US court sidesteps Taiwan’s sovereignty
　

'WE WILL NEVER KNOW' : The US Court of Appeals said the political question doctrine barred it from ruling on whether Washington should exercise sovereignty over Taiwan

Hsiang Cheng-chen AND Hsieh Wen-hua
STAFF REPORTERS, WITH STAFF WRITER
Friday, Apr 10, 2009, Page 1

The US Court of Appeals in Washington on Wednesday ruled in favor of the US government in a lawsuit that argues the US is Taiwan’s principal occupying power based on the San Francisco Peace Treaty (SFPT) and enjoys sovereign authority.

Reaffirming that the court does not deal with political matters, the judges said the question was inconclusive.

“Addressing [the] Appellants’ claims would require identification of Taiwan’s sovereign. The Executive Branch has deliberately remained silent on this issue and we cannot intrude on its decision,” the judges said. “Therefore, as the district court correctly concluded, consideration of Appellants’ claims is barred by the political question doctrine.”

In December 2006, Roger Lin (林志昇) and other Taiwanese expatriates took their case to US courts, arguing that Japan relinquished control over Taiwan and Penghu after World War II but did not return it to China.

The group asked the US court system to determine what rights Taiwanese have based on the treaty and the US Constitution, including whether they should be issued US passports.

Lin said the treaty did not address sovereignty over Taiwan and Penghu, meaning the US was still the principal occupying power.

The lawsuit began at Washington’s district court, where Judge Rosemary Collyer ruled in favor of the US government, arguing that courts do not deal with political matters.

Despite the latest setback, Lin and former Judicial Yuan vice president Cheng Chung-mo (城仲模), who is the representative plaintiff, called the ruling encouraging.

“This is a breakthrough for the court to retain its ruling on Taiwanese people’s status as stateless,” Cheng said.

The judgment said the people of Taiwan “have uncertain status in the world community.”

“America and China’s tumultuous relationship over the past sixty years has trapped the inhabitants of Taiwan in political purgatory,” the judges said. “During this time the people on Taiwan have lived without any uniformly recognized government. In practical terms, this means they have uncertain status in the world community which infects the population’s day-to-day lives.”

But they added: “Determining Appellants’ nationality would require us to trespass into a controversial area of U.S. foreign policy in order to resolve a question the Executive Branch intentionally left unanswered for over sixty years: who exercises sovereignty over Taiwan. This we cannot do.”

The “political question doctrine bars consideration of Appellants’ claims,” the judges said.

“Appellants may even be correct; careful analysis of the SFPT might lead us to conclude the United States has temporary sovereignty. But we will never know, because the political question doctrine forbids us from commencing that analysis. We do not dictate to the Executive what governments serve as the supreme political authorities of foreign lands,” the ruling said.

The judges said that then-US president Jimmy Carter’s switch of diplomatic recognition in 1979 from the Republic of China to the People’s Republic of China prompted the US’ Taiwan Relation Act, which lays out the US’ “unofficial relationship with ‘the people of Taiwan.’”

Cheng said the group would appeal to the Supreme Court, hoping the court could hold a public hearing on the case.

Cheng expressed optimism that the court would hear the case.

Lin said the status of 32 postwar occupied areas including Guam, Puerto Rico and other places had been resolved by the Supreme Court and he was confident about winning the case.

Happy birthday, Taiwan Relations Act

Friday, Apr 10, 2009, Page 8

Today marks the 30th anniversary of the US government’s enactment of the Taiwan Relations Act (TRA).

The TRA came into being in 1979 with the purpose of protecting the interests of the people of Taiwan following the decision to switch diplomatic relations from Taipei to Beijing.

For the three decades since its inception, the TRA has performed that mandate admirably, protecting Taiwan while allowing it to complete a transformation from police state to economic powerhouse and the democratic culture that we see today.

Taiwanese of all shades should be proud of this achievement and grateful for the security that this vital piece of legislation has provided. Without the TRA, the arms sales provisions enshrined in the legislation and the staunch support offered by the US over the decades, it is doubtful that Taiwan would be the success story it is today.

But 30 years on, and with regional circumstances changing rapidly, some have begun to question whether the TRA is still relevant.

The TRA was penned at a time when China was emerging from years of self-imposed international exile, before Beijing started its period of “reform and opening” and before it accumulated the massive wealth and military might it possesses today.

China’s growing clout on the global stage, both economically and diplomatically, and the enthusiasm with which it is adopting the role of challenger to the supremacy of the US have drastically increased the threat to Taiwan’s democracy.

Despite this, the TRA is a document that covers all issues pertinent to Taiwan today and is well equipped to deal with these and future challenges.

Taiwan’s future status, its security, progress in human rights and participation in international organizations are all listed as issues of concern for the US.

The TRA also says that any settlement between Taiwan and China should be reached by peaceful means, and that the US will not consider the use of force against Taiwan to be an internal affair of the People’s Republic of China.

However, there is more to the US-Taiwan security relationship than the TRA can provide.

As the late Harvey Feldman, one of the architects of the TRA, told a forum in November 1998, the effectiveness of the legislation depends on whether the US “acts in accordance with the spirit and the letter of the TRA.”

If it were to do so, Feldman said, “it should return to its former policy of taking no position on Taiwan’s final status … and reiterate the US can accept any solution arrived at peacefully, without coercion, so long as it is acceptable to the people of Taiwan.”

The TRA may not be perfect, but it is an important piece of legislation that has stood the test of time.

Sticking to it will ensure a safe, prosperous and peaceful future for the people of Taiwan. Those in Taiwan who cherish freedom and democracy can only hope that the US will do so for many more years to come.

Rumblings in US-China relations
　

By Sushil Seth
Friday, Apr 10, 2009, Page 8

‘The danger is that if China starts claiming and enforcing its writ over the South China Sea, there might be more incidents in the future like the one involving the US ship.’

Despite US Secretary of State Hillary Clinton’s recent trip to China (as part of a wider visit to Asia), the rumblings in US-China relations are starting to surface.

The most serious has been a tussle on the sea between a US naval ship, the Impeccable, and a flotilla of Chinese sea vessels. Both sides questioned the other’s motives, with Beijing accusing the US of conducting “activities in China’s special economic zone in the South China Sea [near Hainan Province] without China’s permission.”

In other words, the US was engaged in surveillance activities in and around Chinese waters.

The US, on the other hand, said it was operating in international waters, thus casting China’s behavior as aggressive in nature.

It might be recalled that in April 2001, a US Navy surveillance plane operating in international airspace over the South China Sea, near Hainan, had a midair collision with a Chinese jet fighter that was stalking it.

The incident resulted in the death of the Chinese pilot and led to the detention of 24 US service people for 11 days after the plane made an emergency landing on Hainan Island.

The collision and death of a Chinese pilot created a volatile situation that was somehow resolved peacefully. The incident occurred just a few months after former US president George W. Bush took office in January 2001.

It was speculated at the time that the Chinese were testing the resolve of the new Bush administration.

If so, this new incident, not long after the inauguration of US President Barack Obama, sets a pattern for Beijing’s “warm welcome” of new US presidents.

Dennis Blair, director of US national intelligence, said this latest naval tussle was the “most serous” between the two countries since the 2001 midair collision.

He told a US Senate hearing that the Chinese “seem to be more militarily aggressive” in general.

There is, however, no clear sense as to why China acted the way it did. As a spokesman of the US Pacific Command said: “It is not clear what the Chinese intentions were. There have been a few incidents over the past week and a half. But who orchestrated this latest one, and why, we don’t know.”

It is clear though that when it comes to its perceived territorial waters, China is hypersensitive to its military secrets, particularly because it has built a submarine base on Hainan Island.

As it has done with Taiwan, China claims the South China Sea as its sovereign territory. This means that Beijing will claim the right to interfere with foreign naval vessels if it sees them in a surveillance role or threatening its security.

That is how the Impeccable was viewed as conducting surveillance in Chinese “territorial waters.”

The danger is that if China starts claiming and enforcing its writ over the South China Sea, there might be more incidents in the future like the one involving the US ship.

China is unhappy with Washington’s decision last year to sell more than US$6 billion in weapons to Taiwan, a decision that led to the suspension of Chinese and US military-to-military contacts.

It appeared though that following Clinton’s visit to China, things might improve. But the tussle over the sea has created additional strain on US-China relations.

The US is obviously worried about China’s growing military power, which is spurred on by annual double-digit increases in its defense budget over the years.

The recently released Pentagon report Military Power of the People’s Republic of China 2009 highlights the modernization of China’s armed forces in the midst of utmost secrecy, and the consequent dangers.

Pentagon press secretary Geoff Morrell said: “We have advocated time and again for more dialogue and transparency in our dealings with the Chinese government and military, all in an effort to reduce suspicion on both sides.”

About the Pentagon report, he said that it should be read as calling for “deeper, broader, more high-level contacts with the Chinese.”

A similar message was conveyed to Chinese Foreign Minister Yang Jiechi (楊潔箎) when he recently met Obama in the White House.

Obama told his Chinese visitor that the two countries needed to raise “the level and frequency” of military dialogue “in order to avoid future incidents” like the one with the Impeccable.

Of course, high level dialogue between the two militaries would be helpful. But how do you resolve the issue of China’s presumed sovereignty over the whole of the South China Sea when the US and other countries regard much of it as open to international navigation?

Military rumblings aside, China is also getting edgy about its investments in US Treasury notes and other US financial instruments. Chinese Prime Minister Wen Jiabao (溫家寶) recently sought US guarantees for investments in its debts amounting to about US$1 trillion.

“President Obama and his new government have adopted a series of measures to deal with the financial crisis … We have lent a huge amount of money to the US. Of course we are concerned about the safety of our assets. To be honest, I am definitely a little worried,” Wen said.

The Chinese premier called on the US “to maintain its good credit, to honor its promises and to guarantee the safety of China’s assets.”

At about the same time, People’s Bank of China Governor Zhou Xiaochuan (周小川) advocated the creation of a new currency reserve system managed by the IMF.

Zhou said a new system was necessary because the global economic crisis had revealed the “inherent vulnerabilities and systemic risks in the existing international monetary system.”

In his paper on the need for a new currency reserve, Zhou advocated the expansion of the IMF’s Special Drawing Rights based on a basket of several currencies.

The goal, in his view, would be “to create an international reserve currency that is disconnected from individual nations and is able to remain stable in the long run.”

Earlier, at the World Economic Forum in Davos, Switzerland, Wen blamed the global economic crisis on “inappropriate [US] microeconomic policies, an unsustainable model of development characterized by prolonged low savings and high consumption … blind pursuit of profit … and the failure of financial supervision.”

All these recent observations by Chinese leaders, while reflecting Beijing’s concerns about large US budget deficits impacting on Chinese investments, are also intended to seek an influential role in global financial management.

The global economic crisis was an important topic at the G20 summit in London, with China playing an important role.

Although the Chinese economy is in trouble, which is increasing the danger of social unrest in the country, its huge foreign currency reserves of about US$2 trillion gives it important leverage, especially when the US needs international credit to finance its stimulus packages.

Diplomacy is about creating leverage to influence and shape the policies of competing powers.

While the US remains the dominant world power, Chinese options for power projection are still limited.

But China will exercise its leverage at multiple levels with its military, economy and policy to reap maximum mileage in its relations with the US.

Sushil Seth is a writer based in Australia.