In last Friday’s “H Agenda” column, Richard Hartzell says that PRC citizens cannot be illegal immigrants to Taiwan, because this is “their own country,” and the Universal Declaration of Human Rights gives all people the right to enter their own country.
Not so fast. Even accepting the ROC constitution at face value, PRC immigrants have not been denied the right to live in “their own country.” At most, they have been denied the right to live in one small part of their own country. This is legitimate and necessary–in fact, it ought to be practiced more often.
Most Indian Hindus do not have the right to move to Kashmir at will. This was a condition of Kashmir’s accession to India, with the aim of protecting Kashmir’s Muslim culture. Similarly, most Chinese do not have the right to move to Hong Kong. You know why. No violation of human rights–on the contrary, it is the rights of these smaller units which are being protected.
A problem could potentially arise if NO province of the ROC would be willing to accept someone with ROC citizenship. Indeed, China’s registration system is halfway there already, since it prevents people from legally moving to most of the places where they could make a halfway decent living. On the other hand, who wants to live next to a bunch of migrant workers? Whose rights should have priority?
But none of this should affect Taiwan’s case much–its circumstances are indeed unique.
AFAIK the ROC Constitution defines Zhonghua Minguo as the whole of China. As “citizens of the PRC” do not exist under ROC law (they are “citizens of the ROC” according to the constitution, and “Dalu Diqu Renmin” according to the Statute Governing Relations between Mainlanders and Taiwanese) the people in China could only be regarded as citizens of the ROC. That’s my reading of it anyway.
I would agree that limiting access to one part of your country does not violate the quoted part of the UNDHR. BTW, the UK has been doing it for years with in relation to restricting movements between Northern Ireland and Great Britain (both constituent parts of the UK under UK law), but I don’t know whether it is legal under EU or international law.
The Republic of China has effective territorial control over Taiwan, Pescadores, Jinmen, Matsu, and some other small islands. This comprises the currently spoken of “national area” of the Republic of China. Nevertheless, persons of Chinese ancestry from Mainland Provinces are considered citizens of the Republic of China . . . . . . according to the ROC Constitution.
Hence, the current rules in place in the ROC which deny Chinese nationals (of the Mainland Provinces) the [i]right of abode[/i] anywhere within the territorial jurisdiction of the Republic of China are a clear violation of the ROC Constitution.
Formosa and the Pescadores are not “special administrative areas” of the Republic of China.
Hence . . . . . . in addition to the fact that PRC nationals (i.e. Chinese nationals) cannot live in their own country of the Republic of China, which (as I stated in my column) is a violation of the Universal Declaration of Human Rights, OVERSEAS CHINESE also obtain a Republic of China passport which does not include the [i]right of abode[/i] anywhere within the Republic of China territorial jurisdiction. That is also a violation of the Universal Declaration of Human Rights.
Oops. I missed that crucial technical distinction. Mea culpa. (I assume that the ROC constitution does not specify the country’s territory…?)
The ROC could solve it, also technically, by designating some island in the Spratleys to be the receiving station for ROC nationals coming from mainland China. In other words, the Australian method!
I wonder what is meant by “Chinese ancestry.” The PRC recognizes about 50 minority groups within its borders, who are “Chinese” only by citizenship. (One of them consists of Russians.) Does the ROC specify Chinese = Han? (I realize the Russians get no residency rights either way.)
Re Wolf’s question, I agree that they need a new constitution–and not just because of this.
“Originally the Universal Declaration was conceived as a statement of objectives to be pursued by Governments, and therefore it is not part of binding international law. Nonetheless, it is still a potent instrument used to apply moral and diplomatic pressure on states that violate the Declaration’s principles. In fact, in 1968, the United Nations International Conference on Human Rights agreed that the Declaration “constitutes an obligation for the members of the international community” to protect and preserve the rights of its citizenry.”
Gazza, how exactly is not being in the U.N. a ‘big mistake?’ So far I have not heard of any tangible evidence that U.N. membership helps anyone. I don’t think the Swiss have suffered for their neutrality…hell they have one of the best economies in the world, if that’s your indicator…
And Jesus, how exactly are you wrong? By living in the ‘real’ world and not spending enough time on esoteric bs???
Yes, as usual I am confused by this non-issue…
Vannyel, because of a technical distinction which I missed. The ROC Constitution apparently defines “ROC citizenship” as including Chinese on one mass of territory (including the mainland). However, the country’s territory is apparently described separately (where, I’m not sure–ask Hartzell), and is the smaller mass which includes Taiwan, Penghu, and so on.
If the Constitution AND the UN human rights thing were both adhered to, this would give all billion-plus of them the right to live somewhere out here.
[quote=“Screaming Jesus”]Vannyel, because of a technical distinction which I missed. The ROC Constitution apparently defines “ROC citizenship” as including Chinese on one mass of territory (including the mainland). However, the country’s territory is apparently described separately (where, I’m not sure–ask Hartzell), and is the smaller mass which includes Taiwan, Penghu, and so on.
If the Constitution AND the UN human rights thing were both adhered to, this would give all billion-plus of them the right to live somewhere out here.[/quote]
[quote=“jeff”][quote=“Vannyel”]Gazza, how exactly is not being in the U.N. a ‘big mistake?’ So far I have not heard of any tangible evidence that U.N. membership helps anyone. I don’t think the Swiss have suffered for their neutrality…hell they have one of the best economies in the world, if that’s your indicator…
quote]
I took gazza’s message to mean that joining the UN was a mistake. Was I mistaken?[/quote][/quote]
No, you are correct. IMHO, joining the UN for Switzerland was a mistake. I don’t think Taiwan should join either.
I’m not sure the ROC’s state territory is defined anywhere. Certainly, the ROC constitution doesn’t explicitly do so. Article 4 states “The territory of the Republic of China within its existing national boundaries shall not be altered except by a resolution of the National Assembly”, but what those “existing boundaries” are seems to be left open to interpretation.
Does it mean the boundaries as they existed at the founding of the ROC in 1912? But Taiwan belonged to Japan at the time. Does it refer to 1949, when the PRC was founded? But clearly at that time the mainland wasn’t under ROC control. 1947 - the year the constitution came into effect - would seem the most likely assumption.But already by then Mognolia had already established independence, yet the ROC long continued to claim the territory notwithstanding. And, recently, Taipei formally recognized the Mongolian Republic and established relations with it. But would this not constitute precisely the sort of “altering” of “national boundaries” forbidden in Article 4?
It is often asserted that the ROC dropped its claims to the mainland in 1991. What’s the basis for this claim? And was this alteration of national boundaries carried out in accordance with Article 4?
Is there a definitive definition (is that redundant, or what!?) anywhere?
However, the constitution in several places clearly distinguishes the rights and duties of “citizens of the free area of the Republic of China” from those of the mainland area, such as, e.g., in Article 2 of the Fourth Revision (1997), which limits the right to vote in presidential elections to the “populace of the free area of the Republic of China”. With the ROC constitution itself setting the precedent vis-a-vis voting rights, it would seem to be a simple matter to extends such distinctions into other areas as well, such as the right of residence.
Obviously the ROC never actually controlled anything like what they show on those old maps. But legally, “territory” could be defined as including regions not actually possessed.
I think you’re on to something with the “free area of the ROC” distinction. (Presumably Mongolia would be an unfree area, having decided in a democratic referendum to kick out their Chinese overlords!) That way mainlanders who are turned back from Taiwan would not be deprived of human rights, just not allowed to live in a free area of their country!
Depends of course on how you define the “existing” in “existing national boundaries”. Does it mean (as you suggest) as they existed in the minds of Chiang and Co., or does it mean as they existed in fact? You’re correct that, even between 1912 and 1949, ROC control over many areas was at best nominal; and Tibet did not become part of China until the PRC invaded in '49 or '50, so ROC claims to that region certainly seem to belong to the"flights of fancy" category.
If, indeed, the mainland is still held to be within the “existing national boundaries”. Lack of an explicit definition relegates any discussion to the level of implication, innuendo and speculation. For instance, constitutional provision for representatives from the Tibetan and Mongolian regions strongly implies these regions are part of the “existing national boundaries”, again despite the fact that Tibet didn’t become so until after the ROC exodus, and more than two years after the constitution came into effect.
Conversely, the many ambiguities allow de facto changes to the national boundaries (as in the ROC’s recognition of an independent Mongolia or, more relevantly, the dropping of the claim to the mainland) without running afoul of Article 4; they do, in fact, render Article 4 toothless.
Getting back to the point: if the ambiguities pragmatically allow for a dynamic interpretation of the national boundaries, then for purposes of immigration, one could simply define the mainland as outside those boundaries, making it an international issue. Certainly this would be consistent with much recent government noise (“special state-to-state”, “one country on each side”) and policy – e.g., the treating of the Three Links or direct flights as international affairs. If all air flights between the mainland and Taiwan are international, then all mainland immigrants are crossing international boundaries.
Perhaps there’s a legal challenge to be worked up here. Any takers (Richard?)?
Is the exiled ROC on Taiwan really the legitimate government of China?
Exiled governments can promote a constitution but it does not put them into power. It does not promote an exiled goverment into the legal status of a country. Any “recognized” exiled government is merely the foreign policy instrument of their recognizing sponsor.
And actually treaties are the legal definitions of territorial boundaries. The US Constitution does not define itself geographically, for example. Their long series of treaties for adding their newly territory explains their territorial expansionism. You will have to acquire any new territory by some principle of international law; not by an outdated ROC constitution that is merely the “organic law” of a government which no longer really rules China.
I remind you that the ROC withdraw Mongolia from his territory only last year… Taiwan is on purpose full of contradiction and the main one is the de facto distinction they made between “taiwanese” and “chinese” within the citizen of the ROC.
I am wondering what can be the reaction of the international community and especially from United States and UE members if Chen Shui Bian succecced in his project to hold a referendum to turn the ROC into the Republic of Taiwan…?
Afterall if the “Taiwanese” people decide to proclaim a Republic of Taiwan, the others countries have to recognize it as a part of the World Community. The only thinks that bar Taiwan to be a member of the UN is the fact that they claim this seats on the name of ROC. Afterall this tiny Island is one of the rare full democracies on earth (make the count of the “real” democracies in this world, or even in Asia … ?!? ).
Another question is that the world community has recognized for years two Germanies and still recognizes two Koreas, what bars the ROC to be a full member of the UN? Maybe the fact they claim the sovereignity on the mainland China territories.
I will be interested to hear your comments about those two questions.