Anti-Secession Law

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The Anti-Secession Law (Chinese: 反分裂国家法; pinyin: fǎn fēnliè guójiā fǎ; lit. 'Against-Splitting-the-State Law') 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 movement" in the event of a declaration of Taiwanese independence.

Background

Although Taiwan was ceded to Japan in perpetuity in the treaty of Shimonoseki of 1895 - then surrendered by Japan in 1945 to the Kuomintang Administration - the People's Republic of China government considers Taiwan to be the 23rd province of the People's Republic of China (PRC). 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 government, including that over Taiwan which was then under Republic of China's administration. The official Republic of China (ROC) line is that it did not cease to exist in 1949 and has continued to function as a sovereign political entity on Taiwan to the present day, making the relationship between the PRC and ROC similar to that between other partitioned states (such as North Korea and South Korea). The PRC's position has been acknowledged by most nations but not formally recognized, as most nations prefer to take an ambiguous approach on this issue. Meanwhile, some Taiwanese independence supporters also challenge the legality of the Chinese sovereignty over Taiwan. See Political status of Taiwan.

Multiple opinion polls conducted in Taiwan have indicated that there is very little support for immediate unification on the PRC's terms or for an immediate declaration of independence. Polls have also consistently shown that a large majority of Taiwanese would support unification if the economic and political systems of the two sides of the straits were comparable, but would also support a declaration of independence if there were no threat of invasion or other economic consequences. A majority of Taiwanese appear to support the "status quo" but there are different opinions in Taiwanese society, with the PRC, and in the international community over what the status quo is.

The re-election of Chen Shui-bian of the ROC Presidency, led many to conclude that there was a growth in Taiwan independence sentiment and that a new Taiwanese identity is emerging on the island as opposed to identification with China. In the 2004 ROC Legislative Election, the strategy of the pan-Green coalition was to try to capitalize on this trend to win a majority in the Legislative Yuan of Taiwan. Among some Taiwanese Indepedendence supporters, it is believed that a pan-green majority could force a crucial referendum for constititutional reform and, perhaps, to further move the island toward de jure independence. Many Taiwanese independence supporters, including former President Lee Teng-Hui, argued that Taiwan should declare independence before 2008 on the theory that international pressure would prevent the PRC from using force against Taiwan.

These events in late 2004 caused a great deal of alarm in Beijing. Observers indicated that many in Beijing believed that its policies toward Taiwan had failed both because it did not have sufficient 'carrots' to gain Taiwanese public support and at the same time, it seemed that many in Taiwan did not take Beijing's stated threats to use force seriously. The ROC government on Taiwan had defined the status quo such a way that a de jure declaration of independence could be argued to not represent a change in the status quo.

Some Chinese believe these events lead to the formulation in 2003 and 2004 of the Anti-Secession Law.

In December 2004, the ROC Legislative elections resulted in victory for the pan-blue coalition, which surprised many. This victory ended most prospects of an immediate declaration of independence and also called into question whether there really had been an increase in Taiwanese independence sentiment. Despite this, the PRC proceeded with the drafting of the law. The main reasons given to Western interlocutors was that the PRC leadership believed that its Taiwan policy in the past had been reactive rather than proactive and it was necessary for the PRC to show initiative rather than merely react to events. Furthermore, Beijing expressed residual distrust for Chen Shui-bian. Many Western experts have argued that the PRC's decision-making system was rigid, and that plans put into place to deal with a pan-green victory had simply developed too much momentum to be shut down.

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

Content

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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. Articles two through four are significant in that they define the status quo as seen from Beijing.

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 the 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.

Under the Article 18 of the Basic Law of Hong Kong and similar measures in the Basic Law of Macao, the NPCSC must explicitly designate a law as having force in Hong Kong or Macao for it to be operative there. No such designation was made for this law, which is consistent with statement in the state press that this law would not be directed at Hong Kong or 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, which is intended to invoke the actions of the southern Confederacy during the American Civil War. The Mainland Affairs Council on Taiwan has consistently translated it as Anti-Separation law as secession implies that Taiwan is a part of China, and the MAC and the government on Taiwan has 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. This alternate translation is not commonly found in the international media.

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, Taiwanese President 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 the People's Liberation Army a "blank check" to attack Taiwan.

A statement from Taipei's Mainland Affairs Council and a resolution overwhelming passed by the Taiwan legislature stated that the status quo is that the Republic of China is sovereign and independent. This statement and the legislative resolution, maintaining that the ROC and PRC are separate countries, before the passage of anti-secession law was carefully worded to avoid disagreements between the pan-blue and pan-green coalition, namely whether the Republic of China has any residual sovereignty over Mainland China.

After the law was passed, the Mainland Affairs Council official referred to Beijing's definition of "one China" in the PRC law as fiction. Most of the statements from Taiwan were carefully worded to prevent escalation of already tense cross strait relations.

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 Hong Kong

At the time when the unificiation law was proposed by the legal scholar Yu Yuanzhou, Hongkongers were worried it would be a replication anti-treason or -secession law as the Basic Law Article 23 legislation in 2003. Public worries were over when mainland official stated explicitly the law would not be added to Annex III of the Basic Law, i.e. would not be applicable to Hong Kong. During the passage of the law in March 2005, there was very little reaction in Hong Kong and news of the law was far overshadowed by news of the resignation of Tung Chee-Hwa.

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 stating that they opposed the law and the threat of force against Taiwan, called for more dialogue with the PRC and pointed to parts of the law in which the Beijing showed some flexibility.

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-secession law" to be passed by the legislature. An anti anti-secession 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 sovereignty 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.[3]

A rally flag used in the 3-26 protests.

A protest march against the PRC law took place on March 26 and it was widely reported that one million Taiwanese participated the protest. Both the former President Lee Teng-hui and the incumbent President Chen Shui-bian joined the march. However, Chen Shui-bian announced in advance that he would only attend the march without giving a speech. On the other hand, most politicians from the pan-blue coalition did not participate in any protest march, although they claimed that they would not disuade their supporters from attending if they ever wished. The turnout of the march became an subject of political debate in Taiwan, with the mayor of Taipei city, Ma Ying-jeou, downplaying the participant number to arround 270,000, while the march organizers claiming the goal of one million participants was reached.

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.[4]

In response to the enactment of the PRC law, the European Union issued a statement 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."[5] [6] Later, on 14 April 2005, the European Parliament adopted an own-initiative report by Elmar Brok MEP, with paragraph 33 stating:

[The European Parliament expresses] its deepest concern at the large number of missiles in southern China aimed across the Taiwan Straits and at the so-called "anti-secession law" of the People's Republic of China that in an unjustified way aggravates the situation across the Straits; calls on the People's Republic of China and on the R.O.C. in Taiwan to resume political talks on the basis of mutual understanding and recognition in order to promote stability, democracy, human rights and the rule of law in east Asia[.] [7]

The EU also decided to continue with the arms embargo, which had been imposed upon China after the Tianamen Square Massacre and which had been set to expire in 2005.

Japanese Prime Minister Junichiro Koizumi said "I wish both parties would work towards a peaceful resolution and I hope that this law will not have negative effects."

Australian foreign minister Alexander Downer stated that if war were to occur in the Taiwan Straits, 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 Australia to war. He said that "we don't think that China should resolve the Taiwan status question militarily, that it has got to be done through negotiations with Taiwan". Downer further commented that Australia would have preferred it had China not passed the anti-secession law.[8]

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

CIS nations: Russia [9], Belarus [10], Uzbekistan [11], Azerbaijan [12]
Latin American nations: Cuba, Venezuela, and Dominica [13].

East and Southeast Asian nations: Indonesia [14], Cambodia [15], Nepal [16]

Other: Syria [17], Ethiopia [18], Pakistan [19]

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 heavy debate surrounding it and knowledge that some sort of anti-secession law would be passed was viewed by many in Taiwan as evidence of hostile intent on the part of the PRC.

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