Mutual Non-Repudiation: The Basis of Cross-Strait Relations

Mutual Non-Repudiation: The Basis of Cross-Strait Relations
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
April 27, 2009

The Third Chiang/Chen Summit will be held in Nanjing. Rumor has it Taipei suggested the location, because Nanjing was the capital of the Republic of China, and Taipei wanted to underscore the institutional origins of the Chiang Pin-kung-led delegation. The mainland side was of course well aware of the implications of Taipei's proposal. But it made no attempt to evade it. The host was happy to accomodate the guest.

Chiang Ping-kun's plan to visit the "Republic of China Office of the President" however was canceled, allegedly for fear of arousing undue controversy. Too low a profile, and Taipei risks being written off as a relic of history. Too high a profile, and Taipei risks being suspected of creating "Two Chinas."

In Nanjing, the "Office of the President Republic of China" has already become an historical monument. That is an undeniable fact. But the Chiang Pin-kung delegation from Taipei was authorized by the Office of the President of the Republic of China. That is also an undeniable fact.

Mutual non-recognition, in combination with mutual non-repudiation -- this is the main reason cross-Strait relations have been able to develop to the extent they have today. If the two sides' position was "mutual recognition," they would have no need of proxies such as SEF and ARATS. The two sides' position is "mutual non-repudiation," meaning that the two sides do not deny each other's legitimacy. They recognize that the two sides do in fact exist. Hence the need for proxies such as SEF and ARATS. After all, if the two sides did not exist, why would they need proxies?

For Taipei, Chiang Ching-kuo's lifting of martial law and abolition of the Temporary Provisions during the Period of Communist Rebellion, were made in preparation of recognizing the People's Republic of China government. But Beijing was concerned about any departure from the "One China Principle," and refused to recognize the Republic of China. This is why the Beijing authorities are unwilling to recognize the ROC government. This is why legally speaking, the two sides refuse to recognize each other. They must maintain internal and external accountability and "reciprocity." But the two sides' reciprocity is not simply "mutual non-recognition." Although the two sides do not recognize each others' legitimacy legally, they cannot deny each others' actual existence physically. Therefore the two sides' reciprocity is actually "mutual non-recognition, plus mutual non-repudiation." Otherwise, how could the two sides talk about market access and mutual legal assistance?

It has been less than a year since the second change in ruling parties on Taiwan. From last year's Six Agreements to this year's Three Major Issues, plus ECFA, which may be addressed during the second half of the year, cross-Strait interaction has expanded rapidly. The more cross-Strait relations are elevated, deepened, and broadened, and the more prominent the role of the two sides' governments, then the more willing the two sides are to engage in "mutual non-repudiation." Take for example the choice of Nanjing as the venue for the Chiang/Chen Summit. Three items, including air transport, finance, and the administration of justice, require the establishment of a working window in a real world context. They will no longer be government proxies. Cross-Strait exchanges will inevitably be elevated, deepened, and broadened. If the two sides deny each other's legitimacy, how can they establish a government with legal jurisdiction? How can they even sbegin to discuss mutual legal assistance?

For the time being, the two sides neither recognize each other nor repudiate each other. This, according to Hu Jintao, is central to the "Framework for Peaceful cross-Strait Development." In other words, Beijing's policy toward Taipei cannot be be based on the premise that the "Republic of China has already perished." Without "mutual non-repudiation," cross-strait relations will be shattered and impossible to maintain. Without governments, how can one have government proxies?

If cross-Strait relations in 2008 are to return to the "1992 Consensus," the two sides must maintain a position of "mutual non-repudiation." Let us examine the two sides' rhetorical formulations. Taipei invariably brings up "confront reality by not repudiating each other." Beijing avoids responding directly, but substitutes "peaceful development, set a new course for the future." The current Chiang/Chen Summit is no exception. As long as Beijing does not formally repudiate Taipei's "confront reality by not repudiating each other," the two sides still have room to maneuver. In short, some things can be done, but cannot be talked about.

For example, President Ma interpreted "1992 Consensus" as "One China, Different Interpretations." Beijing did not respond directly, but neither did it repudiate it directly. This "mutual non-repudiation" is made possible by the "Different Interpretations" premise. It is essential to "peaceful cross-Strait development." It is the absolute minimum requirement.

The achievements of the three Chiang/Chen Summits over the past two years have been based on "mutual non-repudiation." The elevating, deepening, and broadening of cross-Strait relations will require increased "mutual non-repudiation." We hope the authorities on both sides will appreciate the importance of this tacit understanding, and not undermine it lightly. As we see it, it may be unfortunate that we cannot recognize each other, but at least we must not repudiate each other!

「互不否認」是兩岸關係的中心支柱
【聯合報╱社論】
2009.04.27 05:45 am

三次江陳會選在南京舉行，據說是台灣方面的提議；因為南京曾是中華民國的首都，而欲藉此顯示江丙坤代表團的體制淵源。大陸方面對此提議的寓意，當然是心知肚明，卻也無所避忌，主隨客意。

不過，江丙坤畢竟取消了參訪南京「中華民國總統府」的計畫，據說是怕會引發見仁見智的效應。姿態低了，怕被說成是憑弔「遺跡」；姿態高了，又怕被說成操弄「兩個中國」。

然而，南京的「中華民國總統府」已成歷史遺跡，無可否認；但江丙坤代表團卻是出自台北的中華民國總統府之授權，同樣也是無可否認的事實。

互不承認，但也互不否認；這是兩岸關係能夠發展至今日境界的主要原因。倘若「相互承認」，就不必海基、海協當「白手套」了；但主要則是因「互不否認」，亦即雙方皆不否認對方有一隻真正的「手」存在，始會有海基、海協的「白手套」。否則，沒有手，空有白手套何用？

就台灣方面言，蔣經國解嚴，廢止動員戡亂時期臨時條款，這些都是預備「承認」中華人民共和國政府的動作；但北京方面則顧慮可能形成任何背離「一個中國原則」的情勢，而拒絕承認中華民國政府。正因中華民國政府不能得到北京政府的相對承認，也就必須「在法理上不承認」對方，以維持一個向內外交代的「對等關係」。然而，兩岸的「對等關係」，也並非只是「互不承認」；因為，雖然雙方在法理上互不承認，卻也不能否認雙方在法理上的實際存在。所以，較準確地說，兩岸此時所謂的「對等關係」，其實是「互不承認，但亦互不否認」。否則，談什麼市場准入及司法互助？

台灣第二次政黨輪替後，迄今不到一年的光陰，從去年的六項協議到今次的三大議題，且在下半年可能處理ＥＣＦＡ，兩岸互動的進度可謂是飛速躍進；在這一段進程中，可以明確地感知到，兩岸關係越往高處、深處及大處發展，兩岸政府的角色即越形凸顯，兩岸「互不否認」的程度也必然伴隨升高。以此次南京江陳會為例，空運、金融、司法三個項目，皆是以「框架」的形式呈現，未來實際運作的「窗口」，將皆是不再戴「白手套」的政府機構，這毋寧是兩岸交流往高處化、深處化及大處化後的必然發展。例如，如果相互否認為一個具有司法主權的政府，談什麼司法互助？

兩岸暫時不易進入「相互承認」的境地；但「互不否認」，卻是維持兩岸「和平發展框架」（胡錦濤語）的中心支柱。也就是說，北京對台政策，不能建立在「中華民國已經滅亡」的論述之上。倘若失去「互不否認」此一支柱，兩岸關係必告解構，無以維繫。沒有手，哪來的白手套？

兩岸關係在二○○八年回到「九二共識」，就是要維持一個「互不否認」的表述空間。且看雙方每次交手吟詩作對，台北幾乎次次都要提起「正視現實／互不否認」；但北京則皆避不回應，而代以「和平發展／開創未來」等語。此次江陳會，亦非例外。不過，只要北京不正面回拒或否認台北「正視現實／互不否認」的主張，只能做，不願說，兩岸即有了迴旋轉圜的空間。

正如，馬總統一直將「九二共識」引申為「一中各表」；北京方面雖未正面回應，但也未正面否認。這種「互不否認」的「各自表述」空間，實是兩岸「和平發展」的必要空間，也可謂是捨此即無生理的最低限度的空間了。

兩年三次江陳會的成就，是建立在「互不否認」上；未來兩岸關係若要更往高處、深處及大處發展，「互不否認」的意涵與效用亦將更形升高。希望兩岸當局能珍惜此一寶貴的默契，不要輕易傷損，我們的看法是：

可惜未能「相互承認」，但千萬不要「相互否認」！