New Cross-Strait Argument: Mutual Non-Denial of Each Other's Sovereignty. Mutual Recognition of Each Other's Jurisdiction
United Daily News editorial (Taipei, Taiwan, ROC)
July 23, 2012
Summary: The Ma administration's cross-Strait legal argument is "non-recognition of each other's sovereignty, but non-denial of each other's jurisdiction." Beijing has yet to comment on this position. But in practice it appears to have accepted this formulation. We believe however, that the cross-Strait deadlock must be broken. It must be elevated to a higher level. The cross-Strait legal argument should be "non-repudiation of each other's sovereignty, and recognition of each other's jurisdiction."
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The Ma administration's cross-Strait legal argument is "non-recognition of each other's sovereignty, but non-denial of each other's jurisdiction." Beijing has yet to comment on this position. But in practice it appears to have accepted this formulation. We believe however, that the cross-Strait deadlock must be broken. It must be elevated to a higher level. The cross-Strait legal argument should be "non-repudiation of each other's sovereignty, and recognition of each other's jurisdiction."
Since 2008, the two sides have signed 16 agreements. Differences over the Investment Agreement and Customs Agreement appear to have to been resolved. The agreements will soon be signed. These agreements have been successfully signed and implemented, because both sides recognize each other's executive and legislative authority. In particular, they recognize each other's jurisdiction. The recognition of each other's jurisdiction is a fait accompli. To characterize it as "non-denial of each other's jurisdiction" is convoluted political rhetoric.
The fact is, without the recognition of each other's jurisdiction, none of these agreements could have been signed. None of them could have been implemented. Current interaction between the two sides is based on recognition of each other's jurisdiction. The two sides' executive, legislative, and judicial authority equals their jurisdiction. It is also their source of autonomy. Without sovereignty, whither jurisdiction? Since we have already accepted each other's jurisdiction, how can we deny each other's sovereignty? Therefore we should change "non-recognition of each other's sovereignty," to "non-denial of each other's sovereignty."
Today's problem is that both sides of the Strait are sovereign states. But this contravenes the concept of "one China." In the past, the government of the Republic of China and the government of the People's Republic of China both claimed to be the sole legitimate government of all China. The Republic of China has not voiced this claim in a long time. The People's Republic of China has also refrained from making this claim. Today the PRC says instead that "Both the Mainland and Taiwan belong to one China." Therefore we must solve the sovereignty issue, in which the two sides are governed separately, without dividing the nation. We must create a sovereignty framework at a higher level. We must construct a concept of China as a giant roof. This will maintain cross-Strait sovereignty. This will enable the two sides to avoid denying each other's sovereignty, but instead establish a legal framework for China's sovereignty as a whole.
In fact, sovereignty is an artificial construct. It is not a product of the natural world. Sixteenth century political philosopher Jean Bodin was the author of "Les Six livres de la Republique." In it he argued that sovereignty is absolute, permanent, supreme, unrestricted, and inseparable. Bodin fabricated the concept of sovereignty out of thin air. Since then thinking about sovereignty has assumed myriad forms. They include "the divine right of kings," and "L'etat c'est moi," which represent an absolute monarch's concept of sovereignty. They include Rousseau's "social contract," which gradually evolved into "popular sovereignty." This shows that concepts of sovereignty are changeable, and the content of sovereignty is changeable as well. Therefore the two sides ought to be able to create a "giant roof" framework for China. They can overcome cross-Strait problems by "not denying each other's sovereignty, while recognizing each other's jurisdiction."
The two Germanies experienced divided rule. But they never viewed each other as a foreign country. The Berlin Wall fell, and overnight they were reunified. This shows that sovereignty can be divided, combined, or changed. The 27 nations of the European Union have a common constitution, parliament, currency, and borders. Sovereignty is a product that can be transferred and restructured. Confederations are historical facts as well. One can construct "giant roof" concept for China. One can create a third concept of a higher level China. This is not unimagineable. This is not inconceivable. One must not remain mired in traditional thinking, in the law of the jungle. These merely stifle one's imagination and creativity.
The cross-Strait deadlock is mainly due to Beijing, which thinks it must repudiate the Republic of China and reunify the nation under the banner of the People's Republic of China. Only that is considered "one China." But this strategy requires an inconceivable resort to force. Such a reunification would be difficult to achieve. The process would be nightmarish. The two sides would never have peace.
Beijing has changed its thinking and mended its ways. It now says "although the two sides have yet to be reunified, they are nevertheless both part of one China." It now talks about "peaceful development," about how the "Constitution of the Republic of China is the bottom line." Examine the process. The two sides are moving towards "non-denial of each other's sovereignty, and recognition of each other's jurisdiction." This framework can help maintain an "in progress One China." Beijing may not be willing to state this explicitly. But Beijing is well aware that this is the only way it can stabilize the cross-Strait status quo and future developments. This sort of thinking is the basic framework for "divided rule without a divided nation." All it takes is a change in perception. One can create an environment conducive to cross-Strait development and provide a "giant roof" sovereignty framework. Such a framework would bolster cross-Strait relations. They would help the two sides address international issues such as events in the South China Sea and the Diaoyutai Islands.
As we can see, cross-Strait interaction is based on the recognition of jurisdiction, and the non-denial of sovereignty. Cross-Strait coopetition over sovereignty must be resolved or overcome based on the two sides' recognition of each other's sovereignty and a "giant roof" framework for China.