The Right Of Self-Determination Has Priority
Over State Sovereignty
by Song Tiongjong
Translated by Li Thian-hok
From Republic of China to Republic of Taiwan
With the rapid democratization of Taiwan, the Republic of
China regime, which was an alien colonial ruler, has been
drastically naturalized. Now the people of Taiwan exercise
sovereignty as sovereign of the Republic of China. Thus it has
become necessary for us to reexamine our view of the Republic of
China and to form a revised consensus. To raise the issue, my
opinions on this subject are given below.
Only Quemoy and Matsu are Recognized
by the International Community
as Territories Ruled by the Republic of China
In October 1945, the Republic of China occupied Taiwan (in-
cluding the Pescadores, similarly abbreviated below). This was
based on General Order Number 1 issued by United Nations
commanderin-chief MacArthur, and it was in the nature of a
temporary occupation of the territory of a defeated nation by a
victorious nation, just like the occupation of Japan proper by
the United States. Although the Kuomintang regime of China which
occupied Taiwan asserted that Taiwan had become a territory of
the Republic of China based on the Cairo Declaration (joint
statement by US President Roosevelt, British Prime Minister
Churchill and Republic of China President Chiang Kaishek in
December 1943), both the United States and Great Britain have
acknowledged that the Cairo declaration is "merely a general
statement of intention" (per Churchill) and has no binding power
under international law.
In the Japanese peace treaty signed in San Francisco in
September 1951, Japan gave up its right to possess Taiwan but no
decision was made regarding Taiwan's new disposition.
Similarly in the peace treaty between Japan and the Republic
of China which was signed in April 1952, Japan merely waived its
title over Taiwan and nothing was decided about Taiwan's new
disposition.
Since the Republic of China has already lost all of its
territory on the Chinese mainland as a result of its defeat in
the civil war between the Kuomintang and the Chinese Communist
party, only Quemoy and Matsu are now recognized by the
international community as territory under the effective rule of
the Republic of China.
If a new disposition of Taiwan had been decided by the
Japanese peace treaty, the Taiwanese people would have had to
accept it no matter how unsatisfactory the decision since the
principle of international law at that time was that change in
territory resulting from war was to be determined by the peace
treaty between the victor and the vanquished.
Japan's waiving of its right against Taiwan was provided in a
treaty based on international law then in effect, and thus this
will never change. However, even if all past allied powers
against Japan were to unanimously decide on a new disposition of
Taiwan, it would not be permitted today. This is because, under
current international law, people's right to self-determination
takes precedence over the right of victorious nations.
The Historical Evolution of International Law
As times change laws change, and change inevitably. In the
case of international law, change takes time since it deals with
the whole world, but it evolves with the times just as domestic
law does. In the days of slavery and serfdom, when the landowner
sold or bought land, the ownership of slaves and serfs also
changed hands accordingly. When a territory is transferred based
on a peace treaty between the victorious and defeated nations,
the international convention which then also changed the
nationality of the residents, is based on the old concept of
regarding human beings as appendages of the land.
After the second World War, international law based on this
old concept gradually changed. The direction of the change was
first indicated by the United Nations Charter (effective October
1945). In Article 1 (the purposes of the United Nations) item 2
("To develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of
peoples...."), the Charter established the principle of equal
rights and self-determination of peoples.
In December 1960, the UN General Assembly adopted the
"Declaration on the Granting of Independence to Colonial
Countries and Peoples." Item 2 of the Declaration states: "All
peoples have the right to selfdetermination, by virtue of that
right they freely determine their political status and freely
pursue their economic, social and cultural development."
After the passage of the UN Charter the trend toward self-
determination has grown and several former colonies have already
achieved independence. After the adoption of the "Declaration on
the Granting of Independence to Colonial Countries and Peoples,"
many colonies became independent, one after another. The
principle of selfdetermination has now been universally accepted
as one of the basic principles of the new international law.
The "International Covenant on Human Rights" (effective
1976), which was adopted by the UN General Assembly in 1966,
established peoples' rights to self-determination as a most
important basic human right and thereby fundamentally and
thenceforth altered the former international law concept
regarding territorial rights.
The International Covenant on Human Rights consists of
"International Covenant on Economic, Social and Cultural Rights"
(A Covenant) and "International Covenant on Civil and Political
Rights" (B Covenant). Both A Covenant and B Covenant contain
identical language in Article 1 (peoples' right of self-deter-
mination). Item 1 of Article 1 states:
"All peoples have the right of self-determination. By virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural development."
While this is substantially the same as the right of self-deter-
mination included in the Declaration on the Granting of Inde-
pendence to Colonial Countries and Peoples, the fact that this
rule is placed at the very beginning of International Covenant on
Human Rights (A Covenant and B Covenant) signifies the estab-
lishment of peoples' right of self-determination as the prerequi-
site of all other civil, political, economic, social and cultural
rights.
Right of Self-determination
Takes Precedence Over State Sovereignty
Self-determination for an individual is the right to freely
determine one's own life style. If human beings are treated as
appendages to the land, and people's nationality may be
arbitrarily altered by territorial change resulting from a treaty
among nations without the people's participation, then the right
of self-determination of everyone thus affected will be severely
limited. In order for people to live freely in a country of their
choice, both the right to create a new country and to merge with
another country must be accepted as the right of the inhabitants
of the land.
Based on the modern concept, a state is a society organized
by agreement among the people to protect their security and
interests. It will be contrary to the principle of the modern
state for a nation, which is organized to protect the people's
interests, to suppress human rights.
When the International Covenant on Human Rights grants all
peoples the right to freely determine their political status, it
also grants all peoples the right to freely organize a nation of
their choice.
State sovereignty comes into being only after the creation of
a state. The stipulation in the International Covenant of Human
Rights that people may freely create a state means the right of
self-determination takes precedence over state sovereignty.
Not so long ago in many countries it was an acceptable
practice for parents to inflict cruel corporal punishment on
their own children or to sell their own daughters into
prostitution and say "They are our children. There is no reason
for outsiders to interfere." Today, however, the unreasonable
and violent infringement of children's human rights by parents is
not tolerated in any country. Similarly, current international
law will not permit the flagrant violation of human rights on the
ground that "no foreign country can interfere in our country's
domestic affairs."
Except for Antarctica, all lands on earth are under the sove-
reignty of some country. If state sovereignty were to be given
priority over the peoples' right of self-determination, then
peoples' self-determination would not be recognized without the
consent of the country affected and the right of
self-determination would be deprived of all substance and effect.
The stipulation "all peoples have the right of self-determi-
nation" per se signifies that the right of self-determination has
priority over state sovereignty.
The Collapse of the Republic of
China's Political Structure
Now how should we view the changes in the Republic of China
(ROC) regime? The ROC regime is a system of government by which
Chinese mainlanders attempt to subjugate the Taiwanese people and
to maintain the one-party authoritarian rule of the Kuomintang
(Nationalist, or KMT) under the fiction that the ROC government
is the legitimate government of China.
The legal ground on which the ROC regime based its claim as
the legitimate government of China was the legislature which
consisted of members of Congress (i.e., members of the National
Assembly and the Legislative Yuan) previously elected in China.
This was why the members of Congress who had been elected in
China have not stood for reelection ever since their escape to
Taiwan.
Under continuous martial law, the ROC oppressed the Taiwanese
with a rule of terror and maintained the subjugation of the
Taiwanese and its monolithic despotism over a long period since
1947. However, this political structure of the ROC regime began
to crumble steadily due to the resistance of the Taiwanese.
On September 28, 1986, the Democratic Progressive Party (DPP)
was founded. This precipitated the end of KMT's one-party dicta-
torship and the collapse of the ROC regime's political framework.
On July 15, 1987, martial law was lifted. Because the DPP was
organized in violation of the ban against political parties, the
dictator Chiang Chengkuo had to choose between suppression of the
DPP or lifting of martial law, and had no choice but to do away
with the 38year old martial law.
On January 13, 1988, Li Tenghui was inaugurated as President.
Upon Chiang Chengkuo's death, the Taiwanese Li Tenghui was
elevated from Vice President to President, thus ending the
subjugation of the Taiwanese by the mainlanders.
In December 1991, a new election was held in Taiwan for the
Republic of China General Assembly and new representatives were
popularly elected.
In December 1992, a new election was held in Taiwan for the
Republic of China Legislative Yuan and new members of the
Legislative Yuan were popularly elected.
This fullscale new election of the Congress was initiated by
Taiwanese students who organized sitins at the square in front of
the Presidential palace in March 1990 and demanded political
democratization. They demanded a "national consensus" conference
to discuss reform of the political system and Li Tenghui agreed.
In the midst of growing popular demand for democratization, such
a conference was convened in June and the aim of reelecting the
whole Congress was set. Through the reelection of the Congress,
the legal foundation of the political framework by which the
mainlanders ruled the Taiwanese was removed, since the Taiwanese
now comprised an overwhelming majority of both legislative bodies
even though the KMT held a majority in both the General Assembly
and the Legislative Yuan.
On March 23, 1996, in the first direct election of a
President, Li Tenghui was elected with a great majority. The
legitimacy of the President was established since he was elected
by the citizens of the whole country.
The Taiwanese People Propel
the Collapse of the ROC Regime
with their Status as Citizens of ROC as Leverage
In a democratic country its citizens are sovereign. Citizens
exercise their sovereignty by expressing their will through
voting. Voting includes election of the head of state,
legislators and administrative chiefs at different levels, and
referendum for the sovereigns to directly decide important
issues.
The Taiwanese people have elected the ROC head of state and
members of Congress by voting as citizens of the Republic of
China. The people of Taiwan are already exercising their
sovereignty as sovereigns of the Republic of China.
However, this does not mean the acceptance of ROC's
territorial sovereignty over Taiwan. Only the Taiwanese people
are sovereigns of this land called Taiwan.
Under ROC's occupation of Taiwan, the Taiwanese people fought
the repressive ROC regime using as a weapon their status as
citizens of the Republic of China, which status was unilaterally
given to them by the ROC regime. There was no other way to tear
down the ROC regime with nonviolent means.
Many people were killed or imprisoned by the rule of terror.
At great sacrifice, the Taiwanese have been trying to impel the
complete collapse of the ROC regime by encroaching upon it, by
winning the rights as sovereigns of the Republic of China and by
exercising their rights. While tearing down the ROC regime, the
Taiwanese people are pushing the founding of their own country
forward.
International law guarantees to all peoples the right of
self-determination, i.e., the right to found a country of their
own choosing with their own method. But self-determination will
not be automatically realized merely because it is a right
guaranteed by international law. On the contrary, people's
self-determination is often obstructed by various forces, foreign
and domestic. When people fight for their self-determination on
their own initiative, the international community will then
support such efforts.
The fight for self-determination by the Taiwanese people has
not yet ended. The false pretense that the ROC government is the
legitimate government of China still remains. Because of this
pretense, the official territory of the Republic of China still
includes the territories of the People's Republic of China (PRC)
and Mongolia. The Taiwanese people do not have any territorial
ambition towards these territories which are not their own land.
However, the international community does not recognize ROC
as a sovereign state on the ground that ROC actually exercises
dominion only on one-three hundredth of the territory over which
it claims sovereignty.
Even though the Taiwanese act as sovereign of ROC, the
official Republic of China is not yet a Taiwanese state but still
a Chinese state. This is why the international community cannot
impose strict sanctions against the PRC when it openly insists on
the possibility of absorbing Taiwan by force, and when it
intimidates Taiwan with military power, an act which is forbidden
against a sovereign state. The Taiwanese people have already torn
down the substantive political framework of the ROC regime. The
Republic of China will become the Taiwan state once the ROC
regime's fictitious territories are abandoned. At that time,
since ROC will formally become completely separate from China, it
would be necessary to discard the ROC constitution which is a
Chinese constitution and adopt the constitution of the Republic
of Taiwan. This will be the establishment of the Republic of
Taiwan, the Taiwanese people's country both in name and in
substance.
If a Republic of Taiwan is born, with robust economic power
and a population of 21,300,000, which is free and democratic, the
international community cannot very well ignore this new country
no matter how China objects. It probably will not take much time
before Taiwan is accepted into the international community as a
sovereign state. Once Taiwan joins the international community as
a sovereign state equal to other countries of the world, Taiwan
will benefit from the protection of international law and inter-
national security guarantee apparatus, thus enabling Taiwan to
establish its framework of security guarantees.
Even after the founding of the Republic of Taiwan, the
economic, social and cultural waste products of the ROC regime
will probably remain widespread in the Taiwanese society. What
kind of country the Taiwanese people may build will depend on
their effort from then on. In any event, everything starts with
the Taiwanese having their own country.
The Future of Quemoy and Matsu
How should one contemplate the future of Quemoy and Matsu
islands which, unlike Taiwan whose international legal status
remains in abeyance since abandonment by the Japanese, are
original territories of the Republic of China?
In this case, too, the principle of self-determination should
be applied. The right of self-determination is recognized for all
peoples regardless of the smallness of the territorial area or
the small size of the population. The residents of Quemoy and
Matsu may have the following choices.
1. Continue to exist as the Republic of China.
2. Create Quemoy state and Matsu state, or a Quemoy-Matsu
federation.
3. Unify with the Republic of Taiwan.
4. Unify with the PRC. Needless to say, in the case of
unification, the consent of the other country will be required.
The problem is Quemoy and Matsu are located too closely to
the Chinese mainland. In 1958, when the Chinese forces bombarded
Quemoy from the mainland, the Kuomintang forces were pressed to
the verge of imminent surrender because the supply of weapons,
ammunition and food was cut off. The Kuomintang forces evaded
surrender only because the Chinese forces declared the
bombardment would be carried out every other day only on
even-numbered days so that supply on odd-numbered days became
possible. To lose Quemoy and Matsu means to lose all legitimate
territory of the Republic of China, thus severing the connection
between China and Taiwan. Most likely China did not take Quemoy
and Matsu in order to keep a means of tying China and Taiwan.
The difficulty is the reality that China can occupy Quemoy-Matsu
whenever it wishes. In fact, it is not possible for the people of
Quemoy-Matsu to freely determine their own future without China's
consent. Even with this hard reality, Quemoy-Matsu residents'
right of self-determination should be respected, since self-deter-
mination is the most important basic human right. The realization
of people's self-determination at Quemoy-Matsu will require strong
support by the international community. Such support is the obli-
gation of the international community which has accepted the
principle of self-determination.
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