Monday, July 23, 2012

New Cross-Strait Argument: Mutual Non-Denial of Each Other's Sovereignty. Mutual Recognition of Each Other's Jurisdiction

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)
A Translation
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."

Full Text below:

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.

兩岸新論:主權互不否認 治權相互承認

【聯合報╱社論】

2012.07.23

馬政府的兩岸法理關係論述是「主權互不承認/治權互不否認」,北京對此迄未表態,卻在兩岸實務上儼然已接受此說。但我們認為,若要使兩岸關係突破僵局、再推上一個台階,兩岸的法理論述應當轉為「主權互不否認/治權相互承認」。

二○○八年以來,兩岸已密集簽署了十六個協議,最近《投保協議》及《海關協議》的歧見似已化解,不日亦可簽定;這些協議之所以能夠完成簽署且有效執行,真正的憑據是在兩岸皆承認對方的行政權、立法權,特別是承認對方的司法權,亦即承認了對方的「完整治權」。因此,「治權相互承認」已是兩岸現存的事實;至於故意說成「治權互不否認」,其實是迂迴曲折、拐彎抹角的政治語彙。

事實是:倘非「治權相互承認」,這些協議無一可以簽成,且無一可以執行。進一步說,兩岸現今之互動,既是建立在「治權相互承認」的基礎上,而兩岸各自的行政權、立法權及司法權,也就是「完整的治權」,當然是源自主權;倘無主權,何來治權?則既然接受了對方的治權,豈能否認其主權?因而,「主權互不承認」之說,應當改為「主權互不否認」。

如今的問題是,兩岸皆是主權國家,卻與「一個中國」的概念發生牴觸。在過去,中華民國與中華人民共和國的政府,皆自稱是代表中國的唯一合法政府;如今,中華民國對此早已閉口,而中華人民共和國亦久不持此說,而改稱「大陸與台灣同屬一個中國」。於是,若要解決「兩岸分治但不分裂」的「主權問題」,即必須創造一個更高層次的主權架構,亦即建構一個「屋頂中國」,來維繫「兩岸主權互不否認並相互含蘊及合成了『整個中國的主權』」的法理關係。

「主權」其實是一種人造物,而非天生自然的東西。「主權」之說起於十六世紀布丹的《國家論六卷》;他主張,主權是絕對的與永久的,至高、不受限制,不可分割。布丹使「主權」這個概念從無到有,但此後主權思想卻變化萬端。從君權神授、朕即國家,以專制君權為「主權」;至盧梭的「契約論」,又漸漸轉向「主權在民」。由此一過程可見,「主權」是思想的產物,而思想是可變的,所以「主權」的內涵亦是可變的。因此,兩岸應可協力共創一個「屋頂中國」的主權架構,透過「主權互不否認/治權相互承認」,來作為兩岸關係的解決或過渡。

兩個德國曾互以「不是外國的國家」分裂分治,又在一夕之間牆倒統一,充分反映出主權的可分、可合、可變;而歐盟二十七國發展至有共同憲法、議會、貨幣的境界,更是主權可以切分、讓渡及重組的真實成品;何況,如邦聯制度的主權組合,更是歷史事實。因此,若要在兩岸之上建構一個「屋頂中國」,亦即創造一個「第三概念」的「上位中國」,不是不應想像,也不是不可想像,而是卡在弱肉強食的傳統政治思維中,扼殺了人們的想像力與創造力。

兩岸今日僵局,主要緣於北京似乎認為,一定要否認中華民國,而統一在中華人民共和國的旗幟下,才算是「一個中國」。但此一策略,除非訴諸武力(豈可訴諸武力?),難以實現;因而夜長夢多,攪得兩岸皆不安寧。

所以,北京方面近年亦思改弦易轍,遂有「雖然還未統一/仍是一個中國」、「和平發展」、「中華民國憲法底線論」等新政策出台,究其底蘊,其實皆是朝「主權互不否認/治權相互承認」的方向移動,希望能夠維持「現在進行式的一個中國」的架構。這雖是北京說不出口的話,但北京深知,非此不能穩定兩岸的現狀及走向;而此類思維,其實皆是「分治而不分裂」的基本架構,只要一念之轉,必可創建一個有利兩岸發展與整合的「屋頂中國」的新主權體系。倘能成立,不僅兩岸關係架構即可確立,在南海或釣魚台之類的對外事件上,也可找到兩岸的共同定位。

有目共睹:兩岸今日的互動,是建立在「治權相互承認」之上,因此也是建立在「主權互不否認」之上。至於兩岸主權的競合,必須以「兩岸的主權相互含蘊並合成的屋頂中國」之思想與體制,來化解或過渡。

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