Making Sense of the Policy of Principled Engagement

A look at two key points in DPP Chairperson Tsai Ing-wen’s talk at the Center for Strategic and International Studies in Washington
Photo: Tsai Ing-wen official Facebook page
Photo: Tsai Ing-wen official Facebook page
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In her recent speech at the Center for Strategic and International Studies (CSIS) in Washington, D.C., Democratic Progressive Party (DPP) chairperson and presidential candidate Tsai Ing-wen (蔡英文) declared that under her, Taiwan’s policy for developing Taiwan-China relations would be in accordance with (1) the will of the people of Taiwan, and (2) the existing Republic of China (ROC) constitutional order.

The first principle has generally by overlooked by analysts, or is simply missing in public discussions about Tsai’s speech. Instead, there is a tendency to simplify her policy and to jump to the conclusion of whether this policy is equivalent to the ROC constitution, and if so, whether such equivalence qualifies as recognition of the so-called “1992 consensus.”

The discussions invariably muddle through both the question and the answer. However, neither one of the two possible answers shows that this yes/no question is meant to generate quality communication in good faith. While the strategic intent behind this style of questioning deserves a separate analysis, for the moment we could at least try to get serious and read Tsai’s policy statement once again, as she suggested in the Q&A session. Anybody who refuses to do so will not be able explain anything in the greater context of the dynamic, complex relations between Taiwan, China and the U.S., and definitely will not be able to make sense of the undercurrent that shapes recent developments.

Let us begin by revisiting what Tsai did say about the existing ROC constitutional order and what it covers:

“…the provision of the constitution itself, subsequent amendments, interpretations, court decisions based on these interpretations, and practices by different divisions of the government and different sectors of the population.”

Judicial Yuan Interpretation No. 328, the highest legal opinion within the ROC legal framework, states that ROC’s territory is “purely a political question” and not a legal one (1993). Referencing directly Article 4 of the text of the Constitution of 1947, the court explains that this is so due to “historical and political reasons.” The opinion further states that the territory cannot be interpreted legally. To date, this decision has not been overturned. In other words, there has not been any alteration or new fact to cause any legally recognizable territory to come into existence.

Legally speaking, the ROC as a political institution therefore holds no particular territory. Article 4 merely stipulates a rather strict democratic procedure both to acquire and to cede territory, without specifying the initial constituent territories, and without specifying which territories constitute which provinces. Needless to say, nowhere does the text include Taiwan or imply that Taiwan is included as a province. This is not strange, because the same can be said about Mongolia. International treaties concerning ROC territory would therefore still need to be ratified by the aforementioned democratic procedure. This is rather easy to understand if we consider a scenario where, say, a rogue military unit of the ROC invades and occupies Okinawa. In this scenario, by its own constitution even the ROC itself would not be in a position to incorporate occupied Okinawa automatically.

Since the ROC holds no specific territory itself, a 2005 amendment to the ROC constitution formally creates a placeholder term called “ROC Free Area” to refer to whatever jurisdiction the ROC is authorized to administer. The entire constitutional order, as far as anyone can see, thus is not concerned with why and how a particular geography is or isn’t assigned to ROC for administering. In its current form, the ROC constitutional order has no say in, let alone the capacity to determining, what geography gets to be designated as a “Free Area,” neither in the present, nor in the future. The ROC merely administers the “Free Area” as is, the scope of which is given by a higher authority, presumably whichever polity assumes that role.

As it turns out, through the amendment the ROC effectively places itself under the collective command and control of the people of Taiwan. But this process — a gentlemen’s agreement indeed — happened only because of the fragile goodwill between the people of Taiwan and the ROC. Currently there is no text that legally secures such control exclusively and indefinitely in the hands of the people of Taiwan. The ROC constitutional order alone provides neither defense against nor remedy for any devolution or corrosion of power happening at the higher level. This is consistent with the fact that Tsai lists the “will of the People of Taiwan” as a separate entry from the existing ROC constitutional order. One can even argue that the former is an overriding principle to the latter, or that the latter alone is insufficient to describe Tsai’s policy.

Recognizing it limitations, we might question why the ROC constitutional order is conducive to maintaining regional peace and stability, which is commonly known as the “status quo.” Why does Tsai have no qualms about making it the auxiliary to the first principle (that is, the will of the people of Taiwan)? The answer again lies in the amendment. Vis-à-vis the “ROC Free Area,” the amendment creates another placeholder term called the “Continental Area” to reference a non-specific region whose people-to-people interactions with the ROC “Free Area” must be further regulated by special laws. We could do a reality check and see that the only verifiable, legal relation across the Taiwan Strait is people-to-people relations, and not an official, political, or territorial relation. Nowhere can we find different conclusions in the ROC constitutional order, despite the various political observations, beliefs, and assertions that exist.

China’s reaction to Tsai’s “status quo” policy can be characterized by seemingly inexplicable dissatisfaction. There is no excuse for China to not find the slightest comfort in the “status quo.” After all, China is free to make sense of the ROC constitution in whatever way it prefers. If it wishes, China could even try to find convenient points in the ROC constitution that could potentially advance China’s interest. Even without publically acknowledging that both sides already operate on a daily basis thanks to the amendment, China could still appeal to the people of Taiwan by speaking the language of universal values and having meaningful dialogue about 21st century challenges. Wouldn’t China want to take advantage of this opportunity and appear reasonable and flexible to the international community, as it competes with the U.S. for influence?

Based on all this, we can now see how Tsai’s two principles constitute a policy of principled engagement and how this policy coherently fits into the overarching theme of the nation’s commitment to its obligation to peace and security in the region. Both the Taiwanese people and the U.S. should be able to find confidence in each other that this strategy indeed serves their common interests.

 

Fuankio So is a native of Kaohsiung and a businessman in the port city.

2 Responses to “Making Sense of the Policy of Principled Engagement”

June 12, 2015 at 4:52 pm, Torch Pratt said:

GREAT!!! Wonderful read, very thoughtful and well researched. Thinking Taiwan seems to attract a lot of talented academics. I’m loving this!

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June 13, 2015 at 9:10 pm, Max said:

I think she’s also fairly clear that the ROC constitutional order is predicated upon the will of the people of Taiwan – this deliberately echoes the US which, during the Clinton administration, started to include the “assent of the people of Taiwan” as a part of their One China policy.

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