The Anti-Secession Law and the Use of Threat - Is China`s policy towards Taiwan a violation of Art 2 (4) UN Charter?

Diplomarbeit von Barbara Seelos

Introduction:

‘An individual should not have too much freedom.

A nation should have absolute freedom’.

Dr. Sun Yat-Sen.

The Cross-Strait Conflict concerning Mainland China and Taiwan continues to exist now for more than 50 years. The Civil War (1946-1949) divided the Chinese Nation into two parts: the People’s Republic of China (PRC) on Mainland China and the Republic of China (R.O.C.) on Taiwan. Since 1949 conflicts between the two lead to several military confrontations. During the Cold War Era both sides claimed to be the formal representative of whole China.

Finally in 1991 Taiwan declared its effective control over the region of Taiwan and its recognition of the legal sovereignty of Beijing on the mainland. The question of Taiwan’s security and status keeps the struggle between the two alive. While China holds on to the one-China principle which defines Taiwan as an integral part of China, Taiwan sees itself as a sovereign entity. Even today Mainland China refuses to abandon the use of force and threat of force to attain its goal of reunification. Over the past decade Mainland China invested heavily in its military. Additionally in 2005 the Chinese National People’s Congress passed the controversial Anti-Secession law (ASL), which authorizes the military to use force against Taiwan.

A recent Pentagon report states that there is much uncertainty surrounding China’s future course, in particular with regard to its expanding and implementing military power. Further the report notes that ‘China’s near-term focus on preparing for contingencies in the Taiwan Strait, including the possibility of U.S. intervention, is an important driver of modernization’.

The main objective of this thesis is to find out if the Anti-Secession law and the threat impose a breach of the non-violation principle of the UN-Charta. Some scholars have clearly stated that any threat or use of force would violate International Law. But the international law jurists and the UN itself have refrained from commenting on the issue. In fact when the PRC announced the passing of the concerned law in 2005 no one came out and voiced their opinion. The cross-strait relation and the ASL are well discussed in international policy. The EU for example had decided to revoke the arms embargo against China but failed to do so after the enactment. The ASL has caused more anxiety and uncertainty among the people of Taiwan and has created an even more unstable cross-strait situation. It is very important for the people of Taiwan, East Asia and global peace to consider whether the way in which China wishes to achieve its goal of reunification is justifiable under International Law or not.

The first part of the thesis addresses the history of Taiwan and its first appearance as a territorial entity. Further you will gain an insight into the political development and the use of force in the Taiwan Strait since 1945. To understand the current status of Taiwan it is important to know about the political development of Taiwan especially in regard to democracy. Finally, the first part examines the current status of Taiwan. The second part of this thesis will draw up the principle of non-violation under international law. The concept of force prohibited under the International Law will be discussed too. It proceeds with an examination of the ASL and the current measures China is using toward reunification. It concludes if the ASL and the measures of China against Taiwan violate the principle.

Despite this thesis is a legal research into the question of the ASL and the current circumstances violating the non-violation principle, it is necessary to have also a political input to be able to examine properly the subject. Especially since the relation between International Relations and International Law is to close to separate. Furthermore an interdisciplinary argumentation to answer the question of this thesis creates a better and deeper understanding of the subject.

Table of Contents:

	ACKNOWLEDGEMENT
	LIST OF ABBREVATIONS
1.	INTRODUCTION	7
2.	Understanding the Taiwan Issue	10
2.1	Introduction	10
2.2	General Information on Taiwan	10
2.3	Taiwan's emergence as a territorial entity	12
2.4	Political struggle and the development of Taiwan since 1949	15
2.5	The legal status of Taiwan	20
2.5.1	Criteria for statehood	21
2.5.2	Taiwan's qualification for statehood	22
2.5.2.1	A Permanent Population	22
2.5.2.2	A Defined Territory	22
2.5.2.3	A Stable and Effective Government	22
2.5.2.4	The Ability to Enter into Relations with Other States	23
2.6	Conclusion	25
3.	The Anti-Secession Law and the use of threat	27
3.1	Introduction	27
3.2	Legal nature and general scope of armed force	27
3.3	The scope of Threat prohibited under International law	30
3.3.1	Threat of force	30
3.3.2	The Charter of the United Nations dealing with the term of Threat	30
3.3.3	Precedents of the International Court of Justice	32
3.3.4	State practice concerning Threat of Force	34
3.3.5	Criteria for justification of Threat of Force	36
3.4	The Anti-Secession Law and the current circumstances	37
3.4.1	Background of the Anti-Secession Law	37
3.4.2	Contents of the Law	38
3.4.3	Political scope of the ASL	39
3.4.3.1	The one-China principle	39
3.4.3.2	The Status-quo of Taiwan	42
3.4.3.3	'Taiwan independence'	42
3.4.3.4	Economic, social and cultural exchange between the two Sides	43
3.4.4	Legal scope of the ASL	44
3.4.4.1	The nature of the law	44
3.4.4.2	The cross-Strait dilemma - a sole internal affair of China?	45
3.4.4.3	Non-peaceful means and militarization of the PRC	46
3.5	Does the ASL and the current measures of PRC´s policy violate Art 2 (4) UNC?	50
3.6	Conclusion	53
4.	CONCLUSION	54
5.	Annex I: INTERVIEW PH.D. JOSEPH CHAO-HSIEH WU	56
6.	ANNEX II: The Anti-Secession Law
7.	BIBLIOGRAPHY	64

Text Sample:

CHAPTER 3.4.3, POLITICAL SCOPE OF THE ASL:

3.4.3.1, THE ONE-CHINA PRINCIPLE:

Art 2 ASL refers to the so called one-China principle. In the following this term will be examined. The term itself appeared for the first time in 1970 during the dispute on whether Mainland China should replace the R.O.C. in the UN or not. At that time the PRC proposed to create a seat for both, the PRC and the R.O.C. Thus, in the beginning the term 'one-China' was used to express that only Mainland China should be recognized as the only China. The R.O.C. on Taiwan should not be treated as a second China. The term however lost its original meaning. Nowadays the official viewpoint on the one-China principle from the mainland can be read in the two white papers published by China in 1993 and 2000: ‘There is only one China in the world, Taiwan is an inalienable part of China and the seat of China’s central government is in Beijing. This is a universally recognized fact as well as the premise for a peaceful settlement of the Taiwan question.’ Hu Jintao, the current President of the People’s Republic of China and General Secretary of the Chinese Communist Party (CCP) Central Committee presented a six-point proposal in his ‘Message to Compatriots in Taiwan’ on the 31st December 2008 reiterating the ‘firm adherence to the ‘one-China’ principle’.

The first ground for China’s one-China claims is its historical ownership. It claims that Taiwan was originally possessed by China and is in result still Chinas territory. International law does not offer any rule which would support those claims. Indeed, as observed in Chapter 2.3 China ceded the island of Taiwan to Japan in 1895. This is the date of the formal ending of Taiwan being a part of China for about 50 years. After WW II, Japan surrendered inter alia the island Taiwan. Another reason for mainland China to claim that Taiwan is an integral part of the mainland is the Cairo Declaration from 1943 as a key document. Actually this document is merely a communiqué; the document with legal binding character is the Peace Treaty of Japan. As explained in Chapter 2.4 this treaty lacks in defining a beneficiary In summary the claims of Mainland China towards Taiwan are not justified under International Law.

In 1992 a cornerstone should have been reached on the one-China principle between the Straits Exchange Foundation (SEF) of Mainland China and the Association for Relations Across Taiwan Strait (ARATS) of the R.O.C. Unfortunately the reached consensus is only an agreement to disagree. Former President Lee Teng-hui even states that ‘both sides of the Taiwan Strait did not reach (…) [any] consensus in 1992 on 'one-China' (…). Nevertheless, after the meeting the National Unification Council of the R.O.C. adopted the meaning of 'one-China' as though both sides of the Strait agreed that there is only one China, but both sides of the Strait have a different opinion on its meaning. For Mainland China 'one-China' means the PRC, while Taipei considers it as the R.O.C. However the meaning of 'one-China' remains to be unclear. Some scholars argue that the PRC´s proclamation of its view of the one-China principle let Taiwan act like a ‘political orphan’ in the international arena. Political statements like ‘[t]he EU has a One China Policy (…)’ decreases the number of states recognizing Taiwan as a sovereign entity. In 2007 there are only 24 countries left upholding diplomatic ties with the R.O.C.