Press Interpreter

03/24/05 -- Recently my article regarding the new ambiguity doctrine regarding Taiwan's status and the Anti-Secession Law received comments from legislator Lin Zhuoshui, from which I have benefited greatly. Our differences actually are not that deep, but I would still like to further clarify a few points.

Legislator Lin largely agreed with my first proposal of a new ambiguity doctrine regarding Taiwan's status. His disagreement is on the interpretation of the U.S.-Taiwan Relations Act, the progenitor of the new ambiguity doctrine. He believes the Act is amicable towards Taiwan and implicitly affirms room for self-determination by the residents of Taiwan. My views are that it is not important whether the Act is amicable. The important point is that the Act, under the premise of respect for China's claim of sovereignty over Taiwan, legally authorizes the U.S. Executive Branch to determine the necessary actions, using peace and American interest as the criteria. If Taiwan can peacefully achieve independence, the U.S. would of course welcome that. But if not, then even if Taiwan is coerced into re-unification, U.S. would not object, as long as it does not harm American interests,

Thus, Taiwan's interest will always only be a "reflective interest" intermediated through American interests and stability in the western Pacific region. The U.S. non-hardline attitude towards the Anti-Secession Law was already clear even before Secretary of State Rice's visit to China. The reason is that the U.S. has never denied the legality of China dealing with Taiwan as a matter of its domestic law. Under the weight of the U.S.-Taiwan Relations Act, the three joint communiques on the subject, and the provisions on re-unification in Taiwan's own constitution, the U.S. has almost no room for any legal maneuver, leaving it only room for diplomatic action

Similarly, regarding the question of whether the Anti-Secession Law will push Taiwan's unstable status further into China's domestic legal regime, I disagree with Legislator Lin. He believes that, through "recognition of status quo," China gives Taiwan's status quo a legal status, and therefore Taiwan in fact obtains an improved "half principal party" status. This analysis is worth considering, but I believe we should differentiate it from the direction of change to Taiwan's status: Whether this change is good or bad, the reasons for why it is good or bad, among other questions. To answer this question, we must understand clearly the differences between different legal authority. Clearly, because the U.S. is unable to take any legal measure (as explained above), the issue of China's legal authority becomes the most critical point.

From this perspective, Taiwan's "legal status" has clearly moved towards the domain of domestic law, under the status of a "not yet suppressed" or "not yet pledged" group. That Taiwan has been "conferred" a legal status under China's legal authority is clearly an "improvement" over the previous situation of no status. But this "improvement" is a "charity" from China's legal authority. More importantly, this serves the function of announcing the division of legal authority to the international community. If we receive it with the "gratitude of a subordinate," then the entire Taiwan legal system will gradually be absorbed into China's legal system, with no means to stop the process.

Thus, I believe the damage of the Anti-Secession Law is not in its "non-peaceful" provisions, but in the earlier peaceful provision because dressed in the good intentions of "peaceful exchange" is the control of China's domestic law, in the name of "civil war legacy" and "both belong to one China." Moreover, this particular facet of the law can widen its effect through Taiwan's own Republic of China doctrine of legal authority and the strength of the pro-China faction on the Island.

Regarding a legal response, although Legislator Lin Zhuoshui does not favor a "reactive" approach in enacting an anti-Anti-Secession Law, he does not oppose adjusting the legal relation between Taiwan and China through either enacting or revising laws and preparing certain necessary actions to protect our legal authority. I agree with him on this. Therefore, beside voicing its protest to China, the upcoming large demonstration on March 26 should also explicitly ask the government (Executive and Legislative branches) to take certain measure regarding its legal authority and not let Taiwan's position slip into China's control. If only the people of Taiwan go into the streets to curse and yell and the Taiwan government does nothing about its legal authority, then the results would be no different had it fallen asleep on its rights.

[Full Article]

[This article appeared in the China Times, which is a major daily published in Taipei, known for a moderate pro-KMT leaning. Among other major dailies, United News is also pro-KMT and Liberty Time is pro-DPP.]

By Yan Jue-An (National Taiwan University, Professor of Law)

--Translated By Mike R. Lai

Go to original article:

http://news.chinatimes.com/Chinatimes/newslist/newslist-content/0,3546,110514+112005032400325,00.html