoint being: the “Republic of China” is the “state title” of the Taiwan Region in “constitution”, and remains be to the “jurisprudential title” of the Taiwan Region before “constitutional amendment”; however, the “Republic of China” cannot explain the “fact” that the “governance power” of the “Republic of China” has been limited to “Taiwan, Penghu, Kinmen and Matsu”, or respond to the fact that the mainland opposes and resists the symbol of the “Republic of China.” Therefore, the “jurisprudential title” should be replaced with a “factual title.” The opinion that advocates differentiation between “jurisprudential title” and “factual title” is not only supported by some scholars advocating “Taiwan independence” but also approved by Taiwanese scholars holding the view of “reunification” or “maintaining the status quo.” In particular, the “jurisprudential symbol” of the “Republic of China” has to a certain extent become the key element for balance between “China” and “Taiwan”, i.e., The consensus on the so-called “constitutional one China.”69 Nevertheless, the mainstream opinion of Taiwanese scholars on “jurisprudential title” and “factual title” has only revealed their alienation between the “Republic of China” and “China” in an attempt to create an academic atmosphere that the “Republic of China” is not equal to “China” and therefore has not completely explained the alienation between these two. The alienation between the “jurisprudential title” and the “factual title” has two layers: first, the mainstream opinion of Taiwanese scholars, i.e., The alienation between the “Republic of China” and “China”; second, the alienation between the “Republic of China” and “Taiwan.” In terms of Taiwan’s participation in international organizations, the latter may be more meaningful. As the “title” of the Taiwan Region in its current “Constitution”, the “Republic of China” cannot be equated with “China” in fact, let alone being 68

See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007, 108. 69 See Tseng Chien-yuan, “One China with Separate Interpretations: The ‘One-China Framework’ in Taiwan’s Constitutional Order”, Taiwan Journal of General Education 4 (2006).

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equated with ‘Taiwan.” According to Article 4 of Taiwan’s current “Constitution” and Article 1 of its Amendment, the territory of the “Republic of China” within its “existing national boundaries” shall not be altered except by a resolution of the National Assembly. In 1993, “Interpretation No. 328” was made by the Constitutional Court of “Judicial Yuan” of the Taiwan Region, which believed the determination of “national territory” is a political question; therefore, no further explanation was made as to what is “national territory.” According Ma Ying-jeou’s many speeches, that the “national territory” of the “Republic of China” includes the mainland is at least the present official understanding by the Taiwan Region. However, this purely jurisprudential inference does not tally with the fact that the “Republic of China” cannot cover or represent China as a whole. Meanwhile, according to the description of the Taiwan authorities, only the “governance power” of the “Republic of China” is limited to Taiwan, which does not mean it is “equal to Taiwan” or it is “just Taiwan.” To date, the Taiwan authorities have still maintained the provincial organizational system of the Taiwan Province and Fujian Province; in 1997, the organizational system at the provincial level was merely “simplified” but not “abolished” in the Taiwan Province. Therefore, the “Republic of China” cannot be equated with “Taiwan”. The purpose of figuring out the alienation between the “Republic of China” and “Taiwan” is to clarify the concepts of the so-called “jurisprudential recognition” and “factual recognition.” The so-called “jurisprudential recognition” refers to the recognition of the complete personality of a state in international law, i.e., “Official recognition”, while “factual recognition” means the recognizing state has reservations about whether the recognized state can obtain legal personality in international law but still recognizes the fact of its existence.70 What the Taiwan Region intends to seek is undoubtedly the “jurisprudential recognition” of the “Republic of China.” However, in the context of asymmetrical rivalry, the “title” of the “Republic of China” itself is not accepted and cannot even exist in the mainstream international community. Therefore, the Taiwan Region can only take alternative measures and participate in international organizations with other “titles” to seek “jurisprudential recognition” of the Taiwan Region. Under the strategy of replacing “jurisprudential recognition” with “factual recognition”, the Taiwan Region may not care as much as average sovereign states about its “name” in international organizations. Based on the above understanding, the mainland should cope with the Taiwan Region’s “two entities” strategy by seeking balance between the protection of the one-China principle and Taiwan’s pursuit of “factual recognition”, while the key balance point lies in a “title” acceptable to both sides, under which the Taiwan Region can participate in international organizations. Thus, corresponding to the two elements used by the Taiwan Region to determine the appropriateness of a “title”, this book also attempts to establish a standard to judge whether a “title” can be applied by the Taiwan Region in its participation in international organizations in the context of the alignment of political relations “across the Strait.” First, according to the “two 70 See Chang Chi-hsiung, “‘De Jure’ vs. ‘De Facto’ Discourse: Battle over ROC Membership with IOC”, Taiwan Historical Research Vol. 17 2 (June 2010).

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sides” mode, the “title” determined does not have to rigidly adhere to the position of the Taiwan Region or the Taiwan authorities and should be accepted so long as it does not violate the one-China principle. Here, “not violate” should be understood as “not directly against” or “not actively violate.” Second, a consensus should be reached on the “title” for Taiwan’s participation in international organizations, not only across the Strait but also in Taiwan and the international community. In view of the above, “Chinese Taipei” may be the most appropriate “title” for the Taiwan Region to participate in international organizations. First, “Chinese Taipei” consists of two originally mutually independent words— “Chinese” and “Taipei”, which tolerate the respective appeals of the mainland and Taiwan and at the same time conform to the spirit of the “two sides” mode. Even though “Chinese” is not as direct as “China” in indicating that the Taiwan Region is a part of China, it is still a cultural norm that suggests the national implication of China. Under Ma Ying-jeou’s discourse that “people across the Strait belong to the same Chinese nation”, “Chinese” is already the most realistic and greatest common ground across the Strait in the “China” issue. “Taipei” has three meanings: first, “Taipei” is not “Taiwan” and therefore evades the question of whether the title “Taiwan” violates the one-China principle; second, “Taipei” is where the Taiwan authorities are located and therefore can be used as another name of the public power organ of the Taiwan Region, which also evades the issue of the political alignment of the Taiwan authorities; third, “Taipei” is not a name of the administrative region of Taiwan (the mainland calls it the “Taiwan Province”) and therefore is not associated with the subordination of the Taiwan Region to China, which makes it easier for it to be accepted by the Taiwan Region. Thus, on the one hand, “Chinese Taipei” reflects the mainland’s attempt to include Taiwan’s participation in international organizations in the one-China framework to avoid “two Chinas” and “one China, one Taiwan” while satisfying the Taiwan Region’s expectation for participating in international organizations without being “dwarfed” as a part of China; on the other hand, “Chinese Taipei” renders the political alignment of the Taiwan Region and Taiwan authorities ambiguous and uses the geographical term “Taipei” to represent political meanings, echoing the quintessence of the “two sides” mode. Second, consensus has been reached on “Chinese Taipei” across the strait, within the Taiwan Region and in the international community, and Taiwan’s participation in international organizations under the name of “Chinese Taipei” has almost become a common practice. Despite the cross-Strait disputes over “中国台北[Taipei, China]” and “中华台北[Chinese Taipei]”, there has been no dispute over the English name of “Chinese Taipei”, and in general, the mainland is tending to accept “Chinese Taipei” and temporarily shelve “Taipei, China.” In practice, the mainland has allowed the Taiwan Region to participate in multiple international organizations in the name of “Chinese Taipei” and coexist with the People’s Republic of China. This shows that a consensus has already been formed across the Strait on the title “Chinese Taipei.” Within the Taiwan Region, the practice of replacing the “Republic of China” with the title “Chinese Taipei” in exchange for “factual recognition” by the international community has been approved by the Taiwan authorities and the majority of its people. Even during the administration of the Democratic Progressive Party, the

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Taiwan Region also accepted the title of “Chinese Taipei” while participating in international organizations and activities of certain international organizations. For example, when participating in the WTO as the “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, Taiwan was given the name “Chinese Taipei”, the same name for Taiwan in the five Olympic Games in 2000, 2004, 2008, 2012 and 2016. In a manner of speaking, even though some personages of the Taiwan Region still disapprove of “Chinese Taipei”, overall speaking, a broad consensus has been reached on “Chinese Taipei” within the Taiwan Region. Not just the mainland and Taiwan, the international community has also reached a consensus on “Chinese Taipei”, as the Taiwan Region has participated in many international organizations under the “title” of “Chinese Taipei.”71 So to speak, after repeated uses and its psychological approval by the two sides and the international community, “Chinese Taipei” has become a common practice of Taiwan in participating in international organizations. At present, “Chinese Taipei” has constituted a common practice, but it is still not conventionalized. With regard to the fact of “Chinese Taipei”, the mainland is in fact getting rid of the tendency of “handling by individual cases” formed in the “ADB mode”, i.e., Considering Taiwan’s participation in certain international organizations as individual cases and attempting to determine the “title” of the Taiwan Region in its participation in international organizations by individual cases. During the “XiMa Meeting”, Xi Jinping expressed, “We understand the thoughts and feelings of Taiwan compatriots about the issue of participating in international activities”, and “so long as it does not result in ‘two Chinas’ and ‘one China, one Taiwan’, both sides can make fair and reasonable arrangements through pragmatic consultations.”72 The “arrangements” here can be understood as “institutional arrangements”, i.e., Conventionalizing certain issues concerning Taiwan’s participation in international organizations through institutions. Based on the above understanding, “Chinese Taipei” is at present the maturest “title” institutionally conventionalized and has good demonstration effects for other issues concerning Taiwan’s participation in international organizations. About this, the two sides may also finalize “Chinese Taipei” as the “title” for Taiwan to participate in international organizations in the form of agreements through the ARATS and SEF mechanism for consultations on specific affairs to include Taiwan onto the constitutional path and avoid the possibility of the Taiwan Region crossing the political bottom line in the selection of its “title.”

71

See Huang Zhiji, “Study on the ‘International Space” Legal Model in the Taiwan Region of China: From the Perspective of Cross-Strait Legal Relations”, Law Review 4 (2012). 72 “Xi Jinping Met with Ma Ying-jeou”, data source: http://www.xinhuanet.com//politics/2015-11/ 07/c_1117071846.htm, the last access date: January 21, 2019.

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3.2 Coping with the “Rights Strategy”: Opening up Institutional Space for Taiwan Compatriots to Safeguard Their Own Interests To cope with the “rights” strategy, the basic thinking proposed in this book is as follows: utilize our discourse advantage and organizational resources in the international community, take an initiative to safeguard the various rights and well-being of Taiwanese people, respect the legitimate rights and appeals of Taiwanese people, prevent situations objectively hindering the fulfilment of the rights of Taiwanese people for political reasons, and resolve the social basis of the “rights” strategy. Thus, we can establish a mechanism for the mainland to assist in the protection of the rights of Taiwanese people and a mechanism for both sides to together safeguard the overall interests of the Chinese nation and open up the space for compatriots in Taiwan to safeguard their own interests in the international community. From the implementation of the guideline of “pinning hopes on the Taiwanese people”, the mainland has concentrated on safeguarding the legitimate rights of Taiwanese compatriots and is in fact actively striving for the well-being and interests of Taiwanese people. In March 2005, Hu Jintao specifically expounded on the decision that “we will never change our principle of pinning our hopes on the people of Taiwan.” According to Hu Jintao’s exposition, Taiwan compatriots are determined in nature as “our blood brothers”, “an important force in the development of crossStrait relations”, and “an important force to check ‘Taiwan independence’ separatist activities”, which reflects the mainland’s “respect for”, “trust in”, and “dependence on” our compatriots in Taiwan, and that the mainland shall “consider the interests of Taiwan compatriots by putting itself in their position, and attend to and defend their legitimate interests by every conceivable means.” In December 2008, in “Hu Jintao’s six-point proposal”, it was stated that the mainland should always put people first, implement the principle of pinning hopes on the Taiwanese people in Taiwanrelated work, understand, trust and care for our compatriots in Taiwan, do more good things and practical things for Taiwan compatriots, and protect the legitimate interests of Taiwan compatriots in accordance with law. Concerning Taiwan’s “international space”, Hu Jintao specifically expounded on the issue of safeguarding the interests of Taiwanese compatriots in the international community: “We have been consistently committed to safeguarding the lawful rights and interests of Taiwanese compatriots abroad. Our overseas embassies and consulates should strengthen ties with Taiwan compatriots and help them to solve practical difficulties earnestly and sincerely.”73 Afterwards, the policy of protecting the legitimate rights of Taiwanese compatriots has been continuously affirmed and continued. When talking about the status quo of cross-Strait exchanges during the “Xi-Ma Meeting”, General Secretary Xi Jinping stated that first of all we are willing to share the mainland’s developmental opportunities with Taiwan Compatriots, and we welcome the participation of Taiwan 73

Hu Jintao, Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan (2008).

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compatriots in the Belt and Road Initiative, as well as the entry of Taiwan into the Asian Infrastructure Investment Bank in a proper manner.74 The report at the 18th CPC National Congress also restated that we will make every effort to do anything that will promote the common well-being of compatriots on both sides of the Taiwan Strait.75 In practice, it is also quite common to see cases of the mainland’s relevant departments and institutions abroad safeguarding the legitimate interests of Taiwanese compatriots. Nevertheless, we must objectively admit that the measures taken by the mainland to safeguard the legitimate interests of Taiwanese compatriots have not been highly recognized by the Taiwanese people. Many reasons have contributed to this phenomenon, one of which is that the mainland has not followed an institutionalized framework in safeguarding the legitimate interests of Taiwanese compatriots or opened up the international space for Taiwanese compatriots to safeguard their own interests. For this reason, the mainland safeguarding the legitimate interests of Taiwanese compatriots is easily understood as a cause of “charity” rather than its response to the appeals of the Taiwanese people for their own interests. In coping with the Taiwan authorities’ “rights” strategy in Taiwan’s participation in the international space, the mainland lacks a mechanism to respond to the appeal of the Taiwanese people for safeguarding their own interest in the international space, which may or has already resulted in the following problems: first, even though the mainland earnestly and sincerely safeguards the legitimate rights of Taiwan compatriots in the international community, it is often misunderstood as a “united fronts” strategy; second, without an institutionalized framework, the mainland can only safeguard the legitimate rights of Taiwan compatriots case by case, with only a limited number of Taiwan compatriots truly benefited; third, a lack of institutionalized framework provides certain forces within the island with an excuse to negate the mainland’s efforts in safeguarding the legitimate rights of Taiwan compatriots to apply the “rights” strategy. Therefore, the best way to respond to the Taiwanese authorities’ “rights” strategy is neither to refute the political intentions behind the “rights” strategy nor to negate the legitimate rights to which our Taiwan compatriots are entitled in the international community but to establish “rights” thinking, establish a mechanism for Taiwanese compatriots to safeguard their legitimate rights in the international community, build the corresponding institutional framework, and demonstrate the mainland’s sincerity in safeguarding the legitimate rights of Taiwanese compatriots to eliminate or undermine the social basis of the “rights” strategy in Taiwan. The specific ways to respond to the “rights” strategy include the following: First, within the scope permitted by rules of international organizations, allow the Taiwan Region to participate in international organizations that help Taiwanese 74

See “Xi Jinping Met with Ma Ying-jeou”, data source: http://www.xinhuanet.com//politics/201511/07/c_1117071846.htm, the last access date: January 21, 2019. 75 “Xi Jinping’s Report at the 19th National Congress of the Communist Party of China (Full Text)”, data source: https://www.guancha.cn/politics/2017_10_27_432557.shtml, the last access date: January 21, 2019.

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compatriots safeguard their legitimate rights under a proper name. Some international organizations have strong functions in safeguarding the legitimate rights of citizens and are therefore targeted by the “rights” strategy of the Taiwan Region. Leaving aside the Taiwan Region’s political considerations behind the application of the “rights” strategy, participation in such international organizations can indeed effectively promote the realization of the legitimate rights of Taiwanese compatriots. Therefore, the mainland should adopt a more pragmatic attitude toward Taiwan’s striving for participation in such international organizations: on the one hand, the mainland should of course uphold the one-China principle and negate the conspiracy of the Taiwan authorities and certain Taiwanese forces to participate in relevant international organizations with the excuse of safeguarding the rights of Taiwan compatriots; on the other hand, it should value the positive functions of these international organizations in safeguarding the rights of Taiwan compatriots in the international community. Based on the above understanding, in response to the Taiwan Region’s application of the “rights” strategy to seek participation in international organizations, first, the mainland should examine relevant rules of such international organizations, especially their constitutional rules. If the rules of such international organizations allow non-sovereign-state entities to participate under a proper name, the mainland should open up the space for the Taiwan Region to participate in such international organizations in accordance with relevant rules. Of course, if such international organizations have no participation channels for non-sovereign-state entities and allow only sovereign states to participate, the mainland should provide necessary channels for our Taiwan compatriots to obtain relevant information and attend specific activities on the basis of negating the Taiwan Regions’ qualification for participation. The latter case has already occurred when the mainland copes with Taiwan’s participation in the WHO/WHA, just that the mainland has never truly established an institutionalized framework. As a result, the permission given by the mainland to Taiwan to attend WHO/WHA activities through the mainland channel can only stay at the policy declaration level but cannot be truly realized through an institutional framework. Second, open up the institutional channel to allow Taiwanese compatriots to participate in international organizations and obtain information from international organizations. Some international organizations accept only sovereign states as members but do not prohibit the people of political entities that are not sovereign states from participating in their activities. The mainland should make proper use of this: first, allow celebrities, experts and scholars of the Taiwan Region to attend technical events of international organizations, such as allowing Taiwanese experts and scholars to attend business conferences held by international organizations and allowing Taiwanese celebrities, experts and scholars to participate in technical agencies of international organizations (e.g., committee of experts and technical committee); second, when the conditions are mature, support and recommend personages of the Taiwan Region to take up senior posts in international organizations, at least not object to personages of the Taiwan Region seeking senior posts in international organizations (of course, such post should not affect the one-China principle); third,

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allow the Taiwan Region to set up institutions at the location of international organizations for information exchange and coordination of affairs, but such institutions should not be representative offices of the Taiwan Region in nature and should only be technical institutions, neither representing the existence of the Taiwan Region in such international organizations nor indicating that the Taiwan Region has joined such international organizations, with the scope of affairs limited to the protection of relevant interests of the people of the When taking the abovementioned measures, the mainland should pay attention to the balance between political issues and technical issues, grasp the scope and boundary of technical issues, and have some regard for the degree of participation of institutions and personages of the Taiwan Region in international organizations to prevent the Taiwan Region from seeking “de facto existence” in international organizations and even the international space through the abovementioned method. Third, establish an institutional framework for both sides to safeguard the overall interests of the Chinese nation together. Xi Jinping has said that compatriots across the Strait are a family, and the affairs across the Strait are the domestic affairs of compatriots across the Strait, which of course should be resolved through discussion within the family. Ma Ying-jeou has also said that people on both sides of the Strait belong to the Chinese nation. Despite the temporary state of political antagonism across the Strait, the national feelings and connections have not been cut off or weakened due to political antagonism, and both sides shoulder heavy responsibilities for safeguarding the overall interests of the Chinese nation together. Meanwhile, people on both sides of the strait have extensive common interests. Taking oceans as an example, oceans are the foundation of the survival of numerous people across the Strait, ocean resources are the fundamental support for both sides to realize sustainable development of the Chinese nation, and ocean areas have been the existing territory of the Chinese nation since ancient times; therefore, people on both sides of the Strait should make joint efforts to safeguard the maritime rights and interests of the Chinese nation. Thus, it is both necessary and urgent for both sides to safeguard the overall interests of the Chinese nation, whether for national feelings or common interests. Nevertheless, no corresponding mechanism has been established across the Strait thus far; as a result, the mainland and Taiwan have been fighting alone with their respective efforts in safeguarding the overall interests of the Chinese nation. The incidents concerning the South China Sea and Diaoyu Islands in 2012 revealed institutional defects across the Strait that prevented both sides from safeguarding the overall interests of the Chinese nation together. Even though there are profound political reasons behind the mainland and Taiwan’s failure to join hands, a lack of a corresponding institutional framework and guarantee mechanism is also an important factor. Therefore, it is necessary to establish an institutional framework for both sides to safeguard the overall interests of the Chinese nation together, develop the spirit of “dissolving internal disunity at the threat of external invasion”, and promote the continuous improvement of the interests of Taiwan compatriots in the international community while safeguarding and promoting the overall interests of the Chinese nation.

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3.3 Coping with the “Participation Strategy”: Surpassing the Political Goals of Participation in International Organizations To cope with the “participation” strategy, the basic thinking proposed in this book is as follows: with regard to international organizations already joined by the Taiwan Region with an appropriate title, the mainland should pay even more attention to safeguarding national unity and sovereignty and guaranteeing the realization of the function of international organization under the situation of “two sides existing in the same international organization” to prevent further accumulation of the effect of the “participation” strategy. When coping with the “participation” strategy, the mainland should first change its basic understanding of international organizations, i.e., To understand international organizations more from the functional perspective, instead of simply considering it as a political issue, and exceed its understanding of Taiwan’s political motive in participating in international organizations. Due to the traditional view on “title and fact” in Chinese culture, the functional implications of participation in international organizations are much inferior to its political implications. Unlike Western countries who participate in international organizations mainly to achieve specific goals, to the Oriental community, the significance of participation in international organizations is more about demonstration of international recognition. Therefore, as opposed to the functionality of international organizations, there are more political implications in the goal of Taiwan’s participation in international organizations and the mainland’s viewpoint on this issue, which is also one of the reasons contributing to the dilemma across the Strait about the participation of the Taiwan Region in the international space and even constitutes the epistemological foundation of the application of the “participation” strategy by the Taiwan Region. Based on the above understanding, to cope with Taiwan’s “participation” strategy, it is necessary to change the simple understanding of the political goal of international organizations and highlight their functional implications regarding Taiwan’s participation in international organizations. The functional implications of international organizations can be explained with the construction of functionalism by David Mitrany. Romanian scholar David Mitrany was inspired by the Danube Commission, which is a functional and technical institution established for the management of the Danube that offers a place for countries boarding the river to coordinate and cooperate with each other on the management of river traffic. Despite substantial divergences among these countries in their interests and concepts, consensus can still be reached on the management of river traffic through the Danube Commission.76 On its basis, David Mitrany proposed the Doctrine of Ramification as the core theory of functionalism.77 According to Mitrany, 76

See Wang Bo and Wu Yi, “Neo-Neo Functionalism: Review on the Theory of Functionalism”, Wuhan University Journal (Philosophy & Social Sciences) 3 (2004). 77 “Doctrine of Ramification” is translated into “衍生论” or “扩展说” by scholars, and this book adopts the relatively popular and direct translation of “分枝论.” About the translation “衍生论”, see Huang Weifeng, “Analysis of the Integration Mode of the European Union and the Cross-Strait

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there are three options for preventing war between countries: first, effecting a union of states; second, establishing a regional federal system; third, functional cooperation.78 Among the three options, Mitrany prefers the last. According to Mitrany, functional cooperation can avoid the pitfall of an overly loose international institution and at the same time establish broad and stable authority in public life,79 while the development of cooperation between countries in one field may lead to new cooperation in another field, as “the cooperation between countries in a department is the result of cooperation in another department, and the motivation for cooperation in another department.”80 This it can be seen that the essence of functionalism is to avoid the highly controversial sovereignty issue and integrate similar functions of various countries to be managed by a technical international organization instead of simply seeking the establishment of a unified world government. Functionalists believe that due to the high relevancy between functions, such function-based integration will automatically penetrate the political field to cause the transfer of people’s loyalty to the nation toward a functional organization. Functionalism found favor with leaders of the early European integration movement; organizations such as the European Coal and Steel Community and the European Atomic Energy Community were all established under the guidance of this theory. Even though the theory of functionalism itself is not perfect (in contrast, in subsequent practice, functionalism was continuously improved and replaced), the exploration of the functional implications of international organizations by functionalism constitutes a basic tool for understanding the functional implications of international organizations in the cross-Strait context. The functional implications of international organizations can be understood from the following three aspects: first, international organizations are established to realize certain functions, and the realization of such functions requires wholehearted cooperation among various countries or regions or concern the interests of various countries or regions; second, the purpose of the participation of various countries or nations in international organizations is to strive for their respective maximum interests during the realization of certain functions; third, failure to join an international organization for the realization of a certain function will be detrimental to the interests of a country or nation in affairs surrounding this function. Based on the above understanding, the political implications of international organizations are completely different from their political ends, as the former has national or regional interests at its core, while

Dispute over Sovereignty”, EurAmerica Vol. 31 1 (2004); about the translation “扩展说”, see Fang Lexian, “Functionalism in Theory of European Integration”, Teaching and Research 10 (2000). 78 See David Mitrany, The Function Theory of Politics, (London School of Economics and Political Science, 1975),124. 79 Wang Yingjin, “The Integration Model of EU and China’s Reunification”, Pacific Journal 3 (2003). 80 See David Mitrany, A working Peace System, An Argument for the Functional Development of International Organization, (Quadrangle Books, 1966), 97.

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the latter mainly concerns the “status” of the country or region involved in the international community.81 In fact, the participation of the Taiwan Region in international organizations has already reflected its understanding of the functional implications of international organizations. For instance, the allocation of fishery resources of the Indian Ocean is of great importance to the economic interests of the Taiwan Region; in fact, Taiwan’s tuna fishing and catch yield in the Indian Ocean has always come out on top in this region. To protect its fishery interests in these waters, the Taiwan Region has exceptionally lowered its status for participation by giving up on “titles”, including “Taiwan” and “Chinese Taipei”, and instead participated in activities of the Indian Ocean Tuna Commission under the “title” of “Taiwan Province, China” as an “Invited Expert.”82 The participation and practice of the Taiwan Region in the Indian Ocean Tuna Commission shows, when the interests are great enough, the functional implications of international organizations can surpass their political ends, which is the reason for Taiwan to give up on its pursuit of “recognition” and “status.” As a matter of fact, the “participation” strategy adopted by the Taiwan Region has also to a great extent reflected recognition of the functional implications of international organizations. Both the theory and practice above require the mainland to have sufficient understanding of the functional implications of international organizations and, regarding the issue of Taiwan’s participation in international organizations, to surpass the political ends of participation in international organizations. Specifically, it includes three aspects: First, on the basis of upholding the one-China principle and within the scope permitted by relevant rules of international organizations, open up the space for the Taiwan Region to participate in activities of functional international organizations under a proper name in an appropriate way, explore the functional implications of international organizations as much as possible, and prevent further development and aggravation of political issues. From the context of the application of the “rights” strategy and “participation” strategy, the reason that Taiwan succeeded more in participating in functional international organizations than in political international organizations is that the former have weaker implications in terms of “international recognition” and “status” but stronger implications in the realization of certain functions, which makes it easier for the Taiwan Region to find a breakthrough point, while Taiwanese people are more willing to participate in functional international organizations than political international organizations. Therefore, if the mainland continues to block the space for the Taiwan Region to participate in activities of functional international organizations, it may easily produce an adverse effect within the island, continue to aggravate the political antagonism across the Strait and damage the fragile mutual trust between the two sides, thus creating a negative impact on 81

See Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 82 See Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisherries Management Organizations”, Master’s thesis, Soochow University, 2007, 107.

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cross-Strait relations. In practice, the situation described above has already occurred in many functional international organizations, and WHO/WHA is also one of them. To avoid the repeated occurrence of the abovementioned situation, we should pay attention to Taiwan’s functional goal in its participation in the international space rather than just its political goal. On the basis of upholding the one-China principle and within the scope permitted by relevant rules of international organizations, the mainland should adopt a relatively open attitude toward Taiwan’s participation in activities of functional organizations under a proper name and in an appropriate method. On the one hand, it satisfies the Taiwan Region’s demand for participation in functional international organizations to realize its own interests; on the other hand, it prevents certain forces within Taiwan Island from taking advantage of the “rights” strategy and “participation” strategy to deepen and aggravate the political antagonism across the Strait. Of course, it should be noted that opening up the space for Taiwan to participate in the activities of functional organizations does not mean that the mainland has made concessions or given up on the issue of Taiwan’s participation in international organizations; in contrast, the purpose of this move is to guide the Taiwan Region to orient its goal of participation in international organizations toward functional implications to gradually remove its political features and then to incorporate Taiwan’s participation in international organizations into a framework under the control of the mainland. Second, as for international organizations joined by both the mainland and Taiwan, we should explore the way of “coexistence of the two sides in the same international organization”, establish an institutional framework, promote the harmonious coexistence of the two sides within the same international organization, and together realize the function of the international organization in terms of its functional implications. At present, the two sides have participated in some international organizations together in ways allowed by the rules of international organizations, and the cross-Strait battle in the international space has also to a great extent been transferred to some international organizations joined by both the mainland and Taiwan. Objects of dispute across the Strait include the name, symbol, legal status and rights enjoyed by the administrative office of the Taiwan Region. The battle between the two sides within the same international organization deepens the political antagonism across the Strait, and blocks the realization of the functional implications of international organizations. In this respect, one of the feasible ways of coping with Taiwan’s “participation” strategy is: within the framework of the rules of international organizations, handle the relationship between the mainland and Taiwan within the same international organization by obeying the rules, eliminate the impact of crossStrait political antagonism on the interrelationship between the mainland and Taiwan within the same international organization, and promote the “truce” between the two sides in functional international organizations. The specific issues involved will be specified later; hence, there is no detailed description here. Third, as for some nongovernmental organizations of the Taiwan Region participating in international nongovernmental organizations in their own names, the mainland may also tacitly consent to their participation so that they can carry out activities

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under the premise of following the one-China principle. Some nongovernmental organizations of the Taiwan Region have participated in international nongovernmental organizations in their own names. Members of the latter are usually not sovereign states but nongovernmental organizations of various countries and regions. Unlike international organizations that normally only allow sovereign states to participate, nongovernmental organizations have much more obvious functional implications. The participation of nongovernmental organizations of a country or region in international nongovernmental organizations usually does not have the effect of “international recognition” or “recognition of status.” Some personages of the Taiwan Region still regard the participation of Taiwan’s nongovernmental organizations in international nongovernmental organizations as a way of Taiwan’s participation in the international space, but such a viewpoint only hopes to enhance the influence of the Taiwan Region and increase its exposure through its nongovernmental organizations’ participation in international nongovernmental organizations and their activities, which is still far from seeking “international recognition” or “recognition of status.”83 Therefore, the mainland has adopted a more tolerant and pragmatic attitude toward the participation of Taiwan’s nongovernmental organizations in international nongovernmental organizations, i.e., So long as the activities of these nongovernmental organizations in international nongovernmental organizations neither damage the one-China principle nor result in “two Chinas” or “one China, one Taiwan” in the international communality, the mainland may also tacitly consent to their participation and activities so that the Taiwan Region can partly realize the functional goal of its participation in international organizations in this way. Of course, the tactics above are mostly targeted at coping with the strategies adopted by the Taiwan Region. In terms of its causes, the issue of Taiwan’s participation in international organizations still requires the two sides to further accumulate mutual trust and make fair and reasonable arrangements through consultations on the basis of the one-China principle. In addition, other tactics or coping strategies can be generally understood as expedient measures adopted out of desperation.

83

See Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002, 210.

Chapter 6

Coordination: Problems with the Co-Existence of Both Sides in the Same International Organizations, and Potential Solutions

An objectively existing fact is that the two sides have participated in some international organizations together under various names and through various channels, including international organizations of great influence on the international community, such as the International Olympic Committee (IOC), World Trade Organization (WTO) and World Health Organization (WHO). Even though the mainland and Taiwan have different legal statuses in these organizations, both of them enjoy rights and fulfil obligations in accordance with the constitutional rules of these organizations and depend on the organizational structure and operational mechanism provided by such international organizations to handle relevant international issues. In a manner of speaking, the issue of both sides participating in the same international organizations has surpassed the pollical implications of Taiwan’s participation in the international space, with more attention on the functional implications of international organizations. This phenomenon conforms to the functional principle followed in the construction of a framework for the peaceful development of cross-Strait relations. The coexistence of both sides in the same international organizations has therefore been transformed from the political question of whether the Taiwan Region is qualified to participate in such international organizations into a complex question consisting of the following two issues. The first issue: even though the Taiwan Region exists in the same international organizations with the mainland under proper names, and the functional implications of these international organizations have surpassed their political implications, this does not mean there is no possibility of the Taiwan Region continuing to demonstrate its international existence with such international organizations as a platform; in fact, the Taiwan Region has repeatedly publicized its so-called “autonomy” with its lawful participation in some international organizations. Therefore, even when the two sides coexist in the same international organizations, it is still necessary to take precautions against the behaviors of Taiwan damaging the one-China principle in international organizations. The second issue: under the premise that the Taiwan Region obeys the rules of international organizations and does not damage the one-China principle, there will certainly be interactions between the Taiwan Region and the mainland within © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_6

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the framework of international organizations on account of all sorts of issues, and it deserves our attention as to how such interactions should be carried out and how the two sides should resolve their disputes or promote their common interests through the rules of in attentional organizations. Between these two issues, the latter has received more attention from mainland scholars, with abundant research achievements of great value for reference.1 However, the existing achievements still lack necessary discussions on the latter issue, while it is indeed necessary to study the second issue, as it involves the benign interactions between the two sides within the framework of international organizations. There have been descriptions of the interactions between the mainland and Taiwan within international organizations in papers by Taiwanese scholars. Of course, such studies are mostly determined to highlight the “subjectivity” of the Taiwan Region; the process of argumentation has taken functionality into consideration, but the footing and conclusion are still entangled in the political implications of international organizations. For this reason, it is necessary to conduct discussions on issues including how to adhere to the one-China principle, give better play to the functions of international organizations and safeguard the common interests of the mainland and Taiwan through the framework of international organizations after the orderly participation of the Taiwan Region in the international space through exposition on the coexistence of the two sides in the same international organizations on the basis of the one-China principle. Among all international organizations participating in both the mainland and Taiwan at present, the World Trade Organization (hereinafter referred to as “WTO”) is one of the largest international organizations that concerns the greatest interests across the Strait with the most frequent cross-Strait interactions. The description and study of cross-Strait interactions within the WTO has great reference value to exploring the construction of a mechanism for the coexistence of the two sides in the same international organizations. In 2001, after long-term negotiations, the two sides almost became full members of the WTO at the same time, and the difficult process and cross-Strait “battle” during that period became history. Many scholars have revealed this history from different angles, so no more details will be discussed here.2 First, since this history has become the past, and the various topics discussed across the Strait about Taiwan’s participation in the WTO have met with compromise or solution to the greatest extent with Taiwan’s participation in the WTO under the name of “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, there is no need to view them one by one. Second, the focus of this book is not on the attack and defense before the two sides entered the WTO but more on the status and code of conduct of the WTO after the participation of the Taiwan Region in the international space. Third, the attack and defense between the two sides with regard to their participation in the WTO are more often understood as the prevailing of confrontational thinking, while in the interactions between the two sides during their 1

See Chen An, “Prevention of ‘Politicalization’ of Cross-Strait Economic and Trade Issues After China’s Entry into the WTO”, China Legal Science 2 (2002). 2 See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004).

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coexistence in the WTO, compromise and cooperation in a pragmatic spirit should take up the core position. Therefore, this book will focus on the interactions between the two sides within the WTO as the study example and explore relevant issues concerning the coexistence of the two sides in the same international organizations in the hope of promoting the establishment of a more complete mechanism for the orderly participation of the Taiwan Region in the international space.

1 Attack and Defense of Both Sides Within the World Trade Organization (WTO) Even though both sides have entered the WTO as official members, their interactions within the WTO are still not quite harmonious and are similar to their interactions in the international space. Based on their respective interests, the two sides have battled within the WTO framework, with considerations for the economic and trade interests involved, and accompanied by the lingering “recognition dispute” across the two sides, thus presenting complicated forms of political and economic interactions. Nevertheless, in 2010, the Economic Cooperation Framework Agreement (ECFA) was signed between two sides in accordance with the WTO rules; thus, substantive progress was made toward truce and reconciliation under the WTO framework. The detailed exploration of this process is quite beneficial for summarizing the experience and lessons of the coexistence of the two sides in the WTO.

1.1 Different Understandings of the WTO Framework The two sides have different understandings of the resolution of their economic and trade disputes within the WTO framework. Taiwan naturally believes, “after joining the WTO, we hope the two sides can have orderly and relatively positive development within the same organization and under the same rules; ……, must be negotiated across the Strait, and can be talked under the WTO framework.”3 Taiwan’s “Mainland Affairs Council” has also issued a “statement”, proposing that “The two sides are not subordinate to each other; their applications for WTO membership are also handled separately; after entering the WTO, the two sides will be two independent, parallel and equal members” and “The WTO Ministerial Conference passed the membership proposals of the two sides at the same time, which signifies that the international community has officially accepted the two sides as members of the international liberal system. This system provides the two sides with a new channel for communication, dialogs and consultation; through the WTO structure, the two sides no longer need to presuppose any political stands or premises, and can naturally carry out 3

This statement was made by then “President of the Executive Yuan” Chang Chun-hsiung on November 12, 2011.

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dialogs and consultation targeted at economic and trade topics of their common and respective concerns on the basis of existing norms and structure.”4 Even though the above stand was revealed during the administration of the Democratic Progressive Party, after 2008, no major revisions have been made to the abovementioned opinions by the Taiwan authorities. Therefore, the attitude of the Taiwan authorities is quite clear: hope the two sides can establish normal interactions after joining the WTO at the same time and establish a bilateral standing mechanism under the WTO structure to solve economic and trade issues after their entry into the WTO.5 In fact, from the perspective of the Taiwan Region, signing the ECFA with the mainland and agreeing to handle cross-Strait economic and trade disputes and carrying out economic and trade cooperation under the WTO framework might just be an outcome under the WTO framework. Correspondingly, the mainland has insisted on the “one China” nature of crossStrait economic and trade relations. Before the entry of the mainland and Taiwan into the WTO, the Taiwan Affairs Office proposed the following: “The entry of the mainland and Taiwan into the WTO……provides an opportunity, but these issues are affairs among our Chinese people, and can be resolved through negotiation under the one-China principle, without resorting to the dispute settlement mechanism under the WTO structure, or under other occasions.”6 After entry into the WTO, the Ministry of Foreign Trade and Economic Cooperation and the Taiwan Affairs Office made a joint announcement: “After the successive entries of the two sides into the World Trade Organization, the economic and trade relations across the Strait are still economic and trade relations between the main body of China and its Separate Customs Territory, and cross-Strait economic and trade relations can only develop within the one-China framework.”7

1.2 Interactions Within the WTO Framework Due to the divergence of opinions across the Strait on whether the two sides should resort to the WTO framework to resolve their economic and trade disputes, the dispute settlement mechanism of the WTO has not fully functioned in terms of the resolution of cross-Strait disputes. During trade disputes related to the two sides and their resolution, the two sides have basically formed the mode of “nongovernmental and 4

“Entry into the WTO Immediately Followed by Attack and Defense between the Two Sides”, Union Daily News (November 13, 2001). 5 See Shaw Chong-hai, “Whether the WTO Can Provide a Communication Channel for Breaking the Stalemate in Cross-Strait Negotiations”, Mainland China Studies Vol. 45 5 (September, 2002). 6 “Spokesperson of Taiwan Affairs Office: Cross-Strait Issue Doesn’t Need WTO Framework for Resolution”, data source: http://news.sina.com.cn/c/2001-10-31/390023.html, the last access date: January 20, 2019. 7 “MOFTEC and Taiwan Affairs Office Speak on Chinese Taipei’s Entry into the WTO”, data source: http://www.cctv.com/specials/wto/sanji/xw1112_2.html, the last access date: January 20, 2019.

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WTO” dual channels, among which the nongovernmental channel is mainly responsible for negotiation and communication about specific affairs, and the WTO channel is more like a platform for the information exchange and delivery of documents. A series of economic and trade disputes related to the two sides that occurred after 2002 have fully demonstrated the limited function of the WTO in resolving economic and trade disputes across the Strait. On February 20, 2002, on behalf of the cold-rolled steel coil industry of Mainland China, Shanghai BaoSteel Corporation, Wuhan Iron and Steel Company Limited and Anshan Steel Corporation applied to then Ministry of Foreign Trade and Economic Cooperation for an anti-dumping investigation on cold-rolled steel coils imported from Russia, South Korea, Ukraine, Kazakhstan and the Taiwan Region. After negotiations, the State Economic and Trade Commission and then Ministry of Foreign Trade and Economic Cooperation issued an announcement on March 23, 2002, and decided to conduct an anti-dumping investigation on cold-rolled steel coils imported from the abovementioned four countries and the Taiwan Region. On March 22, the Ministry of Foreign Trade and Economic Cooperation submitted the announcement for investigation and the public part of the application to the “Taiwan Steel & Iron Industries Association” and “Chinese National Federation of Industries” of the Taiwan Region through the China Iron and Steel Industry Association. Soon afterwards, the investigation organ submitted the announcement for investigation and the public part of the application to the representative body of the “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu” in the World Trade Organization through the Permanent Mission of the People’s Republic of China to the World Trade Organization. On September 23, 2003, the Ministry of Commerce, which has carried on the functions of the Ministry of Foreign Trade and Economic Cooperation, decided in the final ruling that the abovementioned four countries and the Taiwan Region did conduct dumping and caused substantive damages, with a causal relationship between dumping and substantive damages. Multiple Taiwanese enterprises were involved in the final ruling, and anti-dumping duties ranging from 6 to 24% were levied on these Taiwanese enterprises for a period of 5 years. On June 18, 2002, on behalf of China’s phenol industry, four enterprises, including SINOPEC Shanghai Gaoqiao Petrochemical Co., Ltd. and SINOPEC Yanshan Petrochemical Company officially submitted the application for an anti-dumping investigation on phenol products imported from Japan, South Korea, the United States and the Taiwan Region to then Ministry of Foreign Trade and Economic Cooperation. On July 24, 2002, then the Ministry of Foreign Trade and Economic Cooperation submitted the announcement for investigation and the public part of the application to the representative body of the “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu” in the World Trade Organization through the Permanent Mission of the People’s Republic of China to the World Trade Organization. After negotiations, the Ministry of Foreign Trade and Economic Cooperation issued an announcement for investigation on August 1, 2002, and decided to conduct an anti-dumping investigation on phenol products imported from the abovementioned three countries and the Taiwan Region. On February 1, 2004, the Ministry of Commerce, which has

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carried on the functions of the Ministry of Foreign Trade and Economic Cooperation, decided in the final ruling that the abovementioned countries and the Taiwan Region did dump phenol products, which resulted in substantive damages to China’s phenol industry. The final ruling involved multiple Taiwanese chemical enterprises, including Formosa Chemicals & Fiber Corporation and Taiwan Prosperity Chemical Corporation, and anti-dumping duties ranging from 3 to 19% were levied on these enterprises. Cases basically similar to the abovementioned two cases also include antidumping investigation cases concerning products such as PVC, ethanolamine, polyamide 6.66 filament, and unbleached kraft linerboard. These cases have the following characteristics: First, the two sides mainly adopt the nongovernmental channel to carry out negotiations and communication, thus avoiding the “two states” trend in cross-Strait economic and trade disputes under the WTO framework. On the mainland, even though relevant cases are handled by public power organs, communication with relevant enterprises and trade associations of the Taiwan Region is mainly carried out between nongovernmental organizations, i.e., Relevant associations of the mainland transfer information of case filing and rulings by public power organs and other information of public power attributes to trade associations of the Taiwan Region. On the Taiwan side, to avoid complicating and politicalizing cross-Strait economic and trade disputes, it is also advocated to resolve cross-Strait economic and trade disputes properly through nongovernmental negotiations. For instance, in the abovementioned case of cold-rolled steel coils, nongovernmental associations of the iron and steel industry across the Strait (i.e., The China Iron and Steel Industry Association and Taiwan’s Steel & Iron Industries Association carried out consultations and negotiations in Taipei on steel and iron trade disputes and cooperation across the Strait, and reached a consensus. Even after the mainland carried out an anti-dumping investigation on Taiwan’s iron and steel enterprises with provisional protective measures taken, the steel and iron industry of the Taiwan Region still advised the Taiwan authorities to not intervene to avoid complicating and politicalizing the state of affairs and continued to carry out communication and consultations with the China Iron and Steel Industry Association on the mainland. Under the sensitive and subtle political relations across the Strait, resolving economic and trade disputes that are not supposed to involve political issues between nongovernmental organizations is the best choice for the mainland and Taiwan at present. Second, the two sides have also been exchanging information and relevant documents through the WTO channel to indicate that the method of dispute settlement is characterized by WTO attributes. What is worth noting is, the two sides have not resolved disputes completely outside of the WTO framework through the nongovernmental channel; the WTO framework is not abandoned completely. In contrast, the two sides have exchanged information and documents through their representative bodies to the WTO. For example, in all of the cases mentioned above, the mainland exchanged documents with Taiwan’s representative body to the WTO through its Permanent Mission to the WTO. Since the intention of the Taiwan authorities to

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place cross-Strait economic and trade relations under the WTO framework sometimes limits the connection between nongovernmental organizations across the Strait, for the mainland, coordinating cross-Strait economic and trade relations through the WTO framework, at least to exchange information and documents, has become a compromise method for handling its economic and trade relations with the Taiwan Region. At least in this way, the mainland can demonstrate the WTO attributes of the resolution of cross-Strait economic and trade relations.8 Nevertheless, the interactions between the two sides within the WTO framework are not without friction. Due to the existence of a “recognition dispute”, the mainland once carried out relevant work with the WTO Secretariat concerning issues including the name of Taiwan’s representative body to the WTO in an attempt to promote its “desovereignization.” For example, in the abovementioned anti-dumping case of cold-rolled steel coils, in the letter from the mainland to Taiwan, the name used is “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Taipei, China)” in simplified Chinese instead of English, the official language of the WTO. The representative body of the Taiwan Region to the WTO was also referred to as the “Permanent Representative Office” instead of the “Permanent Mission”, which implies “sovereignty.” Similarly, the so-called “envoy” and “counsellor” were also referred to as the “representative” and “deputy representative.” In 2003, the Chinese Government requested the WTO Secretariat to “desovereignize” all relevant names of the Taiwan Region’s representative body to the WTO without exception, and the Secretariat made corresponding adjustments to the names of relevant institutions and personnel of the Taiwan Region according to the requirements of the Chinese Government. In addition, the mainland once pointed out that the official expressions of “sovereignty” nature, including “Republic of China”, “Executive Yuan” and “Legislative Yuan”, used in the “Customs Law” of the Taiwan Region submitted by Taiwan for approval did not tally with the statement by the Chairman of the GATT Council in 1992 and demanded that the WTO refuse to hear relevant documents submitted by the Taiwan Region.9 In contrast to the manifestations of the cross-Strait “recognition dispute” proposed in this book, we can see that the friction between the two sides within the WTO framework is a till after all a result of the “recognition dispute.” The attack and defense between the two sides in economic and trade issues clearly plays a positive role in the conduction of normal economic and trade relations and the accumulation of political mutual trust across the Strait. However, the two sides still have not reached a consensus on important issues concerning the one-China principle and the alignment of cross-Strait political relations, and neither side would take the lead to make concessions. Thus, resolving the attack and defense between the two sides within the WTO through a nonpolitical path has become a major problem in cross-Strait relations. ECFA is an institutional method for resolving this problem, which to a considerable extent tolerates and embodies the desire of the two sides for 8

See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004). 9 See Lv Zhixiang, “The CPC Repeatedly Makes Troubles for Taiwan in the WTO”, “Central News Agency” of the Taiwan Region, November 4, 2002.

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economic and trade truce across the Strait and responds to and reflects the appeal of the two sides for resolving cross-Strait trade disputes within the WTO framework. The preamble of the ECFA states clearly, “The two sides of the Strait have agreed, in line with the basic principles of the World Trade Organization…, signing the CrossStrait Economic Cooperation Framework Agreement.” This indicates, in addition to the mechanism for cross-Strait negotiations on specific affairs and the ARATS and SEF framework, that the ECFA has also been incorporated into the WTO framework, which serves as the rule for the two sides to carry out regional economic cooperation under the WTO framework. Article 2 of the ECFA stipulates that the two sides shall take measures to strengthen cross-Strait economic exchange and cooperation, which includes gradually reducing or eliminating tariff and nontariff barriers to trade in a substantial majority of goods between the two parties; gradually reducing or eliminating restrictions on a large number of sectors in trade in services between the two parties; providing investment protection and promoting two-way investments; promoting trade and investment facilitation and industry exchanges and cooperation, etc. These are also consistent with the goal that the WTO intends to achieve. Article 9 of the ECFA stipulates that no provision in the ECFA shall be interpreted to prevent either party from adopting or maintaining exception measures consistent with the rules of the World Trade Organization, which amounts to the introduction of WTO rules into the ECFA framework, and realizes interactions between the ECFA and the WTO. In a manner of speaking, the ECFA is to a great extent a method adopted by the mainland and Taiwan to avoid “recognition disputes” in cross-Strait economic and trade relations based on the actual situation across the Strait and is therefore an example of the “economic and trade truce” and even “diplomatic truce” across the Strait under the WTO framework.

2 Taiwan’s Status and Mutual Relations Between Both Sides Within the WTO Despite the attack and defense across the Strait within the WTO framework, which still has not been made the main institutional path in terms of the resolution of trade disputes,10 objectively the two sides have already been coexisting within the international organization of the WTO and are in urgent need of a harmonious coexistence within the WTO, especially now that their economic and trade relations are closer than ever. Determining the status of the Taiwan Region in the WTO and the interrelationship between the two sides in the WTO is a core issue for their harmonious coexistence within the WTO. The author believes that the status of the Taiwan Region in the WTO and the interrelationship between the two sides within the WTO framework can be defined in line with the thinking of the “equal status of members.”

10

See Peng Li, “Some Legal Problems in Cross-Strait Economic and Trade Communication after WTO Entry: Theoretical Argument and Practice Analysis”, Taiwan Research Quarterly 3 (2008).

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Equal status of members means the two sides have equal status within the WTO framework after entering the WTO and becoming official members of the WTO under different names, i.e., The two sides enjoy equal rights stipulated by WTO rules and assume equal obligations stipulated by WTO rules. The consideration for “equal status” is based on the claim for “equality” made by the Taiwan authorities under the WTO framework. As is known to all, “equality” is one of the core issues of the greatest concern to the Taiwan authorities in the alignment of cross-Strait political relations. Within the WTO framework, the Taiwan authorities also advocate “equality” with the mainland; in particular, they think it can already surpass the one-China principle and carry out economic and trade exchanges with other official members of the WTO. Such a proposition is expected of official members of the WTO, but Taiwan chooses to interpret it as the “generalization” or “normalization” of “crossStrait relations within the WTO” and strives to seek equal status with China within the WTO.11 If we understand the WTO framework as a framework and structure of legal meaning, then “equality” should replace the expression of “reciprocity.” Unlike the complicated political connotations of “reciprocity”, “equality” contains more legal implications. The mainland and Taiwan should exercise rights and fulfil obligations equally within the WTO framework, and therefore between them is an “equal relationship.” “Equality” is the logical starting point of the coexistence of the two sides within the WTO framework; with no recognition of “equality”, but only blind pursuit of “equality”, the two sides will only have constant friction within the WTO framework. The usage of “quality” has two features: first, “equality” is usually used to modify the rights and obligations enjoyed by the two sides within the WTO, rather than the political relations across the Strait, i.e., The mainland does not deny the “equality” between the two sides within the WTO framework but denies the “equal relationship” between the two sides in political relations; second, the subjects of “equality” are not the Government of the People’s Republic of China and the Taiwan authorities, or the People’s Republic of China and the “Republic of China”, let alone “China” and “Taiwan”, not even the mainland and Taiwan, but two official members of the WTO under the WTO framework. So to speak, the term “equality” on the one hand releases the mainland’s hope for harmonious coexistence with the Taiwan authorities within the WTO framework out of good will and on the other hand effectively denies the Taiwanese authorities’ claim for “equality” with the language strategy. Regarding the relationship between the two sides within the WTO framework, the mainland usually defines it as “trade relations between the main part of China and the Separate Customs Territory”, while Taiwan tends to define it as an “equal relationship between two official members of the WTO.” Apparently, whether from the angle of the one-China principle or the WTO rules, the definition of “trade relations between the main part of China and the Separate Customs Territory” is more appropriate. First, the Taiwan Region joined the WTO as an official member in the name of “Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu”, so it 11

See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004).

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is still regarded as a “region”, and its full membership does not have “sovereignty” or “state” implications. The participation of the Taiwan Region in the WTO as a “Separate Customs Territory” is based on Article XXVI and XXXIII of the GATT. According to the regulations of these two articles, if any of the customs territories, with respect to which a contracting party has accepted this Agreement (the GATT), possesses or acquires full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the abovementioned fact, be deemed to be a contracting party; a government not party to this Agreement, or a government acting on behalf of a separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, may accede to this Agreement, on its own behalf or on behalf of that territory, on terms to be agreed upon between such government and the contracting parties. Since 1990, the Taiwan Region has also sought membership of the GATT/WTO in the name of “Separate Customs Territory” on the basis of the abovementioned two GATT regulations. Therefore, the “Separate Customs Territory” is not a concept independent of sovereign state; in contrast, within the WTO framework, the “Separate Customs Territory” is exactly a concept subordinate to sovereign state. The entry of the Taiwan Region into the WTO in the name of “Separate Customs Territory” and its approval and acceptance by members of the WTO can only reflect even more vividly that Taiwan is a part of China, which does not imply that “Taiwan is independent of China” whatsoever. Second, the so-called “autonomy” of the Taiwan Region can only be traderelated “autonomy” but not “autonomy” with political implications. Some Taiwanese scholars believe that, unlike other international organizations, the WTO does not stress the utilization of “sovereignty” but emphasizes the so-called “autonomy.” An example is Article XXVI and XXXIII of the GATT, which stipulate that the customs territories must have full autonomy in the conduct of their external commercial relations.12 The viewpoint on “autonomy” and the formulation of “autonomy” in WTO rules are often used to demonstrate the “equal relationship” between the Taiwan Region and the mainland. In fact, according to Article XXIV of the GATT, the socalled “separate customs territory” refers to “any territory with respect to which separate tariffs or other regulations of commerce are maintained for a substantial part of the trade of such territory with other territories.” Article XXIV of the GATT actually strictly limits separate customs territory within the field of trade, so that its explanation cannot be extended to refer to “state” with “sovereignty” implications or other types of political entities. Therefore, the “autonomy” of the so-called “separate customs territory” should be understood from two levels. First, “separate customs territory” indeed has “autonomy.” Such “autonomy” refers to the autonomy in handling its foreign economics and trade relations, which is the premise for the entry of “separate customs territory” into the WTO independent of the country to which it belongs. Second, the “autonomy” of “separate customs territory” is limited 12

See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004).

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to the field of economic and trade relations; according to the “depoliticization” tradition of the Havana Charter, the GATT and the WTO, it is a basic principle of the WTO to not involve political factors in trade; therefore, “separate customs territory” and its status should be understood in a “depoliticized” way. In fact, the Taiwanese scholars who have proposed the “autonomy” issue also admit that the WTO wants to avoid political troubles as much as possible so that all economically autonomous entities, including countries and separate customs territories, can break political barriers to achieve the goal of trade liberalization. Therefore, the operations, exchanges, consultations and negotiations between members within the WTO framework should not involve disputes over “state sovereignty” or the issue of “state recognition” in international politics.13 Third, the two sides enjoy rights and perform obligations equally within the dispute settlement mechanism of the WTO. The two sides entered the WTO and became official members of the WTO through the “package” method. The so-called “package” method is as follows: when the mainland and Taiwan entered the WTO, they did not invoke the clause about inapplicability of multilateral trade between certain members in Article 13 of the Marrakesh Agreement Establishing the World Trade Organization. Therefore, after the entry of the two sides into the WTO, various rules of the WTO shall apply across the Strait, which include regulations about dispute settlement mechanisms. Since the WTO gives equal treatment to members participating as states and those participating as “separate customs territories”, their legal rights and obligations are equal within the framework of WTO rules.14 In fact, there are no formulations of “sovereignty” in the WTO rules; therefore, with “non-sovereignty” features, the WTO rules continue the “contract” style of the GATT. On the basis of such a “contract” style, the dispute settlement mechanism of the WTO therefore has compulsory features resulting from “freedom of contract” and “arbitrary compulsoriness”, which are manifested in the following three aspects. First, the dispute settlement mechanism of the WTO is mandatory jurisdiction. Section 1 of Article 6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) stipulates: “A dispute settlement panel will be established no later than at the second DSB meeting at which the request for a panel is placed on the agenda unless there is a consensus to reject the request.” Since the complaining party absolutely will not reject the proposal for establishing a panel, in reality, a panel definitely will be established once the complaining party files a complaint, and the complained party will not be able to stop the procedure of hearing by the panel. Therefore, once the complaining party submits the compliant to the DSB, the dispute settlement mechanism of the WTO will have compulsory jurisdiction over the trade dispute between the complaining party and the complained party. Second, the hearing report of the dispute settlement mechanism of the WTO is compulsory. According to Sect. 4 of Article 16 and Sect. 14 of Article 17 of the DSU, the report shall be adopted unless 13

See Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004). 14 See Chen An, “Prevention of ‘Politicalization’ of Cross-Strait Economic and Trade Issues After China’s Entry into the WTO”, China Legal Science 2 (2002).

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the DSB decides by consensus not to adopt the report by the panel or appellate body; since the winning party will definitely adopt this report, this report in fact must take effect and be binding to both parties. Third, the implementation of the report by the dispute settlement mechanism of the WTO is also compulsory. According to suggestions of the report adopted at the DSB, relevant members must make necessary revisions to their regional laws by the deadline agreed upon through negotiation or take other measures to implement the suggestions of the DSB; otherwise, they may face trade retaliation authorized by the DSB. Therefore, the implementation of the WTO hearing report is compulsory for all relevant parties. Due to the compulsory features of the dispute settlement mechanism, the harmonious coexistence of the two sides within the WTO is institutionally possible and necessary. Anyway, as a separate customs territory, the Taiwan Region enjoys complete rights and obligations as a member of the WTO. Based on the compulsoriness of dispute settlement by the WTO, it is completely possible that the Taiwan Region and the mainland will have disputes, as a result of which the mainland will have to face the dispute settlement mechanism in the WTO. Since both sides are official members and their legal statuses are equal within the WTO, the mainland is supposed to cope with the dispute within the WTO framework. Of course, even so, the relationship between the mainland and Taiwan within the WTO framework is still one between a country and a separate customs territory of trade autonomy within this country, and the equal legal statuses of the two sides within the WTO framework do not imply “equality” between the two sides, which is the premise for their harmonious coexistence within the WTO, as well as a political bottom line that we must stick to.

3 Construction of a Mechanism for Both Sides to Co-exist in the Same International Organization: Experiences and Deficiencies in the WTO The WTO is probably the international organization with the most cross-Strait interactions, and the interactions between the two sides within the WTO have the most substantive correlation with cross-Strait relations. Therefore, the experiences and deficiencies of the coexistence of the two sides in the WTO can to a great extent provide a reference for the coexistence of the two sides in other international organizations. With the gradual establishment, improvement and normalization of a mechanism for the orderly participation of the Taiwan Region in the WTO, a mechanism will be gradually established and improved for the Taiwan Region to participate in the international space in an orderly manner; therefore, Taiwan’s orderly participation in the international space will be gradually normalized, and Taiwan will participate in more international organizations in a proper name with increased frequency, followed by more situations of the coexistence of the two sides in the same international organization. In view of the above circumstances, we should discuss the construction of

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a mechanism for the two sides to coexist in the same international organization on the basis of the experiences and deficiencies within the WTO. First, uphold the one-China principle, which is the political bottom line for the two sides to coexist in the same international organization, and determine the functional characteristics of such an international organization. According to the crossStrait principle, functional principle and institutional principle, the Taiwan Region is allowed to participate in certain international organizations, thus resulting in the situation of the coexistence of the two sides in the same international organization. However, this neither affirms the “sovereignty” and “state” attributes of the Taiwan Region nor functions as “recognition”—only a reasonable arrangement made in response to the Taiwanese people’s wish for participation in the international space. Therefore, when the two sides coexist in the same international organization, the one-China principle should still be upheld as the bottom line, and there must be no situation of “dual representatives” across the Strait. Based on the practice of the two sides within the WTO framework, attention should be mainly paid to the following two points: first, the particularity of the name of the Taiwan Region, i.e., The Taiwan Region must not participate under the name of the “Republic of China” or “Taiwan”; a proper name should be “one China” in nature and at the same time reflect the characteristics of the Taiwan Region, so “Chinese Taipei” might be the best choice; second, the particularity of the name of its representative body, which must not be names with “sovereignty” implications such as “mission” or “envoy”, and should instead be “representative office” or “representative” to make a distinction. Second, abiding by the rules of international organizations and respecting the rights and obligations to which the Taiwan Region is entitled in accordance with the rules of international organizations is the foundation for the two sides to coexist in the same international organizations and provides the possibility for their coexistence in the same international organizations. The first premise for the Taiwan Region to participate in an international organization is that such an international organization has special arrangements and regulations for entities such as the Taiwan Region to participate in its activities. For example, the WTO has the “separate customs territory” arrangement for trade entities such as the Taiwan Region and offers them full membership. We can imagine, without “separate customs territory” or similar arrangements, or full membership for “separate customs territory”, then regardless of the Taiwan Region’s intention of participating in the WTO, apparently it cannot participate in WTO activities, or it will not enjoy full membership. Therefore, whether the Taiwan Region can participate in a certain international organization and what kind of legal status it can enjoy completely depends on the regulations of such international organizations. From another perspective, if the special institutional arrangement of an international organization allows the Taiwan Region to participate in its activities and grants it rights and obligations, then the mainland should offer due respect. Such respect is both respect for the Taiwanese people’s intention of participating in a certain international organization and respect for the rules of such international organization. Based on the above understanding, rules of international organizations that serve the coexistence of the two sides in such international organizations lay the foundation for their coexistence in the same international organizations, and it is

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necessary for the two sides to together abide by relevant rules of such international organizations to achieve to the greatest extent their goals of participating in the same international organizations at the same time. Third, within the same international organization, to make the best of various mechanisms established by such international organizations to safeguard their respective interests and the overall interests of the Chinese nation is the goal of the coexistence of the two sides in the same international organization and determines the necessity of their coexistence in the same international organization. From the functional perspective, international organizations are mechanisms created to realize certain functions. Due to the functional characteristics of international organizations, participation in international organizations has functional implications, i.e., Participating in international organizations will contribute to the realization or reinforcement of a certain function for the participator. For this reason, Taiwan’s participation in the international space cannot be understood from its intention of boasting “international existence” or its pursuit of “political recognition” but rather the realization of a certain function. In particular, after Taiwan’s entry into international organizations in a proper name, the political implications have been released through the rivalry and compromise between the two sides in terms of Taiwan’s participation in such international organizations, while the functional implications of international organizations have become the core of the issue. Based on the above considerations, after the two sides enter the same international organization, the focus of their interactions within the framework of such international organization should be shifted from Taiwan’s qualification and status for participation in international organization to how to achieve their respective interests and the overall interests of the Chinese nation through the mechanism of such international organization. To achieve the respective interests of the two sides and the overall interests of the Chinese nation through the mechanism of an international organization is also consistent with the respective purposes of the two sides for participating in international organizations. Fourth, it is a strategic choice for the coexistence of the two sides in the same international organization to construct a mechanism across the Strait as a substitute for the relevant mechanism of the international organization through the mechanism for negotiations across the Strait on specific affairs and the ARATS and SEF framework to avoid sensitive topics about the coexistence of the two sides in the same international organization, while this international organization serves as a channel and mechanism for information exchange. The ideal situation of the coexistence of the two sides in the same international organization is that both sides scrupulously abide by the rules of the international organization, with mutual respect and rational interactions under the one-China principle. However, the reality is that the mainland and Taiwan have been isolated from each other in a state of antagonism with a lack of mutual trust; under the “recognition dispute”, the misunderstandings and distrust of each other with the coexistence of the two sides in the same international organization can hardly be eliminated in a short time. The WTO is the best example to illustrate the conclusion above. Nevertheless, the two sides cannot resolve the abovementioned problems by “shelving” them: first, the Taiwan authorities have always been enthusiastic about resolving cross-Strait relations with the framework of international

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organization and are very unlikely to give up on or shelve this position; for instance, that the Taiwan authorities have always wanted to place cross-Strait economic and trade disputes under the WTO framework for resolution has fully demonstrated this reason; second, after all, international organizations have functional implications, and the cross-Strait interactions and the interactions between the two sides and a third entity cannot completely break away from the framework set by the international organization; for instance, even though the two sides prefer to resolve trade disputes between their nongovernmental organizations and even deliberately avoid involving political issues that are related to public power, in the end, the necessary information exchange still has to be conducted through the WTO framework. In view of the above, the best coping method to seek balance and compromise between “shelving” and “utilizing” is no other than the ECFA mode, i.e., Establishing a crossStrait mechanism similar to the relevant mechanism of the international organization as a substitute mechanism for this international organization and using the mechanism of the international organization as only a channel for information exchange. The success of ECFA has already proven the effectiveness of the above practice. When political mutual trust is still insufficient across the Strait, and the “recognition dispute” cannot be eliminated in a short time, the ECFA mode is also an available strategy. Overall, the coexistence of the two sides in the same international organization requires profound political mutual trust across the Strait and effective coping strategies and, more importantly, mutual trust between the two sides and respect for the rules of international organizations. Only so can the two sides coexist harmoniously in the same international organization, utilize the relevant mechanism of the international organization, cooperate wholeheartedly, reduce hostility, and together explore the path to peaceful development of cross-Strait relations.

Chapter 7

Future: Construction of a Mechanism for Taiwan’s Orderly Participation in the International Space

At present, the two sides are still handling the issue of Taiwan’s participation in the international space “case by case”, i.e., The mainland adopts coping strategies prudently according to the specific situation, targeting the hope, requirements and actions of the Taiwan Region in terms of its participation in the international space. The “case by case” handling method is probably the best choice, as the alignment of cross-Strait political relations is still equivocal, with insufficient accumulation of political mutual trust across the Strait. Nevertheless, due to a lack of institutional guarantee, the “case by case” handling method still lacks reliability and stability with respect to the continuous deepening of peaceful development of cross-Strait relations and the construction of relevant framework, and under certain conditions, it may even be disturbed by some political and international factors. Therefore, it is necessary to construct a mechanism for the Taiwan Region to participate in the international space, lead and promote Taiwan’s orderly participation in the international space, and grasp the extent, speed and scale of Taiwan’s participation in the international space so that the participation of the Taiwan Region can always accommodate the steps and stages of the peaceful development of cross-Strait relations.

1 Main Problems with Taiwan’s Participation in the International Space The participation of the Taiwan Region in the international space at least involves major concerns from the following three aspects. First, under Oriental political traditions, Taiwan’s participation in the international space can be interpreted as the “international existence” of the Taiwan Region, which involves the “subjectivity” of the Taiwan Region and is therefore a core issue for defining the “status and order” of

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 J. Zhu, Study on the Issue of Taiwan’s Participation in the International Space, https://doi.org/10.1007/978-981-19-4468-0_7

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the mainland and Taiwan.1 Second, the Taiwan issue involves China-related international geopolitics and concerns China’s relations with many world powers; therefore, in terms of the extensive international interests of China, Taiwan’s participation in the international space involves the core interests of China. Third, Taiwan’s participation in the international space is on the one hand the actual demand of Taiwanese people, which is not only advocated by “Taiwan independence” forces but also involves the “unity” mentality of people on the mainland; therefore, its proper resolution should be acceptable to people on both sides of the Strait. Therefore, if we say that the alignment of cross-Strait political relations is the most difficult issue within the domain of discourse on cross-Strait relations, then Taiwan’s participation in the international space constitutes the most sensitive issue in cross-Strait relations. Similar to the alignment of political relations across the Strait, the issue of Taiwan’s participation in the international space is also a product of “recognition dispute”; it is exactly the mainland’s derecognition of the status of the Taiwan Region as a “state” that gives rise to this thorny issue of Taiwan’s participation in the international space. This viewpoint can be confirmed with the relations between two Germanies: after the two Germanies signed the Basic Treaty and recognized the sovereignty of each other, their respective international space was extended to a great extent compared to before the signing of the Basic Treaty. Thus, it can be seen that the participation of the Taiwan Region in the international space is the fundamental problem of “sovereignty” and “state” reflected in the field of international space. Under the effect of this fundamental problem, the issue of Taiwan’s participation in the international space is mainly reflected in the following three aspects.

1.1 “Under What Name” Should Taiwan Participate in the International Space? “Under what name” should the Taiwan Region participate in the international space refer to the question of whether the Taiwan Region should participate in the international space under the name of “Republic of China”, “Taiwan”, “Chinese Taipei” or any other names. The “name” question is the most sensitive and thorny issue with regard to Taiwan’s participation in the international space. The Taiwan Region has the “Republic of China” as its “official state title” according to its “legally constituted authority” or its current “Constitution.” Even though the meaning of the “Republic of China” is no longer equal to “China”, and it is interpreted as “Taiwan’s constitutional state title” by some “Taiwan independence” forces, the “Republic of China” still holds an important position in the mind of Taiwanese people, which is higher than that of “China” and “Taiwan.” To participate in the international space as the “Republic of China” is of course believed by Taiwan to be the best option: first, the “Republic of China” is the “official state title” of the Taiwan Region according to its 1

Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009).

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current “Constitution”, so to participate in the international space as the “Republic of China” best fits the political system of the Taiwan Region, and conforms to its current “Constitution”; second, the “Republic of China” is the name of regime, which can reflect the “recognition of government” of the “Taiwan authorities”, and is the best symbol for the Taiwan authorities to demonstrate its “legality” from the outside; third, the “Republic of China” is highly accepted among the Taiwanese people. Nevertheless, the fact is that the “Republic of China” is a symbol completely denied by the mainland, and the existence of the “Republic of China” is mostly not recognized by the international community; therefore, the “Republic of China” cannot be the “name” of the Taiwan Region for its participation in the international space. Thus, the Taiwan Region must seek another name to substitute the “Republic of China” for participation in the international space. According to relevant policies and statements of the mainland, even though the mainland does not accept the “Republic of China”, other names are not necessarily unacceptable. Therefore, the question of “under what name” should the Taiwan Region participate in the international space is converted to seeking a name acceptable to both the mainland and Taiwan for Taiwan’s participation in the international space. Here, “acceptable to both” can be understood from the following two aspects: first, from the mainland’s perspective, the name used by Taiwan to participate in the international space must not result in the situation of or associations with “two Chinas” and “one China, one Taiwan”, i.e., It must not contradict the one-China principle; second, from Taiwan’s perspective, the name used by Taiwan to participate in the international space must not “dwarf” Taiwan as a part of China and must show a certain extent of “distinction.” In view of the above two conditions, names that are often used for Taiwan’s participation in the international space at present, including “Chinese Taipei”, “Taiwan, Penghu, Kinmen and Matsu” and “Taipei, China”, are all eligible options. Of course, if Taiwan’s name can be finalized as “Chinese Taipei” through negotiations across the Strait, it would be the best choice for constructing a mechanism for Taiwan’s orderly participation in the international space.

1.2 Under Which Status Should Taiwan Participate in the International Space? “Under which status” should the Taiwan Region participate in the international space refers to the question of whether Taiwan should participate in the international space as “a region”, “a state”, “a province of China”, or under any other statuses. One of the purposes of Taiwan’s participation in the international space is to obtain the so-called “recognition of state” and “recognition of government” through participating in the international space, especially striving for recognition by great powers, including the United States and Japan, and participating in large-scale international space, such as the United Nations, World Trade Organization and World Health Organization, to demonstrate its subjectivity. Therefore, the ideal status for the participation of the

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Taiwan Region is “state.” Nevertheless, from the perspective of the mainland, since 1983, it has gradually given up on the “central versus local” mode for the alignment of political relations, and the mainland no longer seeks to align the Taiwan Region with the “local government of China” (e.g., “province” and “special administrative region”). Thus, the mainland has no unreasonable demand for the Taiwan Region to participate in the international space as a “province” or “special administrative region.” As for the status of the Taiwan Region for participation in the international space, the mainland has expressed it in both policy and legal language as “compatible with its status.” The so-called “compatible” here can be understood with two points: first, it must be combined with the one-China principle, i.e., The “status” of the Taiwan Region must not violate the one-China principle, and the “status” of state is obviously not a “compatible” one; second, it is necessary to recognize the autonomy of the Taiwan Region in some affairs to a certain extent, e.g., autonomy in independent management of foreign trade and tax revenue, autonomy in catching marine fishes, and autonomy in organization of athletes to participate in various international games; such autonomy makes it necessary for the Taiwan Region to participate in the international space in the field of specific affairs (or functional field), thus giving rise to the status of the Taiwan Region corresponding to such specific affairs. Based on the above understanding, the question of “under which status” should the Taiwan Region participate in the international space is converted to the question of how to define its “status” during its participation in the field of specific affairs or the functional field. Of course, there is no fixed mode for the resolution of this question that applies to all fields; rather, it should be decided according to factors including the requirements of different affairs in the international space (mostly rules of relevant international organizations).

1.3 To What Extent Should Taiwan Participate in the International Space? “To what extent” should the Taiwan Region participate in the international space refers to the question of whether the Taiwan Region should participate in the international space as an official member, under titles such as “observer”, “associate member” and “affiliated member”, or even as nongovernmental organizations. To what extent one should participate in the international space is an important indicator of the degree of acceptability of the political entity by the international community. For example, Palestine became an “observer entity” of the United Nations in 1974 and became an “observer state” of the United Nations on November 29, 2012; the improvement of status indicated more in-depth recognition of Palestine by the international community. The representative of Palestine even believed that the “observer state” status granted by the United Nations to Palestine is “a birth approval certificate

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issued for the substantial existence of Palestine.”2 The Taiwan Region also wants to obtain a “birth approval certificate” by participating in large international organizations such as the United Nations as an official member. In addition to participating in international organizations as an official member, to establish “official diplomatic relations” with other countries as a “state” also has the effect of “state recognition” or “government recognition.” Thus, participating in international organizations as an “official member” or establishing “official diplomatic relations” with other countries is the ideal degree of participation in the international space envisaged by the Taiwan Region. Nevertheless, such envisagement will not be accepted by the mainland on the basis of a “recognition dispute.” Therefore, similar to its “name” and “status”, the degree of Taiwan’s participation in the international space is also an issue that should be accepted by both sides across the Strait. In practice, the Taiwan Region participates in international organizations as “observer”, “affiliated member”, “fishing entity” and “separate customs territory”, maintains “substantive relationships” with great powers including the United States and Japan, and at the same time encourages its nongovernmental organizations to participate in international nongovernmental organizations, thus maintaining its international existence on a level secondary to “official member” or “official relationship.” The above three questions are clues to the main issues of Taiwan’s participation in the international space, which have also been sufficiently displayed in individual cases of Taiwan’s participation in the international space. The resolution of Taiwan’s participation in the international space can eventually be summed up as the resolution of the three abovementioned questions.

2 International Legal Documents Concerning the Taiwan Region and the Legal Logic Behind Taiwan’s Orderly Participation in the International Space The establishment of a mechanism for the orderly participation of the Taiwan Region in the international space is not only the result of power logic but also the result of legal logic. At present, the thoughts of the mainland and Taiwan are still mostly following power logic when handling the participation of the Taiwan Region in the international space. Therefore, less attention is given to the role of rules of international law related to the status of the Taiwan Region in establishing Taiwan’s orderly participation in the international space. Three main reasons account for this phenomenon. First, the crux of Taiwan’s participation in the international space does not lie in the rules of international law, but the “recognition dispute” existing between the mainland and Taiwan due to political antagonism; therefore, it is necessary to objectively admit the limited function of the rules of international law in Taiwan’s participation in the international space. Second, the rules of international law with relatively more 2

“Palestine Obtained Observer State Status”, data source: http://politics.people.com.cn/n/2012/ 1201/c70731-19757048.html, the last access date: January 20, 2019.

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relevance to the status of the Taiwan Region (the “Republic of China”) were formed before 1990 in the Taiwan Region; therefore, in regard to the “legally constituted authority of China” and “government succession” and even “state succession”, it can hardly be recognized by the mainland, and the degree of recognition is still not high in Taiwanese society in the context of “Taiwan’s subjectivity” as the main axle. Third, compared with the operating process and features of power logic, exploring the logic in the rules of international law for resolving the participation of the Taiwan Region in the international space is obviously the choice of the minority, which receives little attention from the people; as a result, both sides of the Strait have not paid enough attention to this issue. Even so, the author still believes it is necessary to pry into the international legal documents involving the Taiwan Region—mostly various norms of international law—for a way to resolve the issue of Taiwan’s orderly participation in the international space. For this reason, this book will use the method of normative analysis and start from the text of international legal documents to discuss their function in resolving the orderly participation of the Taiwan Region in the international space. From the normative perspective, the international legal documents involving the Taiwan Region are sorted out, mainly to resolve the following four issues: first, the status of the Taiwan Region; second, the status of the Taiwan authorities; third, the relationship between the Taiwan Region and the mainland (the People’s Republic of China); and fourth, the qualification of the Taiwan Region for participation in the international space. Within the domain of discourse on the participation of the Taiwan Region in the international space, the last issue is obviously the fundamental issue, while the former three issues are in nature centered on the fourth issue. Since there are many international legal documents involving the Taiwan Region and Chapter I has already discussed the Treaty of Peace with Japan and the “Japan-Taiwan Treaty” in detail, in this section, the focus of discussion is on the relatively more important documents, including Treaty of Shimonoseki, ROC Declaration of War Against Japan, Cairo Declaration, Potsdam Proclamation, Terms for Japanese Surrender, United Nations General Assembly Resolution 2758, three joint communiqués between the United States of America and the People’s Republic of China, Japan–China Joint Statement, Treaty of Peace and Friendship Between Japan and the Republic of China, and some documents signed between the Taiwan Region and the parties concerned. It should be noted that among the abovementioned international legal documents, the normative force of some documents is not recognized by either the mainland or Taiwan. In particular, the mainland holds a negative attitude toward the legality of norms signed between the Taiwan Region and other relevant entities. Nevertheless, recognition of the normative force of the abovementioned international legal documents is not the premise of this study; rather, it explores issues revealed about the participation of the Taiwan Region in the international space. Therefore, there is no need to avoid discussion on issues related to international legal documents just because the mainland negates the validity of such documents.

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2.1 Taiwan-Related International Legal Documents Prior to August 15, 1945 On April 17, 1895, defeated in the First Sino-Japanese War, the Chinese Government of Qing Dynasty was forced to sign the Treaty of Shimonoseki with the Japanese Government. Article 2 of the Treaty of Shimonoseki stipulates: “China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon: …; (b) The island of Formosa, together with all islands pertaining or belonging to the said island of Formosa. (c) The Pescadores Group….”3 According to the stipulations above, the government of the Qing Dynasty ceded to Japan in perpetuity the sovereignty and governance power of all of Taiwan Island and all affiliated islands. As a result of the First SinoJapanese War, the Treaty of Shimonoseki is therefore not a legislative treaty for the contracting parties to establish a code of contact to be followed on a long-term basis but in nature a dispositive treaty. According to the features of a dispositive treaty, the abovementioned clauses of the Treaty of Shimonoseki shall lose efficacy since the completion of the de facto occupation of the Taiwan Region by Japan in June 1895, i.e., The performance of punishment. Even so, the fact that Taiwan was occupied by Japan as a result of the Treaty of Shimonoseki has not changed. Some Taiwanese scholars believe that Japan has already obtained sovereignty over the territory of Taiwan according to the Treaty of Shimonoseki.4 The Treaty of Shimonoseki has been the first treaty involving the Taiwan Region since modern times and, in a certain sense, is the root cause of the Taiwan issue. On July 7, 1937, Japan launched the full-scale invasion of China, which initiated total resistance by all Chinese people, including Taiwanese compatriots. After 8 years of arduous fight against the invading enemy, on August 15, 1945, the Anti-Japanese War was won as Japan announced its unconditional surrender, which was followed by the conclusion of World War II. Due to the Japanese invasion of China and World War II, China and its allied states issued and concluded a series of international legal documents, which contain rich expositions of the status of the Taiwan Region. On December 9, 1941, the National Government of the Republic of China issued the ROC Declaration of War Against Japan (hereinafter referred to as the “Declaration”), officially announcing war against Japan. According to this Declaration, “all treaties, agreements, and contracts that involve relations between China and Japan are annulled without exception.” This Declaration not only indicated the determination of the National Government of the Republic of China to declare war against Japan and sever all relations with Japan but also legally expressed China’s attitude of unilaterally annulling all relations of rights and obligations with Japan in international law. Scholars across the Taiwan Strait have different understandings as to the expression in the Declaration about annulling all relations of rights and obligations with Japan 3

Quoted from Cheng Chang-hsiung, “The Analyzing from Nation Sovereignty to the Mode of Integration Across the Taiwan Strait”, Master’s thesis, Nanhua University Institute of Public Administration and Policy, 2003, 92. 4 Zheng Hailin, Reinterpretation of Taiwan’s Sovereignty, Strait Academic Press, 2000, 271–273.

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in international law. Mainland scholars generally believe this Declaration actually nullified the effect of the Treaty of Shimonoseki toward China, and therefore, the sovereignty and governance power over the Taiwan Region obtained by Japan based on the Treaty of Shimonoseki are illegal. However, according to some Taiwanese scholars, it is forbidden by international law to unilaterally revoke an international treaty involving territorial sovereignty; therefore, Japan’s sovereignty over Taiwan according to the Treaty of Shimonoseki is real and concrete in international law.5 On December 3, 1943, the heads of the United States, the United Kingdom and China issued the famous Cairo Declaration in Cairo, announcing, “It is the purpose of three great allies that Japan shall be stripped of all the islands in the Pacific which she has sized or occupied since the beginning of the first World War in 1914, and that all the territories Japan has stolen from the Chinese, such as …, Formosa, and the Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.” On July 26, 1945, the Potsdam Proclamation issued in the name of the heads of the United States, the United Kingdom and China reaffirmed the effect of the Cairo Declaration, stipulating that “the Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine, as had been announced in the Cairo Declaration.” The majority of scholars across the Strait approve the legal validity of Cairo Declaration and Potsdam Proclamation and believe these two important international legal documents are the international law basis for the return of Taiwan to China and the restoration of China’s sovereignty over Taiwan. However, some Taiwanese scholars believe the two international documents above are not international law in the strict sense and are invalid due to their unilateral nature.6 In fact, those with only a grain of common sense in international law would find that the Cairo Declaration and Potsdam Proclamation are not unilateral statements made by the allied states; they are not only justifiable in the substantive legitimacy of international law but also legitimate in form. On September 2, 1945, in the surrender document, Japan indicated “acceptation of clauses listed in the Declaration…issued by the heads of the governments of the United States, the United Kingdom and China in Potsdam on July 26, 1945.” As a matter of fact, Japan has already accepted Cairo Declaration and Potsdam Proclamation through its surrender declaration, and the clauses related to the Taiwan issue in the two abovementioned international legal documents are of course legally binding to Japan. Moreover, the series of treaties and agreements signed between Japan and the parties concerned after the end of World War II are all based on the recognition of Cairo Declaration and Potsdam Proclamation. Therefore, their legal effect on Japan is indisputable.

5

See Chen Litong, Taiwan’s Subjectivity, (Angle Publishing Co., Ltd., 2002), 11–13. See Peng Mingmin and Huang Zhaotang, Taiwan’s Status in International Law, Taiwan Interminds, 1995, 128–129. 6

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2.2 United Nations General Assembly Resolution 2758 (1971) On October 25, 1971, the United Nations General Assembly passed the Resolution 2578, deciding to restore the lawful rights of the People’s Republic of China in the United Nations and expel the representatives of Chiang Kai-Shek from the seats illegally occupied in the United Nations and all affiliated agencies. The United Nations General Assembly Resolution 2578 has at least three layers of meanings: first, confirm the People’s Republic of China as the sole legal representative of China; second, restore the lawful rights of the People’s Republic of China in the United Nations, including its permanent seat on the UN Security Council; third, expel Chiang Kai-Shek’s representatives from the United Nations and its affiliated agencies. However, Resolution 2578 still left two questions, which are often referred to by scholars and political figures advocating “Taiwan independence.” The first question is whether Resolution 2758 recognizes the one-China principle. Study of the text of Resolution 2758 finds no clear reference to the one-China principle, but this does not mean the one-China principle cannot be derived through legal interpretation. Before the United Nations General Assembly put Resolution 2758 to vote, the United States once proposed “dual representatives.” According to the proposal put forward by the United States, the formulation “to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupied at the United Nations and in all organizations related to it” is extracted from the text of the Resolution to be voted on as a separate proposal. The intention of the United States is to discuss the restoration of the lawful seat of the People’s Republic of China and the expulsion of the representatives of Chiang Kai-Shek separately to win over certain countries who support the restoration of the lawful seat of the People’s Republic of China but do not necessarily support the expulsion of the representatives of Chiang Kai-Shek to create the situation of “two Chinas” in the United Nations. However, the “dual representatives” proposal of the United States was vetoed by the United Nations General Assembly. From the twist and turns of this procedural matter, we can infer the “legislative intent” of the majority of UN members when passing Resolution 2758; thus, it can be affirmed the formulation “to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupied at the United Nations and in all organizations related to it” in Resolution 2758 itself contains the implications of the one-China principle. The second question is what is the meaning of “Chiang Kai-shek’s representative” in Resolution 2758. Some scholars advocating “Taiwan independence” believe that the United Nations General Assembly Resolution 2578 expels “Chiang Kai-shek’s representatives” but not representatives of the “Republic of China” or “Taiwan”, so representatives of the Taiwan Region who are not “Chiang Kai-shek’s representatives” are still qualified to participate in the United Nations.7 This view gradually heated up after the rotation of ruling parties of the Taiwan Region in 2000, and climaxed in 2007 when Chen Shui-bian instigated the “referendum on United Nations 7 See Chen Litong, “Competition in International Organizations Under the One-China Principle”, in Taiwan’s Subjectivity, by Chen Litong, Angle Publishing Co., Ltd., 2002.

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membership applications.” It is true that Resolution 2578 mentions the “representatives of Chiang Kai-shek” only, but this doesn’t mean those who are not “Chiang Kai-shek’s representatives” can participate in the United Nations in the name of the “Republic of China” or “Taiwan.” First, “Chiang Kai-shek’s representatives” actually refer to the “Republic of China” and “Taiwan”; just that the “Republic of China” had no longer been recognized by the majority of countries in the world, and the title “Taiwan” was not a symbol of “state” at that time, so it could only be referred to as “Chiang Kai-shek’s representatives.” Second, according to relevant regulations of the United Nations, if the “Republic of China’ is to be removed from the United Nations, it must be passed by the UN Security Council and agreed by over two thirds of the members of the United Nations General Assembly. Since the United States may use its veto at the UN Security Council, it is almost impossible to complete the abovementioned procedure. Therefore, the use of the expression “Chiang Kai-shek’s representatives” indicates that the People’s Republic of China restores its lawful seat in the United Nations by replacing “Chiang Kai-shek’s representatives” only, and the issue of expelling the “Republic of China” does not exist, i.e., To avoid a relatively complex procedure by stripping a state of its political power. Third, the denial of the participation of the Taiwan Region in international intergovernmental organizations by the United Nations and various specialized agencies according to Resolution 2758 has become an international practice of legal significance, and many related legal documents have also appeared, thus indicating from the hermeneutic angle that a broad consensus has already been reached on the interpretation of “Chiang Kai-shek’s representatives” as the “Republic of China” or “Taiwan.” In this sense, the inclusion of “Chiang Kai-shek’s representatives” in Resolution 2758 is only a substitute formulation in the context of international political relations, which does not imply opening up the space for the “Republic of China” or “Taiwan” to participate in the United Nations and its specialized agencies. The United Nations General Assembly Resolution 2758 not only takes the “legality” of the international representation of the entire China from the “Republic of China” but also deprives it of the “legitimacy” of its international personality as a sovereign state.8 For the mainland, the United Nations General Assembly Resolution 2758 provides the possibility of blocking the participation of the Taiwan Region in the international space as well as the international political basis for asymmetrical rivalry with the Taiwan Region.

8

See Chang Ya-chung, Issues of Sovereignty Between Mainland China and Taiwan, Sheng-Chih Book Co., Ltd., 1998, 46.

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2.3 Diplomatic Legal Documents Signed Between the People’s Republic of China and the United States or Japan During the 1970s, the international pattern underwent profound changes, with the easing off of Sino-US and Sino-Japanese relations. After the restoration of the lawful seat of the People’s Republic of China in the United Nations since October 1971, China has gradually established diplomatic relations with the majority of countries in the world—especially developed European and American countries. On February 28, 1972, the first Sino-US communiqué was issued by President Richard Nixon and Premier Zhou Enlai in Shanghai (hereinafter referred to as the Shanghai Communiqué); on December 16, 1978, the second communiqué, the Joint Communiqué on the Establishment of Diplomatic Relations, was issued by the United States and the People’s Republic of China (hereinafter referred to as the Communiqué on Diplomatic Relations); on August 17, 1982, the third and final Sino-US communiqué was reached between the United States and the People’s Republic of China on the issue of arms sale to Taiwan (hereinafter referred to as the August 17th Communiqué). On September 29, 1972, the Japan–China Joint Statement was issued by the Japanese Government and the Chinese Government, announcing the establishment of diplomatic relations between China and Japan. On August 12, 1978, the Treaty of Peace and Friendship Between Japan and the People’s Republic of China was reached, reiterating the standpoint of the abovementioned statement. In the following, these five important documents about relations will be analyzed. When the Shanghai Communiqué was signed between China and the United States, no in-depth consensus had been reached on the status of the Taiwan Region, and their respective positions were expressed in words. China reiterated: “the government of the People’s Republic of China is the sole legal government of China; Taiwan is a province of China which has long been returned to the motherland; the liberation of Taiwan is China’s internal affair in which no other country has the right to interfere; …The Chinese Government firmly opposes any activities which aim at the creation of ‘one China, one Taiwan’, ‘one China, two governments’, ‘two Chinas’, and ‘independent Taiwan’ or advocate that ‘the status of Taiwan remains to be determined.’” The U.S. side declared, “The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position.” It should be noted that in the Shanghai Communiqué, the United States used “acknowledge” instead of “recognize”, as the latter implies a relatively stronger binding force in international law. Some Taiwanese scholars believe that this wording indicates that the United States did not restrain itself with the one-China principle but only expressed its approval of certain viewpoints.9

9

See Lin Zheng-shun, “New Development of the ‘One-China Policy’ and International Law”, Taiwan International Law Quarterly Vol. 3 3 (September 2006).

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In the Communiqué on Diplomatic Relations, “the United States recognizes the Government of the People’s Republic of China as the sole legal Government of China”, “the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan”, “the United States of America and the People’s Republic of China reaffirm the principles agreed on by both sides in the Shanghai Communiqué”, and “the Government of the United States of America acknowledges the Chinese position that there is but one China and Taiwan is part of China.” The words “recognize” and “acknowledge” in the Communiqué on Diplomatic Relations are both translated into “承认 [recognize]” in its Chinese text. About this, American expert Michel Oksenbergenberg, who was involved in the bilateral negotiations, asked whether “acknowledge” is translated into “承认 [recognize]” in terms of content or tone. China’s answer is “in terms of tone”, and the United States did not express any disagreement ever.10 The above expressions were continued in the August 17th Communiqué, which thus confirmed the attitude of China and the United States in the Shanghai Communiqué and the Communiqué on Diplomatic Relations. From this, we can see that the attitude of the United States toward Taiwan’s status was still unclear, which was tolerated by the strategy of “seeking common ground while setting aside differences” adopted by the mainland in the general context of international politics to a considerable extent. Of course, from the angle of semantic interpretation, “acknowledge” also means “to recognize something”, but “acknowledge” is not as official as “recognize”, which is a more normative and serious expression. Therefore, the interpretation of “acknowledge” as merely “cognize” by some Taiwanese scholars is also incorrect. Article 2 of the Japan–China Joint Statement stipulates: “The Government of Japan recognizes that the Government of the People’s Republic of China is the sole legal government of China.” Article 3 stipulates: “The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China and firmly maintains its stand under Article 8 of the Potsdam Proclamation.” The above stipulations of the Japan–China Joint Statement can be interpreted from at least the following three aspects: first, the Japan–China Joint Statement introduced the Potsdam Proclamation into the relations between the People’s Republic of China and Japan so that the Potsdam Proclamation became an international legal document restricting the relations between the People’s Republic of China and Japan, based on which the Potsdam Proclamation and its confirmation of the Cairo Declaration shall apply to the People’s Republic of China and Japan; second, Japan recognizes the one-China principle and the sole representation of China by the People’s Republic of China; third, the official relations between Japan and Taiwan have thus come to an end, and the “Treaty Taipei” signed between Japan and the Taiwan authorities has also become invalid.

10

See Ren Donglai, “The American Stance on the Taiwan Status Issue”, Open Times 1 (2003).

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2.4 Legal Logic Behind Taiwan’s Orderly Participation in the International Space The international legal documents relating to the Taiwan Region as sorted out above have not completely revealed the features of Taiwan’s participation in the international space in international legal documents but are still quite representative. The abovementioned international legal documents mainly settled the following two issues: first, Chinese representation; second, the ownership of the Taiwan Region. From the method of normative analysis above, we can see that the answer to the first question has been relatively clear since United Nations Resolution 2758, i.e., The People’s Republic of China is the sole legal government to represent China. Regarding the second question, the attitude of the United States and Japan is still ambiguous, with unclear expressions in legal language, which still generally lean toward the viewpoint of “Taiwan is a part of China” or “return of Taiwan to China.” It can be said that the current international legal documents have already provided a relatively clear answer to the international status of the Taiwan Region, which is consistent with the position that the Chinese mainland has always stood for. Of course, the possibility of the Taiwan Region participating in the international space cannot be completely blocked. Therefore, the current issues can be summed up into how to constitute the legal logic behind Taiwan’s orderly participation in the international space on the basis of international legal documents, which can be unfolded in detail with the following four issues. First, the status of the “Republic of China.” Prior to the restoration of the lawful seat of the People’s Republic of China in the United Nations, the “Republic of China” had been granted the status of the “symbol of China.” The Taiwan Region had survived in the international space in the name of the “Republic of China.” However, Resolution 2758 denied the formulation of the “Republic of China” and resulted in the elimination of the space for the survival of the “Republic of China” in the United Nations and its specialized agencies. Therefore, when Chen Shui-bian instigated the “referendum on United Nations membership applications” in 2007, he did not follow the “Republic of China”, the “official state title” stipulated by the current “Constitution” of the Taiwan Region, but instead used “Taiwan”, which had no supporting evidence even in the Taiwan Region. In documents about Sino-US and Sino-Japan relations, the “Republic of China” was also replaced by “Taiwan” and even “Taiwanese people.” Thus, the “Republic of China”—the symbol of regime— no longer had its foundation in law and lost its legal status. When establishing a mechanism for the orderly participation of the Taiwan Region in the international space, the “Republic of China” is a symbol that must be abandoned, which constitutes the precondition for the orderly participation of the Taiwan Region in the international space. The second is the status of the Taiwan authorities. The United Nations Resolution 2758 did not use formulations such as “representative of the Republic of China”, “government of the Republic of China” and “representative of Taiwan” but referred to the Taiwan authorities as the “representatives of Chiang Kai-shek.” The reason

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for the adoption of the “representatives of Chiang Kai-shek” in Resolution 2758 has been explained briefly earlier. Therefore, according to the United Nations Resolution 2758, the Taiwan authorities are understood as an association with actual control over Taiwan rather than a regime. Thus, the legal status of the Taiwanese authorities has been “lowered” considerably in international legal documents. In the Communiqué on Diplomatic Relations issued by China and the United States, the status of the Taiwan authorities was evaded, and the American intention of continuing to maintain unofficial relations with Taiwan was expressed as “the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan.” Obviously, the “American people” versus “Taiwanese people” mode did not regard the Taiwan authorities as a subject in the development of unofficial relations between the United States and Taiwan. However, in fact, the United States has still been developing interrelations with Taiwan through semiofficial channels, just that such semiofficial relations are covered by the “American people” versus “Taiwanese people” mode, thus effectively evading the alignment of the “Taiwan authorities.” This is perhaps the greatest consensus that can be reached between the People’s Republic of China and the United States on this issue. In view of the above, during the establishment of a mechanism for the orderly participation of the Taiwan Region in the international space, the status of the “Taiwan authorities” can still only be regulated and understood according to the United States Resolution 2758. The third is the qualification of the Taiwan Region for participating in the United Nations and its specialized agencies. According to Resolution 369 (5) passed by the United Nations in 1950, the attitude of the United Nations General Assembly and its committees toward the Chinese representation issue should be taken into consideration by other agencies and specialized agencies of the United Nations. Therefore, the maintenance of the seat of the Taiwan authorities in the United Nations concerns their membership of relevant agencies of the United Nations: if their seat in the United Nations is lost, the Taiwan authorities will lose their membership of relevant agencies of the United Nations as well. This is also why the competition for “Chinese representation” is so fierce in the United Nations.11 The United Nations Resolution 2758 also indicated very clearly: “to expel forthwith the representatives of Chiang Kai-shek from the place which they unlawfully occupied at the United Nations and in all organizations related to it.” Accordingly, the Taiwan Region has as a matter of fact lost its membership at the United Nations and its specialized organizations. Nevertheless, under the intervention of the United States, Taiwan continued to exist as an official member of the International Monetary Fund (IMF), World Bank (WB), International Development Association (IDA), etc., for as long as 9 years. It was not until the People’s Republic of China raised objections or revealed its intention of participating in the abovementioned international organizations that the membership of the Taiwan Region was ended. In addition, when handling Taiwan-related issues, the majority of specialized agencies of the United Nations cited the United Nations Resolution 2758 as the legal basis for excluding or shelving the membership issue 11

Luo Qizheng, “Jurisprudential Dispute over the ‘Chinese Representation Issue’ in the United Nations”, Taiwan International Law Quarterly Vol. 3 3 (September 2006).

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of the Taiwan Region. Furthermore, the text of the United Nations Resolution 2758 says “to expel forthwith” the “representatives of Chiang Kai-shek”, instead of simply “canceling membership.” Therefore, in legal principle, the Taiwan Region is not even qualified for “participating” in activities of specialized organizations of the United Nations under the status of “observer”, “associate member” or others. For instance, a resolution of the World Health Organization in 1972 (WHA 25.1) cited the United Nations General Assembly Resolution 2758 to restore the lawful seat of the People’s Republic of China at the World Health Organization; this Resolution was thus cited repeatedly by the World Health Organization to refuse the application of the Taiwan Region for “observership” or “membership.”12 However, this does not mean there is no way for the Taiwan Region to participate in activities of specialized agencies of the United Nations as an “observer” or under statuses other than an official member. The “representatives of Chiang Kai-Shek” may also be understood as the “Taiwan authorities” with political implications rather than as a regulatory agency for relevant functional affairs relating to Taiwan. Even though the latter cannot become an official member due to a lack of “state” implications, this does not mean it cannot “participate” in activities of some international organizations under circumstances allowed by rules of international law based on the purpose of realizing certain functions. Fourth, the qualification of the Taiwan Region for participating in international nongovernmental organizations. Originally, the mainland had excluded the possibility of the Taiwan Region participating in international nongovernmental organizations. For example, in 1973, the Government of the People’s Republic of China once wrote to the United Nations Educational Scientific and Cultural Organization (UNESCO), requesting to notify international organizations in contact with UNESCO to expel forth with the “representatives of Chiang Kai-shek.” Nevertheless, among the 38 international organizations in contact with UNESCO, only 3 followed its resolution, while others refused to do so on the excuse that “nonpolitical organizations should not expel members for political reasons.” Investigation of international legal documents shows the “American people” versus “Taiwanese people” mode is perhaps a feasible way to resolve the issue of Taiwan’s participation in international nongovernmental organizations. In fact, neither the United Nations Resolution 2758 nor the treaties signed between China and the United States or Japan on their relations had forbidden Taiwanese people to have unofficial relations with foreign countries. Therefore, if we understand Taiwan’s participation in international nongovernmental organizations as a right of Taiwanese people, then, according to the principle of “law without explicit stipulation is freedom”, during the process of establishing a mechanism for the orderly participation of the Taiwan Region in the international space, it is necessary to open up the space for the Taiwan Region to participate in international nongovernmental organizations in the name of “Taiwanese people” or gradually relax the restrictions on Taiwan’s participation in international nongovernmental organizations.

12

See Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 402 (June 2010).

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The above issues are the key to the participation of the Taiwan Region in the international space and the establishment of a mechanism for the orderly participation of the Taiwan Region in the international space under the framework of peaceful development of cross-Strait relations. The mechanism for the orderly participation of the Taiwan Region in the international space itself should be a set of laws and systems, instead of merely the result of power operation and games; in addition, it should imply legal logic. International legal documents have expounded on the participation of the Taiwan Region in the international space in a relatively comprehensive manner, even though its focus is mostly on the status and ownership of the Taiwan Region and the recognition of the one-China principle. However, exploring the connotations of international legal documents through normative analysis is still a method for straightening out some important issues during the construction of a mechanism for Taiwan’s order participation in the international space. When the author proposes to establish a mechanism for Taiwan’s orderly participation in the international space, the legal logic constructed by the abovementioned international legal documents is also regarded as the foundation and basis.

3 A Mechanism for Taiwan’s Orderly Participation in the International Space Under the Framework of Peaceful Development of Cross-Strait Relations At present, the mainland is in dilemma regarding the participation of the Taiwan Region in the international space: on the one hand, due to the “recognition dispute” across the Strait, the mainland must impose certain restrictions on Taiwan’s participation in the international space to avoid the situation of “two Chinas” or “one China, one Taiwan”; on the other hand, in view of the desire of the Taiwanese people for participation in the international space, the mainland has to attach importance to this issue under the guidance of the principle of “pinning hopes on the Taiwanese people”; therefore, the mainland should make a response to the Taiwan authorities’ behavior of participation in the international space in the name of the Taiwanese people, instead of just imposing restrictions on everything. Such a dilemma has resulted in constant barriers to communication and a sense of mistrust across the Strait regarding Taiwan’s participation in the international space, which is of no help to the elimination of misunderstandings and accumulation of mutual trust between the two sides. We must recognize that the resolution of Taiwan’s participation in the international space has an important position within the framework of peaceful development of cross-Strait relations; preventing the Taiwan Region from participating in the international space with methods such as “blockade” and “containment” is neither acceptable to the Taiwan Region nor in line with the common interests of the two sides in the long run. The two sides belong to the same Chinese nation and are supposed to join hands to safeguard the overall interests of the Chinese nation

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together. Of course, the restrictions of the one-China principle must also be considered. In view of the considerations above, the best way is to provide guidance for the participation of the Taiwan Region in the international space in an orderly way, and such an order should be the result of institutional arrangement, i.e., The establishment of a mechanism for the orderly participation of the Taiwan Region in the international space. Under the framework of peaceful development of cross-Strait relations, this section discusses the main content and construction method of a mechanism for the orderly participation of the Taiwan Region in the international space, the specific institutional designs in particular.

3.1 Guiding Principle: Various Principles for Constructing a Framework for Peaceful Development of Cross-Strait Relations The construction of a framework for peaceful development of cross-Strait relations is the strategic thinking proposed by the mainland since 2005, which by now has been elevated to one of the guiding principles for the mainland to officially handle the Taiwan issue at the present stage. The framework for peaceful development of crossStrait relations is a framework system consisting of an economic framework, political framework, cultural framework, societal framework and foreign affairs framework, which is concentratedly reflected in the sum total of various norms, systems and mechanisms of the abovementioned frameworks.13 The orderly participation of the Taiwan Region in the international space involves various aspects of the construction of a framework for the peaceful development of cross-Strait relations and is also one of the important issues during the peaceful development of cross-Strait relations. The construction of a framework for peaceful development of cross-Strait relations will be conducive to the promotion and reasonable resolution of Taiwan’s orderly participation in the international space. The construction of a framework for peaceful development of cross-Strait relations has three basic principles, i.e., Cross-Strait principle, functional principle and institutional principle.14 As the basic principle of the framework for peaceful development of cross-Strait relations, the cross-Strait principle replaces “one state” in politics with “two sides” in geography, thus adhering to “one state” in principle and strategically evading “one state” in practice, to tolerate the consensuses on the present alignment of political relations across the Strait to the greatest extent and shelve or evade the cross-Strait “recognition dispute” based on the identity of the Chinese nation and within the one-China framework. The functional principle is that the two

13

See Zhou Yezhong, “On Constructing a Legal Mechanism for the Peaceful Development of Cross-Strait Relations”, Law Review 3 (2008). 14 Zhu Jie, “On the Basic Principles of Cross-Strait Peace Agreement”, One Country Two Systems Research (Macao) 1 (2011).

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sides follow the path to cooperation “from economy to politics; from easy to difficult issues” by strengthening cross-Strait cooperation on issues on specific affairs relating to economy, culture and society, relieving the pressure of political issues on specific affairs, accumulating consensuses, and promoting the continuous deepening of the peaceful development of cross-Strait relations. The institutional principle means that except for certain content of priority, the framework for peaceful development of cross-Strait relations should only include institutions and procedures and avoid making judgments about substantive issues. Since the mechanism for Taiwan’s orderly participation in the international space constitutes an important part of the framework for peaceful development of cross-Strait relations, the three principles mentioned above also constitute the guiding principles for Taiwan’s orderly participation in the international space. First, based on the cross-Strait principle, the mainland should pay due attention and respect the desire of the Taiwan Region and its people for participation in international organizations and international exchanges and cooperation. Since the construction of a framework for peaceful development of cross-Strait relations does not involve sensitive political issues such as “sovereignty” and “state”, under the framework for peaceful development of cross-Strait relations, the Taiwan Region still maintains the “state title” of the “Republic of China” in form and considers itself to have “sovereignty”; based on this understanding, the Taiwanese people will also continue to hope for participation in the international community and acquisition of international recognition. Participation in the international community to acquire a certain “international space” helps Taiwanese people produce clear selfidentification. When guided properly, such self-identification can also be an effective means for winning over the support of Taiwanese people and identifying with the framework for peaceful development of cross-Strait relations. The foundation for identification with the framework for peaceful development of cross-Strait relations is a “consensus within the Chinese nation”, with issues such as “state” and “sovereignty” shelved; therefore, with respect to the issue of Taiwan’s “international space”, sensitive political issues should also be shelved. Starting from the crossStrait principle, we should respect the legitimate hope of the Taiwan Region and its people for participation in international organizations and international exchanges and cooperation, without objecting to Taiwan’s participation in international organizations under certain conditions and carrying out necessary external exchanges. Meanwhile, in international organizations joined by the mainland and Taiwan at the same time under various names, both sides should fully respect each other’s statuses in such international organizations, respect the rights to which they are each entitled according to the charters of such international organizations, and associate with each other on an equal footing within the structures of such international organizations. Second, based on the functional principle, we can open up the space for the Taiwan Region to participate in functional international organizations under certain premises. Functional international organizations are different from international organizations with security and political purposes; the former pays more attention to functional fields including economy, culture, science and technology, i.e., International organizations of “low-level politics”, while the latter places special emphasis on security

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and politics and points to clear directions, i.e., International organizations of “highlevel politics.” According to the functional principle, the framework for peaceful development of cross-Strait relations spares no effort in promoting functional cooperation across the Strait, while in the aspect of functional cooperation, the cooperation between both sides at the international level has special significance. To accommodate as many entities as possible, some functional international organizations have not restricted the qualification for membership with political factors such as “sovereignty” and state” but instead adopted the “principle of making no political decisions.” Taking the WTO as an example, according to Article 86 of the Havana Charter, which is still quoted by the WTO, members of the WTO must not attempt to pass judgment on essentially political matters in any way15 ; APEC, another international organization joined by the Taiwan Region in the name of “Chinese Taipei”, also stipulates that its members should be “economies” but not necessarily “states.” Therefore, in terms of functional international organizations, if the Taiwan Region adopts a name acceptable to the mainland for participation, which neither indicates “Taiwan” as a “sovereign state” nor results in “two Chinas” or “one China, one Taiwan”, a certain space should be reserved for consultations and discussions between the two sides, and such names should not be completely negated. Third, based on the institutional principle, the two sides should establish a pragmatic consultation mechanism of operability to conduct coordination in important international affairs. Despite the cross-Strait principle and the functional principle, the “international space” of the Taiwan Region is after all a sensitive and complex issue, and in regard to individual incidents, different cases should not be treated equally. Therefore, even if the Taiwan Region joins functional international organizations in names acceptable to the mainland, we should still adopt a prudent attitude, retain only a certain space for negotiations and make no final conclusions to avoid unnecessary misunderstandings. Based on this consideration, a mechanism for crossStrait consultations on the “international space” of the Taiwan Region seems especially important. As a jurisprudential consensus, the framework for peaceful development of cross-Strait relations should refrain from making substantive judgments or proposing judgment criteria and should only provide institutions and procedures for the two sides to conduct negotiations on the “international space” of the Taiwan Region. In addition, with the continuous deepening of global economic integration and cross-Strait exchanges, on the basis of “consensus within the Chinese nation”, the two sides should carry out cooperation at the international level, coordinate and cooperate with each other internationally, be united and speak with one voice, and check external forces reaping unfair gains through sowing discord across the Strait to strive for the common interests of the Chinese nation.16 In this sense, a mechanism for consultations across the Strait on the “international space” of the Taiwan 15

Article 86 of the Havana Charter stipulates: “The Members recognize that the Organization should not attempt to take actions which involve passing judgment in any way in essentially political matters.” 16 See Zhou Yezhong, “On the Legal Mechanism of the Framework for Peaceful Development of Cross-Strait Relations”, Law Review 3 (2008).

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Region appears even more important. How the consultation mechanism should be established, considering the important selectivity and sensitivity of foreign affairs, can be unfolded with the mode of “consultation through ARATS and SEF, in the presence of public power organs.” Judging from the current situation, “Chinese Taipei” is the most suitable mode for the framework of peace development of cross-Strait relations for the following three reasons: first, “Chinese Taipei” highlights “Chinese”, which embodies “identification with the Chinese nation” and can also be interpreted as a position against “Taiwan independence”; second, the subject of “Chinese Taipei” is “Taipei”, which on the one hand differentiates itself from the mainland and fits in with the psychology of Taiwanese people and, on the other hand, does not have political implications as the political symbol “Taiwan” does; third, practice has proven that as a symbol for the Taiwan Region to participate in certain international organizations, “Chinese Taipei” has been accepted by the two sides and even tacitly approved by advocators of “Taiwan independence.” Therefore, under the framework of peaceful development of cross-Strait relations, the two sides should retain sufficient negotiation space for the Taiwan Region to participate in the “international space” in the name of “Chinese Taipei” or other names and under the guidance of the cross-Strait principle and the functional principle of the framework of peaceful development of cross-Strait relations, resolve the “international space” issue of the Taiwan Region properly.

3.2 Basic Idea: Integration of Alignment of Cross-Strait Political Relations The resolution of Taiwan’s participation in the international space is often regarded as an independent problem domain within the domain of discourse on the mainland and Taiwan, rather than being placed in the general context of cross-Strait relations, let alone considering the relationship between the alignment of cross-Strait political relations and Taiwan’s participation in the international space. By studying the history of Taiwan’s participation in the international space and its form of existence, we find that the issue of Taiwan’s participation in the international space is only a depiction of the alignment of cross-Strait political relations in the international space. Take the United Nations Resolution 2758 as an example: at that time, crossStrait political relations were still at the state of “lawful government versus insurgent body”; therefore, even words such as the “Taiwan Region” were absent from the United Nations Resolution 2758, while representatives of Taiwan were referred to as “representatives of Chiang Kai-Shek.” The alignment of cross-Strait political relations determines the name and status of the Taiwan Region for participation in the international space and the degree of its participation; to resolve the difficult problem of Taiwan’s participation in the international space, it must be integrated with the alignment of cross-Strait political relations. Such integration can be understood in two aspects: first, in the ontological sense, the pace of Taiwan’s participation in the international space should match the rhythm of the alignment of political relations

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across the Strait and take different forms at various stages; second, in the methodological sense, the resolution of Taiwan’s participation in the international space can also draw lessons from the method used in the alignment of cross-Strait political relations, i.e., The topic-for-discussion method.17 (1) Integration in the Ontological Sense: Application of the Phased Method The phased method for the alignment of political relations across the Strait refers to the phased and step-by-step method adopted by the mainland and Taiwan to align political relations differently at various stages according to the state of development of cross-Strait relations so that the alignment of political relations can always keep abreast of the state of development of cross-Strait relations. In fact, the phased method embodies a pragmatic solution to cross-Strait relations and can also be used to resolve the issue of Taiwan’s participation in the international space. In ontology, the participation of the Taiwan Region in the international space is actually a reflection of the alignment of cross-Strait political relations in the international space. This system can be understood on two levels: first, Taiwan’s participation in the international space has relevance to the alignment of cross-Strait political relations; to resolve the issue of Taiwan’s participation in the international space, we must integrate it with the alignment of cross-Strait political relations and determine the name and status of the Taiwan Region for participation in the international space and the degree of its participation based on the result of the alignment of cross-Strait political relations; second, the participation of the Taiwan Region in the international space must adapt to the development and changes of the alignment of cross-Strait political relations, i.e., The name and status of the Taiwan Region for participation in the international space and the degree of its participation must change along with the change in the alignment of cross-Strait political relations. The “relevance” ensures that the resolution of the issue of Taiwan’s participation in the international space can always adapt to the framework of peaceful development of cross-Strait relations and will not go thus far as to go beyond the limits of the peaceful development of cross-Strait relations. At present, the alignment of crossStrait political relations is formed on the basis of the “political antagonism theory” and therefore determines some major issues concerning Taiwan’s participation in the international space and can only be resolved or shelved according to the viewpoint of the “political antagonism theory.” According to the “political antagonism theory”, the “recognition dispute” across the Strait is the product of “political antagonism”; so long as “political antagonism” is not eliminated, the “recognition dispute” will continue to exist. Therefore, the Taiwan Region cannot participate in the international space in the name and status of a “state” and can only participate within a limited scope under other names or statuses without “state” implications. This phenomenon is a product of theoretical logic and policy logic, which is also consistent with the current 17

About the staging and topic-for-discussion methods and their application in the alignment of cross-Strait political relations, see Zhou Yezhong and Zhu Jie, “Views on the Alignment of CrossStrait Political Relations Between the Mainland and Taiwan”, Journal of Henan Administrative Institute of Politics and Law 3 (2009).

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status of Taiwan’s participation in the international space and logically possible in practice. “Adaptability” ensures that Taiwan’s response to the issue of its participation in international space always has “relevance” to the alignment of cross-Strait political relations. Thus, it can be seen that “adaptability” is in nature a dynamic reflection of “relevance” and the logical necessity of “relevance”. Under the topic-for-discussion and phased thinking, the alignment of political relations across the Strait has been characterized by constant development and changes. Therefore, the combination of “relevance” and “adaptability” has given rise to the “phased” feature of Taiwan’s participation in the international space and the alignment of cross-Strait political relations, i.e., To determine the name and status of the Taiwan Region for participation in the international space and the degree of its participation according to different alignment of cross-Strait political relations. The “phased” feature has decided that the resolution of Taiwan’s participation in the international space will not be limited to a fixed mode; rather, it will take a variety of forms. The report at the 16th National Congress of the CPC and the Anti-Secession Law have proposed that the Taiwan Region can participate in the international space in a way “compatible with its status”, and this statement itself implies determining the name and status of the Taiwan Region for participation in the international space and the degree of its participation according to the result of the alignment of crossStrait political relations. Therefore, the “phased” feature in the alignment of political relations across the Strait and Taiwan’s participation in the international space can not only be justified through theory and practice but also be verified on the policy level. Even though Taiwan’s participation in the international space is mainly influenced by the alignment of political relations across the Strait, the latter is also influenced by the former. In other words, if Taiwan’s participation in the international space cannot be resolved ideally, it will have a negative impact on the virtuous development of the alignment of cross-Strait political relations. Since the restoration of the lawful seat of the People’s Republic of China at the United Nations in 1971, Taiwan has switched from relying on “external legitimacy” toward establishing “internal legitimacy.” The dispelling of the “legally constituted authority” of the “Republic of China” and the “vigorous growth” of Taiwan’s “subjectivity” are often closely related to this. Since 1990, the Taiwan authorities controlled by “Taiwan independence” forces have been promoting “Taiwan independence” step by step by widely publicizing the mainland’s behavior of combating and suppressing Taiwan’s participation in the international space. In 1993, the Taiwan authorities requested the United Nations to handle its “membership application” “according to the parallel representative mode already established by divided states at the United Nations” to change the cross-Strait political relations from “lawful government versus insurgent body” prior to the 1990s to a “divided state”. In 1994, the Taiwan authorities claimed in the “Specifications on Cross-Strait Relations” that Taiwan’s entry into the United Nations “does not challenge the representation of China at the United Nations”, proposed that the two sides should “both enter the United Nations” like the two Germanies, and declared that “one China refers to China in terms of history, geography, culture, and blood relationship” rather than China in the political sense. The 1994 Position

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Paper proposed: “…, so two political entities on an equal footing and without any subordination relations—the Republic of China in Taiwan and the People’s Republic of China in the mainland—coexist at the same time within the Chinese territory for half a century”, “the promotion of the proposal for entry into the United Nations is based on the following three principles and understandings: continue to seek the unification of China in the future; do not challenge the seat of the Communist Party of China in the United Nations and accept the fact of divided sovereignty and separate governance across the Strait; and seek to lawfully safeguard the fundamental rights of the 21 million people of the Taiwan Region in the United Nations with a proper representative, which has nothing to do with the dispute over the representation of China’s sovereignty.”18 In a position paper on entry into the United Nations in 1995, the Taiwan authorities reiterated the abovementioned understandings of “one China” and proposed: “China is a neutral word in history, culture and geography.” It can be said that the Taiwanese authorities’ further attempt to render the meaning of “China” ambiguous is closely related to its pursuit of Taiwan’s entry into the United Nations. Between 2007 and 2008, “Taiwan independence” forces even bound “Taiwan’s entry into the United Nations” to the future of Taiwan and vigorously created the image of Taiwan’s “foiled attempt to enter the United Nations” to realize the purpose of “Taiwan independence” to the greatest extent. Therefore, the “phased” method should be adopted to disperse the pressure on Taiwan’s participation in the international space so that the pace and extent of Taiwan’s participation in the international space is always adapted to the alignment of cross-Strait political relations and always within the limits of the framework for peaceful development of cross-Strait relations to avoid resulting in negative impacts on the peaceful development of cross-Strait relations and the alignment of cross-Strait political relations. (2) Integration in the Methodological Sense: Topic for Discussion The “topic for discussion” method reflects the adoption of thinking about the alignment of cross-Strait political relations as the methodology for resolving the issue of Taiwan’s participation in the international space. The “topic for discussion” method in the alignment of cross-Strait political relations means to make the alignment of cross-Strait political relations a topic for discussion and then to be resolved by the two sides through negotiations and consultations. “Topic for discussion” is the main method for resolving the alignment of cross-Strait political relations and is therefore the method factor in the basic thinking of the alignment of cross-Strait political relations. Likewise, the issue of Taiwan’s participation in the international space can also be resolved with the “topic for discussion” thinking. “Topic for discussion” is a kind of thinking as opposed to “autonomy”, which is made by the Taiwan Region as the excuse for participating in the international space. “Autonomy” can be derived from both the logic of sovereignty and the logic of rights. 18

“Ministry of Foreign Affairs” of the Taiwan Region, “Position Paper on Entry into the United Nations—Fundamental Rights of the Government of the Republic of China and its People to Participate in the United Nations and Other International Organizations” (April 1994).

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After its “sovereignty” discourse was blocked by the United States Resolution 2758, the Taiwan Region had stopped seeking to derive the so-called “autonomy” from the “sovereignty” logic and instead repeatedly asserted that to participate in the international space is the “fundamental right” of the “Government of the Republic of China and its people”, using the “autonomy” implications of “fundamental right” as the main excuse for participating in the international space. For example, the two position papers of the Taiwan Region quoted above about Taiwan’s entry into the United Nations both mentioned that their intention was not to “challenge the seat of the Communist Party of China”, or “seek representation of the entire China”, but to “seek to lawfully safeguard the fundamental rights of the 21.3 million people of the Taiwan Region in the United Nations with a proper representative.”19 These position papers have clearly indicated that the participation of the Taiwan Region in international organizations including the United Nations “has nothing to do with the dispute over the representation of China’s sovereignty.”20 The logic behind the “subjectivity” derived by the Taiwan Region from “rights” is: the issue of Taiwan’s participation in the international space falls within the scope pf “autonomy”, and the Taiwan Region can apply for membership of international organizations or establish “official diplomatic relations” with other countries on account of its “autonomy.” The “topic for discussion” logic is completely different from the “autonomy” logic behind the Taiwan Region. The former makes Taiwan’s participation in the international space a topic that can be discussed by the two sides, which is not within the scope of the “autonomy” of the Taiwan Region and can only be resolved on the foundation of a consensus reached through cross-Strait negotiations. Therefore, the “topic for discussion” approach actually denies Taiwan’s qualification for unilateral participation in the international space. Of course, the “topic for discussion” method was not adopted by the mainland either when dealing with the issue of Taiwan’s participation in the international space during the early stage. Starting from “Ye Jianying’s nine principles” until “Jiang Zemin’s eight-point proposal”, the mainland had been attempting to restrict Taiwan’s participation in the international space within the scope of nongovernmental exchanges. Jiang Zemin’s eight-point proposal is a typical example of this proposition, and it was proposed in the second point that “we do not have objections to the development of nongovernmental economic and cultural ties between Taiwan and other countries.21 In November 2002, it was proposed in the report at the 16th National Congress of the CPC that “we may also discuss the international space in which the Taiwan Region may conduct economic, cultural and social activities compatible with its status”, which is the first time that Taiwan’s participation in the international space is proposed as a topic for discussion 19

“Ministry of Foreign Affairs” of the Taiwan Region, “Revisiting the United Nations General Assembly Resolution 2758 (1971)—Fundamental Rights of the Government of the Republic of China in Taiwan and its People to Participate in the United Nations and Other International Organizations” (July 1996). 20 “Ministry of Foreign Affairs” of the Taiwan Region, “Position Paper on Entry into the United Nations—Fundamental Rights of the Government of the Republic of China and its People to Participate in the United Nations and Other International Organizations” (April 1994). 21 Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995).

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in an important public official document. Then, Article 7 of the Anti-Secession Law explicitly legalized the thinking that makes Taiwan’s participation in the international space a topic for discussion. In November 2015, General Secretary Xi Jinping clearly proposed in the “Xi-Ma Meeting” that so long as it does not result in “two Chinas” and “one China, one Taiwan”, both sides can make fair and reasonable arrangements through pragmatic consultations. The “topic for discussion” method includes the content of the following four aspects. First, “topic for discussion” refers to topics established under the one-China principle, i.e., Topics with a premise, and it does not mean all issues can be raised as topics for discussion in cross-Strait consultations on Taiwan’s participation in the international space. The limit of “topic for discussion” is the one-China principle; all issues in violation of the one-China principle (such as whether the Taiwan Region can establish “official diplomatic relations” with foreign countries in the name of the “Republic of China” or as a “state” and other issues relating to “state” and “sovereignty”) cannot be made topics for discussion in cross-Strait consultations about Taiwan’s participation in the international space. Only those issues that do not involve “sovereignty” or “state” and will not result in associations with “two Chinas” and “one China, one Taiwan” can become topics for discussion. Second, similar to the “phased” method, the “topic for discussion” also denies the existence of a mode that can resolve Taiwan’s participation in the international space once and for all and instead recognizes the existence of a variety of solutions. Therefore, “topic for discussion” is actually a methodology that fits the “phased” method, and their goals are basically the same—hoping to divide an issue that the two sides cannot resolve within a limited period into topics for discussion of varied degrees of difficulty to resolve the easier ones first and then tackle the difficult ones later, i.e., “Taking the easiest first.” “Phased” is a description of the result of this process, and “topic for discussion” is the summary of the process itself. Third, the “topic for discussion” is a channel for seeking “consensuses” and a solution to Taiwan’s participation in the international space. The essence of the “topic for discussion” is to resolve Taiwan’s participation in the international space through consultations across the Strait and is therefore a product of the development from “policy monologue” to “consensus” between the two sides. As mentioned above, the main way for Taiwan to demonstrate its qualification for participation in the international space is to carry out argumentation through the “autonomy” it advocated; therefore, the “topic for discussion” method that seeks consensuses through consultations may be easily understood as the determination of the name and status of the Taiwan Region for participation in the international space and the degree of its participation requires the mainland’s permission, and the process of consultations may even be understood as the process of “Taiwan’s application” and “approval by the mainland.” In case of the abovementioned understandings, it indicates the personages who made such statements have misunderstandings about “topic for discussion.” As mentioned above, the participation of the Taiwan Region in the international space is closely related and highly adaptable to the alignment of cross-Strait relations; as one of the thorniest issues across the Strait, Taiwan’s participation in the international space involves the core interests of both sides and therefore cannot be completed

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through Taiwan’s “monologues” and can only be resolved by the two sides on the basis of sufficient consensuses. This is both required for safeguarding the one-China principle and necessary for conforming to the general trend of peaceful development of cross-Strait relations. Based on this understanding, “topic for discussion” is not setting a precondition for Taiwan’s participation in the international space, or an excuse for controlling Taiwan’s participation in the international space with the mainland’s will, but a pragmatic option to safeguard the overall situation of peaceful development of cross-Strait relations. Resolving the issue of Taiwan’s participation in the international space ultimately relies on a consensus across the Strait, while the “topic for discussion” is the necessary method for the official conclusion of a consensus. Fourth, when the “topic for discussion” method is applicable, the issue of Taiwan’s participation in the international space can be proposed as a whole in cross-Strait negotiations, or it can be handled case by case according to the international organization or international space that the Taiwan Region seeks to participate in. Since Taiwan’s participation in the international space involves a series of complicated issues, we may consider dividing it into several groups of issues for discussion. First, deal with subissues that are suitable for discussion in cross-Strait consultations on specific affairs by “discussing them first” in cross-Strait consultations on specific affairs, and then tackle various other issues step by step, and continue to accumulate mutual trust and consensuses on related issues. On the other hand, we break up issues about Taiwan’s participation in the international space and convert this sensitive issue into legal and technical ones according to the detailed situation of consultations and the specific issues involved to reduce the degree of sensitivity in actual discussions and avoid mutual distrust and discord between the two sides due to the highly sensitive nature of such issues.

3.3 Mode Selection: Participation and Institutional Negotiation Under International Law The establishment of a mechanism for the orderly participation of the Taiwan Region in the international space necessarily involves two core issues: first, as to the so-called “orderly participation”, what is “orderly”, and by which standard should we judge whether the participation is “orderly”; second, after the standard for “orderly” is determined, how to achieve “orderly participation.” On the macroscopic level, the “1992 Consensus” as the political premise and the “space for affairs” defined as the space for participation can both be understood as the standard for “orderly”; nevertheless, from a more operable angle, we still need to provide direct and explicit methods and standards for the judgment of what is “orderly.” Surrounding the two abovementioned core issues, the author believes the construction of a mechanism for the orderly participation of the Taiwan Region in the international space should follow the rules of relevant international laws and adhere to the mode of participation through institutional negotiations.

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Whether it follows the rules of international law is an operability standard to judge whether Taiwan’s participation in the international space is “orderly.” The international law has abundant regulations on the participation of the Taiwan Region in the international space. By sorting out the international legal documents, this chapter has also summarized the main rules of international law. In general, the attitude of the rules of international law toward Taiwan’s participation in the international space can be described in two aspects. First, according to the United Nations Resolution 2758, in principle, the rules of international law forbid the Taiwan Region to participate in the international space. Second, to achieve a certain international exchange function, some international organizations or states have stipulated on the specific ways for the Taiwan Region to participate in the international space, so Taiwan can participate in the international space within a certain scope according to detailed rules. Regarding the first aspect, the United States Resolution 2758 can be regarded as the fundamental rule for handling the issue of Taiwan’s participation in the international space, which includes two meanings: first, the text of the United States Resolution 2758 directly forbids the Taiwan Region (in the name of “representatives of Chiang Kai-shek”) to participate in the United Nations and its organizations; second, the United States Resolution 2758 includes the one-China principle and a judgment on “Chinese representation”, so all methods for the Taiwan Region to participate in the international space that interfere with the one-China principle and “Chinese representation” are against the United States Resolution 2758. The former can be referred to as the direct force of United States Resolution 2758, and the latter expanded force. Previous mainland studies and Taiwan’s statements all place more emphasis on the direct force of United States Resolution 2758, which is at most expanded to specialized agencies related to the United Nations, with insufficient exploration of its expanded force. Establishing a mechanism for the orderly participation of the Taiwan Region in the international space requires us to provide a sufficient normative basis for this mechanism. Judging from the current rules of international law about the Taiwan issue, only the United States Resolution 2758 is capable of undertaking this task, which makes it necessary to clarify its expanded force. It can be said that the United States Resolution 2758 reflects the “1992 Consensus” in rules of international law; adherence to the “1992 Consensus” on the operational level is reflected as compliance with the United States Resolution 2758. Regarding the second aspect, in addition to political implications, the existence of the international space also has functional implications, which have already been expounded on earlier. Whether considering the geographical location, economic strength and political influence of the Taiwan Region or considering the desire of the Taiwanese people to participate in the international space, Taiwan’s participation in the international space always has functional implications in addition to political implications. On its basis, under the premise of conforming to the United States Resolution 2758, the Taiwan Region can participate in the international space according to the functional implications of international law. Nevertheless, there are three preconditions for Taiwan’s participation: first, according to the United States Resolution 2758, the participation of the Taiwan Region must not violate the one-China principle or involve the issue of “Chinese representation”; second, Taiwan’s participation in

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the international space is not a generally allowed behavior but a generally forbidden behavior, and the condition for lifting the ban is corresponding institutional arrangements for the international space, which the Taiwan Region intends to participate in. Specifically, it means that if the international space the Taiwan Region intends to participate in is an international organization, then such an international organization should have specific institutional arrangements for situations similar to Taiwan’s participation, such as an observership system, affiliated membership, special functional entity, or that such international organization is a nongovernmental organization; if the Taiwan Region intends to participate in the international space with the purpose of carrying out interactions with foreign countries, it must fit the framework established by the joint communiqué on the establishment of diplomatic relations or treaty between China and such countries, i.e., Taiwan can only develop nongovernmental economic, trade and cultural relations with foreign countries. Third, even if the Taiwan Region has participated in the international space under the premise of conforming to rules of international law, it only has functional implications and does not have any effect of “state recognition” or “government recognition.” The standard established above is for “orderly”, while the method for achieving “orderly” is through institutional consultations. The White Paper on the One-China Principle and the Taiwan Issue issued by the Chinese Government in 2000 proposed that the “Asian Bank mode”, “APEC mode” and other ways of Taiwan’s participation that are accepted by the World Trade Organization are all “special arrangements, which do not constitute a mode for imitation by other nongovernmental international organizations and international activities.”22 Previous interpretations mainly focus on methods for the Taiwan Region to participate in the international space, while the mainland insists on handling this issue case by case. To be sure, such interpretations are consistent with the intent of the White Paper but may also be interpreted as the fact that the Taiwan Region cannot unilaterally participate in the international space following existing modes, and the two sides should adhere to the method of institutional consultations in terms of Taiwan’s participation in the international space. The report at the 18th CPC National Congress pointed out explicitly that during the new stage, the two sides should “promote consultation on an equal footing and strengthen institutional building”, which implies further strengthening the institutional consultation mechanism and gradually changing the implications of the case-by-case handling mode. The report at the 19th CPC National Congress also reiterated, “Recognize the historical fact of the ‘1992 Consensus’ and that the two sides both belong to one China, and then our two sides can conduct dialog to address through discussion the concerns of the people of both sides, and no political party or group in Taiwan will have any difficulty conducting exchanges with the mainland.”23 In January 2019, during the speech commemorating the 40th anniversary of issuing Message to Compatriots in Taiwan, General Secretary Xi Jinping further proposed, 22

The One-China Principle and the Taiwan Issue (2000). “Xi Jinping’s Report at the 19th National Congress of the Communist Party of China”, data source: http://cpc.people.com.cn/n1/2017/1028/c64094-29613660.html, the last access date: January 21, 2019. 23

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based on the common political foundation of adhering to the “1992 Consensus” and opposing Taiwan independence, various parties and circles across the Strait should elect representatives to conduct extensive and in-depth democratic consultations and enter into an institutional arrangement to promote the peaceful development of cross-Strait relations.24 Therefore, to resolve the issue of Taiwan’s participation in the international space, we must establish a constitutional consultation mechanism, take steps to change the handling method of case-by-case consultation, and ensure that the participation of the Taiwan Region in the international space is always orderly and conforms to the standard for “orderly” as established above. The essence of constitutional consultation is that the two sides shall decide together important issues involved in the participation of the Taiwan Region in the international space through a method similar to the current consultations on specific affairs. Such an essence can be understood in two aspects. First, the Taiwan authorities cannot make their own decisions regarding the issue of Taiwan’s participation in the international space, even if they believe it conforms to the standard for “orderly” as established above; rather, it should be resolved through cross-Strait consultation on an equal footing through an institutional mechanism for consultation across the Strait. Second, institutional consultation cannot be understood as a “procedure for approval” of Taiwan’s participation in the international space by the mainland but as a method for both sides to resolve and cope with Taiwan’s participation in the international space and a mechanism in response to the needs of the Taiwanese people for participating in the international space. Therefore, the value orientation of cross-Strait institutional consultation is not blocking the possibility of Taiwan’s participation in the international space; in contrast, it is to make fair and reasonable arrangements for Taiwan’s orderly participation in the international space.

3.4 System Design: Based on the Mechanism of Association for Relations Across the Taiwan Straits (ARATS) and Straits Exchange Foundation (SEF) for Negotiations on Specific Issues The participation of the Taiwan Region in the international space is a sensitive and complex issue; any slight disturbance may result in setbacks for the “diplomatic truce”, which has been promoted by leaders across the Strait with preliminary results already achieved. Therefore, a refined institutional design is of great importance for establishing a mechanism for the orderly participation of the Taiwan Region in international space. At present, the mechanisms for conducting consultations across the Strait are mainly divided into two types. The first type is the ARATS and SEF mechanism for consultations on specific affairs, which constitutes the trunk and core of the cross-Strait consultation mechanism and the most comprehensive consultation mechanism of the highest level at present across the Strait. The second type is the contact 24 “Xi Jinping Attended the Gathering to Commemorate the 40th Anniversary of Issuing Message to Compatriots in Taiwan and Delivered an Important Speech”, data source: http://www.gov.cn/xin wen/2019-01/02/content_5354209.htm, the last access date: January 21, 2019.

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mechanism established by various agreements signed between ARATS and SEF, such as the “Cross-Strait Economic Cooperation Committee” established through the ECFA. This type of mechanism is mostly constructed to achieve specific goals set by relevant agreements. These two types of mechanisms are still not systematized, with no differences in level either. Regarding the mechanism for Taiwan’s orderly participation in the international space, there is no need to establish a specialized mechanism, which is based on consideration for economizing on institutional resources across the Strait and decided by the sensitive nature of the issue of Taiwan’s participation in the international space. To avoid unnecessary suppositions, assumptions and even distortions brought by the establishment of a new mechanism, the mechanism for Taiwan’s orderly participation in the international space can be attached to the ARATS and SEF mechanism for consultations on specific affairs to resolve the issue of Taiwan’s orderly participation in the international space with the ARATS and SEF mechanism for consultations on specific affairs. In terms of the specific institutional design, it can be divided into preparatory discussion mechanisms or procedural negotiation mechanisms and official consultation mechanisms or substantive consultation mechanisms. The first is the preparatory discussion mechanism or procedural negotiation mechanism. The preparatory discussion or procedural negotiation mechanism refers to negotiations between the two sides through the “ARATS and SEF framework” targeting the “procedural matters in political negations” referred to in “Jiang Zemin’s eight-point proposal”, and its main content involves procedural issues such as the name, location and method for Taiwan’s participation in the international space, which does not relate to substantial political disputes. A preparatory discussion mechanism can be conducted on the level of the Deputy Secretary-General of ARATS and SEF. The consensuses reached through preparatory discussions between ARATS and SEF will serve as the direct basis for establishing the official procedure for talks. Preparatory discussion can be conducted for an unlimited number of rounds; ARATS and SEF may conduct multiple and repeated consultations until a consensus is reached on the procedural issue. The preparatory discussion in the mechanism for Taiwan’s orderly participation in the international space is different from the preparatory discussion in cross-Strait negotiations on specific affairs. The latter can discuss the specific issues involved or form literal expressions in agreements on the basis of the consensus reached on specific issues, but the former only targets procedural issues and does not involve any substantive issues. The second is the official consultation mechanism or substantive consultation mechanism. Official consultation, or substantive consultation, refers to negotiation conducted between the mainland and Taiwan on substantive issues about Taiwan’s participation in the international space with the procedure agreed on through preparatory discussion or procedural negotiation on the basis of a consensus on procedural issues reached by the two sides through the ARATS and SEF framework. Official consultation can be conducted on the level of Vice Chairman or Secretary-General of ARATS and SEF, and the issues for consultation include substantive issues such as the determination of name and status of the Taiwan Region for its participation in the international space and the degree of its participation, procedural issues not

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resolved in preparatory discussion because they are unforeseen or shelved, or issues resulting from interactions between the two sides coexisting in the same international organization. The official consultation can be conducted by levels, i.e., Negotiations on special topics shall be conducted by ARATS and SEF on levels including Deputy Secretary-General, Director and Section Chief, presided over by their respective Vice Chairman, Vice President or Secretary-General, and then the premilitary results of negotiations shall be summarized by the responsible persons of ARATS and SEF such as Vice Chairman and Secretary-General to form a general preliminary consensus. Unlike the current case-by-case handling method of resolving Taiwan’s participation in the international space across the Strait, the mechanism for Taiwan’s orderly participation in the international space incorporates Taiwan’s participation in the international space into the framework of institutional consultation through an institutionalized method. That is, all affairs must be resolved through the corresponding mechanisms; the resolution of each issue is no longer isolated individual cases but has normative significance to the resolution of subsequent issues, or at least can be used for reference for subsequent issues. Through this mechanism, the two sides can also conduct consultations on certain common issues about Taiwan’s participation in the international space, such as the name and status for Taiwan’s participation in the international space, thus reaching a consensus through consultation between the two sides, which is generally applicable to situations of Taiwan’s participation in the international space. However, this does not mean the two sides can establish norms by signing agreements similar to “ARATS and SEF agreements”; rather, the mechanism for Taiwan’s orderly participation in the international space can only be a mechanism for topic discussion, unlike the law-making mechanism of the ARATS and SEF mechanism for consultation on specific affairs. The reason for this is still the sensitivity and complexity of Taiwan’s participation in the international space and the changeable nature of the situation within Taiwan Island. The two sides should seek a consensus on the resolution of this issue with a delicate balance; agreements may have a normative control function as the result of their normative nature but are still slightly inadequate in terms of adaptability and balance. On its basis, for a normative formulation of the issue of Taiwan’s participation in the international space, we may also take it as a part of peace agreement and make declaratory statements in the peace agreement. The alignment of cross-Strait political relations and the participation of the Taiwan Region in the international space are the most sensitive issues in cross-Strait relations. The resolution of the resulting obstacles is bound to meet with twists, repetitions, and even setbacks and failures. However, so long as we uphold the one-China principle and adhere to the spirit of pragmatic cooperation and seeking common ground while setting aside differences, the Chinese people on both sides of the Strait have enough wisdom to resolve this issue, join hands to seek a path to peaceful development, coexistence and common prosperity across the Strait, and safeguard and develop the overall interests of the Chinese nation.

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20. Lee Hong-hsi, etc., An In-depth Dissection of Taiwan’s Constitution, Angle Publishing Co., Ltd., 2002. 21. Su Qi and Zheng Anguo ed., Historical Facts of the Consensus on “One China with Separate Interpretations, Hanlu Book Publishing Co., Ltd., 2003. 22. Shi Zhengfeng ed., European Integration and Taiwan, Avantgarde Publishing House, 2003. 23. Tsai Cheng-wen and Lin Jiacheng, Political Relations Across the Taiwan Strait, “National” Policy Research Center, 1989. 24. Lin Cheng-yi, Yeh Kuo-hsing and Chang Jui-meng, Analysis of Taiwan’s Strategy for Joining International Economic Organizations, Linking Publishing Company, 1990. 25. Huang Yi, The Force of International Law in the Field of Domestic Law, Angle Publishing Co., Ltd., 2006. 26. Su Yeong-chin, Toward Constitutionalism, Linking Publishing Company, 1994. 27. Chen Lung-chu, etc., Study of Taiwan’s Strategy for Participating in International Nongovernmental Organizations, Research Report of “Research, Development and Evaluation Commission” of the Taiwan Region, 2002. 28. Chen Litong, Taiwan’s Subjectivity, Angle Publishing Co., Ltd., 2002. 29. Peng Mingmin and Huang Zhaotang, Taiwan’s Status in International Law, Taiwan Interminds, 1995. 30. Qiu Hongda, Collected Papers About International Law Issues of Chinese Territory, The Commercial Press of Taiwan, 1975.

Papers in Traditional Chinese 1. Zhang Nianchi, “The Study of Taiwan is Additionally, a Science—Comment on Chen Kongli’s Introduction to Taiwan Study”, China Review (May 2006). 2. [Dutch] Wang Pengling, “Commonwealth Theory and Two States Theory”, Lianhe Zaobao (April 29, 2000). 3. Huang Mingrui, “On Political Explanations in Civil Law from the Conclusion and Abolition of Two Legal Precedents of ‘Counterattacking the Mainland’”, National Taiwan University Law Journal Vol. 34 4 (2005). 4. Taiwan Think Tank Financial and Economic Research Group, “Research Results of the ECFA’s Impact on Local Industries and Employment” (2009). 5. Yeh Jiunn-rong, “The Rise and Fall of Constitution: Alignment and Trend after Six Constitutional Amendments”, Chengchi Law Review 69 (2002). 6. Chang Chi-hsiung and Zheng Jiaqing, “The International Status of Taiwan’s Participation in the WHO/WHA”, Bulletin of the Institute of Modern History, Academia Sinica 66 (December 2009). 7. Chiang Chi-chen, “The Development and Implications of Cross-Strait Political Interactions Under the WTO”, Soochow Journal of Political Science 19 (2004). 8. Yang Kai-huang, “Explanation and Evaluation of the CPC’s ‘Taiwan Policy’: Study of the Orientation of Decision Makers”, Soochow Journal of Political Science 7 (1997). 9. Shaw Chong-hai, “Cross-Strait Relations: Changes, Alignment and Strategies”, (“Symposium on Cross-Strait Relations: Changes, Alignment and Strategies” held by Department of Political Science, National Taiwan University, 2002). 10. Yang Yongming, “Democratic Sovereignty: The Evolution of Sovereignty Concept in Political Theories and the New Orientation of Sovereignty Theory”, Taiwanese Journal of Political Science 7. 11. 122. Huang Weifeng, “Analysis of the Integration Mode of the European Union and the CrossStrait Dispute over Sovereignty”, EurAmerica Vol. 31 1 (2004). 12. Chang Ya-chung, “Theories and Practice of Cross-Strait Integration: Inspiration from the EU Experience”, Americas & Europe Quarterly Vol. 14 1(Spring 2000).

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13. Li Junzeng, “On the Constitutional Patriotism of Jürgen Habermas”, EurAmerica Vol. 36 1 (2006). 14. Tseng Chien-yuan, “One China with Separate Interpretations: The ‘One-China Framework’ in Taiwan’s Constitutional Order”, Taiwan Journal of General Education 4 (2006). 15. Zhao Guocai, “On the Recognition of Divided Nation from the Viewpoint of International Law”, in Annual Report of International Law and International Affairs of China, Vol. 3, The Commercial Press of Taiwan, 1989. 16. Zhang Linzheng, “Pragmatic Diplomacy: Analysis of Policies and Theories”, Issues & Studies Vol. 29 12 (1990). 17. Tseng Chien-yuan, “The Environmental Impetus of the Evolution of Taiwan’s Constitution During the Period of Mobilization for the Suppression of Communist Rebellion”, in Li Bingnan, He Huiqing and Tseng Chien-yuan, Study of the Temporary Provisions Against the Communist Rebellion: The Environmental Impetus, Political Process, and Institutional Consequence of Taiwan’s Constitutional Evolution, Graduate Institute of “National” Development of College of Social Sciences, NTU, 2003. 18. Chen Lung-chu, “March of the Republic of Taiwan”, New Century Think Tank Forum 39 (March 2007). 19. Hsu Tzong-li, “Evolution and the Latest Development of the Legal Alignment of Cross-Strait Relations over A Century—From the Perspective of Taiwan”, The Taiwan Law Review 12 (1996). 20. Wang Tay-sheng, “Story of Taiwan’s Constitution—Transformation from ‘Old Japan’ and ‘Old China’ into ‘New Taiwan’”, National Taiwan University Law Journal Vol. 32 1 (2003). 21. Zhou Jiachuan, “President Chen: Prepared for Cross-Strait Negotiation Any Time”, Union Daily News (October 22, 2000). 22. He Zhenzhong and Yin Naixin, “Proposed Just as Expected; Each with a Different Explanation to Break the Deadlock”, Union Daily News (March 24, 1992). 23. Su Hongda, “Interpreting the Development of European Integration with the Concept of ‘Constitutional Sovereignty Construction’”, EurAmerica Vol. 31 4 (December 2001). 24. Shen Weiping, “How to Align Cross-Strait Relations: Comment on ‘One Country on Each Side’”, China Review 3 (2003). 25. Zhang Wangshan, “Carl Schmitt’s Decisionism”, Journal of Social Science and Philosophy Vol. 15 2 (June, 2003). 26. Tsai Ing-wen, “Contemporary Interpretation of Hobbes’ Theory of Sovereignty”, in Public Law and Political Theories: Collected Papers of Emeritus Justice Wu Geng, Angle Publishing Co., Ltd., 2004. 27. Zhang Yangpei, “State Sovereignty and European Integration”, New Century Think Tank Forum 13 (March 2001). 28. Qian Yongxiang, “A New Explanation of Hobbes’ Absolute Sovereignty Theory”, Journal of Social Science and Philosophy Vol. 5 1 (November, 1992). 29. Wang Tay-sheng, “Formation of Modern Constitutional Culture in Taiwan: Centering Around Text Analysis”, National Taiwan University Law Journal Vol. 36 3 (September 2007). 30. Huang Weifeng, “Analysis of the Governance System Taking Shape in the European Union”, EurAmerica Vol. 33 2 (June 2003). 31. Chang Chi-hsiung, “‘De Jure’ vs. ‘De Facto’ Discourse: Battle over ROC Membership with IOC”, Taiwan Historical Research Vol. 17 2 (June 2010). 32. Tsai Cheng-wen, “The Concepts, Achievements and Assessments of Pragmatic Diplomacy of the R.O.C.”, Political Science Review 6 (May 1995). 33. Joanne Jaw-Ling Chang, “Taiwan’s Participation in the World Health Organization and the Role of the United States”, EurAmerica Vol. 40 2 (June 2010). 34. Lin Wen-cheng, “Difficulties and Strategies for Taiwan’s Participation in International Organizations”, New Century Think Tank Forum 10 (June 2000). 35. Chen Lung-chu, “Taiwan’s International Role in the New Century”, New Century Think Tank Forum 10 (June 2000).

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36. Jiang Huangchi, “Taiwan’s Participation in International Fisheries Organizations: Weighing the International Status Against the Actual Benefit”, Taiwan International Law Quarterly Vol. 2 1 (March 2005). 37. Fu Kuncheng, “The Status of Taiwan’s Government in British and American Domestic Law”, National Taiwan University Law Journal Vol. 23 2 (1994). 38. Huang Zhaoyuan, “Dispute over Legitimacy of Judicial Review of Constitutionality”, National Taiwan University Law Journal Vol. 32 6 (2003). 39. Li Mingjun, “Recognition of Government and Right of Action of Domestic Court: The Kokaryo Incident from the International Law Perspective”, Taiwan International Law Quarterly Vol. 3 3 (September 2006). 40. Xiao Quanzheng, “Political Democratization and Taiwan’s External Policy”, Political Science Review 7 (May 1996). 41. Lin Ruoyu, “The Integrated Development of ASEAN and Cross-Strait Relations”, New Century Think Tank Forum 13 (March 2001). 42. Lin Zheng-shun, “New Development of the ‘One-China Policy’ and International Law”, Taiwan International Law Quarterly Vol. 3 3 (September 2006). 43. Luo Qizheng, “Jurisprudential Dispute over the ‘Chinese Representation Issue’ in the United Nations”, Taiwan International Law Quarterly Vol. 3 3 (September 2006).

Books Translated into Chinese 1. [German] Hans Poser, Kexue: Science: What is Science, Shanghai SDX Joint Publishing Company, 2002. 2. [Japanese] Seizaburo Shinobu, History of Japanese Diplomacy, Vol. 2, trans. Institute of Japan Issues, Japan Tianjin Academy of Social Sciences, The Commercial Press, 1980. 3. [British] Robert Jennings and Arthur Watts, ed., Oppenheim’s International Law, trans. Wang Tieya, etc., Encyclopedia of China Publishing House, 1995. 4. [German] Fabrice Larat, “How European Integration Works: Assumption about Analytical Framework”, EurAmerica 2 (2003). 5. [German] Karl Schmitt, Constitutional Theory, trans. Liu Feng, Shanghai Century Publishing, Shanghai People’s Publishing House, 2005. 6. [American] C. E. Merriam, History of the Theory of Sovereignty Since Rousseau, trans. Bi Honghai, Law Press·China, 2006. 7. [British] John Locke, Two Treaties of Government, Vol. 2, trans. Ye Qifang and Qu Junong, The Commercial Press, 1996. 8. [American] Scott Gordon, Kongzhi guojia: Controlling the State: Constitutionalism from Ancient Athens to Today, trans. Ying Qi, etc., Jiangsu People’s Publishing House, 2001. 9. [French] Jean-Jacques Rousseau, The Social Contract, trans. He Zhaowu, The Commercial Press, 1980. 10. [French] Alexis de Tocqueville, Democracy in America, trans. Dong Guoliang, The Commercial Press, 1997. 11. [Japanese] Nisuke Ando, “The Kokaryo Incident and International Law”, trans. Huang Juzheng, Taiwan International Law Quarterly Vol. 3 3 (September, 2006). 12. [American] John Rawls, Political Liberalism, trans. Wan Junren, Yilin Press 2000.

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Theses and Dissertations 1. 167. Sun Yu, “Study of Peace-Making with Japan in San Francisco”, PhD diss., Jilin University World History Major, 2008. 2. Li Meng-rung, “The WTO Dispute Settlement Mechanism Under the Structure of Cross-Strait Economic Interactions”, Master’s thesis, National Dong Hwa University, 2004. 3. Zhang Huiling, “Comparison Between the Integrative Negotiation Process of the EU’s ‘Common Foreign and Security Policy’ and the Experience of Negotiations Across the Taiwan Strait”, PhD diss., The Institute of Mainland China Studies of National Sun Yat-sen University, 2002. 4. Cheng Chang-hsiung, “The Analyzing from Nation Sovereignty to the Mode of Integration Across the Taiwan Strait”, Master’s thesis, Nanhua University Institute of Public Administration and Policy, 2003. 5. Shen Zhengyan, “Study of the Cross-Strait Sovereignty Issue”, Master’s thesis, The Institute of Mainland China Studies of National Sun Yat-sen University, 2000. 6. Chu Gwo-fa, “Cross-Strait Negotiations Under the Asymmetrical Power Structure: Case Analysis of Koo-Wang Talks”, PhD diss., Yat-sen Institute for Humanities and Social Sciences, NCCU, September 2007. 7. Li Hongmei, “Cross-Strait Conflict on Issues Concerning the United Nations”, Master’s thesis, Capital Normal University, 2012. 8. Li Zonglong, “The Legal Status of Fishing Entities in International Fisheries Law from the Perspective of Various Regional Fisheries Management Organizations”, Master’s thesis, Soochow University, 2007. 9. Jin Ying, “The ‘Japan-Taiwan Treaty’ and the Formation of Far Eastern International Relations in the Early 1950s”, PhD diss., Fudan University.

Policy Documents of the Mainland 1. Deng Xiaoping, “Conceptions for the Peaceful Reunification of Mainland China and Taiwan”, People’s Daily (June 26, 1983). 2. “Jiang Zemin’s Speech at the Meeting Celebrating the 70th Anniversary of the Founding of the Communist Party of China”, People’s Daily (July 2, 1991). 3. White Paper on the Taiwan Issue and Reunification of China (1993). 4. Jiang Zemin, Continuing to Strive Toward the Reunification of China (1995). 5. Jiang Zemin, Accelerate the Reform and Opening up and Modernization Construction Pace to Win the Greater Victory of the Cause of Socialism with Chinese Characteristics (1997). 6. Qian Qichen, Speech Commemorating the 3rd Anniversary of Jiang Zemin’s Eight-point Proposal (1998). 7. Wang Daohan, Statement Outline for the Meeting Between Wang Daohan and Koo Chen-fu (1998). 8. White Paper on the One-China Principle and the Taiwan Issue (2000). 9. Jiang Zemin, Build a Well-off Society in an All-round Way and Create a New Situation in Building Socialism with Chinese Characteristics (2002). 10. Communiqué on the Talks Between General Secretary Hu Jintao of the Communist Party of China and Chairman Soong Chu-yu of the People’s First Party (2005). 11. Wang Zhaoguo, Explanation of the Anti-Secession Law (Draft) (2005). 12. Hu Jintao, Hold High the Banner of Socialism with Chinese Characteristics and Strive for New Victories in Building a Moderately Prosperous Society in All Respects (2007). 13. Plan for the Consultative Election of Deputies of Taiwan Province to the Eleventh National People’s Congress (2007).

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271

14. Hu Jintao, Let Us Join Hands to Promote the Peaceful Development of Cross-Strait Relations and Strive with a United Resolve for the Great Rejuvenation of the Chinese Nation—Speech Commemorating the 30th Anniversary of Issuing Message to Compatriots in Taiwan (2008). 15. Hu Jintao, “Speech at the Ceremony Marking the 100th Anniversary of the 1912 Revolution”, People’s Daily (October 9, 2011). 16. Jia Qinglin, “Speech at the Opening of the Eighth Cross-Strait Economic, Trade and Culture Forum”, Taiwan Poll 113 (July 26–31, 2012). 17. Hu Jintao, Firmly March on the Path of Socialism with Chinese Characteristics, and Strive to Complete the Building of a Moderately Prosperous Society in All Respects (2012). 18. Xi Jinping, No Force can Pull Us Apart—Speech at the “Xi-Ma Meeting” (2015). 19. Xi Jinping, Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era (2017). 20. Xi Jinping, Together Strive to Realize the Great Rejuvenation of the Nation and Promote the Peaceful Reunification of the Motherland—Speech Commemorating the 40th Anniversary of Issuing Message to Compatriots in Taiwan (2019).

Relevant Opinions and Documents of the Taiwan Region 1. “National Unification Council” of the Taiwan authorities, “Guidelines for National Unification” (1991). 2. “National Unification Council” of the Taiwan authorities, “Conclusion on the Alignment of the Implications of ‘One China’” (1992). 3. “Mainland Affairs Council” of Executive Yuan of the Taiwan authorities, “Our Opinion on the Koo-Wang Talks” (1993). 4. “National Unification Council” of the Taiwan authorities, “Specifications on Cross-Strait Relations” (1994). 5. “Ministry of Foreign Affairs” of the Taiwan Region, “Position Paper on Entry into the United Nations—Fundamental Rights of the Government of the Republic of China and its People to Participate in the United Nations and Other International Organizations” (April 1994). 6. Lee Teng-hui, “Always in My Heart—Full Text of the Inaugural Address of the Ninth President of the Republic of China” (1996). 7. “Ministry of Foreign Affairs” of the Taiwan Region, “Revisiting the United Nations General Assembly Resolution 2758 (1971)—Fundamental Rights of the Government of the Republic of China in Taiwan and its People to Participate in the United Nations and Other International Organizations” (July 1996). 8. Democratic Progressive Party, “White Paper on Constitutional Policies” (1999). 9. “Ministry of Foreign Affairs” of the Taiwan Region, “Taiwan’s Position Paper on Participation in the WHO” (May 2002). 10. “Legislative Yuan” of the Taiwan Region, “Review of Taiwan’s Participation in the WHO”, a report from Deputy Minister of Foreign Affairs Michael Kau and Deputy Minister of Department of Health Long-teng Lee, The Legislative Yuan Gazette 36 (2003). 11. “Ministry of Foreign Affairs” of the Taiwan Region, “Promoting Taiwan’s Participation in the WHO: Concept Papers” (May 2004). 12. “Legislative Yuan” of the Taiwan Region, “Taiwan’s Participation in the 2004 WHA Meeting: Processes, Reviews and Prospects, a report from Deputy Minister of Foreign Affairs Michael Kau”, The Legislative Yuan Gazette 34. 13. “Ministry of Foreign Affairs” of the Taiwan Region, “MOFA Welcomes the Passage of IHR Revision at the 58th WHA” (May 23, 2005). 14. “Legislative Yuan” of the Taiwan Region, “Foreign Minister Huang’s Report and Responses to Inquiries on Foreign Policy”, The Legislative Yuan Gazette 11 (2006).

272

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15. “Ministry of Foreign Affairs” of the Taiwan Region, “Foreign Minister Huang Holds Press Conference, Elaborating on Using ‘Taiwan’ in Applying for WHO Membership” (May 14, 2007). 16. “Ministry of Foreign Affairs” of the Taiwan Region, “MOFA Restates that WHO’s Listing of Taiwan Under China in Implementation of IHR2005 is Absolutely Unacceptable” (June 15, 2007). 17. “Legislative Yuan” of the Taiwan Region, “Taiwan’s Participation in the WHO 2007: Processes, Reviews and Prospects, a report from Deputy Minister of Foreign Affairs Yang and Deputy Minister of Department of Health”, The Legislative Yuan Gazette 50 (2007). 18. Ma Ying-jeou, “Speech at the Inauguration Ceremony as Leader of the Taiwan Region” (2008). 19. Ma Ying-jeou, “Full Text of the National Day Speech” (2008). 20. “Department of Health” of the Taiwan Region, “WHO Notifies Taiwan’s Inclusion to the IHR System” (January 22, 2009). 21. Ma Ying-jeou, “Speech at the Annual Meeting of the ROC Constitutional Law Society” (2009). 22. Yeh Ching-chuan, “Project Report of the Department of Health of Executive Yuan on the Plan for Participation in the World Health Organization in 2009”, in Project Report of the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan Stage 7 Session 3 (“Legislative Yuan” of the Taiwan Region, 2009). 23. Ma Ying-jeou, “Be the Pilot of Chinese Culture: Speech Commemorating the 100th Anniversary of the Founding of the Republic of China” (2011). 24. Ma Ying-jeou, “Speech at the 2012 Inauguration Ceremony” (2012). 25. Ma Ying-jeou, “Speech at the 2015 Xi-Ma Meeting” (2015). 26. Tsai Ing-wen, “Speech at the 2016 Inauguration Ceremony” (2016). 27. Tsai Ing-wen, “Response to Xi Jinping’s Speech Commemorating the 40th Anniversary of Issuing Message to Compatriots in Taiwan” (2019).

Materials in English 1. Foreign Relations of the United States (FRUS), 1951, Vol 6. 2. Chen Wenshou ed., CRS Perspectives on Taiwan and Its Relations with US Selected Reports (1998–2011), (Hong Kong Social Scientific Press, 2012). 3. Chen Wenshou ed., ICG Observations on Taiwan Strait, (Hong Kong Social Scientific Press, 2012). 4. Joseph S Nye and John D. Donahue, Governance in a Globalizing World, (Brookings Institution Press, 2000). 5. David Mitrany, The Function Theory of Politics, (London School of Economics and Political Science, 1975). 6. Ernst B. Hass and P. Schmitter, Economics and Differential Patterns of Political Integration, International Organizations, Vol.18, No.4 (1964).