One China Committee Update 18
April 2007

This Update is sent to OCC Members and Friends

Second biannual conference on Chinese law and business

The Second Bi-annual Conference, jointly sponsored by the One China Committee and the Asian Alliance of the John Marshall Law School, will be held on Saturday, October 20, 2007 at the John Marshall Law School, Chicago. The whole day event will have two sessions: Chinese business and Chinese law. Professor Kevin Hopkins will be the chair and Professor Michael Shen and Dr. Yi Li co-chairs of the conference. Details of the conference will be sent out in July.

One China Committee rebuts Rep. Tancredo's proposal to normalize relations with Taiwan

In response to the proposed legislation, H. Cong Res 73, by Rep. Thomas Tancredo and others (Rep Dan Burton [IN-5], Rep Steve Chabot [OH-1], Rep Marilyn N. Musgrave [CO-4], Rep Dana Rohrabacher [CA-46], Rep Mark E. Souder [IN-3], and Rep Edolphus Towns [NY-10]), the One China Committee sent out a rebuttal on February 22, 2007 which is reproduced below:

We are disturbed and disappointed by your proposed legislation, H.Con.Res. 73, "[e]xpressing the sense of Congress that the United States should resume normal diplomatic relations with Taiwan (the Republic of China), and for other purposes."

As a law-maker, you must be well versed in our Constitution. Our Constitution vests in the Executive Branchy the sole right to conduct diplomatic relations with foreign nations. In a leading case, United States v. Curtiss -Wright Export Corp, 299 U.S. 304 (1936), Justice Sutherland in a unanimous opinion stated: "The President alone has the power to speak or listen as a representative of the nation . . . . As Marshall said in his great argument of March 7, 1800, in the House of Representatives, 'the President is the sole organ of the nation in its external relations, and has sole representative with foreign nations.'" Your proposed legislation which intends "to formally recognize Taiwan" invades the Executive Branch's authority and prerogative and is a violation of our Constitution.

Taiwan is an integral part of China. In an interview with Phoenix TV, former Secretary of State Colin L. Powell stated on October 25, 2004: "our policy is clear. There is only one China. Taiwan is not independent. It does not enjoy sovereignty as a nation, and that remains our policy, our firm policy. And it is a policy that has allowed Taiwan to develop a very vibrant democratic system, a market economic system and provided great benefits to the people of Taiwan. And that is why we think it is a policy that should be respected and should remain in force and will remain in force, on the American side, it is our policy that clearly rests on Three Communiqués. To repeat it one more time: we do not support an independence movement in Taiwan."

The Cairo Declaration of 1943 explicitly stated that Formosa (Taiwan) should be restored to China. It was reiterated at Potsdam in 1945 and was accepted in Japan's surrender instrument on September 2, 1945. Article IV of the Treaty of Peace between China and Japan of 1952 provides "all treaties, conventions and agreements concluded before December 9, 1941 between China and Japan have become null and void as a consequence of the war." Taiwan was ceded to Japan by China in 1895 by the Treaty of Shimonoseki. As stated in the Peace Treaty, the Treaty of Shimonoseki became null and void. Accordingly, Taiwan had been returned to China as a matter of law.

The present status of Taiwan regime which occupies a tiny part of Chinese territory including Taiwan, and Quemoy and Matsu islands of Fujian Province is the result of the civil war between the Communists and the Nationalists. There are two political entities in a divided nation, but not two Chinas.

According to the Shanghai Communiqué of 1972, reaffirmed in 1979, "[t]he 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." The 1982 Communiqué further elaborates "that the United States of America recognized the Government of the People's Republic of China as the sole legal Government of China, and it acknowledged the Chinese position that there is but one China and Taiwan is part of China." These Communiqués. were intended to be legal binding documents, like treaties. And treaties are the supreme law of the land.

Your proposed legislation is oblivious to the historical and legal status of Taiwan and is an irresponsible stir-up of the otherwise peaceful status quo across the Taiwan Strait. It is, to reiterate, an unconstitutional invasion of the Executive power.

We respectfully request that your proposed legislation, H.Con.Res. 73, be withdrawn.

Rep. Tancredo's chief of staff responded to the One China Committee's rebuttal and the OCC response

In response to our letter to Rep. Tancredo, MacArthur Zimmerman, his chief of the staff, replied to the One China Committee on March7, 2007. His reply is as follows:

Dear Mr. Li,

Thanks for your letter of February 22nd. Unfortunately, I think your letter (like your website) may have contained a few unintentionally inaccurate statements and omitted some rather important historical facts. You asserted that the communique's have the legally binding force of treaties as the "law of the land."

This is incorrect. They do not

The constitution is quite clear in that treaties must be ratified by the Senate -- like the Mutual Defense Treaty with Taiwan, for example, that was abrogated amid legally questionable circumstances by President Carter in 1979. The communiques have no force of law whatsoever (unlike the Taiwan Relations Act - which was approved by Congress and signed into law by the President). Treaty is a treaty, a law is a law and of course a communique is just that - a communique. Nothing more, nothing less.

I also noticed that you referenced the Cairo Declaration of 1943 - but not the San Francisco Treaty (negotiated subsequent to the Cairo Declaration), which left the future of Taiwan to be determined (in accordance with the principle of self determination). I was somewhat puzzled that you were so keen to talk about the communique as the "supreme law of the land" and mentioned the Cairo Declaration - but not this document, which is a real treaty. Perhaps you were not aware of the treaty (I noticed it is not mentioned anywhere on your website- I would encourage you to review it if you have some time).

You were also quick to reference Secretary Powell's statements (which were clarified later by a State department spokesman). But omitted any reference to the "Six Assurances" President Reagan issued to Taiwan President Chiang Ching Kuo (perhaps you're also not familiar with the assurances, as they are also nowhere to be found on your website - I would encourage you to review them as well). Among these assurances was an assurance to Taiwan's government that the U.S. position on Taiwan's sovereignty had not changed. The longstanding U.S. position on Taiwan's sovereignty is the position set forth in the San Francisco Treaty -- that Taiwan's future should be determined at a later time in accordance with principles of self-determination. President Clinton reaffirmed this position when he stated unequivocally that any change in Taiwan's status must only be made with "the assent of the people of Taiwan" - not the people of China.

I hope you find this information helpful. Please feel free to contact me if you have any additional questions or concerns.

The One China Committee responded [e-mail sent to Mac.Zimmerman@mail.house.gov]:

Dear Mr. Zimmerman:

Thank you for the time you took in responding to our letter to Rep. Tancredo. I wish just to mention the following with reference to two issues you raised in your letter:

(1) We are fully aware of the San Francisco Peace Treaty and the Six Assurances -- both are listed on the One China Committee web site: OneChinaCommittee.org. The so-called uncertain status of Taiwan, first surfaced in the early 1950s, is unfounded and has long since been settled. One of the Six Assurances provides: "[t]he United States would not alter its position about the sovereignty of Taiwan which was, that the question was one to be decided peacefully by the Chinese themselves [italics added], and would not pressure Taiwan to enter into negotiations with China". We do not think it either responsible or proper for Rep. Tancredo to suggest otherwise.

(2) You correctly point out that treaties have to be approved by the Senate. But, agreements (including executive agreements) which do not require Senate approval have the same legal effect as treaties in both domestic and international law. The Supreme Court in Wilson v. Girard (354 U.S. 928, 1957) held that the Administrative Agreement 17, an executive agreement, signed with Japan, which was not a treaty and therefore not sent to the Senate for approval, had the same effect as a treaty, the supreme law of the land. Furthermore, under international law, an agreement may take different names, including declaration, protocol, resolution, or communique, and is legally binding as treaty so long as the parties lending their names to the document convey an intention to be bound. Thus, in our previous letter, we made references to the three named communiques as those intended to be legally binding documents, which we believe to be a truthful representation of the intention of the U.S. and Chinese governments when they signed these documents.

For your information, the undersigned was one of the three-member delegation representing the ROC in negotiating with the United States on the supplements to the Mutual Defense Treaty with the ROC that you mentioned in your letter.

Views on the One China Principle

Taiwan's Push for Independence

By Dingli Shen published in the Bulletin of the Atomic Scientists on March 26, 2007 (with permission from the publisher to reproduce).

For some time, Taiwan's leadership has seemed interested in pursuing the fantasy of independence. But lately, it has gone too far. Chen Shui-bian, the island's head, said on March 4 and again on March 6, "Taiwan wants independence; Taiwan wants to change its name; Taiwan wants a new constitution; Taiwan wants development."

In doing so, he openly negated what he pledged at his first inauguration. On May 20, 2000, Chen vowed, "[I] will not declare Taiwan independence; [I] will not change the name [of the Republic of China]; [I] will not bring a 'two-state' [Taiwan vs. China] argument into the constitution; [I] will not call for a referendum of independence; and there will be no possibility of abolishing National Unification Council and Guidelines."

Seven years later, Chen has broken nearly all of his promises and proven himself a liar and "troublemaker," in the words of former President Bill Clinton. In pursuit of self-interest and political gain, he has disregarded Taiwanese security and his people's fundamental interest in peace and stability, which is preconditioned on his government's honesty and sense of responsibility. This inevitably escalates the tension across the Taiwan Strait.

As a post-World War II arrangement, Taiwan reverted to the mainland; Taiwan had belonged to China until Japan defeated China in 1894 and imposed the Treaty of Shimonoseki, which gave the island to Japan. But in 1945, China and the Allied Forces defeated Japan, and Taiwan was properly returned to the mainland. Currently, the United Nations and a majority of the countries in the world--including the United States and Japan--officially consider Taiwan a part of China. Given mainland China's ever-increasing hard and soft power, the fantasy of an independent Taiwan is coming to an end.

However, Chen and the pro-independence crowd in Taiwan is pressing the issue while Chen is still in power. They believe that the United States will protect Taiwan under any circumstances, especially given the Bush administration's temperament; they're also betting that the mainland values the Beijing 2008 Summer Olympics more than a unified China. Most of all, they understand that Taiwan will have no chance to gain independence during and after the second decade of this century given China's rise.

The mainland indeed treasures hosting the 2008 Summer Olympics, but for reasons of both sovereignty and technical preparedness, mainland China can, and must, respond to Chen's provocation.

For the security and safety of the Chinese living across the Taiwan Strait, the mainland has refrained from taking military action. The possibility of U.S. military intervention, which would violate international law, and the U.S.-Japan security alliance, also complicate the mainland's war scenario. But if Chen and his followers further push the envelope, it's unlikely that Beijing would allow Taiwan to leave without taking action.

Taiwan's leader will not only place his people in jeopardy, but also hold the United States hostage--if Washington honors its promise to "do whatever it takes" to defend Taiwan. This comment by President George W. Bush in April 2001 has emboldened the Taiwanese government and could eventually unnecessarily endanger America.

In a bold military move, Taiwan tested its Hsing-feng 2E (Brave Wind) cruise missile earlier this month. Its range is 600 kilometers and can extend to 1,000 kilometers, threatening Shanghai and Hong Kong. Reportedly, Taiwan plans to produce 50 Hsing-feng 2E missiles before 2010 and up to 500 in the years afterward.

To be sure, this threatens the mainland. But given China's relative strength, Taiwan's pursuit for independence is hopeless. The mainland is far more resourceful, and in an arms race, Taiwan is destined to collapse, whether the United States intervenes or not. Ultimately, Taiwan's security will come from sanity, not fantasy.(With permission of the Bulletin of the Atomic Scientists (http://www.thebulletin.org).

Isn't Taiwan independent?

(The China Post Editorial, April 2, 2007 reproduced below with permission),
Taiwan is an independent, sovereign state. But three academics who have drafted a "second republic" constitution do not seem to think so. If they do, they shouldn't have written a self contradictory passage in the preamble of the draft constitution, the one which President Chen Shui-bian believes is "timely," "apt" and "viable."

That passage says the Republic of China was founded in 1911. That is a slip of the pen, perhaps. The Republic of China was proclaimed on Jan. 1, 1912. The Chinese Revolution that toppled the Manchu Qing dynasty and put an end to China's monarchical rule took place in 1911. Practically everyone in Taiwan who has learned history knows that. Are the three constitutional scholars "old professors" who are supposed to be absent-minded? Or are they trying to rewrite Chinese history?

That aside, the professors wrote into their draft constitution Taiwan and China are two different countries and the people in the former have the final say in their country's future. Any change to the political relationship between the Republic of China and the People's Republic of China must be decided by negotiations between the two sides and subject to approval of the people of Taiwan, they added.

Do they have to state in the constitution the universally acknowledged inalienable right of the people to determine the future of their country? We don't think the constitution of any country in the world makes mention of that self determination right. But the professors seem to forget no independent, sovereign state has to negotiate a change in its political relationship with any other country. A sovereign state makes decisions on any change in foreign relations by and for itself. In fact, there is no political relationship between two independent, sovereign states that needs to be changed. Negotiations are necessary between a suzerain and a vassal or between the central government and a province, if they want to change their relationship. Do the three learned professors regard the relationship between China and Taiwan as one between a suzerain and a vassal or between a sovereign state and one of its provinces as Beijing claims?

Isn't Taiwan independent?

(The China Post Editorial, April 2, 2007 reproduced below with permission).

Taiwan is an independent, sovereign state. But three academics who have drafted a "second republic" constitution do not seem to think so. If they do, they shouldn't have written a self contradictory passage in the preamble of the draft constitution, the one which President Chen Shui-bian believes is "timely," "apt" and "viable."

That passage says the Republic of China was founded in 1911. That is a slip of the pen, perhaps. The Republic of China was proclaimed on Jan. 1, 1912. The Chinese Revolution that toppled the Manchu Qing dynasty and put an end to China's monarchical rule took place in 1911. Practically everyone in Taiwan who has learned history knows that. Are the three constitutional scholars "old professors" who are supposed to be absent-minded? Or are they trying to rewrite Chinese history?

That aside, the professors wrote into their draft constitution Taiwan and China are two different countries and the people in the former have the final say in their country's future. Any change to the political relationship between the Republic of China and the People's Republic of China must be decided by negotiations between the two sides and subject to approval of the people of Taiwan, they added.

Do they have to state in the constitution the universally acknowledged inalienable right of the people to determine the future of their country? We don't think the constitution of any country in the world makes mention of that self determination right. But the professors seem to forget no independent, sovereign state has to negotiate a change in its political relationship with any other country. A sovereign state makes decisions on any change in foreign relations by and for itself. In fact, there is no political relationship between two independent, sovereign states that needs to be changed. Negotiations are necessary between a suzerain and a vassal or between the central government and a province, if they want to change their relationship. Do the three learned professors regard the relationship between China and Taiwan as one between a suzerain and a vassal or between a sovereign state and one of its provinces as Beijing claims?