The Chen Shui-bian administration has been quickening the pace of "Taiwan independence" by pushing for a new "constitution" and a "referendum law" that will legally pave the way for ultimate independence. Does Taiwan have the right to use referendum to decide the issue of "unification vs. independence" This question can be explored from the standpoint of international law.
Referendum as a means to express citizens' opinions has its own strict legal principles and areas of applicability. Generally speaking, it is used by local citizens to determine territorial ownership and leadership choices.
The concept first appeared in the form of international law when, in the aftermath of World War II, the Allied nations drafted the Charter of the United Nations in the belief that colonialism had done much to hinder world peace and the conviction that there must be a way for previously colonized countries to achieve "self-determination." Hence the clause urged "respect for the principles of equal rights and self-determination." Under this principle, many countries newly freed from their colonial pasts and accepted to the UN pushed for a resolution in 1960 that equated national self-determination with anti-colonialism.
Resolution 1514, the "Declaration on the Granting of Independence to Colonial Countries and Peoples" clearly states that only colonized nations have the right to self-determination via referendum, while regions or ethnicities within the nation are not entitled to it. "Any attempt aimed at partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations, according to the resolution. It is evident that the UN principle defining "self-determination" is that of colonies overthrowing colonial rule for the sake of independence and self-rule.
This principle sets out the premises for "self-determination" through referendum, international legal experts affirm, which include: legitimate and sound reasons, local residents' free will as expressed through voting, and supervision by international organizations. There are four instances in which the process may be implemented:
The first involves territories that are historically disputed and do not enjoy unequivocal sovereignty. To avoid bloodshed, local citizens can make a decision via referendum. For example, East Timor was a Portuguese colony for 300 years. A 1960 resolution passed by the UN entrusted the power of governance to Portugal. Colonial rule by the Portuguese ended in 1975, at which time Indonesia occupied it and made it an Indonesian province. But the international community never recognized that status. The cry for independence was high.
On August 30, 1999, under UN authorization, 430,000 citizens in East Timor held a referendum. The majority voted for independence. Later that year, the People's Consultative Assembly of Indonesia adopted the decision to endorse the separation of East Timor from Indonesia, ending 23 years of Indonesian rule of East Timor as its 27th province. This was done in accordance with international law and, therefore, has the acceptance and support of the international community.
The second instance refers to those ethnic areas that were formerly governed as colonies. In this case, referendum involves local people achieving ethnic liberation by fighting anti-colonialism.
The third concerns those countries that started as independent nations that were later annexed by nations of other ethnic groups yet still managed to keep their ethnic identities. Due to the ethnic divide, these nations suffer from ethnic contention and may resort to referendum for a decision on integration or independence.
The fourth is applied to important issues that exist within a sovereign nation. Take Switzerland, for instance. As it is a "permanent neutral state" its "peace-keeping" soldiers could not carry arms for self-protection when sent overseas. As a result, they often needed others to protect them. On June 10, 2001, 4.6 million Swiss citizens held a referendum in which 51 per cent approved arming their soldiers on overseas peace-keeping missions. Since then, Swiss peace-keepers have had the right to carry arms while on duty abroad. On March 3, 2002, the Swiss held another referendum, this time on whether to join the UN. The result was 1.49 million votes in favour of the measure, representing 54 per cent of the electorate and thereby making the nation the 190th member of the UN.
If the above conditions are not satisfied, the act of seeking secession within a state through referendum will not be permitted by any central government or the international community. Former UN Secretary General Boutros Boutros Galli, who specializes in international law, pointed out that when a "splittist" movement expands, it pulls a nation apart. In other words, if the UN or international law were to permit the right of "self-determination" to break apart a nation, it would amount to acquiescing to interference in another nation's affairs, when, for example, one nation supports the local separation attempt in another. If such interference were allowed to take place unchecked, the whole of international society would run the risk of disintegrating.
When the Canadian province of Quebec opted for a referendum in 1995 to determine whether it should divorce itself from Canada, the international community along with the Canadian Government deemed its actions illegal and invalid. The US Government firmly opposed it as well. Canadian Premier Jean Chretien sternly criticized the move in a speech to parliament, saying that a 50 per cent-plus-one vote did not equal democracy and should not be allowed to break up a nation. He went on to say that referendum was no doubt better than war, but added that if a province or a municipality used referendum to split from a country over a few grievances, it signalled a gross distortion of democratic politics.
In August 1998, the Canadian Supreme Court ruled that Quebec could not unilaterally declare independence but instead had to get endorsement from the federation and other provinces. In March 2000, Canada passed a law requiring Quebec to get approval from the federal government before a referendum on independence could be considered legitimate.
The above analyses show that Taiwan, as part of Chinese territory, does not have the right or reason to split from China by means of referendum. Efforts by Taiwan independence forces to change that are illegitimate and invalid. The arguments for maintaining the status quo can be summed up as follows:
Taiwan has always been part of China's territory. The integrity of territory and sovereignty has long been recognized by international law and leaves no room for referendum, either from a factual standpoint or on a legal basis.
No other nation in the world claims to have sovereignty over Taiwan, and it is neither under contention nor a non-self-governing area nor a trust territory.
Historically, Taiwan has been an area within the Chinese nation, and people on both sides of the Taiwan Straits have the same ancestors and same origins; therefore, the situation in Taiwan does not involve the issue of ethnic self-determination or ethnic liberation.
Taiwan belongs not only to the Taiwanese people, but also to 1.3 billion Chinese people, including those on the island. If Taiwan is to be independent, this decision can only be made by a referendum by all Chinese citizens authorized by the central government. If Taiwan can declare independence by a local referendum, by extension Taipei, Kaohsiung and other cities on the island can also have a local referendum to break away from Taiwan. There would be no end to the splittist cycle.
Therefore, it is high time that Chen Shui-bian reined in his galloping horse as it has been racing down the wrong path and reached a dangerous cliff. He should recognize that putting referendum into the constitution does not make it legitimate. It will not create a new nation, either. The only result it can achieve is to push Taiwan compatriots to the brink of war.
When it comes to issues that concern national sovereignty and territorial integrity, the Chinese Government, the Chinese people and the Chinese army will not give in or equivocate. Peace is valuable and prosperity should be cherished, but any attempt at splittism will not be tolerated. The iron-will and determination of the Chinese people will not be shaken by any power that intends to erode the nation.
(China Daily HK Edition November 28, 2003)
