Anti-Secession Law

The Anti-Secession Law (Chinese: 反分裂国家法; pinyin: Fǎnfēnlièguójiāfǎ; lit. 'Law Against Splitting the State') is a law passed by the third conference of the 10th National People's Congress of the People's Republic of China. It was ratified on March 14, 2005, and went into effect immediately. Hu Jintao, President of the People's Republic of China, promulgated the bill with Presidential Decree No. 34. The law is relatively short, at ten articles, but was met with much controversy as it formalized the long-standing policy of the People's Republic of China to use "non-peaceful means" against the "'Taiwan independence' secessionist forces" in the event of a declaration of Taiwanese independence.

Content

Article 1 states that the aim of the law is to stop the Taiwanese independence movement and promote reunification. Stabilizing the Taiwan Straits area, protecting the interests of the Zhonghua Minzu (people of Chinese nationality/ethnicity) are also purposes of the law, which is formulated according to the Constitution of the People's Republic of China.

Articles two to four state the assertion by the People's Republic of China that the Mainland and Taiwan belong to one China and that there is only one China and that the sovereignty of that one China is indivisible. Significantly, the law does not mention one country, two systems, which is highly unpopular in Taiwan, and does not define explicitly China as only the People's Republic of China.

Article six states that in order to maintain peace and stability in the Taiwan straits and to foster cross-strait relations, the state (1) encourage people-to-people contact to foster closer relations and understanding (2) encourage cross strait economic exchanges (3) encourage scientific and cultural exchanges (4) joint efforts to fight crime and (5) encourage efforts to maintain peace and stability in the Taiwan straits.

Article seven states that the state shall support negotiations and consultations on both sides of the straits with equal status, with different modalities, and in differing stages. The topics of such talks can include (1) ending the states of hostilities across the straits (2) developing rules for cross strait relations (3) the means of promoting unificiation (4) the political status of the Taiwanese authorities, (5) appropriate means by which Taiwan can participate in international organizations, and (6) any other issues relating to unification. There are some aspects of article seven which commentators have pointed out. First, this is the first time that the PRC has officially spoken of talks between the Mainland and Taiwan occurring in terms of equal status. Second, the condition that Taiwan accept any form of the one China principle is not explicitly mentioned in the text, and the statement that talks can occur in different modalities and in differing stages suggests that Beijing is willing to start at least informal talks without requiring a one China commitment.

Article eight is the article which has caused the most controversy and attention. It states that state shall use non-peaceful and other necessary means under these conditions: (1) that Taiwan independence under whatever name and method accomplishes the fact of Taiwan's separation from the Mainland, (2) there is a large event which occurs to force Taiwan's separation from the Mainland and (3) that there is no hope for unification.

In announcing the drafting of the law in December, 2004, state press mentioned explicitly that the law was not intended to be applied to Hong Kong and Macao.

Development

In December 2004, the Chinese state news agency Xinhua reported that the National People's Congress in its upcoming session would enact an 'anti-secession law', without specifying further details.

In a rare moment of agreement, Taiwanese politicians from both the Pan-green coalition and Pan-blue coalition have reacted negatively towards this development. Some politicians have proposed that Taiwan enact an 'anti-annexation law' to counter the proposed PRC law. Various opinion polls have revealed that 80% of Taiwan residents oppose such an 'anti-secession law' and a majority agree that a defensive referendum should be held in the advance of such a law to protect the status quo.[1]

President Chen Shui-bian commented on the 'anti-secession law' during his 2005 new year speech: "Such actions will not only unilaterally change the status quo of peace in the Taiwan Strait, but will also pose the greatest threat to regional stability and world peace." Whereas PRC President Hu Jintao said "We will definitely not allow anyone to separate Taiwan from China by any means." in his New Year’s Eve speech.[2]

Although the PRC's official English translation of the law is the Anti-Secession Law, a name resembling the resolutions passed by the U.S. Congress before the states of the southern Confederacy seceded and war erupted, the Mainland Affairs Council on Taiwan has consistently translated it as Anti-Separation law as secession implies that Taiwan is a part of China. This alternate translation is not commonly found in the international media. It has been argued that the relationship across the Taiwan strait is not analogous to the situation during the American Civil War since Taiwan was never part of the PRC.

Reaction

Beijing claims that this bill is the PRC's most sincere attempt at resolving the Taiwan issue peacefully (see Political status of Taiwan). However, Taipei points to the same Article 8 as cause for concern. Shortly after the bill was passed, Chen Shui-bian called for a National Security meeting in Taipei to discuss the issue.

One major topic of controversy between Beijing and Taipei is to what degree the law changes the status quo in the Taiwan straits. Beijing has maintained that the law preserves the status quo and creates no new conditions for the use of force. In contrast, Taipei has argued that the law does change the status quo and gave PLA a "blank check" to attack Taiwan. As opposed to Beijing's definition on the cross strait relationship, a statement from Taipei's Mainland Affairs Council stated that the status quo is that the Republic of China is sovereign and independent.[3] MAC official also called Beijing's contention that the two sides belong to "one China" a fiction.[4]

Reaction in mainland China

Reaction in the PRC was mostly united. State media and the Beijing leadership all stood firmly behind the new law and vowed never to allow anyone, using any means, to "separate Taiwan from China", in any name. The Chinese parliament voted in favor of the law 2,896 to zero, with two abstentions. In the run-up to the law's ratification, state media in the PRC accused those on Taiwan in favour of Taiwan independence of creating hostility to the new law and of confusing the Taiwanese into thinking that the law had hostile intent. Prior to passing the law, Hu Jintao outlined a four points speech.

Reaction in Taiwan

In Taiwan, the passage of the law was condemned by officials and politicians from both of the main political camps including the pan-green coalition and the pan-blue coalition, although there were differences in the type of criticism. Supporters of the pan-green coalition tended to react to the law angrily; whereas supporters of the pan-blue coalition, while opposing the law, called for more dialogue with the PRC and pointed to parts of the law in which the Beijing showed some flexibility.

Taiwanese mass media pointed to an increasing opposition to the new PRC law, and opinion polls indicate a widespread opposition to the law among the general public. Questions were also raised over whether Beijing has the authority to issue such a law as Taiwan is not under PRC jurisdiction (See Political status of Taiwan). The Pan-Green coalition, in particular, reacted with distaste and there have been calls for an "anti anti-session law" to be passed by the legislature. A protest march is scheduled on March 26 and the organizers expect one million people to go on the streets to protest the law. Former President Lee Teng-hui is going to be one of the marchers. However, politicians of the pan-blue coalition have stated that they will not participate in any protest marches. An anti anti-session law is unlikely to pass, given that the pan-blue control of the legislature and that prime minister Frank Hsieh of the pan-green coalition has ruled out officially introducing such legislation. On the other hand, Hsieh pointed out that the PRC law has already infringed with the ROC soverignty and that the situation has compromised ROC sovereignty and thus met the criteria for initiating a defensive referendum. However, whether a defensive referendum would be invoked is under the discretion of the incumbent ROC president, says Hsieh.[5]

International response

US Secretary of State Condoleezza Rice commented the law as "not necessary," while White House spokesman Scott McClellan called its adoption "unfortunate," adding "It does not serve the purpose of peace and stability in the Taiwan Strait." In speaking about the law the United States repeated that it remained supportive of the one China policy, did not support Taiwan independence, and opposed any unilateral action to change the status quo. The U.S. House of Representatives approved a resolution criticizing China for the approval of the PRC law in Beijing. The resolution expressed grave concern about the law and said the PRC law provides a legal justification for PRC to use force against Taiwan, in its words, altering the status quo in the region.[6]

In response to the enactment of the PRC law, the EU issued a statment urging "all sides to avoid any unilateral action that could stoke tensions," and recalled the "constant principles that guide its policy, namely its commitment to the principle of one China and the peaceful resolution of dispute...and its opposition to any use of force."[7]

Australia foreign minister Alexander Downer stated that if war were to occur in the Taiwan Straits that Australia would be required under the ANZUS treaty to consult with the United States but depending on the situation that it would not necessarily commit the Australia to war. He further echoed the comments of other nations in reaffirming the one China policy and opposing unilateral action on either side. Downer further commented that Australia would have preferred it had China not passed the anti-secession law.

Several other nations expressed support for China's anti-secession law, including:

• CIS nations: Russia [8], Belarus [9], Uzbekistan [10], Azerbaijan [11]
• Latin American nations: Cuba, Venezuela, and the Dominica [12].

• East and Southeast Asian nations: Indonesia [13], Cambodia [14], Nepal [15]

• Other: Syria [16], Ethiopia [17], Pakistan [18]

Proposed National Unification Promotion Law

The proposed National Unification Promotion Law of the People's Republic of China (Chinese: 中华人民共和国国家统一促进法) is a document that appeared in early 2004 as a suggestion to create formal a legal basis for the People's Republic of China's unification with Taiwan. It was authored by a Chinese scholar Yu Yuanzhou (余元洲), a professor from the Jianghan University in Wuhan who does not have a formal governmental position. Although no formal legislative action has been taken on the document, the fact that such a law is up for debate is viewed by many in Taiwan as evidence of hostile intent on the part of the PRC.

This proposal has not been directly incorporated in the bill (which later passed into law). None of the policies (e.g. the federal policy, or a new currency, see below) appeared in the final, official anti-secession law of the PRC.

Although Taiwan was ceded to Japan in the treaty of Shimonoseki ratified in 1895 - then surrendered by Japan in 1945 to the Kuomintang Administration - the PRC government considers Taiwan to be the 23rd province of the People's Republic of China. The historical claim is based on the formal incorporation of Taiwan into the Qing empire in 1680. From the political perspective, according to the PRC argument, the government of the Republic of China ceased to be legitimate following its retreat to Taiwan in 1949, and thus all sovereignty and governmental authority in China was automatically transferred to the PRC, including that of Taiwan which was then under ROC administration. The official ROC line counters that it did not cease to exist in 1949 and has continued to function as a soverign political entity on Taiwan to the present day, making the relation between the PRC and ROC similar to that between other states similarly partitioned (such as North Korea and South Korea). The PRC's position has been acknowledged by most other nations but not formally recognized, as most nations prefer to take an ambiguous approach on the issue. See Political status of Taiwan.

Since 1949, the PRC government has demanded that Taiwan unify under the PRC, and has reserved the right to use military force to compel Taiwan to do so if necessary. However, opinion polls conducted in Taiwan have indicated that there is very little support for unification on the PRC's terms, even among those who favor eventual unification, making peaceful unification unlikely for the forseeable future. With the reelection of Chen Shui-bian to the ROC Presidency, and the growth of Taiwan independence sentiment, a new Taiwanese identity appears to be emerging on the island as opposed to identification with China.

In a string of unsuccessful efforts to change Taiwanese public opinion, several propositions and leaks from PRC governmental organs expressed consideration for a law aiming to formalize the policy for Chinese reunification between mainland China and Taiwan under the authority of the PRC. This culminated in May 2004, when Premier Wen Jiabao pronounced to a group of Chinese expatriates in London that serious consideration of such a law would be taken. [19] Several days later, Yu's suggestion (similar to a green paper) emerged.

Provisions of the initial proposal by Yu Yuanzhou

The draft document has 31 articles, organized in 8 chapters. Its provisions touch mostly constitutional law.

Article 2 establishes Taiwan as the "Taiwan Special Political Area of PRC, or Taiwan SPA of PRC for short" (中华人民共和国台湾特别政治区); this appears to be an administrative division of the PRC distinct from the Special Administrative Region espoused by the PRC government for Taiwan. Curiously, it allows Chinese people loyal (or having affinity) to the Republic of China to transiently view the mainland as "The Mainland Special Political Area of ROC, or The Mainland SPA of ROC" (中华民国大陆特别政治区). Article 3 reiterated the PRC's aim to implement the 'one country, two systems' policy for Taiwan, which would be brought into reality with military force if necessary.

Article 8 exempts Taiwan from any PRC imposed taxes. Chapter 3 proposes the establishment of a new, common currency called the Chinese dollar set by fiat to be worth 0.1 grams of gold forever.

Two methods of unification are laid out as options: Constitutional arrangement for peaceful unification is contained in Chapter 4: the Constitution of the Republic of China which is used in Taiwan is said to be obsolete; a federation is proposed. Chapter 5 provides the legal basis for non-peaceful (military) methods of unification. The conditions for the use of armed force are set out, and explicitly states that the PRC may not limit itself to the use of conventional weapons, implying the use of weapons of mass destruction. Article 18 also stipulates that Taiwan will be subject to attack should it defy policy set by the PRC government.

Chapter 6 provides for honours for those promoting unification, whereas Chapter 7 sets out criminal penalties against separatism -- limited to acts carried out within Chinese territory, and acts carried out anywhere by Chinese residents in the Mainland, Macau, Hong Kong, and Taiwan.

Article 30, section 1 provides that the law and subsequent changes thereof are to be carried out by the National People's Congress and signed into force by the President of the People's Republic of China -- parenthetically, 'Head of State', probably to infer the possibility of a different position once the law takes effect; section 2 provides that permanent sections of the law cannot be changed unless later agreements contain promises that are 'more favourable' (更加优惠, but the beneficiary is unspecified); section 3 states that the law is lower than the Constitution of the People's Republic of China but higher than any other laws of the land.

Reaction

President Chen Shui-bian of Taiwan has expressed serious concerns about this proposal, and has expressed doubts that the Taiwanese public would find it acceptable. [20] Chen also pointed out that the law being proposed is mostly intended as a measure to legitimize the PRC's military threats against Taiwan. [21] Furthermore, the proposed law would incriminate anyone holding opinions other than those supporting PRC policy on Taiwan-China unification. Under the law dissidents would be prosecuted under charges of treason, retroactively effective up to 100 years, raising serious questions about freedom of speech and civil liberties. Chen stated that the law would only serve to increase the feelings of animosity of the Taiwanese people towards the PRC and increase tensions.

It is worth noting that the PRC's One country, two systems policy has been shown to be approved by less than 10% of Taiwan residents in multiple recent opinion polls[22]. Moreover, many people also questioned how a proposed PRC law could be applied onto a territory over which the PRC does not have jurisdiction. Even though few states formally recognize the ROC as an independent country, most prefer to remain ambigous over the matter. The Political status of Taiwan is still an ongoing multilateral dispute.

It has been unclear as to the degree to which this law is or was ever taken seriously by PRC authorities. The law was proposed by an individual without any governmental authority, and no formal action on the law has ever been taken by the National People's Congress. After summer 2004, references to the proposed law on both sides of the straits became rare, leading many to conclude that it was released by the PRC mainly to gauge public opinion.

See also

• Political status of Taiwan
• Chinese reunification
• Taiwan independence
• Taiwan Relations Act
• Canadian Bill C-20 (counter-independence law regarding Quebec)
• Secession

External links

• report of Wen Jiabao on drafting and passing the law
• interview with Yu Yuanzhou
• full text of the suggestion document
• Taiwan News editorial on the proposed law
• BBC News: China to enact anti-secession law (2004-12-19); BBC News: Taiwanese protest at China bill (2005-02-28); BBC News: China unveils controversial law; also: [23], [24], [25], [26] (all BBC)
• Taiwan News: Reaction in Taiwan
• People's Daily: Anti-secession Law will not be applied in Hong Kong and Macao (in Traditional Chinese)
• Xinhua: Anti-sucession Law will not be applied in Hong Kong and Macao (in Simplified Chinese)
• Full text of the anti-secession law in English